# Petition for Writ of Certiorari — MacPhail v. Oceaneering International, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0699%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 537 U.S. 1110 ## Text 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 Universi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0699%3A1. Public record. Not legal advice.