Texas Supreme Court grants mandamus petition to dismiss
wrongful death action on forum non conveniens grounds where incident occurred
on oil rig in Singapore waters
Paul Merema (“Paul”), an Australian citizen, was a contract
worker on the oil rig ENSCO 104 in the territorial waters of Singapore. He was
killed when a valve assembly malfunctioned. Singapore authorities investigated
the incident. Paul’s employment contract through Total Marine Services (TMS)
provided that the laws of Western Australia applied, and any dispute was to be
resolved through arbitration in Perth, Western Australia.
Paul’s widow, Margaret Merema (“Merema”), filed suit in
Australia against TMS. She also sued the owner of the oil rig and its parent
company (jointly “ENSCO”) in Dallas, Texas. ENSCO moved to dismiss the Dallas
case based on forum non conveniens because none of the alleged negligent acts
occurred in Texas. The trial court denied ENSCO’s motion. The court of appeals
denied ENSCO’s mandamus request. ENSCO then filed for a writ of mandamus with
the Supreme Court of Texas.
The Supreme Court of Texas, in a per curiam opinion, conditionally granted the mandamus because the
trial court abused its discretion by failing to dismiss the case based on forum
non conveniens. As for the procedure, the Court noted that when a motion to
dismiss on forum non conveniens is erroneously denied, an appeal is not
appropriate. Instead, mandamus relief is the appropriate remedy.
The Supreme Court noted that, in Texas, a statute lists the
factors to be considered by a trial court in ruling on forum non conveniens:
“If a court of this state, on written motion of a party,
finds that in the interest of justice and for the convenience of the parties a
claim or action to which this section applies would be more properly heard in a
forum outside this state, the court shall decline to exercise jurisdiction
under the doctrine of forum non conveniens and shall stay or dismiss the claim
or action. In determining whether to grant a motion to stay or dismiss an
action under the doctrine of forum non conveniens, the court shall consider
whether:”
“(1) an alternate forum exists in which the claim or action
may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this
state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of
the parties or otherwise, can exercise jurisdiction over all the defendants
properly joined to the plaintiff’s claim;
(5) the balance of the private interests of the parties and
the public interest of the state predominate in favor of the claim or action
being brought in an alternate forum, which shall include consideration of the
extent to which an injury or death resulted from acts or omissions that
occurred in this state; and
(6) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.”
“TEX. CIV. PRAC. & REM.CODE § 71.051(b). The word
‘shall’ in the statute ‘requires dismissal of the claim or action if the
statutory factors weigh in favor of the claim or action being more properly
heard in a forum outside Texas.’” [311 S.W.3d 924]
The Court then proceeded to apply the factors to the case at
bar. ENSCO argued that either Australia or Singapore offer an adequate forum
for this case. Merema responds that ENSCO was attempting to obscure by lumping
Australia and Singapore together as potential forums. The Court disagreed
noting that Section 71.051 does not require the designation of one specific
forum when there are several available forums.
The Court also noted that a forum is inadequate if the
remedies it offers are so unsatisfactory that they provide no remedy at all.
Merema further argued that ENSCO should have explained the trial procedures of
Australia and Singapore to show that they are adequate. The Court again
disagreed. Comparative analysis of procedures in different forums is generally
not appropriate in a forum non conveniens analysis. Such exercises involve
complicated analysis in comparative law, and should only be used if the
potential forum offers no remedy at all.
The Court then reviewed the third factor, whether litigating
the case in Texas would work a substantial injustice to the moving party,
ENSCO. Here, the Court agrees with ENSCO. The lack of compulsory process in
Texas for the majority of the foreign witnesses is substantially unjust.
Also, the fact that ENSCO has a suit pending against TMS in
Australia mandated dismissal according to the Court, because it is more
convenient to resolve all claims in one trial.
The fourth statutory factor, whether the alternate forum has
jurisdiction over the defendants, weighed in favor of ENSCO, as all defendants
have agreed to submit to jurisdiction in either Singapore or Australia.
The Court then turned to the fifth statutory factor, the
balancing of the public and private interest factors.
“A consideration in this balancing is the extent to which
Paul’s death resulted from acts or omissions that occurred in Texas. ...
Private interest considerations include ease of access to proof, availability
and cost of compulsory process, and other practical problems that make trial
easy, expeditious, and inexpensive. ... ENSCO points out that in this case
relevant documents and potential witnesses are located around the world. For
example, the investigating officials and employees of the shipyard are in
Singapore. Paul’s family, a psychologist who provided services after the
incident, and TMS and its employees are located in Australia. ... Of the twenty‑nine
men assigned to work on the ENSCO 104 at the time of the incident, twenty‑one
were TMS employees and all but two of the men on duty at the time of the
incident were citizens of Australia or New Zealand, as were three of the four
men who witnessed the incident. ... Even if some witnesses are located in the
United States, the fact remains that compulsory process is unavailable for the
vast majority of witnesses. See TEX.R. CIV. P. 176.3. Similarly, although
Merema asserts that copies of documents located in Australia and Singapore can
be shipped or sent by email, that fact does not cure the problems and
difficulties posed by the lack of compulsory process to secure production of
the documents and other evidence. ...”
“Aside from the fact that compulsory process is unavailable
to compel the majority of witnesses to appear in Dallas County or to require
production of documents, the practical problems that make trial easy,
expeditious, and inexpensive must be considered. ... The physical evidence is
in storage in Singapore and onboard the ENSCO 104, which was operating off the
shores of Malaysia when the trial court rendered its decision and off the
shores of Australia when ENSCO filed its brief. This evidence is under ENSCO’s
control, but ENSCO presented evidence that the cost of airfare from Singapore
or Australia to Dallas was approximately five times the cost of airfare between
Australia and Singapore. Travel time between Australia and Singapore was five
hours compared to over twenty hours for travel between Australia or Singapore
and Dallas. ... The cost, time, and scheduling difficulties to obtain evidence
and present witness testimony would be far greater if the case were tried in
Texas.”
“Another consideration in the fifth factor is the extent to
which Paul’s death resulted from acts or omissions that occurred in this state.
TEX. CIV. PRAC. & REM.CODE § 71.051(b)(5). Merema asserts that she need not
prove that Paul’s death resulted from acts or omissions occurring in Texas by a
preponderance of the evidence, but that she need only make a prima facie
showing that it did so. She claims her burden was fulfilled by evidence that
actions and inactions of ENSCO corporate management led in part to Paul’s
death. Merema relies on a statement in a report produced by TMS entitled ‘Human
Factors Investigation into the fatality that occurred on board the jack‑up rig
ENSCO 104 on 23 April 2005.’ [...]”
“We disagree with Merema’s premise as to her burden of
proof. The forum non conveniens statute does not place the burden of proof on
either party. To the extent evidence is necessary to support a party’s
position, the trial court must base its decision on the greater weight of the
evidence. ... Here, Merema has not identified any corporate policy linked to
Paul’s death, and the report on which she relies states that if safety
practices were not being performed, failure to comply was possibly due to a
lack of commitment from ENSCO shore management. ENSCO presented uncontroverted
evidence that persons addressed by the report ‘rig management and shore
management’ were employed by a separate corporation located in Singapore and
land‑based personnel were based in Singapore and Australia. Accordingly, the
report is no evidence that Paul’s death resulted from an act or omission that
occurred in Texas.”
“The public interest factors to consider in determining the
fifth factor include administrative difficulties related to court congestion,
imposition of jury duty on citizens who have no relation to the litigation,
local interest in having localized controversies decided at home, and trying
the case in a forum that is at home with the law that governs the case. ... But
as previously noted, Merema did not offer evidence that the ENSCO defendants’
actions or omissions in Texas contributed to Paul’s death. Nor did she identify
any other Texans who have an interest in the case. The case involves an injury
that happened in Singapore’s territorial waters on a Liberian‑flagged vessel to
an Australian citizen employed by an Australian company. ...Further, the fact
that the trial court has jurisdiction over the defendants because their offices
are in Dallas is a separate issue from whether the case should be dismissed on
forum non conveniens grounds. ...”
“Another consideration in determining the fifth statutory
factor is whether Texas law will govern the case. ... ENSCO and Merema disagree
regarding what law will govern. ENSCO asserts that Merema’s claims are governed
by the law of Australia or Singapore because those forums have the most
significant relationship to the underlying incident. ... Merema counters that
if the suit is maintained in Texas, the trial court will apply Texas law or the
federal Death on the High Seas Act. See 46 U.S.C. § 30301. But Merema does not
explain why Texas law would apply. The applicable law is determined in Texas by
the Restatement’s ‘most significant relationship’ test. ... [RESTATEMENT
(SECOND) OF CONFLICT OF LAWS §§ 6, 145 (1971)]. The factors to consider in
determining the applicable law for a tort case such as this are (1) the place
where the injury occurred; (2) the place where the conduct causing the injury
occurred; (3) the residence, nationality, and place of business of the parties;
and (4) the place where the relationship, if any, between the parties is
centered. ... [RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2) (1971)]; see
also TEX. CIV. PRAC. & REM.CODE § 71.031(c) (providing that in an action
for the death caused by actions outside the state, the court shall apply the
rules of substantive law that are ‘appropriate under the facts of the case’).
There is evidence of only one of these factors that points to Texas: the
residence, nationality, and place of business of ENSCO. And if Merema’s claim
falls under the federal Death on the High Seas Act, a similar analysis
applicable to maritime cases is required to determine whether foreign law
applies. ... Even assuming Texas law applies, however, all other public
interest factors favor dismissal of the case. ... We conclude that the fifth
statutory factor weighs in favor of granting ENSCO’s motion.” [311 S.W.3d 926‑8]
Finally, the sixth statutory factor merited dismissal on
forum non conveniens according to the Texas Supreme Court. Dismissal of this
suit does not result in unreasonable duplication or proliferation of
litigation. TEX. CIV. PRAC. & REM.CODE § 71.051(b)(6). If this case is
dismissed, it may result in consolidation of this claim with other claims that
are already pending in Australia.
The Court therefore conditionally granted the mandamus. The
writ will issue if the trial court fails to dismiss the case.
Citation: In re Ensco Offshore International Company,
311 S.W.3d 922 (Texas 2010).
*** K. Todd Wallace is an attorney at Wallace Meyaski in New Orleans. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/
