Petition for Writ of Certiorari — MacPhail v. Oceaneering International, Inc.
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Pe Supreme Court, U.S.
é j FiLED
O02 217 NOV 35 2002
No.
—_______OFFICE OF THE CLERK
In The
Supreme Court of the Anited States
v
ALISTAIR J. MacPHAIL,
Petitioner.
Vv.
OCEANEERING INTERNATIONAL, INC.,
Respondent.
2
v
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
Vv
PETITION FOR WRIT OF CERTIORARI
4
Vv
JOSEPH W. WALKER GARY J. SILLER
Lead Counsel of Record CHRISTINE Z. CARBO
THOMAS J. MOSELE STRASBURGER & PRICE, L.L.P.
FRANKLIN, MOSELE & 1301 McKinney, Suite 3200
WALKER, P.C. Houston, Texas 77010-3033
4200 Westheimer, Suite 130 (713) 951-5600
Houston, Texas 77027 (713) 951-5660 [Fax]
(713) 840-7395
(713) 840-7448 [Fax] THOMAS R. EDWARDS
BoB F. WRIGHT
DOMENGEAUX, WRIGHT,
Roy & EDWARDS, P.C.
556 Jefferson Street
Jefferson Towers, Suite 500
Post Office Box 3668
Lafayette, Louisiana
70502-3668
(337) 233-3033
(337) 232-8213 [Fax]
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
Wv
r\ “
QUESTION PRESENTED
Whether the decision of the United States Court of
Appeals for the Fifth Circuit has created a precedent
through its application of a forum selection clause that
will undermine the jurisdictional authority of federal
courts and extinguish the traditional protections afforded
to injured mariners.
il
PARTIES TO THE PROCEEDING
Petitioner:
Alistair J. MacPhail, a person of the full age of major-
ity, who is a resident of Australia, a natural born citizen of
England and a citizen of New Zealand.
Respondent:
Oveaneering International, Inc. is a publically traded
corporation, incorporated in Delaware and headquartered
in Houston, Texas.
iil
TABLE OF CONTENTS
Page
QUESTION PRESENTED.............:ccccscssescsseseeeeeeeeeees i
PARTIES TO THE PROCEEDING ...............::::eeeeeees il
TABLE OF CONTENTS ............scssccsecsccceseeessecssscoeens ili
TABLE OF AUTHORITIES ..................sccsccseseeessseseees iv
OPINIONS BELOW .........cscccccsrccscsscccccscccnscsserssensees 1
I IOS ccsessdtivnssnancenecveesesccssvessuveveessvessoesses 2
STATUTORY AND REGULATORY PROVISIONS.... 3
STATEMENT OF THE CASE..............ccceeeceeeseeeeeeeees 3
REASON FOR GRANTING THE WRIT ................5 14
COIS AIBION cccscsvsecsvsesccscsccscscrcscoveccvevversonsessnesesees 24
Appendix
Decision rendered on February 11, 2002, from
the United States District Court, Southern Dis-
trict of Texas, Galveston Division [Order Grant-
ing MacPhail’s Motion to Enjoin and Denying
Oceaneering’s Motion for Reconsideration of it’s
Motion to Diamias] ..............0sccccccssccosssesevcreseessens App. 1
Decision rendered on October 17, 2001, from the
United States District Court, Southern District
of Texas, Galveston Division [Order Denying
Oceaneering International’s Rule 12(b)(3) Motion
I os ssserahatannbidbeckhbaassnevinensencenanee App. 14
Decision rendered on August 7, 2002, from the
United States Court of Appeals for the Fifth Cir-
ai ook nchvetaeniehobanpisanbhusneneuaneusencneetens App. 30
iv
TABLE OF CONTENTS -— Continued
Page
Report of Paul G. Harch, M.D...................cccceeeeeees App. 62
Affidavit of Jonathan Phillips.....................ccccceee App. 73
Affidavit of Michael John Humphries .................. App. 80
Telephonic Sworn Statement of Paul R. Mac-
I icin cosecichiipitnapannaninieiiiabaiiebiibichalasamamonat arated: App. 83
Pe re a Le
Vv
TABLE OF AUTHORITIES
Page
CASES
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585
(1991)........c.ccssccscsssssscsssevsssonscesseseesssssonsrssesesnsssnsesscensess 16
Castillo v. Spilidad Mar. Corp., 937 F.2d 240 (5th
Cir, 1001) ....cccrccccccsccesssesessevccccscccsccsssveveesssecconssocsceses 18, 21
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)... 19
Cole v. Cunningham, 133 U.S. 107 (1890)........sseseereeees 20
Garret v. McCormick, 317 U.S. 239 (1940)........sscceeseeeerees 18
Hilton v. Guyut, 159 U.S. 113 (1895).....ececeeseereerenseereeees 21
Hume v. McCormick Lines, 121 F.3d 336 (2nd Cir.
2941) .....ccscsocccrcsorececessovesesevenssevenssssuseoseossssosssoessaseeneanesses 19
Laker Airways, Ltd. v. Sabena Belgian World
Airways, 731 F.2d 909 (D.C.Cir.1984)........ceeeserseseeees 21
MacPhail v. Oceaneering International, Inc., 170
F. Supp. 2d 718 (S.D. Texas 2001) .........ssessereeeees passim
MacPhail v. Oceaneering International, Inc., 186
F. Supp. 2d 704 (S.D. Texas 2002) .........sseeereeses 2,12, 13
MacPhail v. Oceaneering International, Inc, 302
F.3d 274 (Sth Cir. 2002)...........ccccccccccccreerenrereeeeeeeeenenes 2,15
McDermott Int'l, Inc. v. Wilander, 498 U.S. 337
(1991).....cccccccccetescovssssscsssscsssovcsessesessescosscnsoossoesesees cadet 19
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1
(TOFD vvcssnrieceessenceecsesesresvecnsenesesonsennescesosennenssnsees 16, 17, 20
Seas Shipping Co. v. Sieracki, 328 U.S. 85 6) eee 19
The Iroquois, 194 U.S. 240 (1904) ......sessesesreerereereees 19, 20
Wink v. Rowan Drilling Co., 611 F.2d 98 (5th Cir.
vi
TABLE OF AUTHORITIES -— Continued
Page
STATUTES
A ls IAD viccscssayeadinncseneaienseuorieeiniadaniabeiaaaiadiads 2
Fe Sas Be inastinisionvesienenessielaliidpisdihdtn tiicaas aaa: 2
OE Se enc viens tnsiintaisiistineinatisclalidea beable aes 1,3
OTHER SOURCES
1-A (Part II) J. Moore, W. Taggart, A. Vestal and J.
Wicker, Moore’s Federal Practice, 7 204 (1982)............. 20
In The Juliana, 2 Dod.(1822)504..............ccceseeeseesssesreeeeeees 18
In The Minerva, 1 Hagg.(1825)347..............cccccccccccsssssseeeees 18
Maritime Personal Injury and Death, 73 Tul. L.
BOR EVE Came cisscenarsssccdacsictavendarllietaedisaeaasoandiae 19
The Proper Role of Special Solicitude ir. The Gen-
eral Maritime Law, 70 Tul.L.Rev.227 (1995)................. 19
1
OPINIONS BELOW
This Jones Act/General Maritime Law complaint was
originally filed by Plaintiff/Applicant in the United States
District Court for the Southern District of Texas, Galves-
ton Division, under G-01-266 invoking the Court’s admi-
ralty jurisdiction and claiming seaman status under 46
U.S.C. § 688. This case was brought before the Honorable
Samuel B. Kent, United States District Court.
Defendant filed a Motion to Dismiss invoking a Forum
Selection Clause in a seaman’s Release.
On October 17, 2001, the District Court issued an
Order Denying Defendant’s Motion to Dismiss.’
On January 9, 2002, Defendant filed a Writ of Sum-
mons in the Supreme Court of Western Australia seeking
to enforce specific performance of the Release.
On January 28, 2002 Plaintiff/Applicant filed a
Motion to Enjoin Defendant from prosecuting the Austra-
lian proceeding in his admiralty suit in the Southern
District of Texas.
Defendant filed a Motion in Opposition and asked the
District Court to reconsider its previous Order Denying
Oceaneering’s Motion to Dismiss.
On February 11, 2002, the District Court issued an
Order Granting Plaintiff/Applicant’s Motion to Enjoin
' App. 14-30, published as MacPhail v. Oceaneering International,
Inc., 170 F. Supp. 2d 718 (S.D. Texas 2001).
2
and Denying Oceaneering’s Motion for Reconsidera-
tion.’
On February 25, 2002, Defendant filed a Notice of
Appeal to the United States Court of Appeals for the Fifth
Circuit from the Order Denying the Motion to Dismiss and
from the Order Granting Plaintiff/Applicant’s Motion to
Enjoin and Denying Defendant’s Motion for Reconsidera-
tion of its Motion to Dismiss.
On August 7, 2002, the Fifth Circuit vacated the
District Court’s Order Granting MacPhail’s Motion to
Enjoin, remanded the case to the District Court and
stayed the District Court’s proceedings pending judgement
by the Australian Courts.°
+
JURISDICTION
The United States Court of Appeals for the Fifth
Circuit entered judgement on August 7, 2002. This Peti-
tion for Writ of Certiorari is filed within the prescribed
period of 90 days.
The jurisdiction of this Honorable Court is invoked
under the provisions of 28 U.S.C. § 1254(1) and 28 U.S.C.
§ 2106.
* App. 7-13, published as MacPhail v. Oceaneering International,
Inc., 186 F. Supp. 2d 704 (S.D. Texas 2002).
* App. 30-38, published as MacPhail v. Oceaneering International,
Inc, 302 F.3d 274 (5th Cir. 2002).
ee ee es eae
3
STATUTORY AND REGULATORY PROVISIONS
This case involves 46 U.S.C. § 688 (the Jones Act).
,
vv
STATEMENT OF THE CASE
THE FACTS
Alister MacPhail, a 41 year old saturation diver, was
continuously poisoned by toxic chemicals while diving for
Oceaneering International, Inc. (Oceaneering). His
injuries include, but are not limited to, brain damage,
nerve damage, lung damage, and liver damage.
On May 18, 1998, in the navigable waters of the
China Sea, MacPhail exited onto the sea floor from his
diving bell while working for Oceaneering. Saturation
diving is similar to being in space in that once a diver is
pressurized, he will live under pressure during the course
of the project.
While on the sea bed, he suffered from severe head-
aches, loss of concentration, and co-ordination. He had
never before experienced such problems. On returning to
the bell, he felt disoriented. Inside the bell, the hoses and
internal surfaces of the bell were covered in an oily and
muddy sludge. He experienced headaches and severe
vomiting. The surface management was informed.
‘ Oceaneering’s corporate headquarters are located in Houston,
Texas.
* App. 18-22, [MacPhail v. Oceaneering International, Inc., 170
F. Supp. 2d at 722, 723, 724) contains a comprehensive summary of the
facts as recited by the District Court.
4
He continued living under pressure for approximately
thirty days and encountered similar problems during the
course of other excursions from the diving bell. During this
time MacPhail and the other three companion divers
continued to report problems with headaches, nausea, loss
of dental fillings and gritty material in the breathing
System.
Oceaneering was informed by fax that the collected
mud sample from the bel] guide weight was in the consis-
tency of jelled drill] mud, dark gray to black in color, and
emitted a heavy, eye-watering odor of rotten eggs or
Sulphur. They were further informed that the metal
rigging and chain hoist came back to the surface stripped
of paint and rust, as if they had been immersed in an acid
bath.
Test results from the mud samples were sent to
Oceaneering and identified as a cocktail of toxins, includ-
ing hydrogen sulfide, cyanide, arsenic, mercury, and
polychlorinated biphenals. Despite this fact, MacPhail’s
saturation dive was not terminated nor was he informed
by Oceaneering that his exposure to these chemicals was
potentially lethal.
In any event, once topside, MacPhail’s medica] treat-
ment was put in the hands of Oceaneering’s Houston
headquarters with monitoring by a group of lawyers in
Australia. Cocks Macnish was (supposedly) appointed by
Oceaneering to “liaise” with MacPhail regarding his
medical care. Oceaneering assured him that Cocks Mac-
nish was not adversarial but appointed to allocate re-
sources and to try and find the best medical help.
Arsenic was found in MacPhail’s urine and blood
Samples and Oceaneering’s company doctor concluded that
5
MacPhail had liver damage and impaired renal failure.
However, the complete list of chemicals was never sent to
this doctor.
With the downhill spiral already underway, even after
belated requests, he was never sent to a toxicologist or
hyberbaric specialist. While Oceaneering promised to get
the proper medical treatment, including providing experts
and specialists in hyberbarics and toxicology, this never
occurred. Oceaneering failed to contact medical experts it
had on call. Oceaneering simply sat on this information,
and continued to blatantly mislead MacPhail as to the
existence of these medical experts.° MacPhail’s condition
progressively worsened and when he continued to request
medical help, Patricia Saraceni (with Cocks MacNish),
advised that Oceaneering could not continue to help him
and that the situation could not go on indefinitely. Using
financial coercion, Oceaneering pushed settlement and
threatened to cut MacPhail off from any help.
MacPhail, sick, depressed, racked by pain and un-
aware that he was suffering from toxic brain and spinal
cord injury, entered into a settlement with Oceaneering on
November 3, 1999.
The Release was prepared by Saraceni and executed
in Western Australia. In consideration of the Release,
MacPhail received $280,000.00, a commitment to provide
additional training and $ 25,000 to cover medical costs.
* App. 69, 70 Report of Doctor Paul Harch.
The Release provided:
“This Deed of Release and Discharge will be gov-
erned by and construed in accordance with the
laws of Western Australia.”
In addition, the Release included a forum selection
clause:
In the event of any dispute in respect of or aris-
ing from this Deed of Release and Discharge or
any matter relating thereto the parties hereby
agrec to submit their dispute to the exclusive ju-
risdiction of the District or Supreme Court of
Western Australia, or to the Federal Court of
Australia and the parties hereby agree to submit
to the exclusive jurisdiction of the said Courts.’
Prior to the execution of this Release, Patricia Sara-
ceni, sent MacPhail a standard form letter advising him to
seek counsel. However, neither Oceaneering nor Patricia
Saracini made any attempts to confirm that MacPhail had
obtained legal representation.” In fact Saracini prepared
all the “letters” that MacPhail signed and drafted and filed
the friendly lawsuit. There is no record of any inquiry by
the Australian Courts or by any counsel representing
MacPhail as to the fairness of the settlement.
" App. 33.
®° The Agreement and the court documents are noticeably void of
any counsel for MacPhail. Oceaneering produced no correspondence
with any counsel representing MacPhail.
ee
MacPhail was unaware that the Australian courts had
no subject matter jurisdiction over his underlying claims
and that the United States was the only available forum.”
Almost one year later, MacPhail discovered a New
Orleans medical group specializing in hyperbaric treat-
ment. This group had previously been utilized by
Oceaneering for treatment of diving emergencies and their
existence was never relayed to MacPhail.” Dr. Paul Harch,
diagnosed MacPhail with multiple physical abnormalities,
including brain injury, spinal cord damage, and nerve
damage, all caused by the toxic exposure and accompany-
ing decompression sickness. Doctor Harch tragically
concluded that MacPhail’s short, medium and long term
prognosis would have been different had he been immedi-
ately treated.”
Now painfully aware of his dreadful medical condi-
tion, Alister MacPhail was moved to file the underlying
Jones Act lawsuit against Oceaneering in the Southern
District of Texas. Oceaneering filed a Motion to Dismiss
based on the forum selection clause contained in the
Release signed by MacPhail.
In support of his brief and in opposition to Oceaneer-
ing’s Motion, MacPhail filed uncontested affidavits which
established the unconscionable conduct of his employer
Oceaneering and its Australian attorneys to secure the
* 46 U.S.C. § 688(b)(2).
App. 69, 71 Report by Doctor Paul Harch.
" App. 71.
8
seaman’s Release, and MacPhail’s lack of mental capacity
to enter into a valid agreement.
By way of example, Dr. Paul Harch outlined his brain
injury as well as his cognitive problems as follows:
... [MacPhail] has central nervous system dam-
age including brain damage due to a combination 4
of toxic brain injury and decompression sickness.
The decompression sickness component, I firmly
believe, is present, based on the patient’s worsen-
ing symptoms, once he exited saturation.... ”
we know by the SPEC brain scans, the psycho-
metric testing, the MRI, EEG’s, physical findings
and the sleep apnea study that the patient at
this late date has brain damage. It was likely
more severe at the time he signed his settle-
a
An assessment by his psychiatrist, Dr. Phillips, clearly
indicated that MacPhail could not have been competent to
execute a valid seaman’s Release:
The second and more probable explanation for
MacPhail’s cognitive difficulties will be damage
to neurons due to exposure to toxic chemicals.
Numerous chemicals including heavy metals [sic]
and hydrogen sulphide have potential to damage
or to kill neurons. ... “
Mr. MacPhail almost certainly was suffering
from substantive symptoms of a major depressive
* App. 66.
* App. 71, 72.
“ App. 76, 77.
9
disorder throughout 1999 and he had cognitive
dysfunction at the time (with psychometric evi-
dence to substantiate this matter). It can be ac-
cepted that throughout 1998, Mr. MacPhail
would have been hindered significantly in nego-
tiating in an appropriate manner with his em-
ployer and in reaching a proper agreement with
his employer at the time of his settlement.
Thus, Mr. MacPhail’s medical, physical, and psycho-
logical condition demonstrated that he lacked the capacity
to enter into any settlement agreement, much less acqui-
esce to the forum chosen by Defendant. Oceaneering’s
conduct in obtaining the Release and depriving MacPhail
of necessary medical treatment and information can only
be described as malicious. Dr. Youngblood, in his report,
concluded that:”®
... his quest for treatment was dogged by delay,
obfuscation, and fraudulent misrepresentation.”
In the absence of any significant treatment, Mr.
MacPhail continued to deteriorate, and, in my ‘“
opinion, was suffering from severe anxiety and
depression superimposed upon organic brain
damage sustained by exposure to toxins and pos-
: sible central nervous system decompression sick-
| ness when he signed the Deed of Release of
Discharge in a state of mental incompetence. . . .
'* App. 78.
* Dr. David Youngblood was the former Medical Director of
Oceaneering. His extensive qualifications in diving medicine can be
found in App. 40-46.
” App. 53.
10
Finally, as one of the founders of Oceaneering’s
Safety Group, it saddens me to see the years of
dedication by Diving Supervisors, Area Safety
Officers, and the sometimes Medical Director sul-
lied in this perverted scheme by an insurance
company, their solicitors, and a degenerate cor-
porate culture to fraudulently withhold informa-
tion, treatment, and definitive care from divers
injured while carrying out their duties under the
captive conditions of saturation diving. Here, of
all places, the employer stands “in loco parentis”
and the failure to respond to the plea for help in
this instance is the most egregious violation of
trust and responsibility I have ever seen in the
industry, with almost criminal neglect causing
injury, only to be followed by a conspiracy to de-
fraud the victims of care and reasonable compen-
sation.”
Similarly, in his affidavit, Mike Humphries, Oceaneer-
ing’s diving manager, states:
We relied on assurances from Mr. Overland that
medical experts were being contacted on a world
wide basis.... Unfortunately, after reviewing
Mr. Overland’s deposition, these assurances ap-
pear to have been misleading and false. A review
of Mr. Overland’s deposition in addition to what I
have personally observed show both lack of care
and deceptive conduct by Oceaneering Interna-
tional, Inc.”
* App. 53, 54.
* App. 81, 82.
11
In his sworn statement, Paul MacCallum, the man-
ager selected by Oceaneering to pass on information from
Houston to the sick divers, states:
I would say that I feel as though I’ve been led up
the garden path, which is another way of saying
deceived.... The divers were definitely strung
along.”
On October 17, 2001, after reviewing these uncon-
tested affidavits, the District Court issued an Order
denying Oceaneering’s Motion to Dismiss. The District
Court concluded that the forum selection clause in the
Release was unreasonable and therefore unenforceable
because its enforcement would 1) violate a strong public
policy, 2) Plaintiff would be deprived of his day in court,
and 3) its enforcement would eviscerate the fundamental
notion that the rights of seaman are worthy of special
protection by the Admiralty courts. The District Court
further noted that the Australian Courts would dismiss
this lawsuit based on lack of subject matter jurisdiction.”
The District Court correctly reasoned that subject matter
jurisdiction could not be cured by an agreement of the
parties and that it would be unreasonable to decline
* App. 84.
* App. 55-61. The uncontested affidavit of David Leask, an
Australian Barrister, states that MacPhail has no tort remedy in
Australia because: Oceaneering has no legal presence in Australia; the
employment contract was not concluded in Australia, nor made any
reference to Australian law; the injury took place outside of Australia;
and there was no common intent that his employment be governed by
the laws of Australia.
12
jurisdiction in favor of an implausible and unworkable
forum.”
On January 9, 2002, Oceaneering filed a Writ of
Summons in the Supreme Court of Western Australia
seeking to enforce specific performance of the Release. The
Writ commanded MacPhail to make an appearance in the
Australian forum within 10 days. MacPhail, however, was
scheduled to travel to the United States in mid-January
for further medical treatment and independent medical
examinations requested by Oceaneering. As a result,
MacPhail filed a Motion to Enjoin Oceaneering from
proceeding in Australia in his admiralty suit in the South-
ern District of Texas. In his motion, MacPhail argued that
Oceaneering filed the Australian lawsuit to effectively
circumscribe the Southern District of Texas’ jurisdiction
and to interfere with MacPhail’s medical treatment.
Oceaneering filed a Motion in Opposition and asked the
District Court to reconsider its previous Order denying
Oceaneering’s Motion to Dismiss. On February 11, 2002,
the District Court issued an Order Granting MacPhail’s
Motion to Enjoin and Denied Oceaneering’s Motion for
Reconsideration.”
The District Court emphasized that Oceaneering’s law
suit in Australia was duplicitous and “magnified by the
fact that MacPhail was egregiously and dreadfully in-
jured.” The Court opined that Oceanneering’s conduct
* App. 14-29 [MacPhail v. Oceaneering, International, Inc., 170
F. Supp. 2d 718 (S.D. Texas 2001)].
* App. 1-18 [MacPhail v. Oceaneering International, Inc., 186
F. Supp. 2d 704 (S.D. Texas 2002)).
13
smacked of cynicism, harassment and delay and wrote
that:
. against the backdrop of Oceaneering’s in-
comprehensibly deceitful and imperious with-
holding of not only vital medical care, but even
vital medical information, this crass tactic bor-
ders on the criminal. Oceaneering waited months
before it attempted to litigate the validity of the
Release in Australia. ... Such timing cannot be
deemed fortuitous. Rather, it seems that
Oceaneering made a calculated and cold-blooded
attempt to interrupt MacPhail’s journey to the
United States, and deny him any opportunity
whatsoever to physically recover.... The court
cannot emphasize enough how ghastly and ut-
terly callous Oceaneering has acted with regard
to MacPhail... . ™
On February 25, 2002, Defendant filed a Notice of
Appeal to the Fifth Circuit from the Order Denying the
Motion to Dismiss and from the Order granting Plaintiff’s
Motion to Enjoin and Denying Defendant’s Motion for
Reconsideration of its Motion to Dismiss. On August 7,
2002, the Fifth Circuit vacated the District Court’s Order
Granting MacPhail’s Motion to Enjoin, and Stayed
MacPhail’s Jones Act proceedings pending judgement by.
the Australian Courts.”
* App. 12 [MacPhail 186 F. Supp. 2d at 710, 711).
* App. 30-38 [MacPhail v. Oceaneering International, Inc., 302
F.3d 274 (5th Cir. 2002)] Rather than dismissing the case, the Fifth
Circuit’s hybrid decision circumvents ruling on the Districts Court’s
Motion te Dismiss by staying that action in the District Court and then
forcing MacPhail to set aside the Release in Australia.
14
MacPhail, a brain damaged seaman, who is sick,
unemployable, and without the means to continue his
essential medical care in the United States is now forced
to litigate the validity of the Release in the Australian
courts which has no subject matter jurisdiction over the
underlying injury.
Once successful in Australia, MacPhail will have the
onerous and duplicative task of litigating and re-
presenting his evidence in the United States to obtain a
proper remedy for his injuries against the Defendant
whose headquarters are in Houston.
4
v
REASON FOR GRANTING THE WRIT
THE FIFTH CIRCUIT’S MISAPPLICATION OF THE
FORUM SELECTION CLAUSE IGNORES THIS
COURT’S GUIDELINES AND SETS A PRECEDENT
THAT WILL ENABLE UNSCRUPULOUS EMPLOY-
ERS TO STRIP SEAMEN OF THEIR RIGHTS AND
WEAKEN THE TRADITIONAL POWERS OF THE
FEDERAL COURTS.
This Petition of Writ is worthy of this Court’s atten-
tion. This Court has yet to rule specifically concerning the
enforceability of forum selection clauses in the unique
context of seaman Releases.
In rendering its decision against Mr. MacPhail, the
Fifth Circuit has made employers immune from any
meaningful review of a forum selection clause contained in
an injured seaman’s Release. By giving short shrift to the
detailed analysis of the District Court and ignoring the
uncontested evidence filed in the record, the Fifth Circuit
15
has condoned the use of unscrupulous methods in securing
an unfavorable Release from an injured mariner and has
strangled the power of federal courts to keep such conduct
in check.
Mr. MacPhail correctly argued that enforcement of his
Release by way of the forum selection clause violated a
strong public policy, and that its enforcement would
deprive him of his day in court. The District Court agreed.
The Fifth Circuit ignored this argument and without any
significant analysis of the record or the law held ipso facto
that “federal courts must presumptively uphold forum
selection clauses in international transaction.”” Thus, the
situation creates a contest of a seaman’s rights against
those of the shipowner’s with the outcome being deter-
mined by this Court’s willingness to reach down and
exercise its traditional protection of seaman as wards of
the Admiralty.
The Fifth Circuit’s decision violates the deeply
entrenched public policy of this Court with
respect to the protection of seamen and
deprives Plaintiff of his day in court
What ultimately transpired in this case is that a
brain-damaged mariner, led to believe that his interests
were being protected by Oceaneering’s counsel, was
hoodwinked by his employer as to the nature and severity
of his injuries so that he would enter into a settlement
Release that would deny him access to the only available
forum that had jurisdiction over his underlying injuries.
* App. 37 (MacPhail, 302 F.3d at 277].
16
The Fifth Circuit’s ipso facto holding directly contra-
venes the pronouncements of this Court. Analysis of forum
selection clauses in maritime cases is controlled by two
cases, M/S Bremen v. Zapata Off-Shore Co. and Carnival
Cruise Lines, Inc. v. Shutc. in both cases, this Court has
held that such clauses are unenforceable if “unreason-
able.” Enforcement may be unreasonable when:
1) the incorporation of the clause into the agree-
ment was the product of fraud or overreaching; 2)
the party seeking to escape enforcement will for
all practical purposes be deprived of his day in
court because of the grave inconvenience or un-
fairness of the selected forum; 3) the fundamen-
tal unfairness of the chosen law will deprive the
plaintiff of a remedy; or 4) enforcement of the fo-
rum selection clause would contravene a strong
public policy of the forum state.”
In this case, the District Court correctly found that
the forum clause was unreasonable because of deeply
entrenched public policy concerns and the failure of Mr.
MacPhail to have both a remedy and a meaningful day in
court. These factors were demonstrated by MacPhail in his
Opposition to the Motion to Dismiss, accompanied by a
volume of attached exhibits. The District Court appropri-
ately held that: 1) MacPhail presented multiple affidavits
suggesting fraud, coercion, and manifest overreaching by
Oceaneering, 2) the clause violated strong public policy,
“ M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972);
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
* M/S Bremen v. Zapata Off-Shore Co., 407 US. 1 (1972).
17
and 3) that its enforcement would deprive MacPhail of
both a remedy and a meaningful day in court.
In Bremen, this Court held that a forum selection
clause in a towage contract was prima facie valid and
enforceable. However, in stark contrast to this case,
Bremen involved a fully negotiated contract by two highly
sophisticated international companies, unaffected by
fraud, lack of mental capacity, undue influence or over-
weening bargaining power.” In choosing to enforce the
forum selection clause, this Court made nearly twenty
references to the fact that the clause at issue was part of
a fully negotiated contract between sophisticated interna-
tional businessmen and that the forum chosen was a
neutral forum with expertise in the subject matter.”
However, this Court cautioned against enforcement of —
such clauses where allegations of fraud and undue
bargaining power are present and urged that these
clauses should not be enforced when they are unreason-
able or the chosen forum is seriously inconvenient for the
trial of the action.”
The District Court, after conducting an exhaustive in-
depth examination of the affidavits and other materials
submitted by both parties, agreed that “the circumstances
of this lawsuit are so dire and the alleged conduct of
Oceaneering so egregious, [it] must consider the clause’s
* M/S Bremen, 407 U.S. at 2, 12.
*° M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).
Ya
* Td. at 10.
18 -
enforceability in light of the averments presented by
MacPhail’s affidavits.””
This Court has historically ensured that settlements
with seamen are fair.“ Seamen have long been recognized
even by the Fifth Circuit to be wards of admiralty, and
their rights are generally protected by the maritime
courts.” Federal courts must look upon a seaman’s
* MacPhail v. Oceaneering, 170 F. Supp. 2d 718, 722 (S.D. Tex.
2001).
* See, Garret v. McCormick, 317 U.S. 239 (1940).
* See, Castillo v. Spilidad Mar. Corp., 937 F.2d 240, 247 (5th Cir.
1991) in which the Court noted that seamen, as wards of the court, are
entitled to a careful review when a district court refuses to exercise
jurisdiction over their claims. “We are convinced that federal courts
must remain vigilant in protecting the rights of seaman, whether
foreign or domestic, in their relations with their employer.”
* In The Juliana, 2 Dod. (1822) 504, in which Lord Stowell
remarked that it would not do to say to a seaman “that it is all his own
doing, and that he is thought fit to bring it upon himself by his own
indiscretion in signing such a contract.” “To such men,” he said, in The
Minerva, 1 Hagg. (1825), 347, “no such response can be made, as that
which is irresistibly made in other cases of contract — it is your own
contract, you have signed it with your eyes open * * * .” And he based
the reasons for such a rejection of the usual “signed-it-with-your eyes-
open” standard on “the extreme disparity between the two parties” to
the contract. “On the one side are gentlemen possessed of wealth, and
intent, I mean not unfairly, upon augmenting it, conversant in busi-
ness, and possessing the means of calling in the aid of practical and
professional knowledge. On the other side is a set of men, generally
ignorant and illiterate, notoriously and proverbially reckless and
improvident, ill provided with the means of obtaining useful informa-
tion, and almost ready to sign any instrument that may be proposed to
them; and on all accounts requiring protection, even against them-
selves. Everybody must see where the advantages must lie between
parties standing upon such unequal ground, and accordingly these
special engagements so introduced into the mariners’ contract lean one
way, to the disadvantage of the mariners, and to the advantage of their
(Continued on following page)
19
Release with heightened scrutiny and should inquire as to
whether there was a good faith negotiation and whether
the seaman received competent medical and legal advice
or was “overreached” by the shipowner and/or its attorney
or claims agent and whether there was any fraud that may
have occurred. The shipowner claiming the benefit of a
Release bears the burden to show that it was fully ex-
plained to the seaman and that the settlement was en-
tered into without any coercion or fraud and that the
consideration paid was sufficient to compensate him for
his medical condition and injury.”
employers, by increasing the duties of the former, and diminishing the
obligations of the latter.” Hume v. McCormick Lines, 121 F.3d 336 (2nd
Cir. 1941), containing an excellent discussion of the history of the
“wards of the admiralty court” doctrine in maritime contract law, as
noted in The Proper Role of Special Solicitude in The General Maritime
Law, 70 Tul. L. Rev. 227 (1995).
*” See, Chandris, Inc. v. Latsis, 515 U.S. 347, 354-55 (1995) (tracing
development of heightened legal protection given to seamen who, “by
the peculiarity of their lives [are] liable to sudden sickness from change
of climate, exposure to perils, and exhausting labour”); McDermott Int'l,
Inc. v. Wilander, 498 U.S. 337, 354 (1991) (stating that “traditional
seamen’s remedies . . . have been ‘universally recognized as . . . growing
out of the status of the seaman and his peculiar relationship to the
vessel, and as a feature of the maritime law compensating or offsetting
the special hazards and disadvantages to which they who go down to
sea in ships are subjected’ ”) (quoting Seas Shipping Co. v. Sieracki, 328
U.S. 85, 104 (1946) (Stone, C.J., dissenting)); Wink v. Rowan Drilling
Co., 611 F.2d 98, 100 (5th Cir. 1980) (subjecting Releases or settlements
involving seamen’s rights to careful scrutiny because seamen are wards
of admiralty).
*° See, Maritime Personal Injury and Death, 73 Tul. L. Rev. 1731
(1999) (citations omitted).
* See, The Iroquois, 194 U.S. 240 (1904). This Court almost a
hundred years ago imposed a duty to provide proper medical care for an
injured seaman and held that ignorance of a medical condition or
(Continued on following page)
20
This principle has not withered with time. This case is
a textbook example of the need for the judiciary to cham-
pion the rights and protect seamen. In contrast, the Fifth
Circuit’s cursory decision fails to analyze and weigh the
policies behind both a seaman’s right and a shipowner’s
right to select a forum. Understanding the original role of
the federal courts in the protection of seamen, coupled
with the circumstances in this case, demonstrates the
gravity of the Fifth Circuit’s misplaced decision.
The Fifth Circuit circumvented the application of
Bremen to this case by-crafting a ruling which reverses the
District Court’s injunction and forces a sick and destitute
mariner to courts that have no jurisdiction to hear the
underlying claim, the effect of which robs the District
Court of its jurisdiction and deprives MacPhail of his day
in court. The U.S. District Courts for the Southern District
of Texas are the only courts with proper jurisdiction over
the Defendant and the District Court did not abuse its
discretion in enjoining Oceaneering from pursuing any
other action to protect and preserve that jurisdiction.
This Court has ruled that anti-suit injunctions are
justified when necessary to prevent a litigant’s evasion of
the forum’s important public policies.“ This principle is
available medical care was not a defense. In contrast to the nonfeasance
of The Iroquois, Oceaneering’s active malfeasance coupled with the
Fifth Circuit’s ruling returns mariners to the days when they were
expendable.
“ Cole v. Cunningham, 133 U.S. 107 (1890); see, also, 1-A (Part II)
J. Moore, W. Taggart, A. Vestal and J. Wicker, Moore’s Federal Practice,
{ 204 (1982) (“a court may enjoin a party from pursuing litigation in
another court which circumscribes the policy of the forum issuing the
injunction).”
21
similar to the rule that a foreign judgment which will not
be enforced within the United States when contrary to the
crucial public policies of the forum in which enforcement is
requested.*’ Both rules recognize that a state is not re-
quired to give effect to foreign judicial proceedings
grounded on policies which do violence to its own funda-
mental interest.** When the primary purpose of the foreign
action is to avoid the regulatory effect of the domestic
forum’s statutes or an important matter of public policy,
then an injunction is more readily issued.“
Public policy concerns also support the District
Cwurt’s decision in this case. The District Court properly
recognized the long-standing public policy of affording
seamen, as wards of the Admiralty Court, special protec-
tion from the hazards of life at sea; a policy “deeply en-
trenched” in our legal system.“ The District Court held
that MacPhail “unquestionably fell within the group of
plaintiffs that our venerable and strong public policy
favoring the rights of seamen was fashioned to protect,”
and that enforcing the forum selection clause—would
“ See, Hilton v. Guyot, 159 U.S. 113 (1895).
“ See, Laker Airways, Ltd. v. Sabena Belgian World Airways, 731
F.2d 909, 931 (D.C.Cir.1984).
“ See, Laker Airways, Ltd., 731 F.2d at 932 (D.C.Cir.1984). In this
case, the Court held that an injunction properly prevented the appel-
lants from attempting to escape application of the antitrust laws to
their conduct of business in the United States. The Court held that the
statutes were of admitted economic importance to the United States
which were specifically applicable to their activities in the United
States and upon which the Plaintiff may have legitimately relied.
“ App. 26 [MacPhail, 170 F. Supp. 2d at 725] citing Castillo v.
Spilidad Mar. Corp. , 937 F.2d 240 (5th Cir. 1991).
22
“eviscerate the fundamental notion that the rights of
seamen are worthy of special protection by the admiralty
courts.”*
The District Court did not abuse its discretion in
enjoining Oceaneering from pursuing another action
outside of the district to enforce specific performance of the
alleged settlement agreement. The Fifth Circuit’s stay of
the underlying claim is an acknowledgment of the claim’s
merits but it’s reversal of the injunction allows Oceaneer-
ing to escape the jurisdiction of the District Court and
obtain a judgment which it could use to terminate the
instant case.“ The result is a tremendous hardship for the
Plaintiff. It will force him to defend and participate in
multiple suits that span across the globe.*’ More impor-
tantly, an injunction is the only way to accomplish the
goals set out by the District Court in its prior ruling; that
is, to protect its rightful jurisdiction, to protect fundamen-
tal and vital public policy considerations and to afford
“ App. 27 [MacPhail, 170 F. Supp. 2d at 726).
“ App. 30-38. The Fifth Circuit justifies its decision by implying
that MacPhail filed a lawsuit in Australia against Oceaneering and
that he declined to have any representation. A careful review of the
documents show that every scrap of paper was prepared and filed by
Oceaneering’s lawyers. The conflicts are obvious and it is troubling that
the Fifth Circuit is bootstrapping MacPhail with acts of legal sophisti-
cation that to any novice lawyer are lacking. Its decision is result
orientated and avoids dealing with the evidence contained in the record
which was uncontested by Oceaneering.
“ The order is harsh because all of MacPhail’s treating physicians,
many of his expert witnesses, and Oceaneering’s witnesses will all now
have to travel to Australia to testify to the same facts that are at issue
in the case already filed in the District Court. The economic costs alone
may prevent him from litigating his claim.
23
MacPhail his day in court. Accordingly, the District Court’s
Motion to Enjoin should be affirmed.
Mr. MacPhail, as required, has made the showing that
the agreement was “[affected] by fraud, undue influence,
or overweening bargaining power”; that “enforcement
would be unreasonable and unjust”; and that proceedings
“in the contractual forum will be so gravely difficult and
inconvenient that [the resisting party] will for all practical
purposes be deprived of his day in court.”
It would be an intolerable infraction of the principles
of justice and denigration of this Court’s authority to allow
the Fifth Circuit’s opinion to stand unchallenged. To cut to
the chase, a shipowner’s financial interest should never
override that of an injured seaman. The callous disregard
of a seaman’s interest whose very life may be at stake is
profoundly disturbing.
“ M/S Breman, 407 U.S. at 12, 15, 18.
24
CONCLUSION
Petitioner respectfully submits that this Honorable
Court grant a writ of certiorari and, after due proceedings,
that the Judgements of the United States Circuit Court of
Appeal for the Fifth Circuit be reversed and this matter be
remanded for trial in the United States District Court,
Southern District of Texas, Galveston Division.
JOSEPH W. WALKER
Lead Counsel of Record
THOMAS J. MOSELE
FRANKLIN, MOSELE &
WALKER, P.C.
4200 Westheimer, Suite 130
Houston, Texas 77027
(713) 840-7395
(713) 840-7448 [Fax]
GARY J. SILLER
CHRISTINE Z. CARBO
STRASBURGER & PRICE, L.L.P.
1301 McKinney, Suite 3200
Houston, Texas 77010-3033
(713) 951-5600
(713)951-5660 [Fax]
THOMAS R. EDWARDS
BoB F. WRIGHT
DOMENGEAUX, WRIGHT,
Roy & EDwarps, P.C.
556 Jefferson Street
Jefferson Towers, Suite 500
Post Office Box 3668
Lafayette, Louisiana
70502-3668
(337) 233-3033
(337) 232-8213 [Fax]
Counsel for Petitioners
App. 1
2002 WL 237444
United States District Court,
S.D. Texas,
Galveston Division.
Alistair J. MACPHAIL
Plaintiff,
Vv.
OCEANEERING INTERNATIONAL, INC.
Defendant.
No. CIV.A.G-01-266.
Feb. 11, 2002.
Joseph W Walker, Franklin Mosele & Walker, Gary J
Siller, Strasburger & Price LLP, Houston, for Alistair J
MacPhail, plaintiffs.
James Patrick Cooney, Royston Rayzor et al, Houston,
for Oceaneering International, Inc., defendants.
ORDER GRANTING MACPHAIL’S
MOTION TO ENJOIN AND DENYING
OCEANEERING’S MOTION FOR
RECONSIDERATION OF ITS
MOTION TO DISMISS
KENT, District J.
Plaintiff Alistair MacPhail (“MacPhail”) brings this
lawsuit pursuant to the General Maritime Law of the
United States of America, the Jones Act, 46 U.S.C. § 688,
and the state laws of Texas. Plaintiff seeks monetary
damages for injuries suffered in the course of his employ-
ment as a saturation diver on the dive support vessel
OCEAN WINSERTOR, owned and operated by Defendant
Oceaneering International, Inc. (““Oceaneering”), a large
App. 2
multi-national corporation headquartered in Houston,
Texas. Now before this Court is MacPhail’s Motion to
Enjoin Oceaneering from further pursuing an action that
it recently instituted against MacPhail in Australia and
Oceaneering’s Motion for Reconsideration of its Motion to
Dismiss. For the reasons articulated below, MacPhail’s
Motion to Enjoin is hereby GRANTED and Oceaneering’s
Motion for Reconsideration is hereby DENIED.
I.
The factual allegations giving rise to this manifestly
tragic lawsuit have been largely set out in a prior Order.
However, because they are intertwined with the issues sub
judice, they are once again set out in full. While working
for Oceaneering on May 18, 1998, MacPhail was commit-
ted under pressure to saturation diving in the China Sea.’
Along with three diving partners, MacPhail was “stored”
at a depth of approximately 100 feet with a breathing mix
of helium and oxygen. During the thirty day period that
MacPhail remained in saturation, he and his diving
partners undertook approximately fifteen “bell runs” in
which they would descend to the bottom in a diving bell,
exit the bell for several hours of work and then return to
the vessel to await their next run.
As MacPhail entered the diving bell for his second bell
run, he observed oil, mud and sludge coating the hoses and
the inside of the bell. While on the bottom during the run,
' Saturation diving requires a diver to spend extended periods of
time under pressure before resurfacing.
App. 3
MacPhail experienced severe headaches, loss of concentra-
tion and decreased coordination. Upon returning to the
bell, MacPhail felt disoriented. After the bell was returned
to the vessel, MacPhail experienced headaches, loss of
appetite, nausea and vomiting. MacPhail promptly and
specifically reported his problems to surface management
and the deck crew cleaned the interior of the bell.
Throughout the entire remainder of the saturation
period, MacPhail continued to experience headaches,
nausea, the loss of dental fillings and other severe and
immediate medical problems. Although MacPhail repeat-
edly reported his troubles to management, the dive was
not shut down and Oceaneering sent MacPhail on numer-
ous subsequent dives. Later analysis of the seabed showed
that the mud contained toxic levels of various metals
including arsenic and mercury, cyanide, hydrogen sulfide
and polychlorinated biphenyls.
When MacPhail was brought to the surface after
thirty days, he was weakened, disoriented and exuding a
“disgusting” odor. Clearly, he was in dire need of medical
attention. MacPhail was transported first from the vessel
to Hong Kong, where he received one day of medical
attention, and then to Singapore, for additional treatment.
Upon returning to Australia (his residence at the
time), MacPhail visited additional doctors provided by
Oceaneering, but his condition continued to worsen. Over
the ensuing months, MacPhail suffered sleep loss, depres-
sion, pain in his teeth, episodes of intense anger, excruciat-
ing headaches, fainting spells and a host of other
complications. MacPhail continued to make requests to
Oceaneering for experts in hyperbaric medicine and
toxicology, but was repeatedly told that Oceaneering was
App. 4
either looking for or unable to locate appropriate special-
ists. Ultimately (and incomprehensibly), Oceaneering
failed to refer MacPhail to even one specialist experienced
in diving medicine, chemical poisoning, or hyperbaric
medicine.
Oceaneering appointed Cocks Macnish, an Australian
law firm, to liaise with MacPhail. Two Oceaneering em-
ployees, Overland and Leung, assured MacPhail that the
Cocks Macnish lawyers were not adversarial but rather,
were appointed to allocate resources and seek out the best
medical help available. However, Patricia Saraceni, the
Cocks Macnish solicitor handling the case, blithely re-
sponded to MacPhail’s repeated requests for help by
informing him that Oceaneering could not continue to help
him and that the situation required closure. Furthermore,
Overland and Leung repeatedly telephoned MacPhail,
deprecating his problems and offering him a sum of money
to “put it all behind us.” Later, after Saraceni, Overland
and Leung informed MacPhail that there was nothing
more medically that could be done, and threatened to cut
off future medical and financial assistance. Sick, fright-
ened and intimidated, MacPhail agreed to sign a Deed of
Release and Discharge (“Release”). MacPhail was not
represented by counsel at that time. |
The Release was prepared by Saraceni and executed
in Western Australia on November 3, 1999. In considera-
tion of the Release, MacPhail received $280,000.00, a
commitment on the part of Oceaneering to provide
MacPhail with additional training courses and an escrow
fund in the amount of $25,000.00 to cover future medical
expenses. The forum selection clause contained in the
Release reads:
App. 5
In the event of any dispute in respect of or aris-
ing from this Deed of Release and Discharge or
any matter relating thereto the parties hereby
agree to submit their dispute to the exclusive
jurisdiction of the District Supreme Court of
Western Australia, or to the Federal Court of
Australia and the parties hereby agree to submit
to the exclusive jurisdiction of the said courts.
The execution of the Release was followed by the entry
of a judgment in the District Court of Western Australia,
Perth.
By the spring of 2000, MacPhail was a shadow of his
former self. Severely depressed and in constant pain,
MacPhail found himself unable to work or carry on normal
relationships with others. That year, he became aware
that one of his similarly situated diving partners had
received helpful treatment in the United States from the
Van Meter hyperbaric group. MacPhail subsequently
traveled to the United States and was treated by the Van
Meter specialists for one month, beginning on November
15, 2000. MacPhail was diagnosed with multiple physical
abnormalities, including significant brain and nerve
damage, all linked to toxic chemical exposure and decom-
pression sickness. Tragically, one Van Meter physician
noted that MacPhail’s “short, medium and long term
prognosis would have been very different had he been
immediately treated.”
MacPhail later discovered that Oceaneering had never
contacted any hyperbaric specialist or expert toxicologist,
but rather, relied upon individuals with no diving medical
experience to coordinate his treatment, even though
Oceaneering actually knew of such specialists and had
App. 6
used them in the past. Furthermore, Oceaneering origi-
nally provided Plaintiff with an incomplete chemical
analysis of the substances he had been exposed to while
diving, even though Oceaneering had possessed the
complete analysis. This omission may have substantially
impeded his treatment and recovery, and was, at the very
least, deceitfully withheld from him during the sham
negotiation of his “settlement,” reached under extreme
duress.
In light of these discoveries, MacPhail was moved to
file this lawsuit. Oceaneering responded by filing a Motion
to Dismiss for improper venue pursuant to the forum
selection clause recited above. On October 17, 2001, the
Court issued an Order Denying Oceaneering’s Motion to
Dismiss. In that Order, the Court determined Geet ~ ...
the forum selection clause at issue [is] unreasonable and
therefore unenforceable because its enforcement would
violate a strong public policy and because Plaintiff would
thereby be deprived of his day in court. To find such a
clause valid and enforceable in the precise facts of this
case would amount to an unmistakable violation of our
strong public policy protecting the rights of seamen as
wards of the American admiralty courts, and furthermore,
would effectively deprive MacPhail of his rightful day in a
court of proper jurisdiction.” Accordingly, the Court per-
mitted this action to proceed here in the Southern District
of Texas. As such, the Parties have since continued with
discovery and trial preparation.
Around January 1, 2002, MacPhail’s lead counsel,
Joseph W. Walker, sent a letter to counsel for Oceaneering
advising Oceaneering that MacPhail was going to travel to
the United States in mid-January 2002 for further treat-
ment and independent medical examinations (“IMEs”).
App. 7
The IMEs were scheduled or [sic] around February 1,
2002. The letter suggested that the Parties schedule
depositions during MacPhail’s visit to the United States
and inquired as to whether Oceaneering was amenable to
mediating the lawsuit during that time. Oceaneering’s
counsel responded to Walker’s letter on January 2, 2002.
In its response, Oceaneering indicated its desire to ar-
range IMEs for MacPhail and to schedule his deposition
while he was present in the United States.
On January 9, 2002, just days before MacPhail was
scheduled to depart for the United States, Oceaneering,
Oceaneering International Party Limited and Oceaneering
Australia Party Limited filed a Writ of Summons in the
Supreme Court of Australia seeking specific performance
of the Release. The Writ commanded MacPhail to make an
appearance in the Australian forum within ten days. j
Consequently, MacPhail filed the instant Motion to Enjoin
on January 28, 2002. In his Motion, MacPhail contends
that Oceaneering filed the Australian lawsuit to “effec-
tively circumscrib[e] this Court’s jurisdiction, and once
again, interfer[e] with Plaintiff’s medical treatment.”
Il.
Federal district courts have the power to issue anti-
suit injunctions that enjoin persons over which they have
____in personam jurisdiction from prosecuting foreign suits.
See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th
Cir.1996) (“It is well-settled among the circuit courts-
including this one-which have reviewed the grant of an
antisuit injunction that federal courts have the power to
enjoin persons subject to their jurisdiction from prosecut-
ing foreign suits.”); Gau Shan Co., Ltd. v. Bankers Trust
App. 8
Co., 956 F.2d 1349, 1352 (6th Cir.1992) (“It is well-settled
that American courts have the power to control persons
subject to their jurisdiction to the extent of forbidding
them to sue in foreign jurisdictions.”); Allendale Mut. Ins.
Co. v. Bull Data Sys., Inc., 10 F.3d 425, 431 (7th Cir.1993)
(“Courts of equity have long issued injunctions against the
use of litigation, including litigation in foreign courts, not
to obtain a decision on the merits but to harass a party.”).
The Fifth Circuit, along with the Seventh and Ninth
Circuits, follows the “liberal approach” to anti-suit injunc-
tions. See Younis Brothers & Co., Inc. v. CIGNA Worldwide
Ins. Co., 167 F.Supp.2d 748, 745-46 (E.D.Pa.2001) (com-
paring the “liberal approach” adopted by the Fifth, Sev-
enth and Ninth Circuits with the “restrictive approach”
followed by the D.C., Second and Sixth Circuits); General
Elec. Co. v. Deutz AG, 129 FSupp.2d 776, 783
(W.D.Pa.2000) (same). This “liberal approach” to anti-suit
injunctions places minimal importance on international
comity and holds that a court may enjoin a foreign pro-
ceeding if that parallel proceeding is vexatious and dupli-
cative. See Kaepa, 76 F.3d at 626 (explaining that “the
need to prevent vexatious and oppressive litigation” is of
paramount importance when considering anti-suit injunc-
tions and declining to “require a district court to genuflect
before a vague and omnipotent notion of comity every time
that it must decide whether to enjoin a foreign action.”);
see also Bethell v. Peace, 441 F.2d 495, 498 (5th Cir.1971).
A district court does not abuse its discretion by issuing
an antisuit injunction if the court initially determines
“that allowing simultaneous prosecution of the same
action in a foreign forum thousands of miles away would
result in inequitable hardship and tend to frustrate and
delay the speedy and efficient determination of the cause.”
App. 9
Kaepa, 76 F.3d at 627 (citations omitted). Put another way,
if “prosecution of the foreign action would entail ‘an
absurd duplication of effort’? and would result in unwar-
ranted inconvenience, expense and vexation,” a district
court is free to enjoin a party from taking any further
steps towards prosecuting the foreign action. Id. (citing
Allendale, 10 F.3d at 430-31). In the past, courts have
deemed anti-suit injunctions against foreign litigation
appropriate where foreign litigation would (1) frustrate a
public policy of the forum issuing the injunction; (2) be
vexatious or oppressive; (3) threaten the court’s in rem or
quasi in rem jurisdiction; or (4) prejudice other equitable
considerations. See In re Unterweser Reederei Gmbh, 428
F.2d 888, 896 (5th Cir.1970), aff’d on rehearing en banc,
446 F.2d 907 (1971), rev'd on other grounds sub nom. M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907,
32 L.Ed.2d 512 (1972).
The Fifth Circuit’s most recent discussion of propriety
of an anti-suit injunction is found in its Kaepa decision.
That case involved a distribution agreement between a
U.S. company (Kaepa) and a Japanese entity (Achilles)
providing that Achilles would market Kaepa’s product
(athletic shoes) in Japan. See id. at 625. After deciding
that Achilles had breached the agreement, Kaepa sued
Achilles in Texas state court. See id. at 626. Achilles
subsequently removed the action to federal court and
discovery commenced. Jd. When Achilles later brought suit
against Kaepa in a Japanese court asserting similar
claims, Kaepa asked the district court to enjoin Achilles’s
Japanese lawsuit. Id. The district court complied with
Kaepa’s request and issued the injunction. Jd.
On appeal, Achilles argued that the lower court
overlooked comity concerns in granting the injunction. Jd.
App. 10
The Fifth Circuit rejected Achilles’s contention and con-
cluded that the lower court’s decision in no way “trampled
on notions of international comity” because “no public
international issue is implicated by the case: Achilles is a
private party engaged in a contractual dispute with
another private party. Second, the dispute has been long
and firmly ensconced within the confines of the United
States judicial system: Achilles consented to jurisdiction in
Texas, stipulated that Texas law and the English language
would govern any dispute; appeared in an action brought
in Texas; removed that action to federal court; engaged in
extensive discovery pursuant to the directives of a federal
court; and only then, with the federal action moving
steadily toward trial, brought identical claims in Japan.”
Id. at 627. Furthermore, the Court emphasized that
“Achilles’s belated ploy of filing as putative plaintiff in
Japan the very same claims against Kaepa that Kaepa
had filed as plaintiff against Achilles smacks of cynicism,
harassment and delay.” Jd. at 627-28. Accordingly, the
Fifth Circuit held that “the district court did not abuse its
discretion by granting Kaepa’s motion for an antisuit
injunction.” Jd. at 628.
III.
Under the Fifth Circuit’s reasoning in Kaepa, the
issuance of an antisuit injunction in the instant suit would
likewise fail to offend notions of international comity.
First, as in Kaepa, no public international issue is impli-
cated in this action. MacPhail is a private individual
engaged in a dispute with a private corporation. Second,
as in Kaepa, this action has been under the governance of
the United States judicial system for a substantial time
period (over nine months), the defendant is indisputably
App. 11
subject to this Court’s personal jurisdiction and the parties
have engaged in discovery pursuant to this Court’s direc-
tives as the action has moved uninterrupted towards trial.
Furthermore, the defendant in this action (Oceaneering) is
an American corporation headquartered in this District.
This fact suggests that an antisuit injunction is even less
controversial here than in Kaepa (where the party to be
enjoined was Japanese). The Court finds it inconceivable
that enjoining an American corporation from pursuing this
particular private action in Australia would have a detri-
mental effect on United States-Australia relations.
Next, leaving comity considerations aside, the Court
turns to the more central concerns of the Fifth Circuit’s
approach to antisuit injunctions, namely vexatiousness
and duplicitous litigation. First, without a doubt, requiring
MacPhail to litigate the validity of the Release in both
Australia and the United States would result in duplici-
tous litigation, as well as unnecessary expense, inconven-
ience and nuisance. Moreover, any inconvenience to
MacPhail is appreciably magnified by the fact that he is
egregiously and dreadfully injured. Given MacPhail’s
present physical condition, any delay at all in the deter-
mination of his cause is ostensibly inequitable. Second, by
seeking an Australian court order requiring specific
performance of the Release, Oceaneering is making a
back-door maneuver to deprive MacPhail of his day in
court and to bring about the enforcement of a forum
selection clause that this Court has already deemed
contrary to public policy. This attempt to evade this
forum’s public policy and the directives contained within a
prior Order of this Court must cease. Third, Oceaneering’s
ploy of filing suit against MacPhail in Australia just days
before he was scheduled to travel to the United States for
App. 12
medical treatment “smacks of cynicism, harassment and
delay.” Kaepa, 76 F.3d at 628. Indeed, against the back-
drop of Oceaneering’s incomprehensibly deceitful and
imperious withholding of not only vital medical care, but
even vital medical information, this crass tactic borders on
the criminal. Oceaneering waited months before it at-
tempted to litigate the validity of the Release in Australia
and, at the time it instituted the Australian action,
Oceaneering was in receipt of this Court’s lengthy opinion
rendering the forum selection clause contained in the
Release unenforceable. Lastly, Oceaneering filed suit
against MacPhail on the eve of his visit to the United
States-with full knowledge that filing an Australian suit at
that time would interfere with his plans to receive much
needed medical treatment and evaluation by his American
physicians. Such timing cannot be deemed fortuitous.
Rather, it seems that Oceaneering made a calculated and
cold-blooded attempt to interrupt MacPhail’s journey to
the United States, and to deny him any opportunity
whatsoever to physically recover.
The Court cannot emphasize enough how ghastly and
utterly callous Oceaneering has acted with regard to
MacPhail. In fact, the evidence before the Court suggests
that vexation and harassment of a séverely injured plain-
tiff is the primary purpose, and possibly the sole purpose,
of the foreign litigation at issue. Oceaneering’s conduct
rises to a level of harassment exponentially more abhor-
rent than the conduct of Achilles, which the Fifth Circuit
refused to condone in Kaepa. As such, the Court concludes
that the Fifth Circuit’s “liberal approach” to antisuit
injunctions, as outlined in Kaepa, fully supports the
issuance of an injunction in this case. Accordingly,
MacPhail’s Motion to Enjoin is hereby GRANTED and
App. 13
Oceaneering is hereby ENJOINED from further prosecut-
ing any action against MacPhail in Australia or any other
forum.’ Furthermore, in light of the above discussion, the
Court concludes that Oceaneering’s Motion for Reconsid-
eration of its Motion to Dismiss is hereby emphatically
DENIED.
IT IS SO ORDERED.
* The Court notes that because it does not have personal jurisdic-
tion over Oceaneering International Party Limited (a Singaporean
entity) or Oceaneering Australia Party Limited (an Australian entity),
this Order in no way purports to enjoin those two entities from pursu-
ing an Australian action against MacPhail. Rather, this Order pertains
solely to Oceaneering.
App. 14
170 F.Supp.2d 718 ©
United States District Court,
S.D. Texas,
Galveston Division.
Alistair J. MACPHAIL
Plaintiff,
Vv.
OCEANEERING INTERNATIONAL, INC.
Defendant.
No. G-01-266.
Oct. 17, 2001.
_ Joseph W Walker, Franklin Mosele & Walker, Hous-
ton, TX, Gary J Siller, Strasburger & Price LLP, Houston,
TX, for Alistair J MacPhail, plaintiff.
James Patrick Cooney, Royston Rayzor et al, Houston,
TX, for Oceaneering International, Inc., defendant.
ORDER DENYING OCEANEERING
INTERNATIONAL’S RULE 12(6)(3)
MOTION TO DISMISS
KENT, District Judge.
Plaintiff Alistair MacPhail (“MacPhail”) brings this
lawsuit pursuant to the General Maritime Law of the
United States of America, the Jones Act, 46 U.S.C.App.
§ 688, and the state laws of Texas. Plaintiff seeks mone-
tary damages for injuries suffered in the course of his
employment as a saturation diver on the dive support
vessel OCEAN WINSERTOR, owned and operated by
Defendant Oceaneering International, Inc. (“Oceaneer-
ing”), a large multi-national corporation headquartered in
Houston, Texas. Now before this Court is Defendant’s Rule
App. 15
12(b\(3) Motion to Dismiss pursuant to an Australian
Forum Selection Clause contained in a Deed of Release
and Discharge (“Release”) executed by the Parties on
November 3, 1999. For the reasons articulated below,
Defendant’s Motion is hereby DENIED.
I.
Title 28, United States Code § 1406(a) instructs
District Courts to dismiss or transfer a case if venue is
_ improper where filed.’ A party may move to dismiss an
action based on improper venue pursuant to Fed.R.Civ.P.
12(b)(3). The burden of demonstrating that venue is
improper and transfer is therefore warranted lies with the
movant. See Time, Inc. v. Manning, 366 F.2d 690, 698 (5th
Cir.1966); Texas Marine & Brokerage, Inc. v. Euton, 120
F.Supp.2d 611, 612 (E.D.Tex.2000); Sanders v. Seal Fleet,
Inc., 998 F.Supp. 729, 733 (E.D.Tex.1998); Bounty-Full
Entm', Inc. v. Forever Blue Entm’t Group, 923 F.Supp.
950, 957-958 (S.D.Tex.1996).
This Court observes that the Fifth Circuit has not
conclusively established that Fed.R.Civ.P. 12(b)(3) is in
fact the precise procedural rule governing motions to
dismiss based upon the enforcement of forum selection
clauses. However, the decision reached by the Fifth Circuit
in Mitsui & Co. (USA), Inc. v. MIRA M/V, 111 F.3d 33 (5th
Cir.1997), suggests that the Fifth Circuit would indeed
* Section 1406(a) reads as follows: “The district court of a district in
which is filed a case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case to any
division in which it could have been brought.” 28 U.S.C. § 1406(a).
App. 16
adopt such a view. In that case, the District Court charac-
terized its dismissal pursuant to a forum selection clause
as a Rule 12(b\(3) motion to dismiss. See Mitsui & Co.
(USA), Inc. v. M/V MIRA, No. CIV.A.95-4224, 1996 WL
444193, at *1 (E.D.La. Aug.7, 1996). Although the Fifth
Circuit did not address the exact procedural issue upon
appeal, the Court fully affirmed the District Court’s
decision to dismiss the lawsuit. See Mitsui, 111 F.3d at 37.
The Seventh, Ninth and Tenth Circuits agree that a
motion to dismiss pursuant to a forum selection clause
falls within the purview of Rule 12(b)(3). See eg., R.A.
Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th
Cir.1996) (concluding that a motion to dismiss ‘premised
upon enforcement of forum selection clause is governed by
Rule 12(b)(3)); Frietsch v. Refco, Inc., 56 F.3d 825, 830 (7th
Cir.1995) (deciding that Rule 12(b)(3) is the proper proce-
dural tool for a motion to dismiss based upon a forum
selection clause); Riley v. Kingsley Underwriting Agencies,
Ltd., 969 F.2d 953, 956 (10th Cir.1992) (same). On the
other hand, the First, Second and Third Circuits endorse
different positions. See Salovaara v. Jackson Nat'l Life
Co., 246 F.3d 289, 299 (3d Cir.2001) (concluding that Rule
12(bX6) dismissal is a permissible means for enforcing a
forum selection clause); New Moon Shipping Co. v. MAN B
& W Diesel AG, 121 F.3d 24, 28-29 (2d Cir.1997) (remark-
ing that the burden “is analogous to that imposed on a
plaintiff to prove that the federal court has subject matter
jurisdiction over his suit”); Lambert v. Kysar, 983 F.2d
1110, 1112 n. 1 (1st Cir.1993) (noting that dismissal due to
forum selection clause is a Rule 12(b)(6) motion, not a
12(bX3) motion); Avc Nederland B.V. v. Atrium Inv. P’ship,
740 F.2d 148, 152-59 (2d Cir.1984) (permitting dismissal
pursuant to Rule 12(b)(1)). Although the Circuit split is
App. 17
evident, this Court concludes that, in light of the Mitsui
decision, coupled with persuasive authorities from the
Seventh, Ninth and Tenth Circuits, Oceaneering’s Motion
to Dismiss pursuant to a forum selection clause is properly
characterized as a Rule 12(b)(3) motion to dismiss.
II.
Federal law governs this Court’s inquiry into the
enforceability of a forum selection clause. See Haynsworth
v. The Corp., 121 F.3d 956, 962 (5th Cir.1997). Forum
selection clauses “are prima facie valid and should be
enforced unless enforcement is shown by the resisting
party to be unreasonable under the circumstances.” The
BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct.
1907, 1916, 32 L.Ed.2d 513 (1972). “The burden of proving
unreasonableness is a heavy one, carried only by a show-
ing that the clause results from fraud or overreaching,
that it violates a strong public policy, or that enforcement
of the clause deprives plaintiff of his day in court.” Mitsui,
111 F.3d at 35 (citing BREMEN, 407 USS. at 12-13, 15, 18,
92 S.Ct. at 1914-15, 1916, 1917-18), see also Afram Carri-
ers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir.1998).
Iil.
In its Motion to Dismiss, Oceaneering argues that this
Court may not judge the soundness of the forum selection
clause in the Release by the merits of the underlying
settlement agreement, because any inquiry into the merits
is best left to the forum selected by the parties. As such,
Oceaneering insists that the clause automatically war-
rants a dismissal of this action without further inquiry
into the circumstances surrounding this litigation. In
App. 18
response, MacPhail argues that this Court should and
must examine the background facts giving rise to this
lawsuit, because the relevant circumstances surrounding
not the soundness of the forum selected, but the capacity
of the Plaintiff to participate in that selection, or indeed in
the creation of the entire Release document, preclude a
finding that the forum selection clause is valid. Specifi-
cally, MacPhail argues that the clause is unenforceable
because: (1) Oceaneering procured the Release, including
the forum selection clause, through fraud and overreach-
ing; (2) enforcement of the clause would violate public
policy; and (3) enforcement of the clause would effectively
deprive MacPhail of his day in court. After an exhaustively
careful in-depth examination of the affidavits and other
materials submitted by both Parties regarding this matter,
this Court agrees with MacPhailthe circumstances of this
lawsuit are so dire, and the alleged conduct of Oceaneering
so egregious, that this Court simply must consider the
clause’s enforceability in light of the averments presented
by MacPhail’s affidavits.
The affidavits submitted by MacPhail aver the follow-
ing set of facts: While working for Oceaneering on May 18,
1998, MacPhail was committed under pressure to satura-
tion diving in the China Sea.’ Along with three diving
partners, MacPhail was “stored” at a depth of approxi-
mately 100 feet with a breathing mix of helium and
oxygen. During the thirty day period that MacPhail
remained in saturation, he and his diving partners under-
took approximately fifteen “bell runs” in which they would
* Saturation diving requires a diver to spend extended periods of
time under pressure before resurfacing.
App. 19
descend to the bottom in a diving bell, exit the bell for
several hours of work and then return to the vessel to
await their next run.
As MacPhail entered the diving bell for his second bell
run, he observed oil, mud and sludge coating the hoses and
the inside of the bell. While on the bottom during the run,
MacPhail experienced severe headaches, loss of concentra-
tion and decreased coordination. Upon returning to the
bell, MacPhail felt disoriented. After the bell was returned
to the vessel, MacPhail experienced headaches, loss of
appetite, nausea and vomiting. MacPhail promptly and
specifically reported his problems to surface management
and the deck crew cleaned the interior of the bell.
Throughout the entire remainder of the saturation
period, MacPhail continued to experience headaches,
nausea, the loss of dental fillings and other severe and
immediate medical problems. Although MacPhail repeat-
edly reported his troubles to management, the dive was
not shut down and Oceaneering sent MacPhail on numer-
ous subsequent dives. Later analysis of the seabed showed
that the mud contained toxic levels of various metals
including arsenic and mercury, cyanide, hydrogen sulfide
and polychlorinated biphenyls.
When MacPhail was brought to the surface after
thirty days, he was weakened, disoriented and exuding a
“disgusting” odor. Clearly, he was in dire need of medical
attention. MacPhail was transported first from the vessel
to Hong Kong, where he received one day of medical
attention, and then to Singapore, for additional treatment.
Upon returning to Australia (his residence at the
time), MacPhail visited additional doctors provided by
App. 20
Oceaneering, but his condition continued to worsen. Over
the ensuing months, MacPhail suffered sleep loss, depres-
sion, pain in his teeth, episodes of intense anger, excruciat-
ing headaches, fainting spells and a host of other
complications. MacPhail continued to make requests to
Oceaneering for experts in hyperbaric medicine and
toxicology, but was repeatedly told that Oceaneering was
either looking for or unable to locate appropriate special-
ists. Ultimately (and incomprehensibly), Oceaneering
failed to refer MacPhail to even one specialist experienced
in diving medicine, chemical poisoning, or hyberbaric
medicine.
Oceaneering appointed Cocks Macnish, an Australian
law firm, to liaise with MacPhail.
Two Oceaneering employees, Overland and Leung,
assured MacPhail that the Cocks Macnish lawyers were
not adversarial but rather, were appointed to allocate
resources and seek out the best medical help available.
However, Patricia Saraceni, the Cocks Macnish solicitor
handling the case, blithely responded to MacPhail’s
repeated requests for help by informing him that
Oceaneering could not continue to help him and that the
situation required closure. Furthermore, Overland and
Leung repeatedly telephoned MacPhail, deprecating his
problems and offering him a sum of money to “put it all
behind us.” Later, after Saraceni, Overland and Leung
informed MacPhail that there was nothing more medically
that could be done, and threatened to cut off future medi-
cal and financial assistance. Sick, frightened and intimi-
dated, MacPhail agreed to sign the Release. MacPhail was
not represented by counsel at that time.
App. 21
The Release was prepared by Saraceni and executed
in Western Australia on November 3, 1999. In considera-
tion of the Release, MacPhail received $280,000.00, a
commitment on the part of Oceaneering to provide
MacPhail with additional training courses and an escrow
fund in the amount of $25,000.00 to cover future medical
expenses. The forum selection clause contained in the
Release reads:
In the event of any dispute in respect of or aris-
ing from this Deed of Release and Discharge or
any matter relating thereto the parties hereby
agree to submit their dispute to the exclusive
jurisdiction of the District Supreme Court of
Western Australia, or to the Federal Court of
Australia and the parties hereby agree to submit
to the exclusive jurisdiction of the said courts.
The execution of the Release was followed by the entry
of a judgment in the District Court of Western Australia,
Perth. :
By the spring of 2000, MacPhail was a shadow of his
former self. Severely depressed and in constant pain,
MacPhail found himself unable to work or carry on normal
relationships with others. That year, he became aware
that one of his similarly situated diving partners had
received helpful treatment in the United States from the
Van Meter hyperbaric group. MacPhail subsequently
traveled to the United States and was treated by the Van
Meter specialists for one month, beginning on November
15, 2000. MacPhail was diagnosed with multiple physical
abnormalities, including significant brain and nerve
damage, all linked to toxic chemical exposure and decom-
pression sickness. Tragically, one Van Meter physician
noted that MacPhail’s “short, medium and long term
App. 22
prognosis would have been very different had he been
immediately treated.”
MacPhail later discovered that Oceaneering had never
contacted any hyperbaric specialist or expert toxicologist,
but rather, relied upon individuals with no diving medical
experience to coordinate his treatment, even though
Oceaneering actually knew of such specialists and had
used them in the past. Furthermore, Oceaneering origi-
nally provided Plaintiff with an incomplete chemical
analysis of the substances he had been exposed to while
diving, even though Oceaneering had possessed the
complete analysis. This omission may have substantially
impeded his treatment and recovery. In light of these
discoveries, MacPhail was moved to file this lawsuit.
Oceaneering responded by filing its Motion to Dismiss for
improper venue pursuant to the forum selection clause
recited above.
IV.
As previously stated, a forum selection clause is
unreasonable, and therefore unenforceable, in any of three
circumstances: (1) the clause is the result of fraud or
overreaching; (2) enforcement of the clause would violate a
strong public policy; or (3) enforcement of the clause would
deprive the plaintiff of his day in court.
A. Fraud & Overreaching
A forum selection clause is unenforceable for fraud
only “if the inclusion of that clause in the contract was the
product of fraud or coercion.” Scherk v. Alberto-Culver Co.,
417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2456 n. 14, 41
rast iaess
Sel NSE RAE EES BOI N e veer eae
PO A ear tN ma Ri tow diteaded at
App. 23
L.Ed.2d 270 (1974). Stated differently, a court may con-
sider a claim that a party was fraudulently induced to
include a forum selection clause in an agreement, but may
not entertain a claim that the entire agreement was
procured by fraud.
The Fifth Circuit’s analysis in Afram Carriers, Inc. v.
Moeykens, 145 F.3d 298 (5th Cir.1998), illustrates these
principles. In that case, Peruvian port authorities had
ordered Afram to fumigate its ship. See id. at 300. All crew
members were evacuated except for the captain, the chief
engineer, and four employees of Servipro, a contract
security service. Augustin Panta, a Servipro employee,
died from inhalation of the toxic substance used for fumi-
gation. Afram then entered into a settlement agreement,
containing a Peruvian forum selection clause, with Panta’s
wife and children for $2000, in exchange for releasing all
claims in Peruvian and United States courts. See id. At the
same time, Afram instituted a limitation of liability
proceeding under the Limitation of Liability Act, 46 U.S.C.
§§ 181-189, in the United States District Court for the
Southern District of Texas. See Afram, 145 F.3d at 300.
When the Pantas became aware of the proceeding, they
moved to intervene. However, the court denied the motion
to intervene based on the forum selection clause found in
the settlement agreement. See id.
Upon its review of the lower court’s decision, the Fifth
Circuit found the forum selection clause valid despite
extensive evidence of fraud and overreaching.’ The Court
* The Pantas presented evidence that the forum selection clause
was obtained by fraud, including evidence that Afram told the Pantas
that they could not sue the ship because the shipowner was American,
(Continued on following page)
App. 24
commented that this was evidence of disagreement over
the entire settlement, but not over the forum selection
clause itself. See id. at 301-02. The Court further noted
that while the facts were certainly dire, the settlement
offer of $2000, which was made in the weeks following
Panta’s death and accepted by his family in exchange for
waving all claims, was not procured by fraud or duress.
See id. at 300. As such, the Court held that even if the
forum selection clause was part of an illegally obtained
contract, it was impermissible to draw a further inference
that the clause itself was obtained via fraud or overreach-
ing. See id. at 301-02.
In light of Afram, this Court has no choice but to
reject MacPhail’s fraud argument. Although MacPhail,
much like the Afram plaintiffs, has presented multiple
affidavits suggesting fraud, coercion, and manifest over-
reaching by Oceaneering, none of these averments support
a finding that MacPhail was induced to include the forum
selection clause itself in the Release. Ultimately,
MacPhail’s challenge is not separate and distinct from his
challenge to the entire agreement. As such, this Court
must decline to set aside the clause on the basis of fraud or
overreaching by Oceaneering.
that Afram failed to notify them of the Limitation of Liability proceed-
ing and that they would have filed claims in the limitation proceeding
but for the misrepresentations and failures to disclose. See Afram
Carriers, Inc. v. Moeykens, 145 F.3d 298, 302 n. 3 (5th Cir.1998).
ernest sala viatire aint conn ra
bo ict ABR ALIS NALA Ae NS Roan NE eA A tha ROO de a cls ite Te and thin a
wisadaabisnioes
App. 25
B. Public Policy
In Afram, after rejecting the plaintiffs’ fraud argu-
ment, the Fifth Circuit turned to a discussion of public
policy. See id. at 302. Noting that a forum selection clause
is potentially unreasonable when it undermines a strong
public policy of the forum, the Court undertook a determi-
nation of whether the equitable resolution afforded by the
Limitation Act was a “strong” public policy that justified
overcoming the forum selection clause at issue. See id. In
doing so, the Court considered the two goals of the Limita-
tion Act the goal of subsidizing shipowners and promoting
settlement, and the goal of equitable resolution. See id.
Ultimately, the Court concluded that “[g]iven these two
competing policy concerns, it is hard to say that equitable
resolution is a ‘strong’ public policy contravening the
enforcement of a forum selection clause. The more funda-
mental policy underlying the Limitation Act — providing
subsidization to the shipping industry — seems to diminish
the strength of the equitable resolution principle, and, as a
result, to prevent it from overcoming the presumption in
favor of the forum selection clause’s enforceability.” Id. at
303. Thus, the Fifth Circuit rejected the Pantas’ claim that
the Peruvian forum selection clause was unenforceable as
a violation of public policy. See id.
However, this lawsuit is markedly different from
Afram. MacPhail’s lawsuit, unlike Afram, is not a Limita-
tion Act proceeding, but rather, a tort suit brought by an
injured seaman. The competing policies behind the Limi-
tation Act — equitable resolution and the protection of
shipowners — are not implicated at all in the present
action. Thus, the public policy analysis undertaken by the
Fifth Circuit in Afram is not directly instructive to the
present lawsuit. Instead, the analysis required in the
App. 26
instant action invokes the policy underlying the General
Maritime Law and the Jones Act. Specifically, this Court
must determine whether the long-standing public policy of
affording seaman, as wards of the Admiralty court, special
protection from the hazards of life-at sea justifies overcom-
ing the forum selection clause in the Release.
A strong policy favoring the protection of seaman is
deeply entrenched in our legal system. In Castillo v.
Spiliada Mar. Corp., 937 F.2d 240 (5th Cir.1991), the Fifth
Circuit affirmed this policy, declaring that “[s]euaman, as
wards of the court, are entitled to a careful review when a
- district court refuses to exercise jurisdiction over their
claims. We are convinced that federal courts must remain
vigilant in protecting the rights of seaman, whether
foreign or domestic, in their relations with their employer.”
Id. at 247. This Court elaborated upon this perennial
notion in Sabocuhan v. Geco-Prakla, 78 F.Supp.2d 603
(S.D.Tex.1999), stating: “These seaman often labor aboard
dilapidated vessels in deplorably dangerous working
conditions, and yet at considerable risk to life and limb
they assist in bringing products to this country which
inure to the benefit of all United States citizens. Denying
an injured seaman a forum is utterly contrary to the
beneficent attitude towards seamen that has for centuries
characterized the Admiralty courts of the English speak-
ing world.” Id. at 606.
As a saturation diver, MacPhail was engaged in a
highly dangerous profession that required him to remain
underwater for long periods of time. He bravely faced the
perils of the sea while furthering Oceaneering’s interests
in far- away waters, and was tragically and permanently
injured as a result. Affidavits submitted by MacPhail
establish that he was told by Oceaneering agents that if he
~ Mn Aer Whe Sasol OO SSA Ne et BR a0 An he aot wreaks ise ainaiis a aswel thal iM hed
App. 27
did not sign the Release, medical and financial assistance
from Oceaneering, the corporation he had risked his life
for, would cease. Not knowing whether his condition was
going to worsen or improve. MacPhail understandably
feared he couldn’t risk losing future medical assistance.
Therefore, while racked with pain, haunted by depression
and unrepresented by counsel, MacPhail reluctantly
agreed to enter into an agreement he simply lacked the
capacity to fully evaluate. These averments establish that
MacPhail unquestionably falls within the group of plain-
tiffs that our venerable and strong public policy favoring
the rights of seamen was fashioned to protect. To deny
MacPhail an opportunity to litigate his claims in this
forum by enforcing the unreasonable forum selection
clause in the Release would eviscerate the fundamental
notion that the rights of seaman are worthy of special
protection by the Admiralty courts."
C. A Meaningful Day in Court
A forum selection clause is unreasonable if “trial in
the chosen forum would be so difficult and inconvenient
that the party would effectively be denied a meaningful
‘In Sabocuhan, this Court reluctantly held the forum selection
clause at issue enforceable, even though to do so appeared contrary to
public policy, because the Court was bound to do so by the Fifth
Circuit’s decision in Marinechance Shipping Ltd. v. Sebastian, 143 F.3d
216 (5th Cir.1998). Sabocuhan and Marinechance both involved forum
selection clauses in employment contracts incorporating the Migrant
Workers’ and Overseas Filipinos’ Act of 1995. However, while the
‘opinion-in Marinechance was squarely on point in Sabocuhan, the
Marinechance decision is distinguishable from the facts of the instant
action, which involves a forum selection clause in the context of a
settlement agreement.
App. 28
day in court.” See Argueta, 87 F.3d at 325. MacPhail’s
affidavits aver that MacPhail is unable to pursue a rem-
edy in relation to his injuries either in the Federal Courts
of Australia or in the Western Australian Courts because
(1) the Release was not concluded in Australia and has no
connection to Australia; (2) Oceaneering has no legal
presence in Australia; (3) the only connection between
Oceaneering and Australia is that Oceaneering is a share-
holder in Oceaneering Australia Pty Ltd., a separate legal
entity which has no connection with MacPhail’s injuries;
(4) MacPhail is not a citizen of Australia; (5) the acts and
circumstances giving rise to the injuries took place outside
the jurisdiction of the Australian courts; and (6) there is no
indication that it was the common intention of the Parties
that the Release would be governed by Australian law. If
MacPhail attempted to commence proceedings in Austra-
lia, it appears clearly to this Court that those proceedings
would either be dismissed for lack of jurisdiction or, in the
alternative, stayed and transferred to another forum. Jd.
at 5. In light of these averments, a real possibility exists
that MacPhail will be unable to secure his rights in an
Australian forum. Oceaneering has offered no evidence
to the contrary.” As such, it would be unjust and
* The Court notes that in its Motion to Dismiss, both parties
stipulated to jurisdiction in an Australian forum. However, MacPhail
does not aver that an Australian Court would dismiss MacPhail’s suit
based upon a lack of personal jurisdiction. Rather, MacPhail avers that
an Australian Court would dismiss the lawsuit based upon a lack of
subject matter jurisdiction over the substance [sic] his claims. Thus,
Oceaneering’s submission to jurisdiction in Australia will not cure the
potential jurisdictional obstacles that MacPhail faces in Australia. It is
axiomatic that agreement of the Parties is not enough to sustain
jurisdiction. MacPhail must be able to invoke Australian jurisdiction as
a matter of law, which to this Court appears impossible.
App. 29
unreasonable for this Court to decline jurisdiction over
this case in favor of a forum selection clause choosing an
implausible and unworkable forum.
In sum, this Court finds the forum selection clause at
issue unreasonable and therefore unenforceable because
its enforcement would violate a strong public policy and
because Plaintiff would thereby be deprived of his day in
court. To find such a clause valid and enforceable in the
precise facts of this case would amount to an unmistakable
violation of our strong public policy protecting the rights of
seamen as wards of the American admiralty courts, and
furthermore, would effectively deprive MacPhail of his
rightful day in a court of proper jurisdiction. As such,
Oceaneering’s Motion to Dismiss is hereby DENIED.
IT IS SO ORDERED.
App. 30
302 F.3d 274
United States Court of Appeals,
Fifth Circuit.
Alistair J. MacPHAIL, Plaintiff-Appellee,
v. :
OCEANEERING INTERNATIONAL, INC.,
Defendant-Appellant.
No. 02-40317.
Aug. 7, 2002.
Edward Donald Burbach, Gary J. Siller, Christine
Zebley Carbo (argued), Strasburger & Price, Joseph
Warren Walker (argued), Franklin, Mosele & Walker,
Houston, TX, Bob F. Wright, Thomas R. Edwards,
Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for
Plaintiff-Appellee.
James Patrick Cooney (argued), Charalambos Aposto-
lakopoulos, Royston, Rayzor, Vickery & Williams, Houston,
TX, for Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas.
Before DAVIS, DeMOSS and STEWART, Circuit
Judges.
DeMOSS, Circuit Judge:
This is an appeal from an action brought by Alistair
MacPhail (MacPhail) as an admiralty and maritime law
claim against Oceaneering International, Inc. (Oceaneer-
ing) in the United States District Court for the Southern
District of Texas. Specifically, this appeal concerns the
validity of [sic] contractual forum selection clause and an
rs + ae
App. 31
injunction preventing Oceaneering from further prosecut-
ing any action against MacPhail in Australia.
Oceaneering presents two issues on appeal: (1)
whether the district court abused its discretion when it
enjoined Oceaneering from prosecuting its contract claims
against MacPhail in Australia; and (2) whether the district
court erred when it denied Oceaneering’s Motion to Dis-
miss.
BACKGROUND
In May of 1998, MacPhail was working as a diver for
Oceaneering onboard a dive support vessel, which was
operating in the South China Sea off the Coast of China.
MacPhail was employed to perform saturation diving,
which required him to be “stored” at a depth of approxi-
mately 100 feet for a 30-day period.’ While saturation
diving, MacPhail breathed a mixture of helium and oxygen
and undertook approximately fifteen “bell runs” in which
he descended to a work area on the seabed in a diving bell,
exited the bell for several hours and then returned in the
bell to the vessel.
On the second bell dive, MacPhail observed oil, mud,
and sludge coating the hoses and the inside of the bell.
’ Saturation diving is based on the principle that at certain depths
and after certain amounts of time have passed, the amount of time it
takes to decompress is the same. This is the diver’s saturation point.
Therefore, divers are placed in a tank, which places the divers under
pressure and maintains them at this level of pressure to avoid decom-
pression sickness or “the bends.” The divers can then be lowered to the
ocean floor through a diving bell and brought back up to the tank, with
no ill effects due to decompression sickness.
App. 32
MacPhail experienced severe headaches, loss of concentra-
tion, and decreased coordination. After the bell returned to
the vessel, MacPhail reported his problems to surface
management and the interior of the bell was cleaned by
the deck crew. MacPhail continued to make his scheduled
dives to the bottom but experienced headaches, loss of
appetite, nausea, vomiting, and other medical problems.
Later analysis of the seabed indicated the mud on the
bottom contained toxic levels of arsenic, mercury, cyanide,
hydrogen sulfide, and polychlorinated biphenyls.
At the end of his 30-day diving period, MacPhail was
brought to the surface and released from the saturation
tank. MacPhail was weak, disoriented, and needed medi-
cal attention. MacPhail was transported to Hong Kong,
where he received one day of medical treatment. He was
then transported to Singapore for additional treatment,
after which he was returned to Australia, where he re-
sided.2 MacPhail saw additional doctors in Australia that
were provided by Oceaneering. Over the next several
months, MacPhail continued to suffer from numerous
complications including sleep loss, depression, fainting
spells, and headaches. During this time, MacPhail re-
quested that experts in hyperbaric medicine and toxicology
examine him. However, Oceaneering told MacPhail it was
looking for, but was unable to locate appropriate special-
ists.
Eventually, MacPhail was told nothing more medically
could be done for him; and the parties negotiated an
? MacPhail’s Original Complaint below notes that he is “a resident
and citizen of Australia."
App. 33
agreed settlement. Despite being advised by Oceaneering
to obtain legal counsel, MacPhail chose not to be repre-
sented by counsel during the negotiations and when he
signed the Deed of Release and Discharge (“Release”).’ The
Release provided: “This Deed of Release and Discharge
will be governed by and construed in accordance with the
laws of Western Australia.” In addition, the Release
included a forum selection clause: |
In the event of any dispute in respect of or aris-
ing from this Deed of Release and Discharge or
any matter relating thereto the parties hereby
agree to submit their dispute to the exclusive ju-
risdiction of the District or Supreme Court of
Western Australia, or to the Federal Court of
Australia and the parties hereby agree to submit
to the exclusive jurisdiction of the said Courts.
In consideration of the Release, MacPhail received
$280,000; Oceaneering’s commitment to provide him with
additional training courses; and a $25,000 escrow fund to
cover future medical expenses.* Additionally, on November
5, 1999, MacPhail filed suit against Oceaneering in the
District Court of Western Australia, Perth; and that court
entered final judgment based on the Consent Order
between MacPhail and Oceaneering.”
2 In a letter dated November 2, 1999, Oceaneering’s counsel
advised MacPhail of the proposed settlement agreement and advised,
“(w]e would recommend that you obtain legal advice as soon as possible
_.. [elould you kindly notify us in writing when you have considered the
documents and obtained legal advice on the same."
* The $25,000 escrow account has since been exhausted.
’ Under Section 9(1Xa) of Australia’s Admiralty Act of 1998,
Federal Courts, the courts of the Territories and State courts have
(Continued on following page)
App. 34
In November 2000, MacPhail traveled to the United
States for treatment and was diagnosed with various
physical abnormalities, including brain and nerve damage,
all linked to toxic chemical exposure and decompression
sickness. As a result, in September of 2001, MacPhail filed
this lawsuit against Oceaneering in the Southern District
of Texas, invoking the court’s admiralty jurisdiction and
claiming seaman status under 46 App. U.S.C. § 688.
Oceaneering filed a Motion to Dismiss based on the Re-
lease and its forum selection clause.
On October 17, 2001, the district court issued an
Order Denying Oceaneering’s Motion to Dismiss. The
district court concluded that the forum selection clause in
the Release was “unreasonable and therefore unenforce-
able because its enforcement would violate a strong public
policy and because Plaintiff would thereby be deprived of
his day in court.”
On January 9, 2002, Oceaneering filed a Writ of
Summons in the Supreme Court of Western Australia
seeking to enforce specific performance of the Release. The
Writ commanded MacPhail to make an appearance in the
Australian forum within 10 days. MacPhail, however, was
scheduled to travel to the United States in mid-January
jurisdiction over in personam maritime claims. Under Sections 4(3)\c)
and (d), such maritime actions include claims for personal injury
sustained as a consequence of a defect in a ship or arising out of an act
or omission of the owner of the ship, or a person in possession or control
of a ship, or a person for whose wrongful acts or omissions the owner of
the ship is liable. Se DAMIEN J. CREMEAN, ADMIRALTY JURIS-
DICTION: LAW AND PRACTICE IN AUSTRALIA 37-42 (The Federa-
tion Press 1997) (discussing Sections 4(3)(c) and (d) of the Admiralty
Act of 1988).
App. 35
for further treatment and independent medical examina-
tions. As a result, MacPhail filed a Motion to Enjoin his
admiralty suit in the Southern District of Texas. In his
motion, MacPhail argued that Oceaneering filed the
Australian lawsuit to effectively circumscribe the South-
ern District of Texas’ jurisdiction and to interfere with
MacPhail’s medical treatment. Oceaneering filed a Motion
in Opposition and asked the district court to reconsider its
previous Order denying Oceaneering’s Motion to Dismiss.
On February 11, 2002, the district court issued an order
granting MacPhail’s Motion to Enjoin and denied
Oceaneering’s Motion for Reconsideration. Oceaneering
appeals from that order.
DISCUSSION
Issue I: Whether the district court erred when it en-
joined Oceaneering from prosecuting its contract claims
against MacPhail in Australia.
A. Standard of Review
We review the district court’s decision to grant injunc-
tive relief for abuse of discretion. Kaepa, Inc. v. Achilles
Corp., 76 F.3d 624, 626 (5th Cir.1996). Under this stan-
dard, “findings of fact are upheld unless clearly erroneous,
whereas legal conclusions are subject to broad review and
will be reversed if incorrect.” Jd. (internal quotations
omitted).
B. Analysis
Two factors are relevant to our comity analysis as we
evaluate the district court’s granting of MacPhail’s Motion
to Enjoin Oceaneering from prosecuting its action for
specific performance in the Supreme Court of Western
App. 36
Australia: whether the foreign litigation is duplicitous and
vexatious litigation; and whether the injunction is neces-
sary to protect the court’s jurisdiction. See id. at 627.
Oceaneering’s instituting an enforcement action in
Australia is not duplicitous or vexatious. The two suits are
not duplicitous. The suit filed by MacPhail in the Southern
District of Texas, although arising out of facts contem-
plated in the Release, is a maritime tort claim alleging
substantial injuries. The Australian lawsuit filed by
Oceaneering seeks specific performance of the settlement
agreement that the Australian court had already ap-
proved. Furthermore, Oceaneering’s Australian lawsuit is
not vexatious. If the District Court of Australia had proper
jurisdiction to rule on the validity of the Release, as it
already had, it is hard to imagine how seeking enforce-
ment of that ruling would be vexatious.
We reject MacPhail’s argument that the district court
had to issue the injunction to protect its jurisdiction.
Whether or not the District Court for the Southern Dis-
trict of Texas has jurisdiction of this case is a function of
whether or not the Australian court had jurisdiction of the
suit filed by MacPhail to secure that court’s approval of his
original settlement agreement and release with Oceaneer-
ing. The District Court of Western Australia established
prima facie jurisdiction when it approved the Release and
the settlement between Oceaneering and MacPhail long
before the Southern District of Texas enjoined Oceaneer-
ing from proceeding with its lawsuit in Australia. Fur-
thermore, nothing in the record suggests MacPhail will be
barred from arguing the validity of the Release and the
forum selection clause in the Australian forum. Accord-
ingly, we find that the district court abused its discretion
when it enjoined Oceaneering; and we VACATE the
App. 37
district court’s order granting MacPhail’s Motion to Enjoin
and denying Oceaneering’s Motion for Reconsideration.
Issue II: Whether the district court erred when it denied
Oceaneering’s Motion to Dismiss MacPhail’s suit in
contravention of the forum selection clause.
A. Standard of Review
The enforcement of a forum selection clause is an
issue of law, and we review the district court’s conclusions
of law de novo. Afram Carriers, Inc. v. Moeykens, 145 F.3d
298, 301 (5th Cir.1998). Further, we review de novo a
district court’s determination that a contract clause is
unenforceable based on public policy grounds. Fidelity &
-~Deposit Co. v. Conner, 973 F.2d 1236, 1241 (5th Cir.1992).
This Court has held, however, that federal courts must
presumptively uphold forum selection clauses in interna-
tional transactions. Haynsworth v. Corporation, 121 F.3d
956, 962 (5th Cir.1997). Therefore, we review the district
court’s denial of Oceaneering’s Motion to Dismiss de novo.
B. Analysis
For some of the same reasons stated above in Issue I,
we conclude the district court’s order denying Oceaneer-
ing’s Motion to Dismiss must be vacated. However, given
the posture of this case, we REMAND this proceeding to
the Southern District of Texas with instructions to hold
this case in abeyance pending a judgment by the Supreme
Court of Western Australia concerning the negotiated
settlement. If the Australian court grants Oceaneering’s
suit to enforce the prior settlement agreement made in
that court, then the district court will dismiss this
App. 38
admiralty proceeding with prejudice. If the Australian
court sets aside the settlement agreement for any reason,
then the district court will restore this case to its active
docket and determine whether it has jurisdiction over
MacPhail’s claims under the theories asserted in his
petition.
CONCLUSION
Having carefully reviewed the record in this case and
the parties’ briefing and for the above reasons, we conclude
the district court abused its discretion when it enjoined
Oceaneering from pursuing its action for specific perform-
ance in the Supreme Court of Western Australia. We
VACATE the district court’s order granting MacPhail’s
Motion to Enjoin and Oceaneering’s Motion for Reconsid-
eration. Further, we STAY the district court proceedings
pending judgment by the Australian court. We REMAND
this case to the district court for proceedings consistent
with this opinion.
VACATED in part, STAYED, and REMANDED.
bs
App. 39
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALISTAIR J. MacPHAIL
OCEANEERING
§
§ CANO. G-01-266
§
INTERNATIONAL, INC. §
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
AFFIDAVIT OF David A. Youngblood, MD
On this day 27 Sept 01 appeared before me, the
undersigned notary public. After I administered an oath to
Dr Youngblood upon his (his, her) oath. (He/she said:
My name is David A. Youngblood I am competent to
make this affidavit. The attachment marked as Exhibit A
is a true and correct copy of my opinion written and signed
on 27 Sept 01. The facts stated in my report attached as
Exhibit A to my affidavit are within my personal knowl-
edge and are true and correct.
David A. Youngblood, MD
/s/ David A. Youngblood MD
Name of affiant
SWORN TO and SUBSCRIBED before me by Dr
Youngblood on
September 27, 2001.
Rhonda McNally
Notary Public in and for the
State of South Carolina
App. 40
To whom it may concern: my compensation for this opinion
is calculated at a rate of $400/hour. A total of 12.5 hours
was spent, for a total compensation of $5000.00. To be
billed.
/s/ Dr. David A. Youngblood, MD
David A. Youngblood, MD, MPH &
TM, FACPM, FACHM
David A. Youngblood is a physician engaged in
the practice of wound care, diving and hyperbaric
medicine. A summary of his training and experi-
ence is as follows:
MEDICAL EDUCATION:
Medical College of South Carolina, Charleston,
SC, Doctor of Medicine Degree — September 1960
— June 1964.
Louisiana State University Fellowship in Tropi-
cal Medicine, University of El Salvador, San Sal-
vador, El Salvador — December 1963 — February
1964.
U.S. Naval School, Submarine and Radiation
Medicine, U.S. Naval Base, New London, CT, -
June 1966 — December 1996.
U.S. Naval School, Deep Sea Diving, Washing-
ton, D.C. — January 1967 — March 1967.
School of Public Health and Tropical Medicine,
Tulane University New Orleans, LA, Master of
Public Health and Tropical Medicine Degree —
September 1969 — June 1970.
Fellowship in Preventive Medicine (Epidemiol-
ogy) — June 1970 — July 1972.
App. 41
NOAA Physicians Hyperbaric Medicine Training
Program, Virginia Key, FL - November 1982.
INTERNSHIP:
Medical College Hospitals, Medical College South
Carolina, Charleston, SC (Mixed medical/surgical
internship) — June 1965 — May 1966.
CAREER HISTORY:
Medical Officer, American Museum of Natural
History — National Geographic Society, Bolivian
Expedition, Beni, Bolivia — June 1964 — Novem-
ber 1964.
Chief, Medical Section, Studies and Observations
Group, Military Assistance Command, Republic
of Vietnam — 1967.
Diving Medical Officer, Harbor Clearance Unit
One, Subic Bay, Philippi8nes and Republic of
Viet Nam — 1968.
Fellow in Preventive Medicine (Epidemiology),
Tulane University, School of Public Health and
Preventive Medicine, New Orleans, LA — 1969 —
1972. (During this period Dr. Youngblood acted
as medical advisor to a number of commercial
diving companies serving the offshore oil indus-
try, as well as responding to diving emergencies
in the Gulf of Mexico).
Medical Director and Director of Diving Re-
search, Harbor Branch Foundation Laboratory,
Fort Pierce, FL — 1972 — 1974. (Most of Dr.
Youngblood’s time during this period was spent
on assignment at Duke University Medical Cen-
ter, F.G. Hall Laboratory for Environmental
Medicine involved in diving and hyperbaric
medicine research).
DRO «8. gL ets he
.
es alah ed nl ert an hegtalaat ie Shan eicninnte 2S
pha sit nwt
App. 42
Research Associate, F.G. Hall Laboratory for En-
vironmental Medicine, Duke University Medical
Center — 1973 — 1980.
Visiting Professor, Department of Physiology,
University of Bergen, Bergen, Norway — 1979 —
1980.
Consultant to Norwegian Underwater Institute,
Bergen, Norway 1979 — 1980.
Medical Director, Oceaneering International,
Inc., Houston, TX — 1975 — June 1994.
Medical Director, Sea Tec. International, Ltd.,
Gloucester, MA — 1980 — 1983.
President, Hyperbaric Medical Systems, Inc.,
Corpus Christi, TX — 1983 — 1985.
Medical Director, Hyperbaric Medicine Unit,
Memorial Medical Center Hospital, Corpus
Christi, TX — 1982 — 1985.
Staff Physician, Occupational Medicine Clinic,
NASA/Johnson Space Center, Houston, TX -
1985 — 1986.
Medical Officer, Hyperbaric Treatment Center,
University of Hawaii School of Medicine, Hono-
lulu, HI — 1986 — 1987.
Adjunct Associate Professor, Department of
Physiology, University of Hawaii School of Medi-
cine, Honolulu, HI — 1986 — 1993.
Staff Physician — Department of Occupational
Medicine, Straub Clinic and Hospital, Inc., Hono-
lulu, HI — 1986 — January 1993.
Director, Baromedicine Unit, Straub Clinic and
Hospital, Inc., Honolulu, HI 1988 — 1993.
sent.
Medical Director, Oxycare International, Inc. —
February 1993 — Present.
Director, Hyperbaric Oxygen Department, Roper
Hospital, Charleston, SC — January 1995 — Pre-
sent.
PROFESSIONAL CERTIFICATION:
Board Certified in Occupational Medicine by the
American Board of Preventive Medicine, Novem-
ber 1979.
Board Certified in Hyperbaric Medicine by the
American Board of Hyperbaric Medicine 1989.
Board Certified in Undersea and Hyperbaric
Medicine by the American Board of Preventive
Medicine, November 1999.
Board Certified in Wound Management by the
American Academy of Wound Management,
April 1999. -
PROFESSIONAL SOCIETY MEMBERSHIPS:
App. 43
President, Ocean Consultants, Inc. — 1982 — Pre-
4
| American Medical Association
| Undersea and Hyperbaric Medical Society
| The Wound Healing Society
| American College of Hyperbaric Medicine
: South Pacific Underwater Medical Society
American College of Preventive Medicine
Youngblood, D.A. and Davis, J.C. - Management
of Diving Accidents, Physiology of Diving and
App. 44
Compressed Air Work, Third Edition, P.B. Ben-
nett and David Elliot, 1982, Published by Bail-
lere and Tyndall, London.
Youngblood, D.A., Nitrox Saturation Diving, Pro-
ceedings of the Offshore Technology Conference,
1982 — Houston, Tx.
Youngblood, D.A., Hyperbaric Oxygen in the
Treatment of Hansen’s Disease, Hyperbaric Oxy-
gen Review, 1984, Vol. 5, No. 4.
Youngblood, D.A., Validation of Decompression
Tables: A Diving Doctor’s Viewpoint, P. 59 Vali-
dation of Decompression Table, Proceeds of the
Thirty Seventh Undersea and Hyperbaric Medi-
cal Society Workshop, 15 May 1987. UHMS Pub-
lication No. 74 (VAL) 1-1-88.
Barry, P.D., Vann, R.D., Youngblood, D.A., Pe-
tersen, R.E., and Bennett, P.B., Decompression
from a Deep Nitrogen-Oxygen Saturation Dive —
A Case Report. Undersea Biomedical Research,
1984, Vol 1, No. 4, p. 387-393.
Davis, J.C. and Youngblood, D.A. Definitive
Treatment of Decompression Sickness and Arte-
rial Gas Embolism. Weekly Update Hyperbaric
and Undersea Medicine, Vol. One, No. 23, 1976.
Youngblood, D.A. and Vega, R.L., Paradoxical
Pain During the Treatment of Dysbaric Osteone-
crosis with Hyperbaric Oxygen. Undersea Bio-
medical Research, Undersea and Hyperbaric
Medical Society Annual Scientific Meeting, Sup-
plement to Vol. 18 (1991).
Youngblood, D.A. Hyperbaric Oxygen in the
Treatment of Hansen’s Disease, Hyperbaric
Medicine Practice, Edited by Eric P. Kindwall,
1993 Best Publishing Co., Flagstaff, Arizona.
ee
App. 45
Dr. Youngblood has authored or co-authored a
number of scientific and technical articles in the
field of diving and hyperbaric medicine.
Publications:
Capel, Youngblood, Stewart, Note on Stress,
Anxiety and Related Defenses in a Controlled
Situation. Psychological Reports, 1970 27;351-
355.
Youngblood, D., P.B. Bennett, R.W. Smith, W.G.
Thomas and J.C. Farmer, Jr. (1975). Operational
management of vestibular decompression sick-
ness (abstract). Proceedings 6th Symposium and
Underwater Physiology, San Diego, 88a, 1975.
Farmer, J.C., Jr., W.G. Thomas, D.A. Youngblood
and P.B. Bennett, Inner Ear Decompression
Sickness. Laryngoscope 1315-1327, September
1976.
Bennett, P.B., G.D. Blenkarn, J. Roby and D.A.
Youngblood (1974) Suppression of the High Pres-
sure Nervous Syndrome (HPNS) in human dives
to 720 feet and 1,000 feet by use of Proceedings
Annual Scientific Meeting of the Undersea Medi-
cal Society, Washington.
Farmer J.C., Jr., Thomas, W.G., Youngblood,
D.A. and Bennett, P.B. (1976) Inner Ear Decom-
pression Sickness. Proceedings Undersea Medi-
cal Society Scientific Meeting. 3, A50.
Bennett, P.B., Jody, J., Simon, s. [sic] and
Youngblood, D.A. Optimal use of nitrogen to
suppress the High Pressure Nervous Syndrome.
Aviation, Space and Environmental Medicine,
46, 37-40 (1975).
App. 46
Youngblood, D.A. and Wolfe, W.G., Unearthly
Atmosphere: some Dangerous Aspects of Diving
Gases. Diving Medicine. Ed. R.H. Strauss, 1976,
published by Grune and Straton.
Pe sable Pa sbtan Stee TF sre PO ew
App. 47
OCEAN CONSUTANTS [sic] , INC.
P.O. BOX 1708
CHARLESTON, SC 29402
27 September 2001
Joseph W. Walker, Esq.
Franklin, Mosele & Walker, P.C.
4200 Westheimer, Suite 130
Houston, Texas 77027
Re: C.A. No. G-01-266; Alistair J. MacPhail v.
Oceaneering International, Inc.; in the United States
District Court for the Southern District of Texas, Galves-
ton Division.
Dear Mr. Walker:
At your request, I have reviewed the following docu-
ments:
Deposition Book:
C. Eric Brown taken on March 8, 2001;
Sworn Statement of Michael J. Humphries taken on
May 4, 2000;
David M. Leung taken on March 8, 2001;
Terrence E. Overland taken on January 9, 2001;
Christopher R. Rogers taken on March 19, 2001; Vol.
2, taken 29 March 2001
Michael J. Shord taken on January 8, 2001;
J. Colin Wilson taken on March 16, 2001; and
John L. Zachary taken on February 2, 2001.;
Medical Records/Correspondence book:
Letter from Cocks Macnish regarding medical treat-
ment for Mr. Shord;
Medical Records (with medical chronology)
Dr. Edmund K. Kerut;
Our Lady of Lourdes Regional Medical Center;
Dr. Susan R. Andrews;
Heart Clinic of Louisiana;
App. 48
West Jefferson Medical Center;
Dr. Thomas J. Callender;
Dr. John W. Simon;
Dr. Roger Pang;
Prof. T.M.E. Davis;
Dr. Morteza Shamsnia;
Dr. Paul G. Harch; and
Dr. Greg Deleuil.
Deed of Release of Discharge
Opinion of Jonathan Phillips Psychiatrist regard-
ing his mental condition and its impact on his
signing a settlement agreement. (with attached
witness statements)
Opinion of Andrew Cartmel rehabilitation coun-
selor
The opinion of Paul Harch dated January 20,
2001
A [sic] October 3, 2000 letter from Doctor Davis
giving a full list of chemicals from Oceaneering
A 26 September 2000 letter from Dr. Greg
Deleuil indicating that he was not given a com-
plete list of chemicals by Oceaneering which he
calls “disgraceful.” .
Oceaneering Daily Status Reports from DSV
Ocean Winsetor [sic] , May & June of 1998
Oceaneering Vessel Status Reports, for May &
June of 1998
Oceaneering Daily Operations Reports, DSV
Ocean Winsertor, May & June of 1998
Oceaneering Consumable Requisitions, May &
June of 2001
Official Deck Logs of the DSV Ocean Winsertor,
May & June of 1998
Oceaneering Monthly Consolidated Dive Reports,
May & June of 1998
Oceaneering Bell Logs for DSV Ocean Winsertor,
May & June of 1998
App. 49
Oceaneering LST Logs for DSV Ocean Winsertor,
May & June of 1998
Various e-mail and FAX _ correspondence
t/from/regarding DSV Ocean Winsertor
Oceaneering Bell Saturation Operations Dive
Sheets, for May & June of 1998
Equipment Maintenance Logs from DSV Ocean
Winsertor
Oceaneering Diving Operations Manual, Vol-
umes 1& 2
Oceaneering Technical Report Manual, Revision
III
Oceaneering Saturation Decompression Logs
Sat Shack Logs from DSV Ocean Winsertor
Oceaneering Gas Recovery Systems Manuals
Oceaneering Accident Reports
Various papers and articles on the topic of Hy-
drogen Sulfide gas
Oceaneering Safety Policy Manual (SAF-MAN-001)
Oceaneering Emergency Response Internal Con-
tact Details (SAF-SPR-004)
Sworn Statement by Allstair [sic] J. MacPhail
filed pursuant to Admiralty Rule 9h
Based upon my review, I have formed the following
opinions:
The crew of the MV Ocean Winsertor were placed in
harm’s way when they approached WZ11-4A platform on 7
May ’98, mooring to the north face of the platform. There
: is no record of a Job Hazard Analysis being performed
prior to commencing operations in a known H2S contami-
nated field, and at 14:49 on 8 May, diver Gordon Chew
collapsed upon exiting the dive stage. This was a close call,
and it is more probable than not that diver Chew would
have died or suffered permanent brain damage if he had
not been treated with hyperbaric oxygen, albeit for a
App. 50
different diagnosis. Supervisor Colin Wilson indicated in
his Daily Status Report of 8 May ’98 that he was “advised
by OI corporate safety that both DCS (C. Rogers was
treated earlier for a “pain only” bend) were related to H2S
contamination.” I agree.
In the same report, Supervisor Wilson asks, “can
exposure to H2S cause problems with cumulative effects?”
Despite his concern, he received no recorded response,
although the Corporate Safety Officers faxed a reply on
9 May including M. Fraser, the Safety Officer for
UEAM/ASIA, but is unclear whether Mike Humphries or
Colin Wilson were copied. In essence, the fax advised the
actions to be taken if H2S was “suspected” by the captain
or diving supervisor.
Incidentally, unless there are two Mike Humphries,
the organization charts show him acting as Diving Man-
ager for Marine Oilfield Services at the same time as he
was serving as Safety Officer - a potential conflict of
interests in this situation and the fundamental reason
that the Corporate Safety Group was originally structured
to accept the ultimate responsibility of stopping dangerous
operation without concern for local profit or promotion.
When the first suspicion of H2S toxicity occurred this job
should have been stopped until a thorough hazard analy-
sis could be performed. If Mike Humphries was also acting
as Diving Manager for the contract, the Corporate Safety
Officer had the duty to “shut it down” until it could safely
proceed.
On 19 May saturation diving was underway at the WZ
11-4A site. Two divers had significant symptoms of H2S
poisoning, plus there was evidence that the reclaim
breathing gas was being contaminated by toxic material.
App. 51
Colin Wilson and Mike Humphries were concerned, but
there is no record of a reply from Terry Overland in
Houston until 19 May when he recommended, “rubber
gloves and possible dry suits, but be careful of the diving
helmet, there will be splash back in the helmet, use of a
Rat Hat is recommended”. A few days later, the fillings in
the divers’ teeth began to fall out!
By this time, 26 May, the first test results from the
mud samples were back; despite being five days old, one
showed an H2S content of 161.4ppm. Colin Wilson’s report
dated 30 May advises that, “samples from the piggable
wye tested for H2X onboard read 23 ppm. But when
shaken read outreached 530 ppm. A qualified medical
opinion would also be appreciated!”
No evidence of a qualified medical opinion exists; they
were readily available to Corporate Safety in Houston.
Overland’s fax of 1 June 98 to Humphries says“... I have
a doc calling today or tomorrow, will let you know.” All
that he sent was a collection of internet reports, some with
references to delayed neurological sequlae — the texts of
which were not included! Most of these reports were no
better than Oceaneeringss Own Technical Report on
Hydrogen Sulphide, revised in August 1985 and readily
available in Houston. (Where was the Draeger Toxic Gas
Detector described in the first page of the Report? It is my
impression that they were in use on deck with H2S detec-
tor tubes, but not used in the saturation complex or diving
bell. Apparently the Draeger tubes locked into the dive
complex on 25 May were only used to test for C2!)
On 4 June the saturation excursions began again after
the Supervisor took mud samples over 6 short air dives.
The highest reading was 54 ppm. The sat excursions
App. 52
resumed, but both the lock-out divers and the bellman
became very nauseous and went on BIBS during the
recovery to the DDC. At long last, diving operations were
shut down, nearly a month after the first serious exposure.
Summary:
In my opinion, the Corporate Safety Officer had the
duty and responsibility to respond immediately to the
initial air diving incident of 8 May ’98 and request a job
hazard analysis which would have revealed the deficien-
cies in H2S preparedness aboard the MV Ocean Winsertor.
The Corporate Safety Officer clearly had access to infor-
mation regarding the effects of H2S and other contami-
nants and was capable of contacting international experts
in the fields of diving medicine, occupational medicine,
and toxicology, and he had received training in the subject.
Dr Desmond Gorman of the University of Auckland in
New Zealand is a specialist in both Diving Medicine and
Occupational Medicine and could have been called at any
time; Dr Harry Oxer in Perth, Western Australia was
sponsored by Oceaneering for training in Diving Medicine,
and Dr Carl Edmonds of Sydney is probably the best-
known Diving Medicine specialist in the world! In the
United States Dr. Van Meter, Dr. Harch, or the under-
signed would have been available to help. Failing to seek
medical advice in a timely manner was, in my opinion,
grossly negligent; claiming that it was unavailable or
difficult to locate was simply fraudulent.
Having failed to act on the 8 May incident, Oceaneer-
ing’s Safety Officer had a second opportunity to respond by
shutting the job down on 19 May when symptoms occurred
among the saturation divers and investigation pointed to
App. 53
problems with contamination of the reclaimed gas as well
as the bell atmosphere. With divers in saturation; captive
in a potentially contaminated environment and unable to
surface for several days, any action short of decompression
was negligent. If competent medical advice had been
obtained from an occupational medicine specialist familiar
with saturation diving, immediate decompression followed
by medical evaluation would have been the most probable
course. Furthermore, a physician with a diving and
hyperbaric medicine background would have been more
likely to recognize the immediate benefits of hyperbaric
oxygen and recommended treatment during decompres-
sion while still in the chamber. Several were available, as
noted previously. Given the seriousness of the situation,
the Corporate Safety Officer had the duty - and the
authority — to halt the saturation dive and remove the
divers from harm’s way.
Mr. MacPhail’s present condition is largely the result
of inaction after an initial accidental exposure com-
pounded by deliberate recurrent exposures to at least one
identified toxin. Prompt recognition and treatment most
likely would have prevented his present neurological
sequelae since they were already in a hyperbaric chamber
and treatment gases with high oxygen concentrations were
ready at hand, but his quest for treatment was dogged by
delay, obfuscation, and fraudulent misrepresentation.
At this stage of his injury, Dr. Harch’s low pressure
oxygen treatments are appropriate and appear to be of
significant benefit. They could have been initiated imme-
diately, and continuei in Singapore and Australia in
Oceaneering’s own chanbers at little cost or inconvenience
while Mr. MacPhail’s medical evaluations continued with
a potentially more positive outcome. In the absence of
any significant treatment, Mr. MacPhail continued to
App. 54
deteriorate, and, in my opinion, was suffering was severe
anxiety and depression superimposed upon organic brain
damage sustained by exposure to toxins and possible
central nervous system decompression sickness when he
signed the Deed of Release of Discharge in a state of
mental incompetence.
Please be reminded that this is a preliminary opinion
based upon the material reviewed. As more facts become
available, these opinions may be modified accordingly,
especially in regard to the possible long-term effects of
other identified toxins.
Finally, as one of the founders of Oceaneering’s Safety
Group, it saddens me to see the years of dedication by
Diving Supervisors, Area Safety Officers, and the some-
time Medical Director sullied in this perverted scheme by
an insurance company, their solicitors, and a degenerate
corporate culture to fraudulently withhold information,
treatment, and definitive care from divers injured while
carrying out their duties under the captive conditions of
saturation diving. Here, of all places, the employer stands
“in loco parentis” and the failure to respond to the plea for
help in this instance is the most egregious violation of
trust and responsibility I have ever seen in the industry,
with almost criminal neglect causing injury, only to be
followed by a conspiracy to defraud the victims of care and
reasonable compensation.
Sincerely,
/s/ David A. Youngblood, MD
David A. Youngblood, MD, MPH&TM,
FACPM (OM, DHM), FACHM
App. 55
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALISTAIR J MACPHAIL §
Plaintiff §
§
ss § CANoG-01-266
OCEANEERING §
INTERNATIONAL INC §
Defendant §
AFFIDAVIT
On this day DAVID CHARLES LEASK appeared before
me, the undersigned notary public. After I administered
an oath to DAVID CHARLES LEASK, upon his oath, he
said:
1. I have been admitted as a barrister and solicitor in
the Supreme Court of Western Australia and the High
Court of Australia since 1992 and I am the principal
of Leask & Co, Barristers & Solicitors, a law firm spe-
cialising [sic] in personal injury compensation.
2. Ihave been engaged by Alistair Macphail (hereinafter
referred to as “Plaintiff’) in Western Australia to ad-
vise as to:
(a) whether there are grounds on which the Deed of
Settlement between the Plaintiff and Oceaneer-
ing Internation [sic] Inc (hereinafter referred to
as “Defendant”) dated 3 November 1999 (“the
Deed of Settlement”) can be set aside; and if so
(b) whether the Plaintiff is able to commence pro-
ceedings in Western Australia for personal
App. 56
injuries he sustained as a consequence of expo-
sure to toxic chemicals (“the exposure”) in the
South China Sea whilst in the employment of the
Defendant in May or June 1988.
On the basis of the Plaintiffs affidavit herein sworn
24 September 2001 and from my reading of the re-
ports and statements referred to in paragraphs 8, 9
and 10 hereunder, I understand the salient facts to be
as follows:
(a)
(b)
(c)
(d)
(e)
(f)
the Plaintiff a British national who, in May 1998
aged 38 years and was an experienced commer-
cial diver;
whilst the Defendant has a corporate presence in
Singapore with its headquarters and Director of
Safety in Houston, Texax [sic], United States of
America, it does not-and did not have one in Aus-
tralia and, in particular, in Western Australia;
the Plaintiff was engaged by the Defendant on or
about May 1998 to undertake commercial diving
activities for the Defendant in the South China
Sea (“the engagement”);
the contract whereby the Plaintiff was hired has
no express contractual provision relating to the
jurisdiction or choice of law in respect of which
any claim for compensation arising out of the en-
gagement should be brought; nor was the con-
tract signed or refers to any Austrelian company;
the Plaintiff sustained serious personal injuries
(“the injuries”) as a result of chemical exposure
whilst engaged as a saturation diver pursuant to
the contract in or about May 1998 which injuries
were caused by the negligence of the Defendant;
the Defendant knew or should have known that
the exposure and the injuries resulted from
(g)
(h)
(i)
Q)
(k)
App. 57
breach of the duty of care that it owed to the
Plaintiff;
the Defendant’s actions at all times after the ex-
posure were calculated to minimise [sic], to the
Plaintiffs detriment, the Defendants liabilities to
the Plaintiff arising out of the exposure whilst at
the same time causing or allowing the Plaintiff to
believe that the Defendant was assisting the
Plaintiff in facilitating the diagnosis and treat-
ment of the injuries;
the Plaintiff has been substantially compromised,
both physically and psychiatrically, by the inju-
ries and, as a consequence, has been unable and
is unlikely ever to return to his former profession
as a commercial diver;
the Plaintiff did not receive adequate medical
treatment for the injuries in spite of the fact that
the Defendant knew of appropriately qualified
specialist medical practitioners and consistently
represented to the Plaintiff that the Defendant
was attempting to locate such practitioners;
in mid- to late-1999, the Plaintiff had discussions
with Messrs Cocks Macnish, the law firm who
had been appointed to act for the Defendant in
Western Australia, which discussions culminated
in the execution of the Deed of Settlement
whereby the Plaintiff was to receive inter alia
payment of 13S$280,000.00 together with the es-
tablishment of an escrow account in the sum of
US$25,000.00 for future medical expenses;
during the negotiations, and at the time that the
Plaintiff executed the Deed of Settlement, he was
not represented by lawyers;
App. 58
(1) the Plaintiff had no appreciation of the severity of
the injuries and their consequences until he ob-
tained specialist medical treatment in late 2000.
It is my opinion that on the facts as referred to in the
preceeding [sic] paragraph the Plaintiff has good and
valid grounds upon which the Deed of Settlement may
be set aside since
(a) the Plaintiff was both unrepresented and under a
legal disability at the time of negotiating and
executing the Deed of Release, and
(b) the Defendants conduct as referred to in the sub-
paragraphs 3(i) and 3(k) in all the circumstances
may well amount to a fraudulent concealment of
the nature and consequences of the Plaintiffs
condition.
On the facts as stated above, the Plaintiff is not able
to pursue a remedy in relation to the injuries either in
the Federal Court of Australia or in the Western Aus-
tralian Courts since
(a) the contract was not concluded in Australia and
has no connection to Australia;
(b) the Defendant has no legal presence in Western
Australia (or otherwise in Australia);
(c) the only connection between the Defendant and
Australia is that the Defendant is a shareholder
in Oceaneering Australia Pty Ltd, a separate le-
gal entity which has no connection with the inju-
ries nor any liability to the Plaintiff.
(d) the Plaintiff is not a citizen of Australia;
(e) the acts and circumstances giving rise to the in-
juries took place outside the jurisdiction of the
App. 59
Federal Court of Australia and the courts of
Western Australia;
(f) there is no indication that it was the common in-
tention of the Plaintiff and the Defendant that
the contract would be governed by the laws in
force in Australia or Western Australia.
In light of the above [sic] is no connection between the
injuries and either the Commonwealth of Australia or
the State of Western Australia, and the Plaintiff is
therefore not able to commence an action or otherwise
progress a claim in respect of the injuries against the
Defendant in either the Federal Court of Australia or
in the Western Australian courts since those courts do
not have jurisdiction in respect of such a claim.
In the event that the Plaintiff attempted to commence
proceedings in the Federal Court of Australia or in the
Western Australian courts, those proceedings are li-
able to either be:
(a) struck out on the basis that those courts have no
jurisdiction to entertain such a claim; alterna-
tively,
(b) stayed and transferred to the jurisdiction where
the claim should have been brought.
In forming the opinions expressed in this affidavit, I
have read and rely on the statements of
(a) Ms Dianna Brooks dated 23 April 2001;
(b) Mr Andrew Pither dated 2001;
(c) Dr David Webb dated 30 March 2001; —
(d) Dr Peter Green dated 3 April 2001;
(e) Ms Shirley Dawson dated 5 April 2001; and the
medical reports of
(f)
(g)
(h)
(i)
Q)
(k)
(1)
App. 60
Dr Jonathan Phillips dated 7 March 2001 and 11
April 2001;
Dr. Paul Harch dated 14 November 2000 and 20
January 2001;
Dr Susan R Andrews dated 12 December 2000;
and
Dr Marteza Shamsnia dated 29 November 2000;
together with
the deposition of Terry Overland taken on 9
January 2001 and the telephonic sworn state-
ment of Paul R. MacCallum taken on 31 August
2001;
the deposition of David M Leung taken on 8
March 2001;
the report of Richard D Walker dated 19 April
2001;
(m) the affidavit of Michael John Humphries made 4
May 2001; and
(n) the telephonic sworn statement of Paul R. Mac-
Callum taken on 31 August 2001.
I have been paid the sum of AUS$1,650.00 to provide
this opinion.
/s/ David Charles Leask
David Charles Leask
Name of affiant
App. 61
SWORN TO and SUBSCRIBED before me by David
Charles Leask on 25th September 2001
/s/ [Illegible]
Notary Public in and for the
State of Western Australia
6 Norfolk St
Fremantle
W. Australia
(LOGO)
PG ES SRN sill,
App. 62
PAUL G. HARCH, M.D.
1816 Industrial Boulevard
Harvey, Louisiana 70058
Telephone 504-348-1660 Fax 504-348-1650
E mail address: hmr@bellsouth.net
Website address: www.hyperbarics
January 20, 2001
Mr. David Leask
Leask and Company,
Barristers and Solicitors
26 Cliff Street
Fremantle, Western Australia 6160
Re: Alistair MacPhail
Dear Mr. Leask:
In response to your letter of December 1, 2000, regarding a
report on the above-named patient, I'd like to submit the
following answers to your questions. As you know, I
evaluated and treated Mr. MacPhail beginning November
15th and ending December 15th, 2000. The patient un-
derwent a variety of tests. My initial consultation is
attached. At the end of this report I will give you a sum-
mary of any testing not answered in the specific responses
to your questions and also I will detail his response to
treatment. Unfortunately, I do not have the treatment
records of Mr. MacPhail from Australia. I have some
isolated communications to Oceaneering and to some of
the experts who evaluated Mr. MacPhail. This material
was from Mr. MacPhail’s personal file. Responses to your
questions are as follows:
1. A BRIEF HISTORY OF THE INCIDENT AND ALIS-
TAIR’S SUBSEQUENT TREATMENT AS RELATED
TO YOU BY ALISTAIR? My understanding is that
App. 63
the patient was exposed to a combination of chemicals
including lethal levels of hydrogen sulfide, also known
as a knockdown toxin, in May of 1998 while involved
in a saturation dive. I understand the patient devel-
oped a variety of symptoms at depth including loss of
consciousness or near loss of consciousness, head-
aches, loss of amalgam fillings, extreme fatigue,
sleepiness, and then a worsening of symptoms upon
exit from saturation, which possibly peaked in the
first month of his return to home in Australia. All of
the details, as well as his chief complaints, are in the
attached initial consultation of mine. I understand
that he was seen by a number of physicians; however,
the patient reports that he was never evaluated by a
diving medicine physician or a physician that he be-
lieves had toxicology experience. He did, however, see
a surgeon who diagnosed bilateral carpal tunnel syn-
dromes and he underwent surgery. To my knowledge,
the patient has had very little other treatment. I un-
derstand his primary doctor, Dr. Deleuil, told the pa-
tient that his evaluation and treatment was outside
his area of expertise and recommended referral to
suitable other physicians.
MY FINDINGS ON CLINICAL EXAM AND INTER-
PRETATION OF ANY RADIOLOGICAL OR OTHER
FINDINGS? My findings on physical exam are de-
tailed in the patient’s consultation which, again, is at-
tached. In brief, findings include some abnormalities
about the left eye which is due to old trauma unre- -
lated to this accident. He had some slight left lower
quadrant tenderness in his abdomen which he said
has been present since the accident. His rectal tone
was decreased as was his ability to squeeze. His bul-
bocavernosus reflex was also markedly diminished.
His neurological exam was abnormal, showing consid-
erable difficulty smelling isopropyl alcohol in both
nostrils. He had decreased soft touch and pinprick on
App. 64
the left side of the face, decreased hearing in both ears
with noxious air conduction bilaterally, worse on the
right side, lateralization of his Weber to the left ear on
two occasions, slightly unsteady Unterberger (rotation
exam), noticeably decreased strength in both upper
extremities, especially with his hands, worse on the
right side, patchy decreased upper extremity and
lower extremity sensory reduction, generally worse on
the right side of the body in touch, pinprick, and cold
sensation, generalized decrease of vibration sensation
on the right side of the body, some decrease of vibra-
tion sensation as you proceeded distally in both upper
and lower extremities, abnormalities of position sen-
sation in the upper and lower extremities, more so on
the right side, slightly abnormal tandem gait, un-
steady Romberg, asymmetry of sharpened Romberg
with greater instability on the left foot forward,
asymmetry of foot tapping with abnormality on the
right side, and intention tremor bilaterally.
Laboratory testing included an abnormal SPECT
brain scan on a high resolution scanner showing gross
heterogeneity. This was slightly improved after a sin-
gle hyperbaric treatment and markedly improved at
the end of the patient’s hyperbaric treatment course.
Quantitative somatosensory vibration and tempera-
ture testing in upper and lower extremities was ab-
normal and consistent with sensory neuropathies.
EEG was mildly abnormal, showing borderline poste-
rior rhythms suggesting a diffuse cerebral dysfunc-
tion. Neuropsychometric testing showed multiple
abnormalities with function in the impaired range.
Greatest abnormalities were in memory and attention
as well as right hand speed and coordination. This
was consistent with organic brain damage and de-
pression and anxiety which had an organic basis. MRI
of the brain showed minimal patchy parietal periven-
tricular white matter changes consistent with chronic
App. 65
ischemia. Echocardiogram showed a borderline left
ventricular hypertrophy, mild tricuspid and mitral re-
gurgitation but normal left ventricular function. Un-
fortunately, the apex of the heart was poorly
visualized. EKG showed a borderline first degree AV
blot. Chest x-ray showed atelectasis or scarring in
both the right middle lobe and the left lingula. Car-
diac stress testing was normal, consultation by Dr.
Kerut, cardiologist, revealed no significant abnormali-
ties. Evaluation by Dr. Callender, toxicologist, is un-
available but was felt to be abnormal. Evaluation by
Dr. Shamsnia, neurologist, showed multiple electrical
abnormalities and a diagnosis of upper and lower ex-
tremity peripheral neuropathies as well as bilateral
carpal tunnel syndromes. A sleep apnea study was
performed which showed moderate obstructive sleep
apnea. There was moderate improvement with con-
tinuous positive airway pressure treatment. Accord-
ing to Dr. Callender by verbal report, this is
consistent with an upper airway injury from, most
likely, hydrogen sulfide. Nerve conduction velocities of
the lower extremities were performed and found to be
normal. In the upper extremities they were abnormal,
showing abnormal sensory latencies and borderline to
low amplitudes. This was consistent with upper ex-
tremity sensory neuropathies and bilateral carpal
tunnel syndromes. Somatosensory evoked potentials
of the median nerve were normal bilaterally, however,
dermatomal somatosensory evoked potentials were
normal. The posterior tibial somatosensory evoked po-
tentials were also normal; however, the dermatomal
somatosensory evoked potentials in the lower ex-
tremities were abnormal and consistent with 1.5
radiculopathics. I don’t know if this last finding can be
attributed to either the toxic exposure or decompres-
sion sickness.
App. 66
Psychometric testing was repealed after HBOT, but
the results are not available. The implication of my
interpretation of all of these findings is that the pa-
tient does not have any significant cardiac injury from
either decompression sickness or toxic exposure; how-
ever, he has central nervous system damage including
brain damage due to a combination of toxic brain in-
jury and decompression sickness. The decompression
sickness component, I firmly believe, is present, based
on the patient’s history of worsening symptoms once
he exited saturation and upon his return to Australia
following the airline flight from Indonesia to Austra-
lia. The white matter changes seen on MRI are un-
usual, but are consistent with the known pathology of
brain decompression sickness. I am not sure if hydro-
gen sulfide can cause similar changes. He has spinal
cord decompression sickness, based on some of the
sensory findings but also the delayed reports, secon-
dary to the patient’s embarrassment, of urinary and
sexual problems and the findings of markedly de-
creased anal tone and spinal reflexes. In addition, the
patient has distal proprioception and vibration prob-
lems which are often found due to posterior column
decompressiion sickness of the spinal cord. The pa-
tient also has bilateral upper and lower extremity
sensory neuropathies which, according to the verbal
report of Dr. Shamsnia, the neurologist, is consistent
with a toxic injury. It should be noted that peripheral
neuropathies in diving medicine are felt to be ex-
tremely rare; however, over the course of the past fif-
teen years of diving medicine experience, I have seen
approximately ten cases of acute carpal tunnel syn-
drome in the setting of decompression sickness. These
occurred in divers who were completely asymptomatic
prior to the accident. The fact that now two of these
divers on the same dive have had the same problem
suggests the decompression sickness component, al-
though toxic injury could still possibly be involved in
App. 67
this setting. Overt carpal tunnel syndrome post diving
is consistent with a decompression accident and the
accompanying pathophysiology in that subclinical
compression of the median nerve would predispose
the patient to altered gas exchange. In diving medi-
cine it’s usually much easier to get gas into a tissue
than it is to off-gas the tissue. As such, inert gas sepa-
ration within myelin or other structures of the nerve
are highly probable. In contrast, in my eighteen-year
experience of emergency medicine and over twenty-
some thousand patient visits, I have seen possibly
half a dozen cases of carpal tunnel syndrome. In the
fifteen years of diving medicine and over two hundred
and fifty divers, I have seen ten cases.
In addition, the patient’s sleep study shows obstruc-
tive sleep apnea which is, according to toxicologist Dr.
Callender, consistent with an upper airway injury due
to hydrogen sulfide.
Lastly, to repeat, the patient’s EEG is abnormal and
consistent with a diffuse cerebral dysfunction as
would be expected from either toxic chemicals or cere-
bral decompression sickness.
PROGNOSIS IN THE SHORT, MEDIUM, AND
LONG TERM? Short term prognosis is excellent in
that the patient has had a very dramatic improve-
ment with a month-long course of low pressure Hy-
perbaric Oxygen Therapy. Symptomatically and on
physical exam as well as on SPECT brain imaging,
the patient has shown dramatic improvement. Me-
dium term prognosis and long term prognosis is unde-
fined. I suspect the current higher level of function
will settle out to a new plateau level which is higher
than that with which the patient presented to me. It
is likely that he would respond to further hyperbaric
treatment over the long term. Long term, however, his
prognosis is somewhat dependent on both hyperbaric
App. 68
treatment and treatment for his sleep apnea. If the
sleep apnea is untreated or sporadically treated, this
can have a long term impact on cardiovascular and
brain function. This patient very likely will never re-
turn to any diving and I’m not sure what he will be
able to do in terms of a career. It is very obvious that
after two and a half years of his present injury he will
have permanent long term sequelae. If we assume
that the reserve capacity of his nervous system has
been compromised, and I think this is an easy as-
_ sumption, this has possible implications for long term
mortality.
RECOMMENDATIONS FOR TREATMENT, LIKE-
LIHOOD OF SUCCESS, AND APPROXIMATE COST
OF SUCH TREATMENT? Recommendations for
treatment would be additional courses of Hyperbaric
Oxygen Therapy possibly every three months for a
number of years, depending on his response. I will
know upon his next return to New Orleans his degree
of regression from his present symptomatology. This
will somewhat give information for long term treat-
ment. Beyond Hyperbaric Oxygen Therapy I know of
no other treatment for this patient other than the con-
tinuous positive airway pressure breathing at night.
The combination of these could be successful at keep-
ing the patient at a highe. level of function. The cost
of the CPAP I cannot give you. Cost of hyperbaric
treatment is another story. Whether you would be
able to receive such treatment in Australia is very
questionable. Repetitive and delayed treatment such
as this is considered off-label and unusual. I’ve had
considerable experience with this now over the past
eleven years and, in fact, have pioneered this. I’ve
presented it at four separate Undersea and Hyper-
baric Medical Society meetings as well as a variety of
other meetings, yet the diving medicine community
refuses to offer this to patients, despite uniform
App. 69
success with this here and at other facilities that have
attempted this treatment. If a physician in Australia
would not be willing to perform this treatment, the
only possibility would be treatment here in the United
States. We currently charge a hundred and fifty dol-
lars per treatment plus occasional doctor fees. This is
about to change, such that treatment would be in the
two hundred to two hundred fifty dollar per treatment
range.
HAS ALISTAIR BEEN AFFORDED THE OPPOR-
TUNITY OF CONSULTING WITH APPROPRI-
ATELY COMPETENT MEDICAL PRACTITIONERS?
Unfortunately, I’m not knowledgeable of all of the
practitioners to whom Mr. MacPhail has been re-
ferred, nor am I knowledgeable of their qualifications.
If, in fact, it is true that the patient has not been seen
by a qualified or experienced diving physician or toxi-
cologist, this is extremely disturbing. The answer, I
think, can only be provided by his employers but, I
think, would be obvious.
COMMENT ON THE REASON WHY OCEANEER-
ING SHOULD NOT HAVE REFERRED ALISTAIR
- TO ME IMMEDIATELY AFTER IT BECAME
KNOWN THAT HE HAD SUFFERED TOXIC POI-
SONING. ALSO INDICATE WHETHER OTHER
SUITABLY QUALIFIED PRACTITIONERS KNOWN
TO MYSELF IN THE INTERNATIONAL DIVING
INDUSTRY WERE AVAILABLE IN JUNE OF 1998.
In terms of treatment of Alistair’s toxicology poison-
ing, Oceaneering International might not be aware of
my extensive involvement in treating patients with
carbon monoxide poisoning, nitrogen tetroxide, or
other poisons. They are, however, very aware of my
treatment of divers in both acute and chronic situa-
tions. In all of these situations I have uniformly been
able to help these divers and improve their medical
App. 70
conditions. Why they would not refer to me can only
be answered by Oceaneering International.
As far as other qualified practitioners known to myself
in the international diving industry in June of 1998, I
can only state that qualified experts in toxicology are
available worldwide, as are diving medicine physi-
cians. Dr. Car] Edmonds is a known expert in Austra-
lia and, in fact, writes a textbook on diving medicine.
Dr. Simon Mitchell, who was vice president of the
Undersea and Hyperbaric Medical Society, and Dr.
Stephen Acott are well known experts in Australia
and New Zealand, as well as Dr. Des Gorman, who is
internationally known and respected. All of these
physicians are known to me and the international div-
ing community and are highly regarded. In terms of
toxicologists, I am not aware of the experts in the
toxicology field in Australia and New Zealand; how-
ever, toxicology experts are available worldwide and
certainly are available to Oceaneering International.
In fact, Mr. MacPhail’s colleague, whom I’ve also
treated and who was injured on this same saturation
diving project, has recently been evaluated by
oceaneering’s toxicology expert in Houston.
INDICATE WHETHER AND HOW THE PROGNO-
SIS FOR ALISTAIR’S CONDITIONS MAY HAVE
BEEN AFFECTED HAD HE RECEIVED APPRO-
PRIATE EARLY REFERRAL. In my opinion, the pa-
tient’s short, medium, and long term prognosis would
have been very different had he been immediately
treated. He received partial suboptimal treatment at
depth for the acute hydrogen sulfide poisoning,
namely less than one ATA pure oxygen. This was de-
livered by report through BIBS with an 80/20 heliox
mix. At 120 feet of seawater, this corresponds to a less
than one atmosphere oxygen exposure. Minimum
treatment is high-flow hundred percent oxygen at one
atmosphere by non-rebreather mask for an extended
App. 71
period of time. Dr. Lewis Goldfrank, the director of
the Department of Emergency Medicine at Bellevue
Hospital and Associate Professor of Clinical Medicine,
New York University School of Medicine, who is the
director of the New York City Poison Control Center
and author of the sixth edition of Goldfrank’s Toxi-
cologic Emergencies, recommends Hyperbaric Oxygen
Therapy when readily available. This could amount to
further compression in saturation with a greater en-
riched mixture of heliox. The decompression sickness
component, suggested by the patient’s worsening of
symptoms upon exit from saturation, should have
mandated an immediate recompression. Had the pa-
tient been recompressed on site, both the decompres-
sion sickness component and likely hydrogen sulfide
component would have been markedly improved. This
may have even prevented the peripheral neuropathy.
It is likely that a number of the patient’s injuries were
a secondary reperfusion injury that occurred and ma-
tured in the month or so after his exit from satura-
tion.
This is suggested by the patient’s extreme symptoma-
tology at home with episodes of loss of consciousness,
inability to function or get out of bed for protracted
periods of time, and just overall ill health. It is very
likely much of this would have been mitigated by
early treatment.
HOW THE EFFECTS OF THE TOXIC POISONING
HAVE ADVERSELY AFFECTED ALISTAIR’S
JUDGEMENT IN RESPECT TO THE MANAGE-
MENT OF HIS LEGAL AFFAIRS? This is a most dif-
ficult question to answer. Unfortunately, I’m not
knowledgeable of Mr. MacPhail’s state of mind and
cognitive faculties at the time he settled with
Oceaneering. This could be better answered by his
treating physicians at the time. However, we know by
the SPECT brain scans, the psychometric testing, the
App. 72
MRI, EEQ’s, physical findings, and sleep apnea study
that the patient at this late date has brain damage. it
was likely more severe at the time he signed his set-
tlement since Dr. Deleuil and the patient have noted
that he has had some improvement over time in his
condition. How this affected his reasoning and judge-
ment at that time is still a difficult question for me.
The patient reports that he has been led to believe all
along that his problems are transient and of a superfi-
cial nature. This is obviously not true.
Alistair is well aware that you are seeking this report
and, in fact, ’'ve shown him this communication. He
has given me full permission to relay all of his medical
information to you as well as his attorneys in Louisi-
ana.
Hopefully this report has answered your questions
sufficiently. I am most pleased to have had the oppor-
tunity to treat Mr. MacPhail. He has had a remark-
able improvement and I am hopeful that this will be
sustained and that he may benefit from additional
treatment.
Sincerely,
/s/ Paul G. Harch, M.D.
Paul G. Harch, M.D.
Van Meter and Associates
Assistant Clinical Professor,
LSU School of Medicine, New Orleans
PGH/pr
enclosure
copy: Joe Walker
App. 73
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISICN
ALISTAIR J MACPHAIL §
OCEANEERING
§ CANO G-01-266
INTERNATIONAL INC ;
STATE OF NEW SOUTH WALES
DISFRIGF OF
AFFIDAVIT OF JONATHAN PHILLIPS
On this day JONATHAN PHILLIPS appeared before me,
the undersigned notary public. After I administered an
oath to JONATHAN PHILLIPS, upon his oath. He said:
“My name is JONATHAN PHILLIPS. I am competent to
make this affidavit. The attachments marked as Exhibit
A and B are true and correct copies of my statement given
on 7 March 2001 and 11 April 2001. The facts stated in my
statement attached as Exhibit B to my affidavit are
within my personal knowledge and are true and correct.
The attachment marked Exhibit C is a true and correct
copy of my abbreviated curriculum vitae.
I have been paid the sum of AU$6,435.00 to review the
Plaintiff and provide my opinions dated 7 March 2001 and
11 April 2001.
/s/ Jonathan Phillips
Name of affiant
App. 74
SWORN TO and SUBSCRIBED before me by JONATHAN
PHILLIPS on 25-9-01
[SEAL]
/s/ John Emmet McDermott
Notary Public in and
for the State of
New South Wales
Jonathan Phillips
MB BS, FRANZCP
Consultant Psychiatrist
Suite 45 9th Floor Hengrove Hall 193 Macquarie Street
Sydney NSW 2000 Tel (02) 9221 2763 Fax (02) 9223 1183
This is the Exhibit “C” referred to in the Affidavit of
Jonathan Phillips sworn before me this 25th day of Sep-
tember 2001.
/s/ John Emmet McDermott
John Emmet McDermott
Notary Public
ABBREVIATED CURRICULUM VITAE 2001
Jonathan Phillips is chairman elect of the Committee of
Presidents of the Australian Medical Colleges and Imme-
diate Past President of the Royal Australian and New
Zealand College of Psychiatrists (RANZCP). He has been
involved in numerous RNZCP activities over the years
including being a member of the Committee for Examina-
tions, Chair Committee for Training and Chair Fellow-
ships Board of the College. Additionally he represents the
RANZCP in various medico-political activities, including
App. 75
the position of Chair of the Forum for Strategic Planning
of Private Psychiatric Services.
Jonathan Phillips graduated in Medicine from the Univer-
sity of Melbourne in 1967 and was resident medical officer
at St Vincents Hospital Victoria and senior resident
medical officer at Royal Prince Alfred Hospital New South
Wales. He trained in psychiatry at Prince Henry Hospital
New South Wales, obtaining his Fellowship of the
RANZCP in 1973.
Whilst working principally in private practice with a
special interest in mood disorders and medicolegal psy-
chiatry, Jonathan Phillips has been a WHO short term
health consultant, has held the locum position as Head of
Department of Psychiatry Repatriation General Hospital
NSW, has been Chair of the psychiatric division of the
Medical Services Committee of NSW and has been guest
lecturer and examiner in the School of Postgraduate
Studies National University of Singapore. Particularly
concerned about the development of psychiatric services in
East Asia, he has lectured in Vietnam, Thailand, Malaysia
and Indonesia. He has also lectured in Europe.
He was awarded the Grey Ewan Medal of the RANZCP in
1973, the Graham Coupland Medal of the Royal Austra-
lian College of Surgeons in 1993 and the Arthur E Mills
Medal of the Royal Australasian College of Physicians in
2000.
Jonathan Phillips is a member of the AMA and the Medi-
colegal Society of NSW.
There are two possible explanations for Mr. MacPhail’s
depressive spectrum symptoms. The simple explanation is
that he suffered considerable physical incapacity as a a
App. 76
[sic] consequence of exposure to toxic chemicals with a
major depressive disorder occurring reactive to this. The
more complex and potentially more relevant explanation is
that Mr MacPhail developed a major depressive disorder
as a direct consequence of exposure to toxic chemicals and
effects of those chemicals on areas of the brain serving
mood control. It is possible, additionally, that both proc-
esses may be important. It should be highlighted that Dr
Harch and Ms Andrew both considered that Mr
MacPhail’s depressive disorder was organic in origin.
On balance I believe the most likely cause for Mr
MacPhail’s major depressive disorder will be a combina-
tion of reactive depression spectrum symptoms and direct
organic effects caused by exposure to toxic chemicals.
Assuming the later applied, the client will have a guarded
prognosis.
The other neuropsychiatric matter of importance is strong
evidence that Mr MacPhail has suffered cognitive difficul-
ties. There are two possible causes for Mr MacPhail’s
cognitive difficulties which need to be considered.
The first explanation is that Mr MacPhail suffered cogni-
tive difficulties secondary to his major depressive disorder.
Depressive disorder is a common cause of temporary
cognitive impairment, particularly concentration/attention
and memory function. Whilst I do not rule out this mecha-
nism in the client’s case, the psychometric test results
suggest a more profound and possibly more permanent
cognitive impairment.
The second and more probable explanation for Mr
MacPhail’s cognitive difficulties will be damage to neu-
rones due to exposure to toxic chemicals. Numerous
chemicals including heavy mentals [sic] and hydrogen
App. 77
sulfide have potential to damage or to kill neurons. On the
balance of probabilities, Mr MacPhail’s cognitive problems
will predominantly be explained in this way if this is the
case, then his prospect for cognitive improvement must be
guarded.
Another issue to e considered is Mr MacPhail’s tendency to
be irritable. There will be several causes for this: First he
became intensely frustrated by the failure of his employer
to
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