Appendix — Maritima Mexicana, S.A. de C.V. v. Perforaciones Exploracion Y Produccion
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APPENDIX
PARLE OF CONTENTS
yoendix £ QJpinton Of the balth Careuit on
Appeal from the United State:
District Court flor the Southern
District of Lexa UoDC No. O5
( 11M, 45 wed December {y "AIVOI)Y
Inn (Coase No. 08-4102] LZ
ppendix J hundings of Fact and Conclusion
olf Law in the (Jnited Stat«
District Court for the Southern
istrict of Texas mssued
mpeplembes b. Bue mM Cas No
Qi-cv-419 ION 29] 2
) | ? SIS WAS | ,
Yppen Memorandum and Order in thi
(Jnited States District Court for
{he Southern istrict of Texa
ued March 24. 2008 in Casi
No OO-cv-419 DON 230 t
M10 ; 24nu 3 pel
I) Pistrect Cler) records divided in three part Phe first wilt
referred lo herein a OV for Oripimal Volume, comprised ©
Docu nl Ne ) JO2Z, at bates 1-2906; the second a IS’ for orst
tipoy nial Volume, comprised of Document Nos 1LO8-2é1, at
borate y') the third a Z>0 tor oecond Upplemental Volume
ier poeokt Ne 406, at bate [£0O26-5460
A
fi pope pili
A
fifpsport
(Order on Defendants’ Motions to
lPysmiss ip the United State
Dyistmect Court for the Southern
District of Texas, issued July 2]
Z00G6 in Case No. O5-cv-419. IDN
67. OV 2ZO10-2Z027/ ey
Pura Kent QORDICR Granting
Motion for 1 ive to kule Amended
(Comiptaint July 14, 2006. DN 6O
()\ 1avowb SIA
Mouith (Circuit VWismissed
Interlocutory App il: December
24, ZO06. DNs 114 and Ilo; i.
1O/-4)] “a I; 1(O/ and I
b10-4 3) J 5
Pircdygre Kent (Orde) May 10
200% IN 189: 5B/I0O/ZOO07 +
(QO4-449 and lo (18-419 {92
Judge holds OF) emorandum re
Order; April 29, 2008. DN 250; 1
RSO)-3 3802 | |
(ordael (>I Live hoith Circuit
Denying Petition for Rehearing
en bane 4 ucd February 1/, 2010
nm (ase No (4 A072] | Agr
Appendix J Judge Kent - Hearing Transeript;
July 14 2006 DN #0; OV
2082-2090 at 2084 In 3 - 2090 In
ls WASTE
Appendix is Docket Sheet; October 26, 2007
DN 179; 10/26/2007; 1S 1-47, at
In 24 boa
Appendix | Judge ihison May 6, 2008 ‘Trial
Transcript Volume 2 of 2. DIN
2té. 15 4101-4306, at 18 4285. 136a
APPENDIX A
IN THE UNIPPED STATES COURT OF
APPEALS FOR THE FEETILTCIRCUTI
No. 08-4 10Z1
lriled December 9, 2009]
PERFORACIONISs HLAPLORACION Y )
PRODUCCION, also known as l’rotexa )
CrERTAIN REINSURING UNDERWRITERS
Subsenbing to Remsurance Contract )
No. AH 03004 As Amended to No. AHK-04004 )
)
Piaimtaifis-Appellee )
)
)
MARTTIMAS MIKAICANAS A. DK G.V )
also known as MarMe» )
j
Delendant-Appellant )
Appeal from the United States District Court for the
oOuthbern Pistriet of Texas, G ilveston Division
USDC No. 05-CV-00419
Before BIGNAVIDIS, DIENNIS, and EROD, Circuit
Phlokt CURIAM
Appellant Maritimas Mexicanas, .A de ©.V
(“MarMex”’) appeals from several rulings in favor of
Appellee VPerforaciones Miaritima: Mexicana:
(“Protexa’) in an ongoings case concerning an allision
between two vessels in the Gulf of Campeche, off the
Mexican coast. For the reasons desersbed below, we
affirm the district court and remand to allow trial to
proceed on the SCOpe of damape: awardable Lo
Appellee:
Qogn March 31, 2004. as pply vessel]. the M/V ISLA
AZ VICCA (the “ISLA AZTICCA’), allided with a mobil
operating drilling unit, the MODU/TPOTONACA (the
“TOTONACA ), nD the Bay of Campeche
approximately 40 miles olf the Mexican coast. The
ISLA AZTICCA allegedly damaged the TOTONACA a:
a result of their allision. At the time of the accident
MarMex owned and operated the ISLA AZTILVCA, and
Protexa owned the TOTONACA. Both MarMex and
Protexa are Mexican entities, and both the ISLA
AZTICCA and the TOTONACA were Mexican flapped
vessels on the date of the allision. The allision occurred
beyond Mexican territorial waters but within Mexico:
exclusive cconomic zone (hIZ’). Under the United
Nation Convention on the Law of the Sea
(UNCILOS”), Mexico does not exercise full sovereignty
over its M14, but rather has certain “sovereign right:
Parsuant to STE CihR. it. 47.5, the court has determined that
Lins Opinion § hould not be ) ibliashed and is not precede ntl exce pt
under the limited circumstance set forth in 5TH Clik. Kh. 47.5.4
within the zone, including control over the economu
exploitation and environmental protection of the sea:
natural resources. See UNCIOS art. 56, Dec. 10, 1982,
B43 UNCUT. SS. 397, 1 THOMAS J. SCHOENBAUM
ADMIRALTY & MAR. LAW § % 16 (4th ed. 2004).’
Shortly after the allision, MarMex conimmenced a
hmitation action in Mexico under the Convention on
Limitation of Liability for Maritime Claims (the “1976
Convention”), Nov.19,1976, 1456 ULNSPS. 221, a
codified in the Mexican Law of Navigation, and posted
a bond of $427,460.97 to satisfy any claims arising out
of the allision. Commencing a limitation action allow:
shipowners to avoid catastrophic lability for accident
at sea anvolving their vessels, capping potential
damages based on some measure of the value of thers
Ship and bringung multiple claimants into a singe
(
action. 2 SCHORNBAUM, supra, §& 15-1. The United
States is not party to the 1976 Convention, td., but
rather hasits own Lamiutation of Liability Act, codified
at 46 U.S.C. & 40501. 30512 (2006). ‘To date, Protexa
has not filed a claim against MarMex in the Mexican
Hibation proces diny
‘The timted state iit been a UIINCIGO inatlory for me arly
three decade bul the Senate has mot yet ratified the treat
feverthele »the United States has declared that the provision
of UNCLOS establishing JelcZs are declarative of customary
international law See Mayapuezanos por la Satud y el Ambient
0. United State 198i .3d 297, 3804 n.14 (ist Gm. 1999)
(On July YX PAGES VProtexa and if mSurance
underwriters filed suit against MarMex in federal
district court in Galveston, Texas, attempting to hold
MarMex fiable for tbie alleged damage to” the
TOTONACA. MarMex eventually tiled a motion to
dismis Protexas suit on grounds of lack of subject
matter jurisdiction, forum non conveniens, and
international comuty, but the district court denied the
notion and allowed this case to proceed in the LJ nited
tate subsequently, the district court performed a
comfhets of law analysis and ruled that Mexican
substantive law, specifically Article 1918 of | the
Mexican Civil Code. would apply to the case, but also
held that the Jianiits to recovery established by the 19776
C(ronvention were procedural and theretor Were
mapphcable ii LIS. court
for trial, the district court bifurcated the trial
between lhability and Carnage to allow the fl afth
Caurcuit to provide pvuridance to the court before
addressing damages. After a bmet bench trial during
which MarMex stipulated that the ISLA AZTICCA had
allided with the TOOVVONACA, the district court found
that MarMex was lable to Protexa for the allision
Qn appeal, MarMex asserts that this case should be
dismussed for lack of subjeet matter jurisdiction, forum
non convenien and international comity. It also
argues that the district court erred when it concluded
(focal bye 19/6 Convention i procedural and
VPertoracione Ux ploracion y Produccion ¢ - y ) anh altlilnate Ol
Vrotexa, mtially filed suit ayainst MarMe Hiowever, when it
became clear that Protexa was the re i} party mi rnterest, and not
Ved? the district court pranted leave for thi picaiitill to amend
tiicar compl init ubstituting rrotexa for PEP
('Oon) Ccy lle ntds Plici’ not be used LO limit MarMex
hability in this case We adare these } vie beh Laird)
1 |
Whether a district court possesses subject matter
jurisdiction 3 <i que Lion of hav reviewed de PhOVO Of
(
appeal. See Sandoz v. Cingular Wireless LLC, 553 4d
OY13.91D (Sth Cir. Z008). ZS U.S.C. < 1G634C1) provid
that “jt}he district court hall have original
yurusdiction Ol lajny civil case of admiralty o1
maritime jurisdiction “ We determine that the
distrmet court doe bicave uubyoect matter jurisdiction
under section 143334 to resolve this dispute
MarMex contends that subject matter jurisdiction
winders ection Lj36430)) cannot reach an allision that
occurred in Mexicos initZ, relying primarily on Victor
(carrie? Inc. vo. Lau 104 US. 2ZOZ (1971). In Victory
Carrvers, the Supreme Court stated that “the maritime
tort pyumsdiction of the federal courts is determined by
the locality of the accident and manrntime lav
governs only those torts occurring on the navigabl
waters of the United Stat fd. at 205 (emphasi
added). However, the we iy tit ol authority, ine hodiny
Lhe precedent of the Supreme Court, supports the view
that there are no clear territorial limits to tederal
maritime tort purisdiction. See, e.g., Panama It. Co. t
Napier Shipping Co., 166 US. 280, 255 (15974) CPi phe
baiw it entirely well settled that tort originating
Nithiuin thi VaALCI Ol a foreign power may be the
ubyect OL a uit in a domestic court.”); Matay Intl
Shippings Corp. vo. Sinochem Intl Co., 436 3d 349
Ppo-Do lod Cir. ZUUO?) (Seizure Of ship at (Chinese port
establishe admiralty jurisdiction), reod on othe
srounds HAIUS 127 (2007): Coats v. Penrod Drilling
Corp., eeosd 11l16, 1117-19 Goth Cir. 1995) CGinding
admiralty yurisdiction over tortin territorial waters ol
United Arab Emurates), haxon Corp. vo. Chick Kam
Choo, 817 F.2d 3807, 3811 Goth Car. 1987) Ginding that
“admiralty jurisdiction over bain by SD a pore
plaintiffs on an alleged tort in Singapore
“undoubted”), reud on other prounds, 486 U.S
(1988). Consequently, we find MarMe> reliance on
Victory Carriers to be unfounded. The tatement in
Victory Carriers appearing to limit pyurisdiction to the
navigable wate rs of the United State is dicta. Victory
Carriers concerned whether jurisdiction under section
3(1) reached an accident that occurred on a pier in
AJabama, and did not address whether jurisdiction
reaches the high seas or waters under the control of a
foreign state. 404 U.S. at 206-04
MarMex also arpu Lhat even af these cases are
controlling, thie re can be no admiirally purisdiction ove
maritime collisions unless the parties or their dispute
have some clear link to the United States. While the
strength of a case's ti to the United St. care
clearly relevant for a forum mon convenrens or choice
of law analysis, it does not impact whether a court ha
admiralty purisdiction under section 143301). See Neely
v. Club Med Mpmt. Serv fne., 63 F.3d 166, 177-73
(3d Cir. 1995); Aum vo. frank Mohn A/S, 909 Fo Supp
41/14, 416-17 (b.D. Vex. YOY). OnSeque ntly, we are
contident there is subject matter jyurisdiction over thi
allision of the ‘TOTTONACA and the ISLA AZT I«
Ih)
liven if there is jurmsdiction, as in this) ca
adismussal may still be appropriate under the doctrine
Ol forum non convenien hlowever Pty bie forum non
conventions determination committed to the sound
discretion of the trial court. It may be reversed only
when there has been a clear abuse of discretion; where
Lhe court dia considered all relevant publi and
private interest factors, and w balancing of
these factors 1 reasonable decision dese
ubstantial deference.” Kartm vo. Funch Shipping
265 FF Sd 258, 268 (oth Cn Z0OQ1) ting
Lurcraft Co, t
(court: CONSIGeCrInN
COnNVEenICN must carry out a two-step te {
del ndant seeking di ri aboouste tablish that thre
i an alternate forum that is both Vallabl
adequate McLennan { Am leuror ople? ( OF f)
YAH FUSBd 408, 4424 (Oth Cir. ZOO1). Since thi parti
not seriously contest the availability and adequia
bhi Mexican limitation action on appeal we proceed to
Lh next second (bye defendant rritasst
dgagemonstrate privale and public mterest
heavily on the su of trial in the foreign forum
Air Crash Disaster Near New Orleans, La
IDS2, &21 F.2d 1147, 1164 (oth Cir. 198 naph:
added), vacated, Pan Ain. World Atrway
90 U.S 1O3 C1989). reinstated in pertinent part
4
7) “A delendant
Phe privs QO! »} wemhed it
the relatis ‘ ) ree Ol proot, a aathatortat
ofcompulsory for attendance of aunwilhiog, and the
cost of obtaining attendances of walling Witte ‘
possibility of view of the premise i] View
appropriate tothe action; and allother practical pro
thirst make trial Of i Case CaSy ( pedi tou
Pe X PCMss Ve ecnlorceabilitly of pudgiment: and whethe!
plaiitiel hii reuse lil oO Ve bara
burden of invoking the doctrine and mov,
an favor ola foreign forum. This burden
runs to all the elements of the forum
analyvsi fd. Gnternal citation
Althouwh W ¢ Trhl{?
conclusion under de novo 1
courts retusal to dist Lda
e In Structure
procedural frameworl
discretion lal cil mast
mterest: MarMex a
better litigated in Mexico rlain Opal
language documents remain untranslated and be
mcannot acce certain @vidence regarding the rep
made to the POTONACA after the allision. Hows
m the district court’s analysi it considered
certain evidence niigetit be macce: sible if this Case We
LO proceed iu) the United State and it also j LEITL LE
that certain documents had not yet been translated. It
Imply found that Live ©C COMNCeCriIlsS We
other tactors, such as the delay that
ci hil il
Karim, 209 F.3d at 6o9 n.14
omitted). Thi public interest factor
the administrative dithicultse
conpestion the local interest tn
controversies re Ived at home ie mntere
trial imnaforum thatis familiar with the
rpovern the action, the avoidance of unnec
in conflicts of law, or in application of for
Uiilairin rurdening Citizen if
Nath pury
i ¢ lrment rd th i laabalit Olt } i]
With t rarad fT publi ntes { I COUT
( cluded that Me Ico! Mm) inter tint it |
dispute oi ’ court Part \ iy, IOuNA tI {
Ooutweirehed f Othe! pouty é bce rs { bce i
r mrcluded har Lt) ‘ ‘ uid | | ‘ purd |
ocketl nd that rary trial Ould not ne
VV ¢ (lO Hote tPicat thre qadistrict court | eq | i]
nterest nial ( tL Eye \ bnaptlion LI \
I Lanti I aeate Lp] 1) { i
tareapotae } thrall bates ‘ae ; LO 1
ii ©! qaistri rt ] Pnot« Onl {
flaw analysis before ruli On loruni non conven!
/ t 1163 n at i ult bard
demon aan mistal W ¢ { Cr (| { I}
ppl itt (>| vie I Tr} ull Ciinil ( Léa
1 not undermine the a trict court ‘ | ;
Y onder th ferent fare ty
|] | | ( | | |
blect har J i E tne strict int | St
} Lti iS Lit) fact thata ti thie mie |
é urredin the plaintiff ected for does hi
ie eit nm our ad i ) Of yhether th alist
Our bu (i af ( retion int bbntaanin Cie t10
Dbelore it la | Lt 4 L\ithough t! trigd in thi
1) not CL I hed thre LaAragpe { larivie Pia
tlready been found liable to Prote lore er, tha
iigation | no ppt eeded in our <« rt for mol!
(| m lou! ( I na it re Out ih | ! Lt) sr ryt
lar Me ha not demonstrat 1 tracal i t Pei
reatly prejudiced f trial ere to go for rad am that
brits () Pcl hal 1 if LILY ups
“POT OUNAS /\ plied y 1 >f AVal 1; le that
count
Mi iar Mic bist nol poror bis , vdence would be
any more avadladbsle were Lo proceed in
Mexico. Additionally if) the distmet court denied
Misa r IVb e> motion to dismiss in ZOOG. new evidence ha:
come tohyht sugpyesting that Galveston may be a more
COmvVvenIent fortum than il initially cif dpoe cary ¢ di Mar Me
{ micduect (yyiie boul \] Fas Live lJnited State: and tii
! LA AS, 1 MCA ‘i “i - ] | > port
from time to
consideration mce the district
mit dactor and we do not tind
agistrict
«1 forty
WsSurict co
Kestado. SA reLOHtifle
1164. 11690) 1th Cir. ZO0O] ): Sota
qd ji. lOO (2d Cir. 1998). We
; y ¥
nmalion
ulive (>!
mye due regard both
miVenicnce and to thie
Of othe) person Who are
Ililton vo. Guyot. 159
Lo such litigation, when
cal) pit
ing a Case to proceed in the United stat would
j loreign ypovernment M
the mterests of
p. LDyresdner fant
t/
botriude qitt
AAC,
ldnparoe ena
ty Coir. ZO04)
Lexaco frie
equihtiwa
bicotalad doe
“ican imterest “4
lbiloweves tbat : readily
from Sequifiua a trict court
tit alleging pollution alfecting a third ol
i i nad Expressed it:
adtes f aq)
lal
cdi Lion
aqismissed out
rrivory
ClLIOn )
ais and
ploration
it tba por Lee a)
caboidity to
Additions idly Vicar Me » Pig failed LO Cri ADY Cas
here a US. court has deterred to a foreign limitation
procecainy On} international comity ground:
fuainiitlation procecdinygs commenced under US. law
only receive domestic recognition, Otal fnus. Ltd.
M.V. Clary, 494 1.3d 40, 64 (2d Cir. 2007); Matter of
fsowmoon Sansa Co., (20 2d 595. 599 (9th Cir. 985)
(“Beenuse a decree an imitation normally receives only
domestic recognition, the courts of cach country will
apply local law on the question of limitation; no
country willyvive elfect to a loreivn limitation decree a
barring furthers tait Ganternal bracket removed)
(quoting: Gil PCS LMORKE & CHARLES BLACK, THE IAW
(ol ADMIE LY 940 (2d ed 199 4e))) and although the
h9/0 Convention require it inatornes to deler to
( reall binsbitation }? OCCCONY ibroud the | nited
tate bid nol rdopted Lhe (convention /
HOKNBAUM “pra booed) od Gjiven these
considerations, the district court s decision not to dete
f thie ( i i bbyridbabion pr ceeding On Comiuyty
! by i Cis J Lmrse to bel i abuse ol dy cretion
Mona ir lVie crt Lrogat vine qgistrict court
erre pn Gebers thrall thie dara Con) Sacaboadil
established | the 19/6 Convention and codified in
F re procedural and thu cannot be
ppled in ty nites Late court Phat (Court review
Cylic pons Of la lauding? comlblict Ol lav question
4 thycat trict court could not
pet ( i l cre 1 fare ( @under lorum no
conve ( | i bie eda loreign limitations
de novo. Cantu t Jackson Nald Liafe Tin Cio. .b19 F.3d
144, 437 (th Cir. 2009) (quoting Abraham v. Stat
Farm Mut. Auto. Ins. Co 165 F.3d 609, 611 Cth
(iir.2Z00G6)). Similarly, determination offoreign law are
reviewed ae (OVO OL aaprpoe al and court Pilea Y COT) Tet J
Information trom any relevant ource, including
mlormation nol consiaered by the distrmct court. Se
]*'¢ qd Ie ( iV - 14 | (5) (Lp Proltexa, ‘ A\ { All Ar
Marine § Lip 20 3d 1224. 1239 (5th Cn 19994)
Phe leadimv case On costhict Ol law in thus areas
Islas / Dianiond SAS (Corp { Robert stewart rat Ol:
Ltd. (The Norwall Victory) 330 U.3 30H (1949). In
The Norwalk Victory, the Supreme Court held that
US. courts may apply a foreign Jimiton hability, but
only when the limit 1 ubstantive and “attache LO
the rnivhtol recovery created by foreiven law, a Op post l
lomeretly provid Ing} procedural machinery by which
Clajms otherwise created are cated down to ther
Proporlioniale chart Ol i hited fund ld iil Pele
MiarMe rye that hould = perform
policy-based conihets analys! lo determine which
biceboads Happlies in this case, relyimy on a readimy
of Tlie Ne (hA/OL0I Victor Y « AV <« ced in ¢ onmiplatit of kK i
Lane Corp IIH | upp. 126 IZ/0-427, 32/4 (CD
Alaska 1984). llowe, c | ye neve adopted ict)
in approach, dinding anstead that United Stat
QGtuirt aust ipoply hore iy) biyilalior Léa iy othe
Ubstantive Jiadbalit ol thie partie | erned b
lorejgn La ard ve wb He falion | Ol thie horeign
OuNntry 4 mh an inteyral part of thie iostantive ta
OVEN, Lhe action that it can pe md to attach to
Lda WboSlantlive lizatoadily lav Karin ~OD> I fdat 2/0
(quoliny fii / 4 Korea ‘: Mipper , CLO p 3iy i Ao 0) J
H04- Oo (LU) { 1] 109990) ) Hr) Lhe! Vvord Line Lf iii
a Cap on hability 3S to a cause of action. Korea
Shipping’ Corp., 919 2d at 605
We conclude that the cap on lability created by the
1976 Convention does not attach to the right of
recovery created by Article 1914 of the Mexican Civil
(rode. The 1976 Convention does not create a right of
recovery, but only limits the recovery available unde:
Article 19435 and other sources of Jiability. See 1976
Convention art. 2, supra, 1456 ULNJTUS. at 2253 CUT he
following claims, whatever the basts of liability may be
Shall be subyeet to limitation of Jiability
(emphasis added)). We find the reasonimy in Matter of
lselhlehem Steel Corp. persuasive, where a district
court held that a cap on hability established by thie
(Canada Ohipping Act should not be apphed in U.
court, a the cap did not “lmmt the individual
Claimant might to recover certain categories of
Cariiaagee but anstead served “only to measure o1
quantily Qamave: 434), | Hupp 944 Y4K (ND). Ohro
I9/6) affd, 631 1 2044] (6th Cir. 1980) Additionally
the capon lability established by the 1976 Convention
is nol “substantive because it is not so intepral as to
follow hiabihty under Article 191]5 i: all maritime
cases, as an absolute cap on recovery would. The 1976
Convention provides only that “[imuitation of lability
may be invoked’ by a shipowner, not that it must be
apphed by a courtas an absolute limut to liability. 1976
Convention art. 10, supra, 1456 U.N JTS. at 227
(GHoiphlasis added). As a result, the limits established
by the 1976 Convention are not substantive —hability
under Article 191% ina maritime case could exceed the
Cap established by the 19/76 Convention U7 Tle
Norwalk Victory, 336 US. at 395 (supvestinyg that “al
tUas the law of Belpium that the wrong creates no
mrealeys livability than tial recoynized by this
Convention of 1924, then the Conventions limit on
hability would be substantive). The district court did
not err in finding the Mexican limit on hability
bapplicabl in tors cast
kor the foregoing reasons, the district court 3
Mr TRMIEED and this case is KIGEMANDICD to allow
siv¥
trial to proces (hon Gamay
1Qa
UNEPPED STATES COURT OF APPEALS
POR TPH FIRTH CIRCUTI
No. 08-4102 1
lliuled December 9, 2009]
PHMRPORACTIONIS HXPLORACION Y
PROJUCCION, also known as Protexa
CERTAIN REINSURING UNDERWRITERS
ubscribing to Kemsurance Contract
No. AlHiIe-O03004 As Amended to No. Alfle-O04004 )
j
pope fro the tliited Baile 1) Erict.% ysurlh dor Ube
uthern District of Ve i (galvesto!
id ¢ locket LO () { ‘BRS
Melore BILINAVIDE Lt! i Piel ROD. Cy i}
' {
yt Calvi
ian ( tise Con ley ! Lhe re } Jp |
ake J mcd by cou
Pfu
Wdyudpged thicat thre purcdyrnai nt of thre
ordered and %
Phistrict Court 41S ailirmeada
PUR PETER CoktdickicbD that detendant
bk Is
Lhe COSI eo |
appellant pris Re plaimotills ippelle
appeal to be ta ed by the Clerk of this Court
MANDAL]:
A True ¢ -OpPy
Attest
Court of Appeals, hofth Circuat
Deputy
GS Louisiana
APPENDIX B
UNEPPED STATES DISTRICT COUR!
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL. ACTION NO. 4:05-cev-419
(ADMIRALTY)
[killed September 2, 2008]
PMKrORACIONES MARTEIMAS
Mi XICANAS S.A. de ©.V. and
CHMRPAIN REINSURING UNDERWRITER!
SUBSCRIBING TO RIEINSURANCI.
CONTRACT NO. ATG -O80044 A}
AMENDED TO N AH H-O04004
Det ndant
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
| status of the Case
‘Tha lawsuit wa fsled on duly ZOOH in the
uthern District of Texas, Galveston Division against
seacor Holding, [ne (Grupo TMM S.A. de ©C._V. and
Maritima Mexicana, S.A. de (CV. @MarMex”) Seacor
was dismisses from the lawsuit. Plaintiffs counsel
pnitaally named V’erloracione: lox ploration .
Produccion as Phaintilf, but were subsequently allowed
to amend thei Complaint CO panne VPerforacione
Maritima Mexicana >. £A i CC.V (“V? MEM)
Pisaseotall
‘The case involves an allision between Delendant:
Mexican flagged supply vessel, the IbLA AZTECA, and
Plaintiffs’ Mobile Offshore Drilling Unit TOPONACA
another Mexican flapped vessel. Itas undisputed that
the allision occurred on March 31, 2004 in Mexico
Bay of Campeche. [tis undisputed that both Plaimtill
Perforacions Maritima Vlexicana and Defendant
Marituma Mexicana (MarMex) were imcorporated in
[VI ¢ Xx1LCO)
lid dually O06 Lda Predece or (court denied
Delendant HOLLOL LO auisimal On) forur howl
conventens, principles of international comity, and for
lack of subject matter pyurisdiction. In November 2006
the kufth Circuit dismi ed Metendants imterlocutor
ci pyre al of that Orde: hndiny that the Order did not
determine Ufa party substantive right and
bicaboudata See Perforactones lexptoractan y Productton
etal. vu Cnr iu po W \ efal., No. 6-4122% Goth Cir, Nov
yt) VAGLULOD Ir) Viay 2001 the Predec QO] (Court
determined that Mexican substantive law would be
applhed RO Ltt CaS ind that \rtich 1.5 OF Le
Mexican Civil
Substantive lav
The Ca © Was Feat Wwned to th (Court in October
2004 The Court dented Detendant motion Lo
reconsider the Predecessor Court orders denying
dismissal of the case and finding that Article 19138 of
the Mexican Civil Code would apply lo thie case In)
April Z008, the Court pranted Defendants request to
bnfurcate the case, and parties apvreed that the sole
issued to be trmed by this Court under Article 191
were: 1) Whether Grupo “TMM was a of thie
ISLA AZTIECA; and 2) Whether there
relationship between the allision and the damagi
the ‘TOYTONACA pud can
‘Tha CASC Wai tried to the Court
Pursuant to Federal Rule of Civil
Courts tindiny: ol fact and conclu
forth below
ll. EVIDICNTIARY RULINGS
At Lhe “neh Prial Lda (JOU!
advisement the question of whether
testimony of Defendant expert, Cir
whether to admit Plaintilt Moxhibit 42
A. Grepr Perkin
Mr. Perkin 1:
rie ladlurgical ire
ret; ry Yocording Taimtill Vit
Initially desaynated to prov an Oprmion
hare. Delendants point out that Mr. Perkin provided
report to Vlaintifts ¢ in the htigation discussiny
thie pud Coil) ich and ae lnbaabulity LO ci Lerimine
them c and that Vlaintitl had thre Opportunity to
depose Perkin about his report N Merkin
testified tothe tact that he « as What caused the
Lo thre pud can to leg connection that ther
ting that could have been done that would hav
tled the cau acl and that the testin
nol perlormes ponse Lo tioning by
untill My aiso testilied
‘nthe prior welds to the POTPONAC
report may have |
rac pdertitie
yndnitted te
Poy iit
Phe Court tindsth
pitted Prhevarattal
DiNibehD
Piaimtilts’ lkixhibit
il i
Lf CiTOnLY
ertilicats
Pyigoitl A t l - pritiall
tt rs ted 1 the ASTI ) |
pPIAVICL ( rp ble! [ e nani ipod i i }
inspector mnt bi por Pda j |
[ ( ) I rit é ( I) | l i
Cf t it Lin) epane) lO ul | i i | {
t rey irih ) I
( i! nas t it th I 1 |
1} 4 bkOhh report t bib A lil I
" I i Out a cule } ‘ { i }
ic] 1 | | ler | | i
t { I | i } ti] i]
I Paiva A I wibsals I
Lede iatat il i[> ! { ( i ] | |
baa tt Or te Cini ry tit
l ent, | S¢ I I riit t {
( pert qd ory ,
( Mther Kividentiary Motion:
Lele dant I | mt Ly } i
|) If Mant V0 rh I I i { \ #e i Lill
expert Mat Clarlin, Doe DENIKD AS
iff MINDINGS Of} FACT
/\ fipulation: ol I act
I peelendant bicave { portal LCG tnat ol larch
1 2ZO04 the INS] AMIWCA allided pOda tha
PAT OINAS Vifcida Chiagnrcaye Lt) Ldae
CYLON AC (y ads Vater tower and
i iting gm Io (J wee Ol Ube PCT INAC
ny the period of repans
Be Ownership of the PCVTQINACA
Pelendanl } iV<« Baspoe ented La Lae
rmredaece Or (o,ourt, thas Court, and the batth
foyrcil Or yituimerou OCCASION) In) MAIOLION
briehin and ab heariny thot JP dbeaitalt
MM 3 the owner of the TOMPONAC?L
Dehenadanit id not Chizalbenngs VIM
[a<-s Pid | Hif PCT ON ( tanita ] vf
(}{) {hye r nda Ol the dpe ch Trial
stall ed that V’MM Lhe ownes
I Lypae PO) 5 0)] \ j Lacs nena|aegd
Complaint filed M O06. (See First An
{ i} 1) , { | 1] 1) fendant (liq
Pile i rif ( (+1 and ay not
the LOYPOINACA
by VPerloracione
iZWaIn In A Motion t
Miotion for Suara
Mot O37)
CeCe | 1
Mi cat Me Ps and Cy] Ul poo
Wye 7 1 fendant Peace!
Notion to Jism belore
at I?7MM was thie
i TOTONACA, and the
Ourtl accepted that fact in ot
Cacor Motion to
at 4 (P?MM was the
TOPONACA ).) She
orched on Delendant
the actual
weeRae
f
hil
Tearritodl Whanumbe)
pcLuinas rellectiny that
failure to
allevyed
Aymended Complaint, the Court toad
re yudicially lopped trom
InRA |
Claiming iL I7MM v not Lhe Owe!
‘Tay TO)!
< ription ol the TORPTOSRS
EESER
made of steel ands a tructure thatas not
designed to lex. The raw water tower doe;
not provide structur: Support to thre rip
The bottom of each of the TOTONACA
Lhree legsas fitted with a spud ean. The spud
msare welded to the ley. Tbe spud cans act
aballastto keep the platform steady. The
pud cans are a tank Wilh a manhole to
aCe (he gntenor of the tank, measurnny
“pproxinately nine mete fy Giameves
In order to move the TOTONACA to and
from: Gillerent location either 3 avy jilt
Ubinersible or towing vessel must be
utilized. With the sell-el Jating systema, the
boii Ores floated bilo
the legs to the sea floor
on the bottom of thie ley
seafloor. The ley penetrate
ground reaction cause Lhe
tration to stop. As the ley: rate
Coll. Ubve Oil miove Hows tha semicircle
Ound thie pud can. tlull lips to the ice
1 on lop pud car becomuny
turbed ‘ b OH OeCcOomMmeS disturbed
Strength as a result of
sud can When the bey
xin penctration
yibinucG LO mNOyV
OV hiltiny Lhe
1‘/ When the rigoais ready to move locations, thi
barge enpineer o1 Capbain cialeulates the
expected dralt of the rig and the expected
center of gravity, so that it will float level
The ngas then packed down to the calculated
loved, and jetting hoses are hooked up. ‘The
jetting: hose pump sea water down to the
nozzles on the lower and upper surface of thi
pud can. The purpose of the lower surlace
NEVA AL iS to break the suction of thi orl
ith the can. The nozzles on the upper can
wash olf or “fluffup” any soil that 1 On lop
ol the can. At that point, the legs are raised
ithe legs do not pop tree at that point, the
barge engineer pulls the rig one foot below
the equilibrium drait which results in one
lool of buoyancy pulling up on the leg: The
legs are then pulled up with a gentle hilt
I. March $1, 2004 Allision
(On March 31, 2004, the TOVONACA wa
positioned in the dday of ¢ am peche located
ib Whataus known as the lexclusive leconoenin
Aone of Mexico. The POYPONACA was jacked
Ipand was enpaped in dmilling operations at
vel CInan fob jeu Liar LQ ai contract
between P?MM and Penn the TOTONA¢
had been at that Le price Mi zt ZU005
Rs (On March 31, 2004, Mr Juan Manuel Orta
hlores was the Chief Mate onboard the ISLA
A458 PALES Viter | AVvINY Chie PR Ot
PX A! Miro lores put the IsLA AZTIECA
» “aublopilot mereased — thie Specd and
ontLnued at the increased |: peed tinital thas
ISLA AATILWCA was I
from the TOPTONACA
Mer. bk lores does not know the « Kach speed the
ISLA AATICCA reached aiter he increased
Ubi peed. Mr. tore then decreas ed specd
LO approximately 3 knot When the ISilA
AL TICCA was approximately OO. miles away
from the TOWTONACA, | lores attempted
Li) Wwitleh from autopilot to manual control
publ wa Un Suces tiul
Ysa result of Mr. Flor faardarre control
(he course and speed of the ISLA AATIWCA
the bow of the ISLA AZTILCA forcefully
whided with the bow lege and the raw
Lhe TOPONACA ‘Thi
tstruck the TOUXTONACAYs ray
roand then made direct mopact
thi the bracings of Ley Number One
Vithough the exact Cor Uta
LZALTIWCA at the time of
unknown, testimony from NN Il dore
Plavasitall X pe .evind Tite htield
that ISLA HLHCA, a 1600 ton
likely atlapproxtimately
Die
TTOTTONA
dist
A. lor ¢
Karraprte
reduce il
appro ly Ubve
didi mot
}>¢ . qd
ela hice
Lop sal
Chizanngye it
posmbion, Of
ice
it und: puted that the TOPPONACA could
fale thre ; to 2 | oid {hye caldy
hixed to the sea bee
b40T)
i
tha Liriye Ot thre addi
as properly lit. On
TOXTONAE
mn, the TOON
March 5 |
A met all thre
Vvernmental requiren
(4
assiine
ibid wane
“Ddae bhiapact ol the adh
tO Serio by laaraagee
ndthe POTONAC
gaa Hs
rm the Spud Coan:
AGLELE, poriol loo Ubae i|
the POYTONA
MMneCclion Phe
al *
ac
yPvapTaTry certiled
RepIsler pr rloromicd mon ce
ridy thie
| bn 2004, alter the allision, cracks were apvain
on CON readin thi pud to ley can connection
of the TOTONACA
Phaimtitl { pert bacob Alford i ct Project
Manager employed by bennett é AY Oclale
Mfeasa peqalist in the operation and repan
fo yacl TE CArallivipe tonaet
J Vii \lford was hired to act : ; consultant
nm devising " chenie hot Lbae recovery
lowermp and repair Ob the POTTONACA
forward lep ble wa hat pecihically hired to
consult on repatt Lo the pud cans of
method bo repair thie Spud cain OF tl
PCy POINAE
\) v1 1 \iford fia looked at pud can t L¢
rack moukl live Lita over Ube pycast J
Cal but has not repaired them himset
i! Wiord has n er been called upon
letermine tne cause oT crac if prud tl)
Vil A\Iford didi not directly iii prec {hye pod
inn LO hep COnMNechion ol the LOTONACA
Vit Adfiord did review a tfetech Marine
Cryvice report mn the cract bis ered in
Lt pud Can if WU) na 1 dl [> Lion
report prepared 1) Dcacol Viaratin
lecntilyingy the crack to tha pud can to ft
it [ nS 1 it) UG
LE Le] 1 é ] if) pnlormation I il t |
Paadiaa on Ul lopside of the TOTO . (
Ly Liford er 1 fal i adam e 1
Mr. Alford testified, some of the crack
discovered in 2004 were at the same location
the 2OOO cracks, but the lengths of thi
crac discovered in 2004 were dilfcrenmne(
from: the length of the cracks discovered in
OOO. Some of the cracks discovered aiter the
Histon were not imi tha une location as thre
crac Liical apoyo ired in ZUU0U lor example
mn ley | there were no crac ind Ube {
rd ity ZOOO. Dut crac were discovered in
tha () cord in YOO4 \ » there were
raci « ered in Lt ith QUO, but tw
rach ere readin Lb i ZOU
pies] it ‘ " i) ne) CA " t] |
Diighl appear in ‘ prurcd {
( ritie | i
Mt? ] " pdl Pelerna tj é
ree that ( ! Mmerable lores Phipoarcte it
til (1 | K-up Tr it Chae nd
1423 { < L2idl Cail ( { pud ¢ i]
( it {
Mord { ti] GQ, lor 1} ( bacal Pic'di
( I re] ble lores j Lprplled tL tive Lop) ]
I 14 POLLO Hd al I @ bee
pphed t t)ic can CO ection. Phi
11 rd not al Mr. Alford to testil
I at 1] | ) { Tal SAG
Ol turall pused the all PcrackKs 1
} REECE. \ cl ¢ { it IIe CT )
ford lyhbitted that |
\Ithough 1) lendant
avreed that an alls bot) CO)
cra eh ft pud can ot a three
enough strenvth t
bye could not i\
wlision actu
POY POINACA
CCONCLUSIONS OF LAW
\. Sudicial | stoppel
had ! lt
} i 4 i i t (>) y CIN {
e148 i i I { iy Qopted
i
! pryict r A 2fPGe) Lore (-()
’ ‘ i pre ptabioh I} j I j
f i j 1 | iV] yt ii 1) tdi }j}
i iz ( | i te I cy Pigs
(-n iz } ‘ Lrg { }
i | 1 hil ‘ '
{ i Ey ze ] < ) Pif
‘ ‘ _ oe
i yuan diction and tele sani Viexican lav
—
j { irl pil } t}) rl
14
I ) ! { { bibisl It
pi i 1 I f If WeCLIO! tl Clay é
{ ( | i j } bie 7 a
i I ( ry } (
I i I je! j Lek 1]
) i j pracecc dads i i! Pruitnecent
‘ i | I ) ‘ ryacd ‘
| j §i5 yo tdac HCCG
i t { i 1 (oti i VM
j mamied tt (fie
i j qi tii Cf pecan ye
i j } 1 ti Pras ()y_QDIN { i}
f i i ‘ é t cy /\ sel fi tol (
‘ i Zen j of hic ri defined |
/ y Sb f j K i} bia Cdl
I I j | biepore ntations that 1??NMIM
| iif i i j ‘ i ‘ ah olthe 1Oo1TQO i/Af
tary bi bad i I int ity it
{ot I teil
A
Luacabonlal y
1 {VIM
nders
rte dina
! ito
|
PPjytcat’l
I yé ‘
ride
an | tif
cp Udy
and
Article
of Declendant
Delinition of
Oils
i | ic } mb Cal
ijii P< { tj {
[v0
i wSe) ol thie | Fi
i i i Hig! Lier
1 poten i Ol Ube Orpol ile
wi |
Defendant Grupo TMM
beardvie nd exercised
z ty over MarMe
Cl fo iar Me mid
Cplatiiny and
bot picluding 1
priday Oper Lit bears J}
i Pymcus bic (*]
i I ii Leas
are (] j (°(] tie
, Leen
pure y]
i bil tf I ‘
i f ned 60 j>! il |
I ae l ncbinis l
' i “fT i biol)
! ¢,' eres | paired ‘
mee AAMQI
yxford Q)Oia) Ce (plating
jurisprudencra
bed Tbigl
cif) pur
yorodiay Court
nat
Chiara gee rdptl
ipparacvus 1
pripuaye dae
Part hoo /\
in’ the Merxtcan
ate and Product
iz 123 (1 996))
pecilicaily
Ww hae (die j
I) ire holae I
sOOT) pboitily
i) j lie {
bith bial ul ! t ir roicle we Py
i Piddi (10) a Cla {>} { I
Pirie rredil Lyi rccugis i
| reaate < bia Chae ‘ bible bail t¢ {
‘ «| ‘ | pice ] { were Ll
C1iiil I clit} Orporale triuctuys
Crest 1, doual libipply Loe Podassda Chace: « Li
Per] lt contractuall Ib) I Outi
i) i) Hy (fie ‘ perce ct
COnmnechlo tf) 1) I rey
I ‘|
I bifitidl nd pr. | Pi ricyue I) | iit
! ‘ Vie i trpore’dl ( l { ( asd if
}>] Ll of thew prharae re) I |
i¢ I thi La°c] i ! es i
\ ‘ i ril sii
| ii] ( Rl / if ( \] tt) |
preme Court notled it | Piall nmdader th
" trical Paco ©] 1c] : { Iho peed Opi
j Clit oO] prrotil cr l rist (4 ied
ollie Is PeSpol byte: dor Chical Chivniacagee
) a PPbpoa »Coivil Joirect ied /44 por
bt lt i 7 | Cc] Uta Tooure
| ;
| | ) fad £ C fie lex) bporenn
( urt held 1) ©] Lei COLMAR P IA bacadole oor
qian ef tiny hi Picacd) phot tae lf
‘ meracted it tne electri COPPELL Pytal
baistead \ miyured on ant property ol t tac
piachivacduaad WLIO ( i] Lr 1¢ a witli tla COLE) tiiy
SIO Yiparo Dire
t)} ere le > Vote
’
‘ " i
| Pintnisf
) 1 ' ) )
.
i
| | |
| |
i i
{ j {
'
; it
, '
}
’
brah :
at
‘ I
| | | |
i | Pil
I
Liif |
'
ee | i ’
sans IM to |
' CG hMM
falens Landing, 656 F.2d at 1160 Gnternal
Citations omitted)
Therefore, because Mexican law does not
upport the theory that Article LOTR may
impose Trability on a “corporate user” and
because veil PyCRCInrge ts Inappropriate under
forum state law, Grupo TMM is not. liable for
(he tort of its subsidiary, MarMex
Causation of Damages to Spud Cans
Piaantills insist that Mexican law only
requires the Court to find that they have
proven the elements of their case by a
preponderance or “more hkely than not’
standard of proof Defendants insist that the
Court must find that Plaintiffs’ proved each
element “fully” or “beyond a reasonable
doubt
lt is not immediately clear what standard of
proot a Mexican court would apply in a civil
Ore Pel &
The Court need not decide this challenging
question, however, because it finds that
Miaintiff has not proven, even by a
preponderance of the evidence, that the
eracks discovered in the spud cans were
caused by the force of the allision. Although
Miaintiffs have shown that cracks in a spud
can to leg connection could be caused by an
allision, there as simply not sufficient
evidence to establish that the particular
cracks discovered in the TOTONACA spud
to lege can connections in 2004 were actually
caused by the March 31, 2004 allision. An
allision is not the only possible cause of the
cracks discovered in 2004. Cracks were
discovered in the ‘TOYXPRONACATs spud cans
tn ZO0O0, and there is no allegation that those
cracks were caused by an allision. ‘he Court
understands that destructive testing is not
required by the classification society, but it
certaimly would have aided Plaintiffs in
proving the cause of the damage to the
POTONACA spud cans in litigation
furthermore, Plaintiffs failed to produce an
expert qualified to testity as to the poss ible
causes of the spud can cracks. The Court
therefore finds that Defendant MarMex i:
not lable for the cracks discovered in the
POTONACA’s spud can to leg connection:
under Article 1913
iV. CONCLUSION
lor the reasons stated above. JUDGMENT iS
ENPERED for Defendant Grupo TMM on all of
Plamntiffs’ claims. JUDGMENT IS) EN'PERED
agamst Defendant MarMex on Plaintiffs’ claims under
Article 1913. In the next phase of this trial, the Court
will adjudicate the extent of the damages to the
LPOTONACA including damages to the leg and raw
water tower and the damages incurred for loss of
hire.’ Defendant MarMex is not liable under Article
Detendants have indicated to the Court that they will tiikely
appeal this Order to the Fifth Circuit prior to the damages trial
it appears that such an appeal would be permitted under 28
91S however for dam igre related to the crac
the PCOYPONACA pud can Lo ley connection
PIS SO ORDERED
SIGNED this 2"° day of Si plember, 200!
/s/Keith BP. Ellison
KREEPH Po rELELISON
UNEPPED STATTES DISTRICT JUDG}
O& § 1292(al(3), which grants the Court of Appeals jurisdiction
interlocutory decrees of such district courts or the pudpre:
thereof determining the rights and liabilities of the parties to
admiralty cases in which appeals from final decrees are allowed.’
To the extent that appeal of this Order is not allowed under 28
US § 1292(a)(3), this Court would certify the Order for
interlocutory appeal pursuant to 28 U.S.C. §1292(b)
APPENDIX ©
UNEPED STATES DISTRICT COURT
SOUTITERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. 4:05-cv-419
(ADMIRALTY)
[hiled March 24, 2008]
PEREFORACIONES MARITIMAS
MIEXICANAS S.A. de C.V. and CERTAIN
REINSURING UNDERWRITERS
SUBSCRIBING TO REINSURANCE
CONTRACT NO. ALTE-030044 AS
AMENDED TO NO. AHE-04004,
Pheuiotatl
SEACOR HOLDINGS, INC... GRUPO
TMM S.A. de ©C.V.,. and MARITIMA
MEAICANA S.A. de C.V )
1). Le ndant
MEMORANDUM AND ORDER
1 nding before the Court is Defendants’ Motion for
lttecconsideration muursuant LO l“ederal liule of Civil
I
ye
ooa
Procedure 54(b). Defendants ask the Court to
reconsider a July 21, 2006 Order on Defendant’s
Motion to Dismiss, Docket No. 67. After consideration
of the parties’ arguments and the relevant law, the
Court finds that Defendants’ Motion, Docket No. 197,
should be DENIED
lk. BACKGROUND
‘This case involves an allision between Defendants’
Mexican flagged supply vessel, the ISLA AZTECA, and
Plaimtitts’ Mobile Offshore Drilling Unit TOTONACA,
another Mexican flagged vessel. The allision occurred
on March 31, 2004 in Mexico’s Bay of Campeche
Although Defendants’ motion suggests that location of
the allision was within the “territorial waters” of
Mexico, Defendants clarify that it actually took place
within Mexico’s exclusive economic zone. See
discussion tifra Part HLA. It remains undisputed that
both PlaintuffPerforaciones Maritimas Mexicanas,' the
owner of the ‘TOTONACA, and Defendant Maritima
‘ PMM’s underwriters are also Plaintiffs in this lawsuit. PMM
stresses that its lead underwriter, Naviyzators Insurance Services
of Pexas, Jnc., is a Texas corporation with its principle place of
business mm Houston, Texas. (Pls” Resp. 3.) Defendants note that
a subroyated underwriter steps into the shoes of its insured
Mexicana (MarMex),° owner and operator of the ISLA
AZ'I'} ( ri. Were Incorporated lf) Mexico
, On May 6, 2004, Defendant MarMex filed a petition
to lamutats liability in Mexico under the Convention on
Lamuitation of Liability for Maritime Claims, and that
hmitation fund was established on October 27, 2004 in
the amount of US$42'7.460.97. On May 17, 2004,
Pilaintitf PMM filed a criminal complaint known as a
(uerella in Mexico asking the Public Prosecutor to
conduct a criminal investigation and issue. an
indictment against MarMex and the crew of the ISLA
AZTVICCA. The Public Prosecutor did not find sufficient
evidence of criminal conduct or criminal neplipence,
and declined to prosecute those charges. On July 20,
2005, Plaintiffs filed this lawsuit in the Galveston
Division of the Southern District of Texas (the
“Predecessor Court”)
(on July 21, 2006, the Predecessor Court denied
Defendants’ motion to dismiss on forum non
conventens, principles of international comity, and for
lack of subject matter jurisdiction. In November 2006,
the Pifth Circuit dismissed Defendants’ interlocutory
appeal of that Order, finding that the Order did not
determine the parties’ substantive rights and
MarMex 1s 60% owned by a Mexican entity, Defendant Grupo
TMM, and 40% owned by Seacor Holdings, Ine. or Seacor Marine
Mexico, Inc. (SMI1). At the time the original Order was entered,
the parties disputed whether the stock is held by Seacor or by
OMIT. Recent deposition testimony indicates that MarMex ha:
merged with TMM (Pls’ Resp. 22 Plaintiffs.) Plaintiffs claim that
eeacor exercased “significant operational control” over the ISLA
AZTECA. (See Pls’ Response 23.) Plaintiffs’ claims against Seacor
were dismissed in duly 2006
lhabrhities. See Perforaciones Exploracion y Produccion
etal. v. Grupo TMM S.A. et al., No. 6-41228 (5th Cir
Nov. 30, 2006). The case was reassigned to this Court
on October 26, 2007. Defendants filed the pending
Motion for Reconsideration of the Predecessor Court’s
Order on January 7, 2008 The Court) granted
Miaimtiffs’ request for additional time to respond to the
Motion, allowing them the opportunity to complete
certain depositions that Plaintiffs argued = might
provide further evidence that Texas is a convenient
forum for Defendants. The case is set for trial on April
7, 2008
i. STANDARD OF REVIEW
Mederal Rule of Civil Procedure 54(b) allows the
Court to reconsider “any order or other decision
that adjudicates fewer than all the claims or the rights
and habilities of fewer than all the Parties.” FrED. R
Civ. P. 54(0b); see also Matagorda Ventures, Inc. v
Travelers Lloyds Ins. Co., 208 F. supp. 2d 687, 688
|
qc 1
S.D. Tex. 2001). A motion to reconsider should “clearly
establish either a manifest error of law or fact or must
present newly discovered evidence. These motions
cannot be used to raise arguments which could, and
should, have been made before the judgment issued.”
Rtoss v. Marshall, 426 F.3d 745, 768 (Sth Gir. 2005)
(citing Sumon v. United States, 89) F.2d 1154, 1159
(oth Cir. 1990)).
The doctrine of the law of the case and the principle
of judicial comity are also relevant to the Court’s
reconsideration of an order issued by a predecessor
judge. “{WIhen a district judge has rendered a decision
ina case, and the case is later transferred to another
judge, the successor should not ordinarily overrule the
HOA
earlier decision.” Loumar, 698 F.2d at 762 (citing 18 C
WRIGHT, A. MILLER & HE. COOPER, FEDERAL PRACTICE
& PROCEDURE § 4478 (198 1)). However, neither the law
of the case doctrine nor the principle of judicial comity
rr a barrier to the correction of judicial error,’
Loumar, Inc. vo Smith, 698 ¥ 2d 759, 762 (th Ci
19%3): see also Gallimore vo. Mtssourt Pae. BR. Co , 630
2d 1165, 1172 (5th Cir. 1981) (noting that judicial
comity “should give way, if the need should arise, to
the interests of justice and economy when those
interests would be flouted by rigid adherence to the
rule’), and the Court retains discretionary authority to
reconsider a predecessor judpe’s decision, see
Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 815-18 (1988) (A court has the power to
revisit prior decisions of its own or of a coordinate
court in any circumstance, although as a rule court:
Should be loathe to do so in the absence of
extraordinary circumstances such as where the initial
decision was ‘clearly erroneous and would work a
manifest inyustice.”); Loumar, 698 F.2d at 762 (noting
a successor yudgye's “bountiful discretion” in reviewing
a predecessor judge’s work, but cautioning “A judge
should hesitate to undo his own work. Still more
should he hesitate to undo the work of another judge
Sut until final pudgment or decree there is no lack of
power, and occasionally the power may properly be
exercised” (citing Peterson v. Hopson, 29 N..2d 140.
144 (Mass. 1940)); Abshire vo. Seacoast Products, Ine.,
668 Fo 2d $32, 837-88 (Sth Cir. 198%) “The successor
judge has the same discretion as the first judge to
reconsider the order.” )
CUE
Hit. ANALYSIS
A. Subject Matter Jurisdiction
in the Order, the Predecessor Court) denjed
Defendant's motion to dismiss for lack of Subject
matter jurisdiction. There is no clearly controlling
precedent on this question, and the Predecessor Court
did not commit a manifest error of law in finding that
subject matter jurisdiction existed
In addition to the arguments presented in thei
original Motion to Dismiss, Defendants now argue that
the United Nations Convention on the Law of the Sea
CUNCLOS”), Dec. 10, 1982,, 27 1.L.M. 1245, 1833
UNOPS. 3., and the Treaty on Maritime Boundaries
between the United Mexican States and the United
mtates of America (Carribbean Sea and Pacific Ocean)
May 4, 1978, 2143 U.N-T.S. 405 (“Treaty on Maritime
Boundaries’), preclude the United States from
exercising Subject matter jurisdiction over this case. It
qdoes not appear, however, that either treaty conters
exclusive jurisdiction on the Mexican courts ove)
allistons occurring within its exclusive economic zone
(lol Z)
Plaintiffs are correct that the United States is a ignatory to
UNCLOS, but has not ratified the Convention. The United State:
has acknowledyed that the provisions of UNCLOS repvarding the
exclusive economi ZONE are declarative ol customary
milernational law, however, see Mayapuezanos por la Salud y el
Ambtente vo. United States, 198 F.3d 297,305 n.14 Cist Cir. 1999),
RESTATEMENT (THIRD) OF FOR. REL. LAW § 514, emt. a, Ke porter’:
Note 1. Additionally, as a signatory to the Convention, the United
otates is generally “obliged to refrain from acts that would defeat
the object and purpose of the agreement,” Mayapuezanos, 198 F.3d
UNCLOS declares that coastal state have certain
overcign rights in the KMZ, which “shall not extend
beyond ZOO nautical mile Irom the baseline from
Which the breadth of the territorial sea is measured
UNCLOS, art. 57. Article 56 of UNCLOS sets forth
those right:
In the exclusive economic zone, the coastal
State has: (a) sovereign rights for the purpose of
exploring and exploiting conserving and
managing the natural resources, whether living
or non-living, of the wate: superjacent to the
sea-bed and of the sea-bed and its subsoil, and
with regard to other activities for the economi
exploitation and exploration of the zone, such a:
the production of energy from the water,
currents and winds; (b) jurisdiction as provided
for in the rele Vant Provision ol this Convention
with regard to: G) the establishment and use of
artificial island: , installations and structure:
(ia) oo ryagarinne qientifie research Cisr) = the
protection and preservation of thie marine
environment; (c) other mghts and = dutie
provided tor in this Convention
UNCLOS, art. 56. Non-coastal states retain certain
right; In the exclusive CCONnOML ZOTIC ais well
UNCLOS art. 58 (stating that, in the EIEZ, all state:
1 JOG n. 14 (citing Kreemerman v. Casa Veerkamp, S.A. de C. \
22 3d 634, 64% no 9 (oth Cir, 1994); KESTATEMENT CEHIRD) OF
POK. Riek. LAW, pt. ITIL, mitroductory note, at 145). Because thie
Court finds that the relevant treaties do not preclude subject
matter jurisdiction, it need not reach the question of whether the
Delendants have standiny to assert rights under either UINCLO:!
or the ‘Treaty on Maritime Boundarie:
O44
enjoy “the freedoms referred to in article 8&7. of
navigation and overflizght and of the laying of
Submarine cables and pipeline: and othe:
tnlernationally lawful uses of the sea related to these
freedoms, such a: those associated with the operation
of ships, aircraft and submarine cables and pipelines,
and compatible with the othe provisions of this
Convention”) Nothing in the lanyuape of UNCLOS
mdicates that Mexico’s limited sovereign rights related
tothe exploration and exploitation of natural resource:
in the KIZ deprives the United States courts of
jurisdiction over torts or collisions that occur on those
waters. See also RESTATEMENT (THIRD) OF FOR, REL
8 Ol], emt. b (noting that the “sovereipn rights’ which
a coastal state enjoys in its exclusive economic zone
are functional in character, timited = to specified
1
activitlie:
The ‘Treaty of Maritime Boundaries does not
compel a different conclusion. The treaty states that
“North of the maritime boundaries established by
Article 1, the United Mexican States shall not, and
south of said boundaries, the United States of America
shall not, claim or exercise for any purpose SOVErely ts
nivhts or jurisdiction over the waters or seabed and
subsoil.” Treaty of Maritime Boundarie: art. Il. The
Treaty of Maritime Boundaries also notes that the
treaty “shall not affect or preyudice the positions of
cither Party with respect to “sovereign mghts o1
jurisdiction for any other purpose.” Treaty of Maritime
Boundaries, art. IT. Again, this language does not
"The Predecessor Court also heard expert testimony to this effect
prior lo entering the Order, (See Mot. Hearing, ‘I'r. Apr. 27, 2007,
p. 09-60.)
appear to directly addre the lJnited States court
jurisdiction over an allision between ve sels am threat
atrea
Nor did the Predece or Court conimit a manifest
error of law when determining that subject matter
jurisdiction was appropriate based on relevant United
mtates case law. The Supreme Court’s statement in
Law, 404 U.S. 202, 205 (1971)
that “the maritime tort jurisdiction of the federal
courts 1s determined by the locality of the accident and
Victory Carrier S [net
that maritime law governs only those tort: occurring
on the navigable waters of the United States” doe:
appear to be dicta, and the Court’s determination that
the locality test set forth in Jerome B. Grubart, Ine. t
Great Lakes Dredge & Dock Co., 513 U.S. 527. 584
(1999) only re CcUEPes that the tort occur “on navigable
witer: is not clearly erroneous.” Both the Supreme
‘The term navipable waters of the United Stat bia been
construed in some contexts to include the hagh sea Hee, «
ae, yrrolds i lnvall Phipbuddine iii Luitton oystem frie SOO?
I’ 2d 264, 268 (5th Cir. 1986). At least prior to the creation of thie
concept of an hieZ, the high seas were con idcred to encompa
“all parts of the sea that are not included in the territorial sea or
in the internal waters of a State fd. (citing | BisNnispicyr ON
ADMIRALTY §& 141, at 9-2 (7th ed.)). The allision at issue in thi
case did not take place in Mexico’s territorial sea. but instead in
its exclusive economic zone. ¢ ompare UNCLOS, Part TH, Se ;
(discussing the territorial sea) with UNCLOS, Part V (discussing
the exclusive economic zone Pome circuits have discussed the
WhkZ and the high seas a eparate area SCO, CL, Hitman
oO} the United State { Clinton, 2460 F.6d L320, 1822 (be % a. 4
200)) There is also at least some reason to believe that the EE7Z
rivgrlit prope rly be considered part Of thie hiaigeh Co mbyect to thy
coastal Liale limited OVeCTOCIP ED rigrtit howevel ay
KMESTATIEMENT CPE) OF Fok. Rel 11, Reportes Note
(acknowledring that UNCLOS did not ¢« por ly declare that t}
Court and the fifth Cireuit have found that ubyect
matter pyurisdiction exists in cases involving collision
between two fore gyda Ve cls on the bias hi Ca bead that
Courts may decline such jurisdiction on vround uch
forum MOM COMVE!TMICT See Cp Atlanti fran port
Co. of W.Va. Imbrovek, 234 U.S. 52, 60 (1914): Th
Belyentand, 114 U.S. 355 (1885): Perusahaan Uni
Laistritk Negara Pusat v. M/V Tel Aviv. 711 F.2d 1231
(pth Cay 193.3) ee also I-VIIl BENEDICT ©
ADMIRALTY § 129 (“Admiralty courts have jurisdiction
Ol admiralty suits entirely between foreigners when
proper service can be had or property attached, but
goncerally a court may, in its diserction. dismi nat
case on grounds of forum non conveniens.”): 1 THOM
J. SCHOENBAUM ADMIRALTY & MAR. LAW & ] 1-Y(4thed
2004) (declaring that “ijn the United States. collision
jurisdiction potentially extends to the four corners of
the globe, to the high seas and even foreign territorial
waters, but noting that (he court have adapted
everal way of abstaininy from exercising surisdiction
In collision case where justice require At lea
one Circuit has found subject matter purisdiction to
exist where the tort occurred in the territorial water
ol another nation, but that case involved an Ameri
plaintill. See Neely v. Club Med Manarpement Ser
frie 63 F.3d 166, 170 (3d Cir. 1995): see alse (;]
CGILMORE & CHARIS BLACI | hE LAW ©
YDMIRALTS bed. 19% (“C)
bikeZrema part of the hi but noting t
thie rie Liatiol macate that tl i ler t] t}
remams high ses itt tough at Hibe subject toe CD lraprhal
in favor of the adjacent coastal state.”) Vhe allision at 4 rT ,
Lhuis case could, therefore Lleast plausibly be misidered ft
occurred within “the na mablhe , ler ol the tinited tial
navigable Watle! Plict \ aul () round admuralty
jurisdiction.”)
he Court is not aware ola case that addresses thre
precise fact scenanmo present in this case: namely an
mn personam suit involving an alliston between two
ve els operating under the flag of the same country
that occurred in that country’s Exclusive Economic
“ome In the absence of clearly controlling precedent LO
the contrary, however, the Court cannot find that the
decision Lo «che ny Delendant’ PiOollon to cdismi
constituted a manifest error of law
Bb. Korum Non-Conveniens and Internat ional
(omit y
Although the ¢ ourt has discretion to recon dor thy
Predecessor Court’s decision to deny Defendant’
motion to dismiss on grounds of forum non conventen
and international comity, it does not believe that. it
would be in the interest Of justice to do so. Given the
facts of this case, this Court likely would have reached
a different conclusion if it had been considering
Defendant's motion to dismiss eighteen months APO
The Predecessor Court’s decision on these matters wa:
discretionary, however, and Defendants do not a ry ue
that the court applied an incorrect legal standard
‘Thu it is difficult for this Court to find that the
’redecessor Court’ clearly committed a manifest ¢ rrot
Ol jaw. kurthermors Ib appecs threat ome of the
factor that hay have weighed iT) lavor ol dismissal
eighteen month agyomay now tilt the other direction
Phe Court doe wree with Defendant howevel that
Ally
questions as towhether an alternate forum exists in Mexico could
Oba
horexample, Plaintiffs note that deposition testimony
has been obtained from all witnesse: , suggesting that
difficulties in accessing sources of proof have been
overcome. Vlaintiffs have also provided additional
evidence of Delendants relationship with the United
states that was uncovered through the discovery
process. Defendants point out that the Predecessor
Court miade its decision on Defendant’s motion to
disnuss before determining that it would need to apply
Mexican substantive law to the di: pute. While this
factor merits some weight in the balancing analysis,
the Court cannot say that it renders the Predecessor
Court: previous decision clearly Crroneous
The Court recognizes that Defendants have and
will continue to incur costs and inconveniences that
they would not have faced had this lawsuit been
prosecuted in Mexico. Given the standard for a motion
lor reconsideration, and taking due account of the
principles of judicial comity and law of the case.
however the (Court declines to reconsider’ the
Predecessor (Court § decision to deny Defendant’:
motion to dismiss on grounds of forum non convenien:
and international coniuty
Hil CONCLUSION
lor the foregoing reasons, Defendants’ Motion for
Keconside ration, Docket No 6O/,1s DEIEENTED.
PeIS SO ORDERED.
bee ore olved through al conditional order olf di mussal. ¢ ce, €.f..,
Perusahaan Umum Listrik Negara Pusat v M/V Tel Aviv, 711
Me 2d 1231, 1239 (5th Cir. 1983)
SIGNED this 24 day of Mareh, 2008
/s/ Keith P. ellison
KEPT PP. ELLISON
UNEPED STATES DISTRICT JUDGE
APPENDIX D
IN THE UNIFPED STATES DISTRICT COURT
POR THK SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
Civil. ACTION NO. G-05-419
[Filed July 21, 2006]
PEREFORACIONES MARITIMAS )
MEXICANAS S.A. de C.V., et al )
)
Phamntitt: )
)
MARINE MEXICO, INC. GRUPO
)
)
HIMACOR HOLDINGS, INC., SEACOR )
)
PTMM,5S.A., and MARITIMAS )
MEXICANA S.A. de CV )
)
Delendant: )
)
ORDER ON DEFENDANTS’
MOTIONS 'TO DISMISS
This case arises out of an allision between the M/V
ISLA AZTECA CAZTECA”), a Mexican flag vessel, and
the MODU ‘POTONACA, a drilling rig located in the
Bay of Campeche, Mexico. Now before the Court are
Vefendant Seacor Holding, Inc.’s (“Seacor”’) Rule
Oa
12(b)(6) Motion to Dismiss for Failure to State a Claim
or, in the alternative, Motion for Summary Judgment
Defendant Seacor’s First Amended Motion to Dismis:
sused on Principles of International Comity, or, in the
Alternative, Motion to Dismiss Based on Plaintiff:
Lack of Standing, Wefendant Seacor’s Motion to
Dismiss for Forum Non Conveniens, and Defendant:
Grupo TMM, S.A. C'PMM”) and Maritima Mexicana,
».A. de C.V’s (“MarMex”) Motion to Dismiss for Lack
of Subject Matter Jurisdiction, or, in the Alternative
Korum Non Conveniens, or, in the Alternative.
International Comity. lI*or the reasons stated below
peacors Motion to Dismiss for Plaintiff Perforacione:
Iexploracion y Producecion’s Lack of Standing i:
DENIED AS MOOT. ‘TMM and MarMex’s Motion to
Dismiss for Lack of Subject Matter Jurisdiction 1:
DENIED. Seacor’s Motion to Dismiss for Failure to
otate a Claimis DENIED AS MOOT. and its Motion
for Summary Judgment is GRANTED, and Plaintiffs
claims against Seacor and Seacor Marine Mexico, Inc
CSMMI") are DISMISSED WITH PREJUDICE
meacors Motions to Dismiss for Principles — of
International Comity and Fortam Non Coveniens are
DENIED AS MOOT. ‘TMM and MarMex’s Motions to
Dismiss for Principles of International Comity and
Forum Non Conveniens are DIENTED!
I Background
This case arises out of the March 31. 2004 allision
between the AZTECA, a Mexican flap : upply vessel
' The Court does not consider this Order worthy of publication
Accordingly, it has not requested and does not authorize
publi ation
10a
and the TOTONACA, a mobile drilling rigs located in
the Bay of Campeche that appears to have been fixed
at the time of the accident, within the territorial
waters of Mexico The AZTIECA was owned and
operated by MarMex, a Mexican shipping company
MarMex is 60% owned by TMM. and, at the time of the
medent giving rise to this lawsuit, 40% owned by
either Seacor or SMMI.“ TMM is also a Mexican
entity. Phe domiciles and principal places of business
of ‘TMM and MarMex are in Mexico. The TOTONACA
wasowned by Perforaciones Maritimas Mexicanas S_A
de ©.V. (@PMM>)
On May 6, 2004, MarMex filed an Jé&x Parte
Declaratory Judyment Proceeding apainst
$ 2 f°
Perforaciones Maritimas Protexa S A. de C.V.(PMM’s
prede.-ssor) based on the International Convention on
Limitation of Liability Arisen from Maritime Taw
Claims, ratified by Mexico on August 9, 1994. On May
10, 2004, the Sixth District Court in Civil Matters in
the Federal District in Mexico denied MarMex’s
request, and MarMex appealed. On October 27, 2004.
the Sixth District Court vacated its carhier ruling and
entered an Order pranting MarMex’s request for relief
Phat Court ordered service of MarMex’s Original
Petition, exhibits and Order on Perforaciones
Iixploracion y Produccion CProtexa”), PMM and Pemex
lyxploracion y Produccion. ‘his action is still pending
in Mexico
On May 77,2004, PMM filed a ‘Criminal ¢ omplaint”
with the Investigating Prosecutors Office in Ciudad
“ The Parties dispute whether the stock is held by Seacor or
SMMI
y
fla
del Carmen, Campeche, against MarMex for damages
arising from the allision. ‘This criminal proceeding
was ultimately dismissed
Qn July 28, 2005, Protexa and Certain Reimsuring
Underwriters Subscribing to the Reinsurance Contract
Policy No. AH-030044 as Amended to Policy No
AH -004004 (“Underwriters”) filed) suit) against
seacor, TMM, and MarMex for damages sustained by
the AZTECA during the allision. On July 14, 2006, the
Court pranted Plaintiffs’ Motion for Leave to File an
Amended Complaint The Amended Complaint
ubstituted ?PMM for Protexa, since it is undisputed
that PMM is the real party in interest, and it also
added SMM asa defendant The Amended Complaint
also eliminated the cause of action for use of a
dangerous weapon pursuant to Article 1913 of the
lMederal Civil Code of Mexico, so the only claim:
remaining arise under the admuralty and maritime
laws of the United States
Now belore the Court are several motions to
dismuss, referenced above. As manifested by the title:
of the alorementioned Motions. many of the issues
raised by the individual Defendants overlap with one
anothes Therefore, the Motions will be considered
jointly, and each ground for dismissal will be discussed
Once
’ Pefense Counsel is advised that in the future, for the sake of
brevity and out of consideration for the limited resources of the
Court, they hould sermously consider filing a single joent
dispositive motion when there is such a commonality of interest:
rather than have the Court sort through four redundant motion
MH. Plaintiff Protexa’s Lack of Standing
peacor onginally moved to dismiss on the gyround
that Protexa lacked standing to sue.’ In its Motion, il
argued that Protexa was not the true party in interest
because ts did not own the TOTONACGA and was not a
party to the drilling contract between PMM (the rig
owner) and Pemex. PMM was the actual owner of the
TOTONACA. Recently, Plaintiffs realized the error in
their pleadings, and filed for leave to amend their
Complaint. On July 14, 2006, Plaintiffs were given
leave to amend, and have since filed their Amended
Complaint, which substituted PMM for Protexa. At
this time, it appears that all of the proper Parties have
been named, and the dispute over the proper plaintiff
has been resolved Therefore, Seacor’s Motion to
Dismiss on the ground that Protexa lacks standing to
sueis DENIED AS MOOT
Hil. Lack of Subject Matter Jurisdiction
A. Legal Standard
District courts are powerless Lo exercise jurisdiction
mn excess of the limited jurisdiction statutorily
conterred upon them by Congress see Margin U
sea-hLand Servs., Ine., 812 F.2d 973. 976 (5th Cir.
1987). A case is properly dismissed for lack of subject
matter jurisdiction when a court lacks the statutory or
constitutional power to adjudicate the case. See Strain
VU. Harrelson Rubber Co., 742 ¥.2d 888, 889 (5th Cir
1984). If the defendant subsequently challenges the
plaintiff's stated basis for jurisdiction, the plaintiff
‘ No one challenged the Underwrites Standing to sue
bears the burden of establishing that jurisdiction
exXISts see llarvey Const. Co. v. Robertson CECO
Corp., 10 F.8d 800, 3038 (Sth Cir. 1994): Marpin, &12
k2d at 976 A court’s consideration of sueh
jurisdictional disputes should, however, focus only on
discerning: “some discreet jurisdiction requisite,” as
indicated by the facts alleved in’ the plaintiff:
complaint; the inquiry should not address the merit:
of the plaintiffs claim. Green vo. Ferrell, 664 F.2d 1292.
1294 (Sth Cir. 1982)
Is. Analysis
In their Motion to Dismiss. TMM and MarMex
contend that this court lacks Subject matter
jurisdiction over Plaintiffs’ claims. They argue that
because the allision did not occur on the navigable
waters of the United States, but in Mexican waters in
the Bay of ¢ Ampeche, this case does not fall within the
Courts admiralty and maritime jurisdiction The
Court respectfully disagrees
The claims asserted are basic tort claims that fall
within the scope of this Court’s admiralty jurisdiction
“|Al party seeking to invoke federal admiralty
yurasdiction pursuant to 28 U.S.C. § 13883(1) over a tort
claim must satisfy conditions both of location and of
connection with maritime activity.” Jerome B. Grubart,
Ine. v Grreat Lakes Dredge & Dock Co . D113 U.S DZ i,
934, LISS. Ct. 1043, 1048, 1301. Kd. Yd 1024 (1995)
Thus, the injury or incident must have occurred on
navigable waters, and the general character of the
activity viving mse to the incident must bear a
substantial relationship to traditional maritime
activily. fd. at 534, 1158S. Ct. at 1051. See also Sisson
v. Ruby, 497 U.S. 358, 110 S. Ct. 2892. 111 1. Ed. 2d
é it
292 (1I90), executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 93S. Ct. 493, 34 L. Ed. 2d
454 (1972). An allision between a vessel and a drilling
my oon navigable waters clearly satisfies both
requirements for the exercise of admiralty Lort
jurisdiction. See Kim vo. Frank Mohn A/S, 9O9 }
mpupp. 444,476 77(S.D. Tex. 1995) Ginding admiralty
and maritime jurisdiction even though plaintiff and
defendant were citizens of foreign countnes and the
vessel was foreign-owned and foreign-flagyed). TMM
and MarMex’s argument that a tort must have
occurred on the navigable waters of the United State:
to fall within this Court’s admiralty and maritime
jurisdiction is unpersuasive In support of thei
argument, they rely upon the Supreme Court’:
decision in Victory Carriers, Inc. v. Law, 404 U.S. 202
YZ05. Ct. 41%, 30 L. Md. 2d 383 (1971). In that case
the Supreme Court stated, in dicta, that “|t}he histori
view of this Court has been that the maritime tort
jurusdichion of the federal courts is determined by the
locality of the accident and that maritime law rovVvern:
only those torts occurring on the navigable waters of
the United States? ld. at 205, 92 S. Ct. at 421
(omphasis added) Victory Carriers considered the
question whether state law or federal maritime law
governs the suit of a longshoreman injured on a pier
while moving cargo destined to be loaded on a ship
see id. at 202-05, 92S. Ct. at 4%0. It did not involve
questions of the applicability of .naritime jurisdiction
to accidents on foreign waters. Furthermore, the test
for maritime and admiralty jurisdiction laid out in
Jerome 8. Grubart, Inc. v. Great Lakes Dredge & Dock
Co. only requires that the tort occur on “navigable
waters” rather than the “navigable waters of the
United States.” See Grrubart, 518 U.S. at 534
The l*ifth Cireuit has not provided a clear answer
Lo tha: question Ktecently, the Third Cireuit moted
that “a tort necd not have occurred in waters unde:
Lhe gurisdiction of the United States for us to exercise
admiralty yurisdiction.” Malaysia Intl Shipping ¢ orp
v. Sunochem Int'l Co. Ltd., 436 ¥.3d 349. 355. n.11 (38d
Car. 2006). Other courts have followed the dicta of
Victory Carriers. See e.g., Dunham v. Hotelera Canco
YA. 933 I Supp. 440, 44% de. DD. Va. 1996) (holding
that the Court lacked admiralty jurisdiction over a tort
that oceurred in territorial waters of Mexico)
Ultimately, this presents a question of policy best left
to the purview of the Fifth Circuit, and this Court will
lollow any guidance that the Circuit might provide. In
the meantime, the Court agrees with the analysis of
admuralty jurisdiction as laid out in Thomas J
echoenbaum’s treatise, ADMIRALTY AND MARITIMI
JURISDICTION. Schoenbaum state Lheat
In the United States collision jurisdiction
potentially extends to the four corners Of thre
rlobe, to the hagh nla and CVGH foreign
Lerritorial water: The wide availability of
jurisdiction in collision cases may encourage
forum shopping to take advantave of difference:
in Substantive law. Blatant forum shopputy
however, ts a cause for concern, and the court:
have adopted several ways of abstaining from
exercising Jurisdiction or of applying peneral
rraritimne or jore df?rl law in COLLISION. CASCS where
Justice require:
Arthur J. Schoenbaum, ADMIRALTY AND MARITIME
LAW, 8 14-9, at 131 (4th ed. 4OO4). One of the primary
methods of abstention in case such as these is the
doctrine of forum non conventens. See id. (noting that
Ou
the appheation of forum non conveniens i
particularly rel Vantin a case where thas ah prurte I
between parties and vessels of foreign nationalities for
where| the collision occurred in mtvernational orf
foreign waters ). This case meets the Landard set
forth in Grubart. Admiralty jurisdiction exists, and
concerns about whether this Court is the proper forum
! best left to choice of law raabysi canich ss thae
applicability ol thie forum FIO CONMNVC HICTISE dor Prine
Therefore, TMM and MarMe> s Motion to Dismi
for Lack of Subject Matter Jurisdiction is respectfully
DINIED
iV. seacor Holding, Ines Fed. Rh. Civ. P.
12(b)(6) Motion to Dismiss for Failure to
state a Claim, or, in the Alternative
Motion for Summary Judgement
’
meacor next argues that the lawsuit against. if
should be disnussed on the ground that Plaintiffs have
failed to allege sufficient facts to : Upporl any ol thew
q % d
clans agamst Scacor becuuse Seacor did not own uny
stoc! It} MarMex, the owner and Operator Ol thie
‘TMM and MarMex also aryue that this Court lacl dgdaiversilt
jurisdiction because Parties on both sides are Mexican citizen
PMM isa Mexican corporation, and TMM and MarMey are both
Mexican corporations. The Court finds that complete diversity 1
lacking, and the only basis for jurisdiction in this ease is thi
Court's admiralty and maritime jurisdiction. See hd & Fred. In:
v. Puritan Marine Ins. Underwriters Corp., 506 ¥.24 757, 758 (oth
Cir. 1975) finding no diversity jurisdiction ina Suit brought by an
alien apainst a citizen of a state and another alien) Additionally
both Seacor and Plaintafl Underwriters have their principal place
of business in Texa
AZLTVICCA HeCACO!I allege that SMMI is the actual
Shareholder — of MarMe> along with ‘TMM
Alternatively, Seacors aryues that itt ‘ntitled to
Summary judgment because even ifitis a shareholde:
of MarMex, as a shareholder it cannot be held liable
for the acts of the corporation, and MarMeyx is a
Mexican corporation. The Court finds that whethe:
ecacor or SMMI is the appropriate shareholder is a
moot point. As shareholders ofa corporation, they ar
iisulated from liability. Plaintiffs have failed to raise
any question of fact to sugyvest otherwise
A. Motion to Dismiss for Failure to State a
Claim Pursuant to Fed. R. Civ. P. 12(b)(G)
A, party is entitled to dismissal under Fed. k
ly I2(b)6) when an Opposing, party fails to
Clann upon whieh relief may be pvranted When
conside rng a motion to dismiss tor tailure to : fale a
claim, the Court accept as true all well-pleadec
aegations in the complaint and views them in the
light most favorable to the plaintiff, See Collins ¢
Morgan Stanley Dean Wilter, 224 I 38d 496. 498 (Sth
Cir. ZOOO0) (noting that a court must construe the
complaint liberally in favor of thi plaintiff); see also
Malina v. Gonzales, 994 F.2d 1121. 1125 th Coir
1993). A motion to dismiss should be granted only
When ait appears without a doubt that a plaimmtilf can
prove no set ot facts in support of his claims that would
entitie hime to rehet, See Swrerktiewice vo. Sorema NA
sd US. 06, 514, 1228. Cth. 99%. G98. 15% 1,. led. Yd ]
(2002). See also Conley v. Gibson. 355 1S 11, 4-46
185. Ct. 99, 102, 2 L. Kd. 2d 80 (1957): 7 uChMaAanN Vv
DSC Communications Corp., 14 ¥.3d 1061, 1067 (Sth
Car. 1994). “A motion to dismiss under Rule 12(b)(6) j
Bb. Summary Judgment Standard
ummary judgment is appropriate if no yenuing
Issue OF material fact exists and the moving party
entitled to judgment as a matter of law. See Fed
oble) See also Celoter Corp (Cratrett,
». d17, 323, 1065. Ct. 2548, 2552-53. 91 TL. Ed. 2d
2605 (1986). The party moving for Wirkoary judgement
bears the initial burden of “informing the district court
of the basis for its motion, and identifyine thos
portions of thy record| which it believ demonstrate
the absence a penuime issue of material fiaet
(Clelotex, 47 » al 3525, LOO S. Ct. at Z558 The
non-moving party must come forward with peciky
lacts showing there 1: a gvenuine issue tor trial led
KN. Civ. P. 5G6le). See also Matsushita Elec Indus. C
Aenith Radio ( orp . 1/> () rm HlA
t/ {
IHO—8/, LOB dS. Ct
1346, 1356, 89 L. Id. 2d 538 (1986) The court must
view all evidence in the light most favorable to the
non-movant. See, ey., Broussard v Parish of Orlean:
|: Sd 44 OH) (oth ei Z0Q03 ) lf thre { vidence
would permit a rcasonable fact finder to find in favor
of the non-moving party, sumunary judyviment should
nol be granted. See Anderson vo. Liberty Lobby. [ni
242, 2471-48, 1068S. Ct. 2505. 2510. 91 1. Kd
ZU0Z (1986)
Analysis
meeacor claim that it 4 entitied to di
ause Plaintiff failed to allege any fact
ibility avainst it. In the alternative
that there is no venuine i:
Phils al
upportiny
4
» LOO ACOT AaArTypue
ue Of material fact on any
MVMa
Of Plaintiffs’ claims and it seek; summary relhef
pursuant to FED AR-CIV.P. 56. First. Seacor claim:
that it does not own and has not owned stock in
MarMex, but that the stock in MarMex i: actually held
by SMMI pecond, that even if it did own stock in
MarMex, itis insulated from liability because MarMes
ims i corporation
Plaintiffs originally brought suit against Seacor
and not SMMI lHlowever, since Seacor tiled its
12(b)(6) Motion, Plaintiffs moved for leave to amend
their Complaint in part to add SMM] as a Defendant
Onduly 14, 2006, Plaintiffs were piven leave to amend.
and they have since filed their Amended Complaint,
which added SMMI as a defendant. In their Amended
Complaint, Plaintiffs allege that MarMex is a joint
venture of Seacor and TMM, or alternatively, SMMI
and “TMM, and that Defendants are jointly and
severally lable for the negligent acts, omissions. and
breach of warranty alleged on the basi that
Defendants constituted a single busine: cnterprise,
carrying out a common business objective. Plaintifi
4
allope Chat their chains are imputable to Scacor and
TMM, or alternatively SMMI and TMM because they
were all mutual agents and principal ira tae
operations of the AZTIECCA. Plaintiffs only theory for
Hnoputation is that MarMex is a joint venture
The declarations of Seacor Vice President John
Crellert, MarMex Deputy Dire tor Carlos Alberto Loge 7
Madujano, and the TMM Legal Director Marco Flavio
Kigada Soto demonstrate two things Mirst, that
MarMex was owned by two shareholders: SMMI and
TMM. Second, that MarMex isa Mexican corporation,
formed on March 16, 1961 under the laws of Mexico as
a Mexican shipping company. Although Plaintiffs
é ai
reler to numerous publications from the Internet in
Support of their arguments that MarMex is a joint
venture and that Seacor owned stock in MarMex, these
vyonuine issue of
factas to Mar Mex's corporate status. As the Court has
documents are not enough to create a
previously stated, “information obtained from the
Internet as ‘inherently untrustworthy.” Barbour vo
Head, 178 ¥. Supp. 2d 758, 760 n.38 (S.D. Tex. 2001)
(quoting: St. Clair v, dohnny’s Oyster & Shrimp, Inc.,
16) Supp. 2d 773, 774 (S_.D. Tex. 1999)). At this
Stage, allegations on the Internet, without more, are
not enough to create a penuine issue of material fact
reyarding MarMex’s ownership and corporate status
The Court) finds that MarMex is a Mexican
corporation Plaimmtiffs have not alleved that the
corporate veil should be pierced in this instance. See
Baker ovo. Raymond Intl, Inc., 656 ¥-2d 378, 179-80
(oth Cir. 1981) (explaining that in a maritime tort
achion, a plaintulf generally has recourse agzainst the
corporate entity that incurred the lability and not its
parents, stockholders or other parties connected with
the entity) Additionally, Plaintiffs have produced no
evidence indicating that the corporate veil should be
paerced in this case, or that MarMex is inadequately
msured. ‘Therefore, Seacor’s Motion for Summary
Judprmentis hereby GRANTED, and Plaintiffs’ claims
apgvainsl eeacor and SMMI are DISMISSED WIT!
PRK JIUDICK meacors remaining Motions to
Dismuass on the grounds of international comity and
forum non conveniens are DENIED AS MOOT
V. International Comity
TMM and MarMex next move for dismissal on the
yround ol yround of International comity, which is the
<
recopnition which one nation allows within = it:
Sla
Lerritory to the lepislative, executive or yudicial acts of
another nation, having due regard both — to
miternational duty and convenience, and to the rights
of ils own citizens, or of other persons who are under
(he protection of its laws.” Filton v. Guyot, J59 U.S
113, 164, 168. Ct. 149, 148, 40 L. Ed. 95 (1895). See
also Societe Nationale Industrielle Aeropatiale
United States District Court for the Southern District
Of fowa, 482 VS. 522, 543 1.27, 107S. Ct. 2542, 2556,
YO 1. led. 2d 461 (1987); In Re French, 440 '.3d 145,
192-53 (4th Cir. 2006); Sequihiua vo. Texaco, Ine. , 847 ¥.
eupp. G1, 63 OS.D. ‘Tex. 1994). It “is neither a matter
of absolute obligation, on the one hand nor of mere
courtesy and good will, upon the other.” Hilton, 159
US. at 164-64, 16S. Ct. at 143
In making a determination as to whether to
exercise such diseretion, courts have generally referred
the factors listed in RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW § 408 (1987). See In Re
french, 440 3d at 158 (collecting cases); Sequihua
S47. Supp. at 63. Those factors include: (1) the link
between the regulating state and the relevant activity
(2) the connection between that state and the person
responsible for the relevant activity; (3) the nature of
the regulated activity and its importance to the
regulating state; (4) the effect of revulation on justified
expectations, (>) the significance of repulation to the
mnternational system; (6) the extent of other nations’
mterests; and (/) the likelihood of conflict with othe:
nations repulation: See REST. CHIRD), supra,
§ 405(4). See also In Pe French, 440 F.3d at 153 In
Sequihua v0. Texaco, Ine the Southern District of
Texas apphed a somewhat sumpler list of factors,
including: (1) whether the defendant sought to be sued
in the United States has consented to jurisdiction in
O2a
(he foreign forum, (2) the location of the alleged wrong
and extent to which it takes place in a foreign state; (3)
residence of the parties; (4) enforcement of a judgment
(5) interest of the
foreign state in exercising its sovereign right to
and (6)
whether the foreign nation’s law conflicts with United
entered by the United States forum
,
regulate its own environment and resources;
states law. See Sequihua, 847 F.Supp. at 63 (citing
Limberlane Lumber Co. v. Bank of America Natl Trust
and Savings Assn., 749 F.2d 1378 (9th Cir. 1984).
Applying all of these factors, the Court finds that
principles of international comity do not warrant
dismissal
(on the one hand, the allision and damages occurred
in Mexican waters, between a Mexican vessel and a
Mexican rig, owned by Mexican corporations. Parties
on both sides are Mexican citizens, and the Mexican
courts would have jurisdiction over all the Parties in
this case. Finally, Mexico clearly has an interest in
regulating torts that occur within its territorial
waters. Qn the other hand, there has been no
persuasive argument made by TMM and MarMex that
there would be problems enforcing a judgement
entered by this Court, or that there are any
substantial conflicts with Mexican law. Plaintiffs’
Amended Complaint only alleges causes of action
arising under the general maritime law of the United
states. There is no indication that this Court will be
called upon to interpret or apply Mexican law.
Although there have been other proceedings involving
these Parties in Mexico, there is no indication at this
time that those proceedings conflict with the lawsuit
filed in this Court
While the facts of thi: case presenta close question
TMM and MarMex have failed to show that the
principles of international comity should disrupt
Plaintiffs’ choice of forum Therefore, ‘TMM and
MarMex’s Motion to Dismiss on the ground of
international comity is re pectiully DIENIED
Vi. forum Non Conveniens
Minally, TMM and MarMex have moved to dismis:
on the ground of forum non conventens. The doctrine of
forum non conveniens derives from the proposition
that “jijnm rare circumstances, federal courts can
relinquish their jurisdiction in favor of another forum.’
Quackenbush v. Allstate Ins. Co ~one Ua. 106. 722.
MIG Ss. Ct. 1712, 1724, 135 L. Ed. 2d 1 (1996)
Pursuant to this doctrine. a court may dismiss 4 Case
in favor of a foreign forum af the defendant establishe:
f
that the convenience of the parties and the court,
coupled with the interests of justice, indicate that the
lawsuitis better suited for adjudication elsewhere. See
Karim vo. Finch Shipping Co, Ltd, 265 3d 258. 268
(D>th Cir. ZOO])
Mederal courts employ a two part analysis when
applying the forum non conventens doctrine in the
international context. See Piper Aircraft v. Reyno 454
U.S. 235, 255-56, JO2ZS. Ct. 252, 465-66, 70 L. ied. 2d
419 (1981). ‘The first step involves a determination of
Whether an adequate and available foreign forum
exists Hee Sydow ) Acheson d& Co , | It Hupp 2d
408, 168 GG. DD. Tex. 2000) Next, if an adequate
alternative forum is available, the court must decide
whether “certain private and public interest factor:
weigh an favor of dismissal.’ McLennan v. Am
fCurocopte Corp 245 3d 403, 424 (5th Cy ZOO). If
M4
thie relevant private interest factors advocate
dismissal, however, no inquiry into the public interest
factors in needed. See Baris v. Sulpicio Lines, 932
2d 1540, 1550-51 (5th Cir. 1991) While undertaking
both steps of this analysis, courts must remain
mindful that “the central purpose of any forum non
conventens inquiry 1s to ensure that the trial i:
convement” Piper Arreraft, 454 U.S. at 256, 102 S. Ct
at 266. See also Syndicate 420 at Lloyd’s London v
Marly Am. Ins. Co., 796 F.2d 821. 827 (5th Cir. 1986)
The “forum non conveniens determination — i:
committed to the sound discretion of the trial court
Piper Aircraft, 454 U.S. at 266 (citing Gulf Oil Corp. v
Gilbert, 380 U.S. 501, 511-12 (1947))
The private factors to be considered in a forum non
conventens analysis relate to the convenience of the
parlics, and include: the relative ease of access to
sources of proof; availability of compulsory process for
attendance of unwilling witnesses; the cost. of
obtaiming attendance of willing witnesses: possibility
ol viewing the premises, if such viewing would be
appropriate to the action; other practical problems that
make ai tral of a case casy, expeditious, and
mexpensive; enforceability of judgment; and whether
the plaintaff has sought to vex, harass, or oppress the
defendant. See Karim, 265 F.3d at 268 n.14 (citation:
omitted) The “public interest” factors include:
administrative difficulties; reasonableness of imposing
jury duty on the people of the « ommunity; holding the
tral in the view of those affected: and the local
mterest in having localized controversies decided at
home see id
$26
Oda
A. Adequate and Available Korum
Defendant argues that Mexico presents an
adequate alternative forum for the adjudication of this
dispute The Parties have previously availed
themselves of the Mexican legal system or are subject
Lo yurisdiction in the Mexican courts. There is no
indication that Mexican law would not allow redress of
any of the claims alleged by Plaintiff. Generally, an
alternative forum is available to the plaintuff when the
loreign court can assert jurisdiction over the litigation
sought to be dismissed. See Piper, 454 U.S. at 254 n.
Se, 802°. €41 at 265 n. 22 (citation omitted)
(Ordinarily, {the requirement] will be satisfied when
the defendant is amenable to process in the other
jurisdiction’). ‘The alternative forum is adequate as
long as the parties will be treated fairly and will not be
deprived of all remedies there. See Sydow, &1 } Supp
2d at 768. See also Piper, 454 U.S. at 254 n. 22,1028
(t.at 260 n. 22. Plaintiff has not presented, and the
Court is not aware of, any obstacles to justice within
the Mexican court system. Accordingly, the Court
finds that Mexico is an available and adequate forum
for litigation of this matter.
Phe Court notes that Plaintiff argument that Plaimtiff
Underwriters would not be subject to jurisdiction of the Mexican
courts as doubtful, and Plaintiffs offer no support for thi:
aryument other than the indication that Plaintiff! Underwriter:
Claim not to consent. Hf Plaintiff Underwriters choose to insure
Mexican companies, they cannot complain when they are haled
mito court in Mexico
oba
Kk. Private Interests
Although an adequate and available forum exists
the private interest factors in this case do not compel
dismissal. Any documentary evidence needed in the
preparation and presentation of this case can be
transferred between Mexico and Texas with relative
ease, so that bears no burden on this forum non
converniens analysis. Additionally, Plaintiffs bave
Shown that many of the relevant documents have
already been produced, and they have been translated
While the cost and ability of obtaining testimony and
attendance of both willing and unwilling witnesse:
weizhs somewhat in favor of a Mexican adjudication,
Plaintiffs have identified several witnesses amenable
to this Court's yurisdiction, and most, if not all, of the
witnesses in this case wall likely be within the employ
of the Parties, and their attendance at trial can be
compelled. ‘There has been no showing that Plaintiff;
sought this forum to vex or harass Defendant:
Miaintiffs have shown that the distance between the
location of the vessels involved in this allision and the
location of the Parties is equally inconvenient whethe1
this miatter is tried in’ Mexico or tried in Galveston.
Additionally, trial in this case is set for September 11,
2006. ‘The Motions now before the Court did not
become ripe until June 16, 2006, a mere three months
away from trial. This matter would be significantly
delayed if it were dismissed to be refiled in Mexico at
this late stage. Thus, the Court finds that private
interest factors do not < upport dismissal lor forum non
CONVECINLCTIS
3%/a
OS. Liuiblic Interest
Courts often turn to the interests of the public
When considering an argument of forum non
CONVENLENS The “publre interest” factors include
administrative difficulties, such as burdeniny court
dockets; the reasonableness of imposing jury duty on
the people of the community; holding the trial in the
view of those affected; and the local interest in having
localized controversies decided at home. See Karim
260 F.3d at 268 n.14 (citations omitted)
Although tha: (court = hia: substantial docket
Obligations, it is by no means too much of a burden to
handle this case, and thus far no administrative
difficulties have presented themselves. Next, this case
is not set for the Court’s jury docket, so it will not be
uniposimy the burden of yury duty on the citizens of thi:
Division. Furthermore, Plaintiffs have amended thei.
complaint to only allege causes of action arising under
Uhe general maritime laws of the United States. which
this Court is aptly suited to render judgment upon
While the Court concedes that Mexico « learly has an
miterest in having this controversy decided in its own
courts, that alone is not enough to warrant dismissal
Phe publhe interest factors in this suit do not warrant
dismissal based QI) the doctrine ol forum Hol
COMOC HLT LS
TMM and MarMex have failed to show that Lrial
would be more convenient in Mexico. Therefore, “MM
and MarMex’s Motion to Dismiss on the ground of
forum NON CONVERLENS IS re: pectfully DENIED
V. Conclusion
The Court thanks both Parties for the excellent
advocacy displayed in the well-prepared, albeit
numerous, briets submitted in connection with this
Motion Kor the reasons stated above, the Court
orders that: (1) Seacor’s Motion to Dismiss on the
ground that Protexa lacks standing to sue is DIEENIED
AS MOOT, (2) 'TMM and MarMex’s Motion to Dismis
for Lack of Subject Matter Jurisdiction is respectfully
DIENIED; (3) Seacor’s Motion for Summary Judgment
is hereby GRANTED), and Plaintiffs’ claims against
seacor and SMMI | are DISMISSED WITH
PREJUDICE, (4) Seacor’: remaining Motions to
Dismiss for Principles of International GComity and
Forum Non Conventens are DENIED AS MOOT: (5)
‘TMM and MarMex’s Motion to Dismiss on the ground
of International Comity is DIENTED: and (6)TMM and
MarMex’s Motion to Dismiss for Forum Non
Conventens is DIENIED. All taxable costs, expense:
and attorneys’ fees shall be borne by the Party
mcurring same
PPIs SO ORDERED
DONE this “Zlst day oO! July, ZOO6, at Galveston
oh
CAB a
/s/ Samuel B. Kent
Samuel B. Kent
United States District Judge
APPENDIX EE
IN THE UNIPED STATES DISTRICT COURT
POR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
(©. A. NO. G-05-419
ADMIRALTY
[hailed July 17, 2006]
PREREFORACIONES EXPLORACION \
PRODUCCION and CERTAIN )
KIMINSURING UNDERWRITERS )
SUBSCRIBING TO REINSURANCE
CONTRACT NO. AHE-030044 AS )
AMENDED PO NO. AHE-04004
)
Plaimtiff )
j
)
YOHACOK HOLDINGS, INC... GRUPO
TMM, S.A., and MARITIMAS
MiXICANAS. S.A. de CV
Deltendant
ORDER
before the Court I Plaimtiff Perforacione:
xploracion y Produccién, et al’s Opposed First
"oC Dey
Motion for Leave to derle
Amended ( Oniptaindt Phy
Court, alter considering the motion and re ponse
thereto and arguments of counsel, is of the Opinion
that Plaintiffs’ motion is meritoriou it as therefore
QRUVDERED that Vlamtif Oppo ed First. Motion
for Leave to Mile Ame nded Complaint | (GRANTEE)
ORDERED this 14 day of Puily —-OOG
APPICNDIX J
UNEPPED STATES COURT OF APPEALS
POR THE FIER CIRCULI
No. O6-41T 228
lkailed December 28, 2006]
Py ORAC NES EXPLORACLIOSN \
PRODUC V, also Known as Protexa
ClhICPAIN REINSURING UNDERWRITER:
moubscribing ‘To Reinsurance Contract
No AHE-O30044 As Amended to No ALLE-04004
Miaintiltt \Yppell
GitU170 “TMM SA; MARITIMAS MI]
ne Pie CCN al OkKnNOWN a Miar Me
Detendant \ppellant
Wo. Docket No. 38:O05-CV-4 19
Appeal from the LJnited States 1) trict Court
1]
pouthern District of Texas. Galveston
BT ore HMING, BARKSDAL SI wale. GGAK,
Purcdore
UNTPPED STATES COURT OF APPEALS
Pie TH CIRCUIT
No. 06-4123
(Summary Calendar)
Ikiled December 28, YOOG]
PRK ORACIONES EXPLORACTO)
PRODLCCUTO SN
‘N also Known as Prote sx
COMRTAIN REINSURING |
NDMRWRIEPER
subscribing To Reinsurance Contract
1o AH K-O0830044 As Amended to N VE O4004
Miaintifi \ppelle
(GHUPO TMM SA
MAKEPIMAS MEXICANA
NSA Dk CV
also Known as MarM
ivift
Defendant \ppellant
Appeal from the Linited State Phistrict Court
trict of Texa
USDC? No. 4:05-C!V-004199
for the Southern 1)
hefore KMC, SATE LIAL. E
Purcdgre
This case arises out of the March 4OO4 allision of
the M/V ISLA AZTECA, a Mexican flapped Supply
vessel, with the TOTANCA, a Mexican flagged mobile
Offshore drilliny unit located in the Bay of Campeche,
Mexico, The AZTIKHCA was owned and operated by
Marntiamas Mexicanas S.A. de ©.V. (“MarMex”). a
Moxrean Shipping company partially owned by Garupo
TMM, A. (C'PMM”) (collectively, “Appellants”). Thi
TOTANCA was owned by Perforaciones Maritimas
Mexicanas, S.A. de CV. (CPMM”) As a result of the
allision, MarMex filed a limitation of laabilit Y actions 1)
Mexico, and a limitation fund was established in
( Love I 2004
In) Jisly ZOO Voerloraciome loxploracion y
Production (@Protexa’) and certain reinsuring
Underwriters subseribing to Reinsurance Policy No
Ait. 030044 as Amended to Poli y No. Allle-04004
(he “Underwriters”) (collectively, “Appellees”) filed
Lhasa witan the United States District Court for the
oouthern District of Texas in Galveston for damage:
ustained by the TOTANCA during the allision
Appr Hants filed a motion to dismiss the suit on three
yround: lack = of subject matte jurisdiction
Pur vuantto oTH Cit. it. 47.5. the court hia debLermined that thi
Opinion hould not be publi hed and is not precede nvevexce pl under
the liamated circumstances set forth in STH Clk. R475 4
VMM v i ! ubsctituted for l’rote>
piterest
rs dal
International comity, and forum non conventens.” On
July 241, 2006, the district court issued an order
denying Appellants’ motion to dismiss, ruling that the
suit fell within the court’s admiralty jurisdiction, that
the principles of international comity did not warrant
adismussal and that dismissal based on forum non
CONVEHICHS Was also unwarranted
Appellants filed a notice of appeal pursuant to 2&
lJ) Ss 4 PA9Z(aANS), which provides for federal
appellate jurisdiction over wmterlocutory decree:
“determining the rights and habilities of the parties to
admiralty cases.” 28 U.S.C. & 12924 )3) Appellee:
nove to dismass the appeal, arvuiny that the district
courts dentalot Appellants’ motion to dismiss is not an
appealable interlocutory order pecause it is not a
Joeren determining the rights and habilities of th
J
porarhae Within the ma aning 019 IZ92Z(a C3) Appellant:
disagree. According to Appellants, the district court’:
order determines their rights because it “denies [their]
Ubstantive right to limit their lability and furthe:
denies [their] substantive right to have claims arising
out of the allision at issue heard and determined in
Mexico under Mexican Jaw.” Appellants assert that the
order “ignores the Mexican limitation action” and
CHectively increases the Mexican limitation fund by
ahbyectingg Appellants to potential Jiability in’ the
LJnoted States. Therefore ,Appellants argue, the orde:
ignores and/or extinguishes their substantive right to
lyn their Jrability under Mexican la
AA pogo banal ul (quit ntily filed a notice and motion to apply
lexican law pursuant to Federal Kule of Procedure 44.1. Thi:
miOlion remiiaiy je ndiny jn the district court
46"
‘bo be appealable under section 1292(a)C3), the
decree must determine the substantive mghts and
abilities of the parties to the case.” Francis ex rel
francis v0. forest Oil Corp. , 79% F-2d 147, 149 (Sth Cir
1986). Courts construe this jurisdictional vrant
narrowly Treasure Salvors, free U Unidentified
Wrecked & Abandoned Sailing Vessel, 640 I 20 560,
064 (hth Car. 19%1); accord Blue Water Yacht Ciub
Assnvo. New Hampshire Ins. Co., 355 F.3d 139, 141 (2d
Cur. 2004). ven sf an order has important procedural
consequences, itis not appealable under & 1292(a)(3)
Wait does not determine the parties’ substantive right:
and habilities. /n re dngram Towing Co., 59 38d 513
H17 (5th Cir. 1995)
The district court's denial of Appellants’ motion to
isi did not determine Appellants’ substantive
rights or Jrabilities. The district court did not decide
Whether Appellants were entitled to limit their
hability under Mexican law, nor would such a
determination be appealable under § 1Z292(a)(3), given
that the underlying issue of liability has yet to be
determined. See Bucher-Guyer AG vo. M/V Incotrans
Spirit, 668 2d 734, 735 (Sth Cir. 1989) Cholding that
“[thhe decision whether the $500 COGSA Jimiitation on
damaves apple in this case is not a deeision
determining the rights and habilities of the parties”)
What the district court decided was that the suit fell
Within the court's admiralty jurisdiction and that the
uit could be heard in Galveston, Vexas. Such decisions
do not determine the rights or habilities of the parties
lor purposes of & 1Z9Z(a)C3). See Austracan (USA_), Tr
Uv MIV Lemoncore, 500 F.2d 237, 240 (5th Cir, 1974)
(WDenial of a motion to dismiss for lack of admiralty
jurisdiction Goes not decide the parties’ rights so as to
be within the statute authorizing interlocutory
appeals in admiralty from ordes that determined
nights and habilities of parties.”) (citing Jack Nrelson,
Ine. vo. Tup Peppy, 428 F.2d 54, 55 (5th Cir. 1970)
(holdiny that “|t}he district court’s denial of the motion
to dismuss for lack of jurisdiction did not decide the
parties mphts and habilities within the meaning of the
statute” because “lift did not go to the merits of the
Claim’ )). Accordingly, thi (Court does not have
jurisdiction to hear this interlocutory yppeal under
12920 a 54)
Appellee: MOvION lo dismi: Lh appeal |
GRANTED, and the case is REMANDED to the
dastrict court for furthe: proceeding
APPENDIX G
IN TH UNPPED STATES DISTRICT COURT
POR THE SOUTHERN DIS'TTRICT OF TEXAS
GALVESTON DIVISION
CIVilt. ACTION NO. G-05-419
[Filed May 10, 2007]
PEREFORACIONIS MARIPIMAS
MICXAICANAS S.A. de C.V —6hChal )
)
Phsasritadds )
)
)
)
GHUPO TMM SA dev etal. )
}
Defendants )
}
ORDER
This case arises out of an allision between the M/V
ISLA AZTEECA (“Azteca”) and the Mobil Offshore
Drilling Unit Totonaca CTotonaca”’), which occurred in
the Bay of Campeche, Mexico on March 31, 2004
Miaintiff Perforaciones Maritimas Mexicanas, S.A. de
©.V. (PMM”") was the owner and operator of the
Totonaca, and Defendant Maritima Mexicana S.A. de
CoV. OMarMex”’) was the owner and operator of the
Azteca. Defendants Grupo'TMM S A. de CV. (“TMM”)
Qs,
and MarMex filed an Opposed Motion and Notice to
Apply Mexican Law and an Opposed Motion for
oummary dudgyment and Transfer to Mexico’s Sixth
Distret Court in Civil Matters of the First Circuit,
along with various Supplements and Iéxhibit:
Plaintaffs PMM and Certain Reinsuring Underwriter:
oubseribing to Reinsurance Contract No. AH -O030044
as Amended to No. AH-04004 (“Underwriters”) filed
a Kesponse to the Motions, and MarMex and ‘TMM
led a Reply. All of the briefing bas been excellent
Mlaintiff_s then filed a Surreply. MarMex and ‘(MM
also filed a Supplement to their Reply. For the reason:
outhned below, Defendants’ Motions are DIENIED.'
fl. Backpround
The alhsion between the Azteca and the Votonuca
eceurred on March 41, 2004. The Azteca, a Mexican
Nagged supply vessel, was owned and operated by
MarMex on the date of the allision, and ‘TMM owned
60% of MarMex. Both'TMM and MarMex are Mexican
entitue: The ‘Potonaca, a Mexican flagged mobile
drilling rig that was affixed to the floor of the Bay of
(Campeche at the time of the allision, was owned and
operated by ?MM, a Mexican corporation
(On May 6, 2004, MarMex filed a petition in Mexico
to fiamit ats habshty for the allision (Qhe “Mexican
' The Court do not consider this Order worthy of publication
Accordingly, at has not) requested and does not authorize
preabdae ation
A more detained procedural history is outhoed mn the Order on
Defendants’ Motion to Dismiss, which is hereby mcorporated by
refer pie
1O0a
Limitation”) pursuant to the International Convention
on Lamutation of Liability for Maritime Claims, London
1976 (the “London Convention”), which was ratified by
Mexico in the Mexican Navigation Act of 1994. This
procecding resulted ino the establishment of a
limitation fund for all parties claiming damayes
arising from the Bay of Campeche allision
On May 26, 2004, ’MM’s predecessor initiated a
Querella, which is a criminal complaint or accusation
for an alleged or suspected criminal offense, against
MarMex and the crew of the Azteca in Cuidad del
Carmen, Mexico The Querella was eventually
dismissed after an investigation indicated there was
noe evidence of criminal conduct
On July 2%, 2005, PMM’s predecessor filed thi:
lawsuit seeking damages for negligence, gross
negligence, and unseaworthiness In Defendants’
answer, they claimed that the Mexican Limitation
applies lo this case. ‘They then filed a Motion to
Dismiss based on international comity and forum non
conventens, in which they argued that the Querella
and the Mexican Limitation action conflicted with this
case. ‘The Court found that “there have been othe:
proceedings involving these Parties in Mexico, [but]
there is no indication at this time that those
proceedings conflict with the lawsuit filed in thi:
Court.” Order on Defendants’ Motion to Dismiss at 13
‘TMM and MarMex filed a Notice of Appeal to the Fifth
Circuit on July 31, 2006. On November 30, 2006, the
Mifth Circuit) dismissed the appeal for lack of
jurisdiction
In the meantime, ‘TMM and MarMex filed a Motion
for Summary Judgment. They also gave the Court
Oda
notice that they intended to raise an issue « Once rniny
the law of Mexico pursuant to Federal Kule of Civil
Procedure 44.1 by filing a Motion and Notice to Apply
Mexican Law. A hearing on the Motion and Notice to
Apply Mexican Law was held on February 15, 2007
and the Parties indicated they were having settlement
discussions. The case was stayed until March 2, 2007
pending these discussion: On March 2, 2007, the
Parties appeared before the Court ato a Status
Conference and stated that they were unable to settle
They alsoindicated that a Hearing in which the Court
heard testimony from the Parties’ perspective experts
on Mexican law may be helpful to the Court’s ultimate
resolution of the Motions. The Court agreed, and said
Hearing occurred on April 27, 2007 (“Second
Plearing”)
The Court was honored to hear the testimony of
two renowned experts on Mexican Law during the
mecond bearing Delendants’ expert, lynacio Ruiz
Melo (Dr. Melo”), has been practicing admiralty law
in Mexico for over fifty years. Dr. Melo has a rich
ancestoral history in the fheld, as he is the fourth
generation in his family to practice admiralty law in
Mexico, and his son, who is also an admiralty lawye!
is the fifth. He has been a professor of maritime law
and the law of the sea since 1969, and he bas served a:
the Dean of two different Mexican law schools. He has
also been an CARTY uliant Lo the Mexican Deeley ion ith
several Congresses and Diplomatic Conferences on
Maritime Loaiw lin fact [Dr Melo Wats thie Only
practicuny pnarilime = lawyes Ol) the Mexican
COommppMSssion that promulgated the Navigation Act of
1994
1QOo%a
Mlaintafis expert, Jose David Enriquez Rosas (“Dr
Mnamquez ), has been practicing law since 1997, and he
works for a law firm in which he is the head of the
section dealing with admiralty and maritime law. Ie
has written eight textbooks about various admiuralty
issues and Pr Melo wrote complimentary
mntroductions in three of Dr. Mnriquez’s books. Dr
lenriquez has acted as legal advisor to the Government
of Mexico since 2000. Ile was responsible for collecting
the drafts of the 2006 Navigation Aet) and is
responsible for the coordination and development of
regulations arising from that Act Heas a research
fellow at two universities and sometimes teache:
marttime law. Dr. Mnriquez has an LLM from ppain
and england and a Ph.D. from Mexico, allin maritime
law In over sixteen years on this Bench. the Court
has rarely had the privilege of such extraordinarily
| ge
qualified experts testulyings on such an interesting
subject
Il. Motion to Apply Mexican Law
A. hegal Standard
The question of whether United States or foreign
substantive law applies to a maritime injury case i:
Shade pursuant toa multifactored analysis set out in
Lauritzen v. Larsen, 345 U.S. 571, 743 S. Ct. 921,97 L
Md. 1254 (1953) and further elaborated in /ellenia
Lines Ltd. v. Rhoditis, 398 U.S. 306, 90S. Ct. 1731, 26
Ld. 2d 252 (1970). Schexnider v.§ McDermott Intl
fne., 817 F.2d 1159, 1161 (th Cir. 1987). Under these
cases, the following eight factors determine the choice
ol law: (1) the allegiance or domicile of the plaintiff; (2)
the place of the contract; (3) the allepiance of thi
defendant shipowner; (4) the law of the flag; (5) the
Oda
accessibility of the foreign forum, (6) the place of the
wrongtul act; (7) the law of the forum; and (8) the
defendant shipowner’s base of operations. These
factors, while potentially suggestive of a mechanical
approat hi to o Lormininyg choice of law, are not all of
equal or even comparable sipnificance, See Rhoditis,
398 US. at 308-09, 90S. Ct. at 1733 $4:;Schexnider,
S17 F.2d at 1161. Generally, the law of the flay and
the defendant shipowner’s base of operations weigh
most heavily in the determination. See Lauritzen, 845
U.S. at 583, 73 S. Ct. at 929 (stat ing that the law of
the flag as of “cardinal importance” in determining
apple able law); Rhoditis, 398 U.S. at 309 10, 905. Ct
at 1734-385 (holding that the defendant’s New York
base of operations favored U.S. law despite the : hip's
(areck flay) Qn the other hand, the place of the
wrongful act and the inaccessibility of a foreign forum
are seldom relevant to a maritime choice-of-law
determination. See Lauritzen, 345 U.S. at Doe, 4a
Ct. at 929 Phe test of location of the wrongful act or
OMISSION is Ol limited application to shipboard
Lorts, because of the varieties of legal authority over
waters she may navipate.”); id. at 589-90, 78S. Ct. at
932 (Uinding an argument that justice required
“adjudication under American law to save seamen
expense and loss of time in returning to foreign forum”
unpersuasive). The national interests to be served by
the application of U.S. law may also influence the
weight to be assipmned each factor. See Schexnides ,o8f
Me2d at 1161 (eiting PRhoditis, 8398 US. at SO8—09, SOS
Cot. at 1 /535-354)
is. Anatlysz:
TMM and MarMex claim the Lauritzen Rhoditis
factors overwhelmingly require to application of
L044
Mexican law. PMM andthe Underwriters. on the othe
hand, claim that the Lauritzen Rhoditis factors favor
U.S. law
Place O] t/ré Wronpfi [
‘The first factor i ’ CON ,
Lauritzen -Rhoditis analysis thas ol thi
wrongful act TMM and MarMex claim that the
allision took place in Mexican waters and specilically
within the Exclusive Mconomic Zone (“EIEZ”) of Mexico
Maintiffs agree that the allision occurred within the
Mexican HicZ, but they assert that the EEZ merely,
gives Mexico the right “1 se exclusive control
over ccononuce matters tvolving fisheye. the seabed
and the subsoil,” but not the right to exclusive contro!
over navigation. FMS. Titanic, Ine. | flave? i/ |
lod 943, 965 n.3 (4th Cir.), cert. dented
pou sm. Ul. 44, 145 LL. ied. : (1999)
accident did not occur Mexican territorial w:
Plaintifts argue that the pl. Ol the wrongtul act
rigirbial Lnaporbance
PMM and the Underwrite: WSO a i mt De dant
establi: hi that <i conthet CXIST Le LWeen (tie iprpl ( abot Me
substantive law and U5 Substantive law before the
conducts a choice of law analysis In upport of this assertion
Plaintiftis cite a lifth Circuit case about whether ‘Tex: must
recopnize ao toplish gudpment, whieh is mapposit f
Lloyd's vo Turner, 303 F.3d 325, 332-383 (oth Cir OO4) (quoting
Hunt v. BP Exploration Co., 492 F. Supp. 885, 910 (NLD. Te
I98O)) Plaintiffs have not presented the Court with any Fifth
Carcuit authonty indicating that Defendants ; required to
present the Court with the provisions of foreign Lantive lay
that are in conflict with US.) substantive law before a Lacusit
Khoditis analysis ts conducted
LOQca
The Court acknowledges that the accident occurred
in the KEZ of Mexi 0, Which may not be technically
within Mexican territorial waters llowever, the
“place of the w ronytul act” factor should mot bye
disregarded on such a technieality. [Even though the
wrongful act did not occur within Mexico. it occurred
approximately 46 miles off the coast of Mexico in thy
say of Campeche. This location is substantially closer
to Mexico than it is to the United oblate and thi:
factor should thus weigh in favor of applying; Mexican
law
T hie Lau of the hlap
Next the Court considers the law of the lag, which
is “Ol cardinal importance” in the Lauritzen Rhoditi:
analysis. Lauritzen, 345 U.S. at 584. Both the Azteca
and the Totonaca are Mexican flapped Milaintiff
argue that this factor should not weigh “too heavily in
favor of applying the law of Mexico” because the
Azteca has substantial contacts with the United
tate Plaimtitts cite Rhodttis in Support of this
assertion. In Rhoditis, the Supreme Court held that
the law of the United States should apply even though
the flay, the seaman’s nationality, and the contract all
weighed in favor of Greek law. See Rhoditis, 398 U.S
at 308-10, 90S. Ct. at 1733-34. The mupreme Court
stated that these factors were “minor weights in the
scales compared with the substantial and continuing
contacts that [the shipowner] hald] with this country
ld. at 410, 90S. Ct. at 1734. Here, Plaintiffs claim
that the Azteca was operating under a U.S. flag until
2004 and continues to maintain significant contact:
with the United States, but they did not provide the
Court with any evidence of the alleged significant
contact: lin Rhoditis. the vessel and ut ISLE! Ship
LO6Og
“were earning income trom cargo oriminating of
terminating inthe United States. /d. Here. Plaintifi
Claim that the Azteca may have been operating unde:
a Mexican “flag of convenience” at the time of thie
accident Hlowever, the only additional evidence
offered in support of this assertion is that the Azteca
was purchased by a U.S. company for $1. Plaintiff
have failed to make a showing that the contacts the
Azteca had with the United States are in any way
comparable to the contacts the thoditis vessel had
Because Plaintiffs have not shown that the contacts
the Azteca had with the United State: Were
Substantial and continuous, the law of the flag factor
provides significant weight in favor of the application
of Mexican law
PD | Lhe Alle LRLaIMCe OF Pormrcil of thre lnjiured
While there 4: not an injgured individual in thi
action, Plaintifts could be considered to be ~pnypured
because their vessel was damayed. Thus, the Court
will consider this factor. Plaintiffs claim, without
citing authority, that ’MM’s domicile should not be
considered because it chose to bring suitain the United
mtates. The Court is not conducting a venue analysis,
so it does not find this arpuiment persuasive. PMM 3:
a Mexican corporation, and its base of operations is in
Mexico which weighs if} favor Of Me KIA iw Phe
' Plaintiffs assert that discovery is stall penudiney and Hitipyly Chait
they may be able to establi hthat the Aztecawa Operating unde
a flay of convenience at a later date. However, this case was filed
mnJduly, 2005, and extensive discovery has already been conducted
ee Defs.’ Keply at / nS (noting that Defendants have already
produced over 6600 document and deposed a COLLP any
representative who explained Defendant Operations)
LOVa
other PlaintiffS are the Underwriter: and the lead
underwriter, Navigators Insurance Services of Texas.
Inc.,1s based in Houston, ‘Texas. Since one Plaintiff i:
donnueinled in Mextco and one is in the United State
the Court finds that this factor is neutral
fh. The Allegiance of the Defendant Shipowne)
The next factor to be considered is the alleyiance of
the defendant shipowner. See Rhoditis, 398 U.S. at
309-10, 90 5. Ct. at 1734-35. TMM and MarMex are
both Mexican compamies. Plaintiffs claim that the
weight of this factor should be diminished because the
Azteca was purchased for $1 from a U.S company and
continues to maintain significant contact with the U.S
following the sale. However, the shrp’s allegiance i:
notin question, here. ‘Phat should be considered under
the law of the flag. The Azteca’s contacts with the U.S
have fittle relevance in the determination of it
owners allepiance, which is. unquestionably, Mexico
Thus, this factor weighs in favor of the application of
Mexican law
Dd The Place of the Contract
The fifth Lauritzen-Rhoditis factor is the place of
contract The facts of the Instant case do not involve
acontract between the Parties. Thus. this factor bear:
no weight in the analysis
6. The Inaccesstbility of the Foreign Forum
ln dacurtizen, the Supreme Court considered
whether “jyustice requires adjudication under American
Liew LO Save mCahien CAPCNSC and loss of tine 11)
returning to a foreign forum.” Lauritzen, 345 U.S. at
url must
Would
dqyudication i] potate
tbosteatiad ) and 1o
ho would by required to litivate thie ast £ii
Chauritze SAL) I at bSay—90). (3. Ct. at
pared (a daaT) WV at hol
remedy under Dani
Paceguiine
bya Uda annie ¢
relevant. Jtoweve)
ds that the London
qu:
lal
Lhe «
ourl Ldae bigedyt
Lhe application ol {
‘Hit Chace til
Wtheonsideration in the Lauritzen hoditi
Lyi Hipownes on Ol operation MIM
Plaimtilf "te
y «ll
I thas
admonition
(hye faa mechanically
hhodits
thy
hort 1} ye
istrict
more Jamilias
yy Pit) Pyit*iAd
ured lor
G1 4 ATi poe
The defendant
mean Corporation, and its base of
in Mexico. Phe Lauritzen thoditis factor:
flavor the application of Mexican
Thus, the part of Defendants’ Motion
lo Apply Mex Law that requests the
tantive lawis GRANTED
ol Venue
arMex claim that Mexican law apple
itand that “iean law requires any claim
othe Mexican Limitation to be “transferred
Urbin which the limitation action is pending
ccording to ‘TMM and MarMex, this Court
ase tothe Oth Judicial District in
Lt Carcuit of Mexico, which thie
LO dgdismy in flavor of
Cao by
Oanother, Kather, if the
national case belmeves the case
court, that delendant should file
{
bassryi lor forum ron comventen: fr) tbe
Delondant ii} ady tiled a Motion to
lor forum non Convenien and this Court
id Miotion lo do cagycaln) J
( ary Pherelore
DENIED.
dd;
i\ Purmmary Judument
A\ fa tal § leaandard
unary judgment is appropriate if no genuine
issue Of material fact exists and the moving party }
entitled to judgment A a miatber of law. See teed. kt
3) .” Moc): sec also (eloter (lorp 1// om aL o20
feeeas. <t. at 2252 53 MW othe party moving for
Sumdnary yudgiment bears the mutial burden of proof
cither because he is the polianitall orasa deleondant he
Mm asserting an affirmative defense he must establish
beyond peradventure al/ of the « cntial clements of
the claim or de fen ( Lo Warrant yudgmentin hi laivor
heonternol ¢ C/pyokin Clo., 440 I 2d 1190, 1194 (th 1}
1946) When the party moving for summary judyviment
goes not bear the initial burden of prool aid party
must intorml] the district court of the basis for it
motion, and sdentily]] those portions of {the record}
Vhichiut beheve demon tral thie ab (-7ice ola penuine
We Ol material fact.” Celotex ¢ orp i4éd UU... at 32a
Ob ws. Crt at ZZ03 ‘Then my @ither case Lhe
nOn-! my partly must come forward with pocils
lacts showiny there is a venuine issue for trial.” ed
NH. Gaiv. P. 56(e) also Matsushita lee. Indu (lo
Acnitth Rado ¢ Orp cea Us »f4, 046-67, TOG S. Ct
1.44% 1.56 ay } lod 20 £96305 ( 19UR6) ‘Thi court must
mew all evidence in a light most favorable to the
non-movant and “draw all reasonable inference in
12 y! (>] Liye PiQoth-TNIG parry Chaplin j
rm] iit. Pduris thi CO | ol biearis bdr 1 te-stiftued
bicat Of md italic } becen rel 1 ¢ ! i nee
faile-d | vitill l ( hile oan ,
bias
NationsCredit Corp., 307 ¥ 3d 368, 372 (th Cir. 2002)
(citing Anderson v Liberty Lobby, fac... A‘('/
U.S.242,249-50, 1068S. Ct. 2505, 2511 12. 91L. kd. 2d
202 (1986). If the evidence would permit a reasonable
fact-finder to find in favor of the non-moving party,
summary yudgment should not be granted. Liberty
Lobby, 471 U.S. at 247 4%, 1106S. Ct. at 2510. On the
other hand, “[ijf the evidence is merely colorable or
isnot significantly probative, summary judgement may
be granted.” ld. at 249-50, 106S. Ct. at 2511 (citations
omitted)
If Analysts
Delendants clatu that the Limitation of Liability
is Substantive law in Mexico and that it require:
adil oeclamms regarding the incident for which the
Hmitation was established to be brought in the same
Mexican courtain which the Linittation was originally
hed. Thus, TMM and MarMex request that the Court
dismiss this case because it must be heard in the 6th
Judicial District in Civil Matters of the First Cireuit of
Mexico. Inthe alternative, TMM and MarMex request
that the Court stay the proceedings pending thi
outcome of the Mexican Limitation «ac tion and require
PMM and the Underwriters to make an appcarance
therein. Hi the Court is unwilling to do so, TMM and
MarMex request that the Court apply the substantive
law of Mexico and limit the hability of the Defendant:
to the amount of the Mexican lamitation fund
Conversely, Plaintiffs claim that the Mexican
Hiniitation 4 merely a procedural method © of
éstabhshing a fund in which claimants receive their
proportionate share of the funds. Since U.S. Courts
hat are applying foreign substantive law still follow
| Br
US. procedural law, Plamtiffs argue that the Court i:
nol required to observe the allegedly procedural
Mexican Limitation. The Supreme Court, in Black
Piamond Steamship Corp. v. hobert Stewart & Sons
(The Norwalk Victory), addressed this issue tt
explained that “if the [foreign] limitation attaches
lo the right,” then U.S. courts should observe the
Hpiitation. The Norwalk Victory, 336 U.S 3646, 395, OY
m. OL. 622, 627, 98 L.. Md. 754 (1949). However, if the
Hniitation “merely provides procedural machinery by
Which claims} otherwise created are brought into
concourse and scaled down to their proportionate
hare of a limited fund,” then the US. court. need not
observe the foreign limitation because the “forum i:
not governed by foreign rules of procedure.’/d. at. 396,
>. bt. at 627 The Supreme Court) warned,
ever, that “these apparently clear-cut alternative:
lnotl}) exhaustive” in that “a limit. which attache:
not to an individuals right of recovery but to the
agyreyate clams ansing from a piven tort can be said
lo be “attached to the right’ only in a special sense of
the phrase, and a rule which operates to cut down the
amount recoverable by a claimant cannot be fitted
Within any but a very broad definition of the term
procedure.” ld. Were, ifthe 1994 Mexican Navigation
Act,” which incorporates the London Convention
mates a substantive right, then the Court must honor
it. Ifthe Act merely provides a way to quantify right:
that parties obtain from other sources, then the Court
is not required to observe the Mexican Limitation
Both Parti apy i ~ favipratlion A
(aa Mfablion a" < } mislamce ay
occurred belo q thie 2O0O6 A W/ « enacted
1144
The Parties experts eloquently offered their starkly
conflicting opinions reparding whether the London
Convention as adopted by Mexico in 1994 is procedural
or substantive during the Second Hearing.
Defendants’ expert, Dr. Melo, was involved in drafting
the 1994 Mexican Navigation Act and was thus
mstramental in Mexico’s ratification of the London
Convention Dr Melo testified that the 1994
Navagation Act only adopts the first eight articles of
the London Convention, which he claims are
substantive, and that the ninth article, which he
Gams contams the procedural mechanisms for the
enforcement of the substantive rights contained in the
rst eight articles, was not adopted due to time
constraints. Thus, according to Dr. Melo, the 1994
Navigation Act contains no procedural mechanisms
andas entirely substantive. He claims that the 1994
Act creates a substantive right to limit one’s liability
Plaintiffs’ expert, Dr. Mnriquez, who was involved
in drafting the ZOOG Mexican Navigation Act and is
responsible for the reyulations arising from the 2006
Act, explained that the 1994 Act details the quantum
and the procedure for determining the quantum of a
lnatation fund, and that it incorporates the London
Convention. Dr. luUnriquez testified that all Mexican
substantive mghts arise in the Civil Code, and that.
even ab Mexico had not adopted the london
Convention, the right to recover, which is bestowed in
the Civil Code, would still be available. According to
bor niques, the London Convention merely provides
the procedural mechanism for limiting the amount
available ita party should exercise its night of recovery
bloa
under the Mexican Civil Code.” Dr. leny quez, who ha:
an LI.M in Mnoglish maritime law, also testified that
lenglish courts consider the London Convention to be
procedural, not substantive
W hank the Court found the testimony «and
CX perience Of both experts Lo be beyond Pe proad h, and
the testimony of both to be highly persuasive, Dy
lenmiquezs imterpretation is more in line with the
distinction noted by the pupreme Court in The
Norwalk Victory. While Dr. Melo’s contention that a
right to limit one’s lability is created by the London
Convention seems intuitively correct. the Court 1:
convinced that such a right fits within the HOupreme
Courts “broad definition of ‘procedure.” The “right?
created bby the London Convention creates a right to
lit the remedy, not a substantive right to recove:
see Oceante Steam Navigation Co. v. Mellor (The
fitantic), 233 U.S. 718, 733-34, 34S. Ct (a4, tab, 58
I, ied. 1171 (holding that a US. limitation may be
apphed to foreign ships that are sued in the United
mtates when they are not subject to ULS. substantive
law and differentiating between linuting the remedy
and limiting the right). In Mexico, the Mexican Civil
Code creates the substantive right to recover, and the
quantum of recovery is determined by the Navigation
Act/London Convention. ‘Thus, the Court finds that
the London Convention as incorporated The EY
Mexican Navigation Act, is procedural. Since U.S
courts apply U.S. procedural law, the instant claim
Ds longue z consulted with three othe: admiralty prote Ot
Who each ayreed that hability dimitation in Mexico i procedural
mee, be, oeeond Motion Hearty, Phaimtiffs’ Bench Breet in
|
oupport of Appl ation of the US Lanmiitation of Liability Act I
Lok
| maey
does not have to be heard in the same court in which
the Mexican Limitation is pending. Additionally, even
though Mexican substantive law apphes to the instant
case, i Defendants are found hable under Mexican
law, their liability will not be limited by the Mexican
lamitation now pending in the 6th Judicial District in
Civil Matters of the First Circuit of Mexico. TMM and
MarMex’s Motion for Summary Judpiient 4:
DENIED
V. Conclusion
for the reasons articulated above, ‘TMM = and
MarMex’s Motion and Notice to Apply Mexican Law &:
GRANTED IN PART AND DENIED IN PART
Mexican substantive law applies to this case, but
Mexican procedural law does not ‘The Mexican
Navigation Act is procedural. ‘TMM and MarMex’s
Motion to Transfer Venue to the 6th Judicial District
m Civil Matters of the First Cireuit) of Mexteo i:
DENTED. TMM and MarMex’s Motion for Summary
Judgment and all the requests made therein are
DENIED
PP ISSO ORDERED
DONE this 10th day of May, 2007, at Gaalve: LON,
‘Texas
/s/ Samuel BB. Kent
Samuel B. Kent
(Jnited States District Jude
one
ah
APPENDIX i
UNPPED STATES DISTRICT COUR’!
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL. ACTION NO. 4:05-ev-419
(ADMIRALTY)
liled April 29, 2008]
PERFORACIONES MARITIMAS
MIEXICANAS S.A. de C.V. and
CERTAIN REINSURING UNDERWRITERS
SUBSCRIBING TO REINSURANCE
CONTRACT NO. AHE 030044 AS AMENDED ©)
TO NO. ALLE-04004,
Pharmmtiff ~ )
SHACOR HOLDINGS, ING... GRUPO |
TMM 38S.A. de C_V., and MARITIMA
MEXICANA S.A. de C.V.,
Defendant
MiMORANDUM AND ORDER
I< nding before the Court is Deft ndants Second
Motion fOr Recon: re ration of Order QT) Defendant’:
Motion to Dismiss; Or In the Alternative First
re’
Oppo ed Motion for Reconsideration of Orde Denying
Defendant's Request for Certification and Motion fo:
iMxpedited Consideration. Also pending betore thie
Court is Defendant’: request, made at an April 25,
2005 hearing, to bifurcate the trial in this” case
Defendants’ Motion, Docket No. 246— | DENIED
Defendant’s request to bifurcate is GRANTED
Defendant: have not provide gd new areumMents of
evidence that justify a second reconsideration of the
Predecessor Court’ decision not to dismiss this for
lack Of Subject matter yurisdiction or on prounds of
forum non conveniens and Mnternational comity Not
will the Court reconsider its decision not to certify thi
question for interlocutory ippeal
The Court does belheve, howe, at bifurcation
of the bench trial set for May 5. ¥ Sis convenient
Would erve to expedite and economize thi case, and
isin the interest of justice. See Lindsey v. Priv Corp
161 F.3d 886 (Sth Cir. 1998). Pep. hk. Cry. P. 42(b)) (ha
Court may order a separate trial “for convenience. to
avoid prejudice or to expedite and economize » YA
CHARLES ALAN WRIGHT & ARTHURKR., Mt Uh
PRACTICE & PROCEDURE § 2388 (“Rh mayor
consideration, of course N hb procedure i
more likely to result in a just and expeditious final
disposition of the litigation”). The question — of
bifurcation is “a matter left to the sound discretion of
the trial court on the basi of the circumstances of the
htigation before it” and a motion to bifurcate “is not
Subject to any particular time constraint.” WRIGHT &
MULL RS 2358 Although biftreation 1 anexception to
the normal rule of trial procedure, this case involves
exceptional circumstance that yustily dividing thy
trial into a hability and damage phase. Amo
Cbaseny? bifurcation will allow the Fifth Circuit
decide With finality any
question reparding§ t
exercise of jurmsdiction over Defendant
CLOuUrt
and {
britetn por Liabion aod cLpopola cabiona of Me
in the lhability phase before partic
must incur the additional time
POCuire Pho tituprate damage
Nic cil} F
and the Cor
it]
Delendant Motion tor Reconsideration is theret
DENIED. and Detendant
request t Dllurcate
(ZRAN TED
Pris SO ORDERED
SIiCaNkb thi Ash day of April ii)
Pil " rocpuire { ( Combe rpret i} ViEeX iCal i
mid parties dispute rss as ba as the standard of | {il
hould apply in the case. | ipy rs that meotth Qi bios
mnchudiny the standard of proof, may ti he greatest by in
the damarpe phase of the trial. Partie ethatt tt
Liat Wall bre devo i {
LQ
ba
APPENDIX I
IN THE UNTPED STA'TES COURT OI!
APPEALS FOR THE FIFTIL CIRCUIT
“«>) Os blo? 1
bhaled February 17, 2010]
PrREFORACTON I MAPLORACION
PRODUCCION, also known as Protexa:
ClERTAIN REINSURING UNDERWRITER
ibscribing to Reinsurance Contract
Able-OS3004 A Ymended to No. AHK-O04004
till 1) (
IARI iM Vy vil 1 ( iJ ‘
i »KNO' I} 1 I |
WoTeCnA t-A ereeen
pPpeabrti nthe | I i Cail baste t 4 [
| Lia ULtie!l ey rice Oh ie
{ el O5-C!V-O04 }
Phehk CURTAM
‘Treating the Petition for Rel ring? lun Ban
Petition for Panel Rehearing, the Petition for
Rehearmy is DENIED. No member of the pan
judge in regular active service of the court |
requested that the court be polled on Reheari
lanc (Fed. Rk App Po 385 and bth Ch HX )
Petition for Rehearing Kn Bane is DENIED
a
Oley
e| aes
miy
1}!
denial notwiths tandingy, we write bmnetly to addre
LT)’
hen
tha
an
thie
continued insistence Oo} Appellant Nlaritiooa
Mexicanas, S.A. de CV. (“MarMex”) th t the d
court erred in it determination that at had
ISUrICcl
Lityy
ect
matter jurisdiction over this case and that dismissal
Was not warranted for forum non convenien
hirst VMarMex cColiblenas Chiat Oba SSUFICEL COLD
hould have concluded that tede ral court Can only
exercise subject matter jurisdiction over rmicritiny
collision When there | COELLE Choar limited Ciile
interest in the collision. [In support of thi proposition
MarMex relies in part on the eupreme Courts decisio
in Canada Malting Co vo. Paterson Stearn hip) Lita
a0 LJ... 4513(193892) hiowever. in €% rada Maltin. thre
eupreme Court reviewed it: prior decision wv L/
bel py nland, 134 43.2 LD (LH? yy and ¢ xp tearrne i that
| at Cals Ol! Lie lay. Lar rilan { alos ( it { i
coll 1Q>T I Tt ttre high) a) are. b) LWeetrl Lore Il
V ¢ e |; oO! different nationality nie C Tae
OOPeCtLIOnN Wa raised that the COUT ol th
Pursuant to 5th CIR. I Res COuUrlL TAS « ler neat! tt
rder should not be publishe Hd as mot y lent ¢ pt cnc
Coriited Leite Vere wholly without purisaqiction
lt Jiasctice Pradley peaking Jor the court
x poli that purssdiction aon admiralty did exist
pilroversnr bebween foresgners ary bniy?
Mhoul Lae territorial wate) Ol this country
} i} t the court wn Wich) Case VOuUld we 4
ref beats AOCLerrniininy heclher to exercise it
L 440) Phierefor Pycegy ( COMCECIHMAY
pianribimie Colbisions only have atteynjuated link to thie
{ nite Leale 1 pae eqqide Ligon) I pat Vevey Stibypeet
| Coer fT bictlions ¢ ST but rather whethe: court
mould abstain from « Crceising uri diction Pay bt ‘
bdaeon J Chocnbaum, Admiralty & Mar. Law t 14 9
(Gthi cc "OQ4) Ctr Oh (Jniited tate: COLISsION
ptie Welion potentiilly extends to the four corners of
L}ae i I Chics Paagehy (423 wELO Cn foreign territorial
i beldabcanit. forus biG popoteny, howe ei j i
{ ] I SAN. Ace Oe nd thie & irl a¥ ( adopted { Cral
Pos Qeateiag loin Cxerersing purasdictios
byes P Ce require (} nobles Omitted
bial }¢ Lin 14) c-rtut | Ii] j
P yi tly thre distruc rm abused its diseretion in
iif i |e biti 1 CONVENIG) Clissnial i |
{ , ached ccd Uda reftippent in Ur poe!
( ! nel oy eukey ( rit brmesyly to by bilagedat an
re ’ ti) this Case ypinection lo the tJnited
ile | it Maar MV aaCapuayeed pac bolLA AAT Ice
qpial i i | boedore tdi : iors that proaguced HES
i Lids hatin trdonth belore the allision. a (
COrt Pdadicaleed bias Miear Mi Unreal heres tha
bar Vie riche nthetic lease and
I Piy’t l fit ] { Ii Ltae |
vA I< ¢ f f |
Lhe allision occurred so shortly after the transfer of the
PMoLA AZATICCA to MarMex thice ve els crew. had
everal tices tothe United State A U5. citizen trained
the captain of the ISLA AZTECA and was on board the
hippy only six weeks before the allision. Additionally,
Jhon the allision oecurred, the ISLA AZTIECA’s chief
bracate Not Criployed by a US corporation and ha
mee been assigned to work in VTexa Alter the
Whisvon, third parties Operating out of the United
steahe mnspected the ISLA AZTECA and repaired thre
P(QLQINACA. andcon CC ntly many relevant invoices
and records are in longlish. Indeed, before the trial for
Ldis Case W it bifurcated between ability and
CLEA ca re MarMe>» LWO desunated WILNeCSSEC
COMCETI damiapes Were resident Ol bexa
furthermore, aa the years sinee the allision occurred
the hoLA AGTILCA has called on UG ports lor repair:
Kanally, MarMex itself ha everal links to the United
ite Vell In ZOO], MarMex filed an admiralty
Pia’ uit in the United State Wistrct Court for thi
Oulhbern bistrict of Texa il jecryie rial niahaver | it
Citizen, ana at website currently state tdacat af
! Qinbistrative nd Gpses lional cEentes my Lexa
md tou ifici
F i ( { r lt (qytiiat | rico
Hii] J ‘ ‘ hnks to the United
] binil hore mn lorutgsy CE TSaTIS I epecto Latte
di 1 | f ri ( NAP SS ( j ( det opritascl
i Ee ! fi ul jv! ile al | ptodae Lerest tactor i
j j 1} thee district court ly ( Cd if Our Orit‘ 1 oper
til { i thie ‘ j i ( noblre place the anal j
ifs 4 i pou id ii ped | fistail pur qd rigoatae cy]
! I { i i! {
cretion cATiCa ¢
dec) 1(jT) al Lhe
1] burden lo per
APPENDIX &J
Tilk UNITED STATES DIS'TRICT COURT
ROR TPH SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NO €4-Qh-( V 11%)
ihaled July 26, 2006]
PHREPOKACIONECS EXPLORACIO
RODUCCTO Sn. also knov
MKItGTAIN REINSURING
Lily Criboiny lo
No AWK 030044
Ait, QAOQOA
PLAINT II]
JULIA M. ADAM, CARKIIE WEITINGIER and
PMONNA kK. CAPP:
Westmoreland, tall
24600 Post Oak Boul
OAth j hoa
Pfouston., ‘Tex: 47056
4135-6 /1-Y00U0
BIKOWN
‘arrow Mironmiitt
bork (
ffU0O 1
» 41%)
ny V’roduccio
Molding and
fim Strickland
(ariipo \ VI and
Mie COURT: Tell him I said hi, will you?
MS. WEITINGER: I certainly will
THE COURT: Al right. Thant
ALL rigehit SO % Punderstand it
VS. ADAM!
Tilkh COUR’ ( cedural problem
and bbiipolily Ouse Live ( ( pendimy motion
» ADAMI
Phiky COURT: And y ‘i ye ture
IVI it Soh aH KiLANI) Your honor! (his I on the
thnitill Smmotion for leave. PMM. who’: pois to by the
ubstituted plaintiffin here, has always been the real
party of interest and actually was the Mexican entity
Uhat filed the Mexican Querella, the criminal action m
Mexico. Before this suit was filed. thre Qluerella wa
agisml Ea. ANG it wa absolutely no surprise to the
plaimmtilis in this case who the actual owner of Utica rip?
|
new about at back in hdigation ayreemenil
bicoritda ctlteer Ghai picidernt which
Ipod
filed they want to be added as a plamtifl. They also
want to change the defendant from Seacor Holding:
and Til let My srOowWn CxXpre: thicat but, frankly
Judge, they've known about that for months also. And
peacor Mexico Marine, Inc. is the actual shareholdes
that owns a part of MarMex and they ve known about
that for quite a while also
Phe eritiueal is ue there, dudge, i and tll let Mia
brown addre: Chica burt hyCACO! Marine Mexico wat
isa Louisiana corporation and has no ties with Texa
And that’s our proposition to the motion for leave t
cA Tlic ric
‘| lif ( C)t)I Y dtl KhOW all thicat Verrilic and
yurisdictional stull has been muddicd by last sunimesr
hurricane Seaso which blew lLoutsi
r¢yl chbpytbiiniy? »add
Mika W
CQUIE: Whiat
band, a You Monor 3
Chidol Cloquently pronounced Lea l | tha Qt
poticmeatadld Chia iv i ‘ =) } ; ied) Chae
PeLer
MS. ADAMS: We named the wrong purty. bla
P?eMIM hia bye 1) mdentitse a all thie Vi _ through MM
sent out the initial
Ip Gf
demand immediately atter the collision occurred. hy
is a subrogated case. It’s primarily Underwrites
miterest.$ PMM'’'s interest 1 only tothe extent that they
paid a deductible in this. There’s been no fact: thiaat
have changed. There’s no real parties of interest that
are changing. There was nothing nefarious about
screwing up and stating the wrony partly. Its not like
weeven hidden them in any way shape or form
/\, to Seacor Mexico we are seeking to add them
ay»
not to substitute them. Seacor Holding’s story ha
been, “We have a wholly owned subsidiary” and they
hold the 40 percent yorntl venture share. They can’t
really produce any document: Supporting that and all
of thieus pre release say otherwise, butoaf they thin
that their subsidiary is a correct partly then | want
both of them in so whichever one shakes out. we have
(he correct party before the Court
VI} With PING | a Poona Chae One Vv rmOlyped thre Ww Ie
harely
fC itbittdi
LPaoptirial
LA
Vin
‘ 1
triadin
(] hhztp
pill { }
( ihe
zal |
i
|
Cpl
trip
' pt
t { "
tet
4
cl
nat
ate
cs
L< 4
1 |
bite
nition
|
1
TH COUR
momentarils i
Mi STRICKLAND. Ane with
current plaimmtill wood t’VMEM
defense alee alld I
ivriiticantly
clhanype thai
THE
Pieced hy ATAilS
enitatior }
MK STRICKLAN
With revard to dani
OLIOn (>) ¢] fill
ith eve eythiin
aia, Cl
purban iii \
Chuiraragy tha
APPENDIX K
DOO NE TT ENPREI
US. District Court
SOUTHERN DISTRICT OF TEXAS (Galveston
CIVIL, DOCKET FOR CASE #: 8-05-euv-Q0419
VPerftoraciones | xploracio'’n \
Produccio ‘n et ial
\
~
POAC OR bloldings Ine etal
Ddiate +} er SCrIpPtion
APPIENDIX I
Phils UUNDPEERD STATES DISTRICT COUR!
OUTHERN DISVRICT OF TEXAS
(GALVESTON DIVISION
COIVIT. NO?.7T 4:05-419
[Pyated May 6, 200%]
Pyokt hoo (YONIS LAVPLOKACIO! ,
BECNCH PRIAL
Mabie Pills HONORABLE KETTH Po rLILISGON
Phin bd Ss TATyI DIDTHRICT JUDG!
Volume 2 of 2
AY Picaal
Ccabddoe rt
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.