Coats v. Penrod Drilling Corp.

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 3, 1993
• Docket: 92-7378
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-7378

EARL WAYNE COATS, Plaintiff-Appellee, Cross-Appellant,

versus

PENROD DRILLING CORPORATION, ET AL., Defendants,

PENROD DRILLING CORPORATION, and HYTORC, M.E., Defendants-Appellants, Cross-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi

(October 18, 1993)

Before KING, HIGGINBOTHAM, and DEMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This is a maritime personal injury suit filed by a United

States citizen against his employer, a corporation formed under the

law of the United Arab Emirates, and the owner and operator of a

jack-up drilling rig, a Delaware corporation with its principal

place of business in Dallas, Texas. Plaintiff was injured aboard

the rig off the coast of the United Arab Emirates. Under the

general maritime law of the United States, a jury determined that

the rig was unseaworthy, that its owner and plaintiff's employer were negligent, and awarded substantial damages. The employer

appeals the district court's denial of its motion to dismiss for

lack of personal jurisdiction, the application of American law, and

the failure to dismiss based on forum non conveniens. The

defendant appeals, urging us to abolish or modify the doctrine of

joint and several liability in the context of comparative fault as

well as reverse the district court's application of American law.

Plaintiff cross-appeals the court's ruling that he was not a Jones

Act seaman, the sufficiency of the evidence to support the jury's

finding of contributory negligence, the directed verdict for

defendants denying punitive damages under the general maritime law,

the denial of prejudgment interest, and the amount of costs

awarded. We affirm.

I.

MIS is a corporation organized under the laws of Ras Al-

Khaimah, United Arab Emirates with branch offices in Dubai and Abu

Dhabi. It performs repair and maintenance services for oilfield

and marine vessels, and its employees are all expatriates,

primarily from India, Pakistan, and the United States. MIS uses

Lee's Materials Services, Inc. in Houston, Texas to perform various

services in the United States. Through Lee's, MIS advertised its

job openings in the Houston Chronicle (Texas), Lafayette Advertiser

(Louisiana), and Mobile Register (Alabama). During his trip,

Shelton held a meeting in Laurel, Mississippi that was attended by

several young men, including the plaintiff, Earl Wayne Coats.

2 Shelton explained that he was soliciting employees to operate MIS

equipment on certain offshore vessels.

In 1987, David Shelton, manager of the Hytorc Division of

Maritime Industrial Services, travelled from the United Arab

Emirates to Mississippi on vacation and to interview prospective

employees for MIS. At the meeting, Shelton offered a job to Coats,

and Coats accepted. Their agreement included thirty days per year

of paid vacation with airfare back to Mississippi. MIS also

promised to pay for Coats' return to Mississippi at the termination

of his employment. The term of Coats' employment was indefinite.

Coats obtained an updated passport as instructed by Shelton, and

MIS, through Lee's Materials, sent him a plane ticket to Dubai.

Coats arrived in the United Arab Emirates and started work on

December 1, 1987.

While working for MIS, Coats lived on shore and worked on

various jack-up rigs owned by different customers of MIS. The

majority of Coats' work consisted of operating a hydraulically

powered torque wrench used to loosen and tighten large nuts and

bolts. During Coats' employment with MIS, Penrod Drilling

Corporation, a Delaware corporation with its principal place of

business in Dallas, Texas contracted for MIS to perform pressure

testing on Penrod's Rig 69. The pressure testing was necessary to

prepare the rig for its next drilling operation. At the time, Rig

69, a jack-up drilling rig, was located in the Port of Mina Saqr in

the territorial waters of the United Arab Emirates. It was twenty

feet from shore in forty feet of water and connected to land by a

3 gangway. Rig 69 flies the United States flag, and its home port is

New Orleans, Louisiana. Penrod maintained a local office in the

United Arab Emirates to assist in the operation of Rig 69.

MIS assigned Coats to perform the pressure testing for Penrod.

Coats was inexperienced at this task and had to ask for assistance

from Penrod personnel. As Coats was working aboard Rig 69,

Penrod's "bullplug" failed at a pressure less than it was rated to

withstand, causing the fluid under pressure to erupt. The eruption

knocked Coats down, resulting in a severe and disabling injury to

his knee. After the accident, MIS flew Coats to Hattiesburg,

Mississippi for treatment and started paying his medical expenses.

Most of these payments were made through Lee's Materials.

Meanwhile, MIS filled Coats' job with Chris Stennett, another

Mississippi resident who attended Shelton's meeting in Laurel.

On April 10, 1989, Coats sued Penrod, MIS, and Lee's1 in the

Southern District of Mississippi. The complaint asserted federal

jurisdiction based on diversity of citizenship and admiralty and

alleges, inter alia, negligence on the part of Penrod and MIS, the

unseaworthiness of Rig 69, and entitlement to maintenance and cure

from MIS under the Jones Act. Soon thereafter, MIS terminated its

payment of benefits to Coats. Coats then amended his complaint

against MIS to seek compensatory and punitive damages under the

general maritime law for wrongful termination of maintenance and

cure and to allege wrongful termination of health insurance

1 The district court granted Lee's motion for summary judgment and dismissed it from the case.

4 benefits under ERISA. Penrod cross-claimed against MIS for

indemnity and contribution under the general maritime law.

Before trial, the district court issued a number of orders in

response to motions filed by the parties. The court ruled that MIS

had sufficient contacts with Mississippi to justify the assertion

of personal jurisdiction and that it would apply United States law,

rather than the law of the United Arab Emirates, to Coats' personal

injury claims. Under American law, the court determined that Coats

was not a Jones Act seaman, and therefore not entitled to

maintenance and cure damages, but that Coats qualified as a

Sieracki seaman with the attending right to sue under the warranty

of seaworthiness. See Seas Shipping Co. v. Sieracki, 328 U.S. 85

(1946).2 The court also declined to dismiss the case under the

doctrine of forum non conveniens.

The case proceeded to trial on Coats' claims against Penrod

for negligence and unseaworthiness and against MIS for negligence,

wrongful termination of maintenance and cure, and wrongful

termination of benefits under ERISA. After the court directed a

verdict against Coats on his claim for punitive damages based on

MIS' termination of maintenance and cure, the jury returned a

verdict for Coats, assessing damages of $925,000 and assigning 20%

fault to Coats, 20% to Penrod, and 60% to MIS. The court reduced

the award by Coats' comparative fault to $740,000 and entered

2 The court also dismissed Coats' claims under the Longshore and Harbor Workers' Compensation Act because Coats' injuries did not occur "upon navigable waters of the United States." 33 U.S.C. § 905(b).

5 judgment against Penrod and MIS jointly and severally.3 The court

also awarded costs to Coats in the amount of $7,889.04. All

parties appealed.

II.

A.

We first address the issue of personal jurisdiction over MIS,

a question that requires us to apply Mississippi's long-arm

statute. See DeMelo v. Toche Marine, Inc., 711 F.2d 1260 (5th Cir.

1983).4 MIS contends that the Mississippi statute does not confer

3 In an advisory capacity, the jury determined that MIS terminated Coats' medical benefits with the specific intent to discriminate against Coats in violation of ERISA. The court adopted this finding and entered judgment for Coats on his ERISA claims in the amount of $26,524.82, less a credit for $23,335.15 in medical expenses previously paid by MIS to Coats. This judgment was not appealed. 4 At the time this suit was filed, § 13-3-57 provided:

Any non-resident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or non- resident of this state, or who shall do any business or perform any character of work or service in this state shall by such act or acts be deemed to be doing business in Mississippi. Such acto or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee. . . .

Miss. Code Ann. § 13-3-57 (Supp. 1988) (amended 1991).

6 jurisdiction, and alternatively, that applying the statute to MIS

violates due process.5 The relevant facts are undisputed, and thus

our review of this issue is de novo. Command-Aire Corp. v. Ontario

Mechanical Sales and Serv. Inc., 963 F.2d 90, 93 (5th Cir. 1992).

Because Coats' claims are not based on contract and the

alleged tortious conduct of MIS occurred in the United Arab

Emirates, the district court asserted personal jurisdiction over

MIS under the catchall or "doing business" prong of the Missisippi

statute. See Jones v. Chandler, 592 So. 2d 966, 971 (Miss. 1991)

(referring to "doing business" as the catchall provision).6 The

first question is whether MIS was "doing business" in Mississippi.7

5 We must address both arguments separately, because the Mississippi courts have not held that the state's long-arm statute reaches to the limits allowed by the Constitution. See Rittenhouse v. Mabry, 832 F.2d 1380, 1383 (5th Cir. 1987); Southern Pac. Transportation Co. v. Fox, 609 So.2d 357, 365 (Miss. 1992) (Lee, P.J., dissenting). 6 The district court found it unnecessary to decide whether MIS' termination of Coats' maintenance and cure benefits constituted an intentional tort committed in whole or in part in Mississippi. We also decline to address this issue. 7 The district court applied a three-pronged test for "doing business" that originated in Mladinich v. Kohn, 164 So. 2d 785, 790 (Miss. 1964): (1) the non-resident defendant must purposefully do some act or transaction in Mississippi, (2) the cause of action must be connected to or arise from this transaction, and (3) the assumption of jurisdiction must not offend traditional notions of fair play and substantial justice. See also Rittenhouse v. Mabry, 832 F.2d 1380, 1385 (5th Cir. 1987) (applying this test); Aycock v. Louisiana Aircraft, Inc., 617 F.2d 432, 434 (5th Cir. 1980) (same). This is also the analysis employed by the parties on appeal. The two most recent decisions from the Mississippi Supreme Court on this issue, however, did not apply this test, but instead focused on the

7 Under the statute, one is "deemed to be doing business" if he

"perform[s] any character of work or service in this state." Miss.

Code Ann. § 13-3-57. In McDaniel v. Ritter, 556 So. 2d 303 (Miss.

1989), the Mississippi Supreme Court further defined the term to

include doing "various acts here for the purpose or realizing a

pecuniary benefit or otherwise accomplishing an object." Id. at 309

(citing Restatement (Second) of Conflict of Laws § 35 cmt. a

(1971)). The Mississippi Supreme Court recently stated that the

doing business prong "is so broad that it belies any suggestion it

be limited to commercial activity." Jones, 592 So. 2d at 971.

MIS' recruitment and hiring of employees in Mississippi meets

the Restatement definition adopted by the Mississippi Supreme

Court. MIS performed various acts in Mississippi to recruit Coats.

Shelton, on behalf of MIS, held a meeting in Laurel. At that

meeting, MIS hired Coats -- and under terms that contemplated

future contacts with Mississippi. MIS agreed to fly Coats back to

Mississippi every year of his employment for his thirty-day

vacation, and MIS employed Coats for an indefinite term. When

Coats was injured, MIS returned him to Mississippi for treatment

and started paying for his medical expenses. Moreover, Coats was

not the only Mississippi resident MIS recruited and hired. After

Coats' accident, MIS replaced him with Chris Stennett, another

actual language of the long-arm statute. See Southern Pac. Transportation Co. v. Fox, 609 So. 2d 357 (Miss. 1992); McDaniel v. Ritter, 556 So. 2d 303 (Miss. 1989). Although we do not infer a substantive change in the law from these decisions, we will follow the most recent guidance from the state's highest court.

8 Mississippi resident who attended Shelton's meeting in Laurel. MIS

also advertised its job openings in newspapers from three

neighboring states, and there is evidence in the record that these

newspapers are distributed to Mississippi residents. Cf.

Rittenhouse, 832 F.2d at 1385 (finding a failure to meet the "doing

business" requirement while noting that the defendant did not

solicit patients from Mississippi or advertise there). These

actions constitute "various acts [in Mississippi] for the purpose

or realizing a pecuniary benefit or otherwise accomplishing an

object."

Concluding that MIS does business in Mississippi is not by

itself sufficient to establish jurisdiction. The nexus requirement

must also be met. That is, the "act or acts" performed by MIS in

Mississippi will confer jurisdiction only "in any actions or

proceedings accrued or accruing from such act or acts . . . or as

an incident thereto . . . ." Miss. Code Ann. 13-3-57 (emphasis

added).8 As explained by the Mississippi Supreme Court,

[t]he long-arm statute requires no direct nexus to the non- resident's business done here, only that the claim be incident thereto. The statute thus requires far less than that the liability generating conduct have occurred in Mississippi.

McDaniel, 556 So.2d at 309; see also Southern Pac. Transp. Co. v.

Fox, 609 So. 2d 357, 360 (Miss. 1992). McDaniel was a wrongful

death action arising from a plane crash in Missouri. Jack Ritter,

8 Effective July 1, 1991, the Mississippi legislature amended § 13-3-57 and repealed the nexus requirement. The amended statute applies prospectively to actions commenced after its effective date and therefore has no effect on Coats' suit, filed in 1989. Southern Pac. Transp. Co. v. Fox, 609 So. 2d 357, 360 n.5 (Miss. 1992).

9 plaintiffs' decedent, and Alton Jerry Speaks, defendants' decedent,

were killed in the accident. Ritter was a Mississippi resident,

and Speaks resided in Tennessee. The two men worked for

Consolidated Enterprises, a Mississippi corporation with an office

in Columbus. Speaks had organized the company and was its

principal shareholder. Most important, they were travelling on

behalf of Consolidated when the plane crashed. After concluding

that Speaks had a continuing and substantial presence in

Mississippi, the court held that plaintiffs' claim arose from

"facts sufficiently incident to business done by Speaks in

Mississippi" to satisfy the long-arm statute. 556 So. 2d at 309.

Although the crash occurred in Missouri and the plane never

travelled through Mississippi, the fact that they were travelling

on behalf of the defendant's corporation which was doing business

in Mississippi furnished the required nexus. See id.

In Fox, the court found the required nexus lacking on facts it

characterized as "in sharp contrast with McDaniel." 609 So. 2d at

361. Fox, a Texas resident, sued his employer, Southern Pacific

Transportation Co., to recover for injuries suffered while working

in Southern Pacific's railroad yard in Hearne, Texas. Southern

Pacific's principal place of business was Lafayette, Louisiana.

Although Southern Pacific did transport goods through Mississippi

in interstate commerce, critical to the court was the fact that

neither Fox nor his accident had "even the slightest connection

with this state or with any business Southern Pacific does here."

Id. at 359.

10 We are persuaded that Coats' claims arise from facts

sufficiently incident to MIS's activities in Mississippi to meet

the nexus requirement for personal jurisdiction under Mississippi

law. MIS held a meeting in Mississippi and recruited Coats to come

work for them. This contact with Mississippi resulted in Coats'

employment and Coats was injured on the job. Moreover, Coats

claims damages, in part, as compensation for his medical expenses

while in a Mississippi hospital, where MIS flew him for treatment.

Finally, MIS terminated its payment of Coats' medical expenses

while Coats was hospitalized in Mississippi.

B.

Due process requires that a defendant have sufficient minimum

contacts with the forum state such that maintenance of the suit

does not offend traditional notions of fair play and substantial

justice. International Shoe Co. v. Washington, 326 U.S. 312, 316

(1945). The nature and quality of these contacts must justify the

conclusion that defendant should have reasonably anticipated being

haled into court in the forum state. World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286 (1980); Jones v. Petty-Ray Geophysical

Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992). As an

analytic device, the Supreme Court draws a distinction between

specific and general jurisdiction. See Burger King Corp. v.

Rudzewicz, 105 S.Ct. 2174, 2182 (1985); Helicopteros Nacionales de

Colombia, S.A. v. Hall, 104 S.Ct. 1868, 1872 (1984). For specific

jurisdiction, the defendant must have purposely directed his

activities at the resident of the forum and, the litigation must

11 result from the alleged injuries that arise out of or relate to the

defendant's activities directed at the forum. Burger King, 471

U.S. at 474; Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir. 1992).

The focus is on the relationship between the defendant, the forum,

and the litigation. Burger King, 471 U.S. at 474. "The

appropriate inquiry is whether the defendant purposefully availed

[itself] of the privilege of conducting activities in-state,

thereby invoking the benefits and protections of the forum state's

laws." Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990)

(citing Burger King, 471 U.S. at 474-75). Where the cause of

action is not related to or does not arise from the defendant's

activities in the forum, the forum may still have general

jurisdiction if the defendant's contacts with the forum are of a

continuous and systematic nature. Helicopteros, 466 U.S. at 414-

15. We hold that the exercise of personal jurisdiction over MIS

satisfies the Constitution under the specific jurisdiction

analysis.

MIS could reasonably anticipate being haled into court in

Mississippi as a result of its relationship with Coats. MIS'

recruitment activities in Mississippi that led to his hiring, such

as holding a meeting in the state and buying ads in papers that

circulated in the state, are the sort of "reach[ing] out" to

Mississippi that the Supreme Court saw as creating personal

jurisdiction in Burger King, 105 S.Ct. at 2186. See also

Pedelahore v. Astropark, 745 F.2d 346, 349 (5th Cir. 1984). MIS

12 further cemented that bond by signing a contract obligating it to

return Coats there once a year for as long as he worked for MIS.

Then, after Coats' injury, he and MIS jointly decided that he

would return to Mississippi for treatment.9 MIS flew him there and

began paying his medical bills. Flying an employee to Mississippi

and assuming a financial obligation there is not a "random,"

"fortuitous," or "attenuated" act that is an improper basis of

jurisdiction. See Burger King, 105 S.Ct. at 2186. Backing out of

that commitment, an act that ultimately cost MIS over $20,000 in

the judgment below, was also a choice by MIS that could lead it to

foresee appearing in a Mississippi court. See Bearry v. Beech

Aircraft, 818 F.2d 370, 375 (1987); Thompson v. Chrysler Motors,

755 F.2d 1162, 1172 (5th Cir. 1985).

Once minimum contacts are shown, a court should decide whether

the assertion of jurisdiction would comport with fair play and

substantial justice, considering the burden on the defendant, the

9 Coats testified in his deposition that once it was determined that his injury required surgery:

He [Mr. Shelton] first suggested that I would fly to Houston. They would do surgery on me in Houston there. He would have me met by members of his family. I would be transported to a hospital. He said he could take care of all the arrangements.

Then Shelton changed his mind and offered Coats another choice:

[T]he following day he had mentioned to me that if I was going to be in the hospital for so long, that it would be very expensive for my family to have to come to Houston to see me and stay there; that if there was anywhere in Mississippi that I would like to have the surgery done, he could arrange it where I could be transported to Mississippi.

13 forum state's interest in adjudicating the dispute, the plaintiff's

interest in obtaining convenient and effective relief, the

interstate judicial system's interest in obtaining the most

efficient resolution of controversies, and the shared interest of

the several states in furthering fundamental substantive social

policies. Burger King, 105 S. Ct. at 2184. Requiring MIS to

defend this suit in Mississippi would not offend these principles.

Coats is a resident of Mississippi, and Mississippi has a strong

"interest in providing effective means of redress of its

residents." McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223

(1957); see also Holt, 801 F.2d at 780; Pedelahore, 745 F.2d at

349. It was not unreasonably inconvenient to require MIS to defend

a suit in Mississippi given that many of its employees are

American. See Burger King, 105 S. Ct at 2184 ("[t]hese

considerations sometimes serve to establish the reasonableness of

jurisdiction upon a lesser showing of minimum contacts than would

otherwise be required").

III.

Turning to the district court's application of United States

law, MIS first argues that the choice of law is between the law of

the United Arab Emirates and Mississippi law, rather than the

general maritime law. This conclusion rests on the contention that

the district court lacked subject matter jurisdiction in admiralty,

and therefore, the only basis for federal jurisdiction is

diversity. If so, the district court should have applied

14 Mississippi's choice of law rules in deciding between foreign and

state law. See Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313

U.S. 487, 496 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938).10 MIS asserts that Mississippi would apply the law of the

United Arab Emirates to this case.11

MIS argues that the activity giving rise to Coats' accident

does not have a sufficient connection to traditional maritime

activity to support admiralty tort jurisdiction. See Sisson v.

Ruby, 110 S. Ct. 2892 (1990); Foremost Ins. Co. v. Richardson, 102

S.Ct. 2654 (1982); Executive Jet Aviation v. Cleveland, 409 U.S.

249 (1972). In this circuit, we examine four factors to determine

the relationship to maritime activity: (1) the functions and roles

of the parties; (2) the types of vehicles and instrumentalities

involved; (3) the causation and type injury; and (4) traditional

concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d

520, 525 (5th Cir. 1973). Our analysis today is further guided by

the Supreme Court's recent pronouncement in Sisson. See also

Broughton Offshore Drilling v. South Central Machine, Inc., 911

F.2d 1050, 1052 & n.1 (5th Cir. 1990) (applying Kelly after noting

10 Mississippi follows the Restatement Second approach which requires application of the law of the place of injury, absent a more significant relationship with another state. Mitchell v. Craft, 211 So. 2d 509, 515 (Miss. 1968). 11 Penrod has not joined MIS in this argument, apparently because Penrod's claim for contribution or indemnity against MIS is based on general maritime law. If the law of the United Arab Emirates is not applicable, Penrod may prefer to have general maritime law apply rather than Mississippi law.

15 that Sisson recognized but neither approved nor disapproved our

approach).

Applying the first factor, the functions and roles of the

parties, MIS performs repair and maintenance services for oilfield

and marine vessels. Penrod is engaged in offshore oil drilling.

Penrod contracted with MIS, because Rig 69 needed pressure testing

before its next drilling operation. Because "the primary focus of

admiralty jurisdiction is unquestionably the protection of maritime

commerce," the Supreme Court has considered the effect of an

activity on maritime commerce. Foremost, 102 S. Ct. at 2658;

Sisson, 110 S. Ct. at 2895; see also Exxon Corp. v. Central Gulf

Lines, Inc., 111 S. Ct. 2071, 2074 (1991). The repair and

maintenance of a jack-up drilling rig on navigable waters is

certainly a maritime activity with an effect on maritime commerce.

The second factor is the types of vehicles and

instrumentalities involved. Coats' injury occurred aboard a vessel

on navigable water which strengthens the nexus with traditional

maritime activity. That Coats was operating MIS equipment aboard

Rig 69 does not diminish the importance of a ship-board injury.

As to the causation and type of injury, the third factor, MIS

refers to the fact that Coats was injured while pressure testing,

and the cause of the accident was the failure of Penrod's bullplug.

These events, MIS contends, could just have easily occurred on

land. Moreover, according to MIS, its negligent failure to train

Coats in pressure testing bears no special relation to maritime

activities. We are not persuaded that these facts could overcome

16 the otherwise substantial connection with maritime activity. In

any event, this factor is entitled to little weight after Sisson,

where the Court refused to engage in this sort of detailed inquiry

into causation. That case involved a fire that began on a

noncommercial vessel at a marina on a navigable waterway. Before

judging the nexus with traditional maritime activity, the Court

first had to determine the relevant activity involved. As the

Court explained,

Our cases have made clear that the relevant "activity" is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose . . . This focus on the general character of the activity is, indeed, suggested by the nature of the jurisdictional inquiry. Were courts required to focus more particularly on the causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question.

110 S. Ct. at 2897. Declining to ascertain the precise cause of

the fire, the Court determined the relevant activity to be "the

storage and maintenance of a vessel at a marina on navigable

waters." Similarly, the relevant activity in this case is the

repair and maintenance of a jack-up drilling rig on navigable

waters.

Traditional concepts of the role of admiralty, the final

factor, also support admiralty jurisdiction. This case arises from

a tort that occurred aboard a vessel on navigable waters. One of

the traditional roles of admiralty law is to provide compensation

for injuries aboard ship. See Sisson, 110 S. Ct. 2898-02 (Scalia,

J., concurring) (arguing that all vessel-related torts fall within

the admiralty jurisdiction).

17 MIS's reliance on Sohyde Drilling & Marine Co. v. Coastal Gas

Producing Co., 644 F.2d 1132 (5th Cir. 1981), is misplaced. There,

we applied the Kelly factors and concluded that admiralty

jurisdiction was lacking in a suit for property damage arising from

the blowout of a high-pressure gas well located in a dead-end canal

slip in Louisiana. Coastal, the operator of the well, had hired

Sohyde to perform workover operations to correct a loss of

production. Critical to the court's decision was its distinction

between property damage and personal injury. While denying

jurisdiction over the property damage at issue, the court remarked

that claims for personal injury suffered on navigable waters would

certainly fall within admiralty. Id. at 1136-37; see also

Broughton, 911 F.2d at 1052.12 Therefore, Sohyde actually supports

the exercise of admiralty jurisdiction in this case, one involving

only personal injury. MIS's arguments are without merit.

Because this is an admiralty case, the Lauritzen-Rhoditis

factors govern the choice of law: (1) the place of the wrongful

act; (2) the law of the flag; (3) the allegiance or domicile of the

injured worker; (4) the allegiance of the defendant shipowner; (5)

the place of the contract; (6) the inaccessibility of the foreign

forum; (7) the law of the forum; and (8) the shipowner's base of

operations. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 308-09

12 Sohyde has been criticized for its distinction between property damage and personal injury, and we have vowed not to extend it beyond its facts. Broughton, 911 F.2d at 1053. See also Houston Oil and Materials Corp. v. American Int'l Tool Co., 827 F.2d 1049, 1054 (5th Cir. 1987).

18 (1970); Lauritzen v. Larsen, 345 U.S. 571, 583-91 (1953). "The

test is not a mechanical one in which the court simply counts the

relevant contacts; instead, the significance of each factor must be

considered within the particular context of the claim and the

national interest that might be served by the application of United

States law." Fogleman v. Aramco, 920 F.2d 278, 282 (5th Cir.

1991). The type of vessel involved in this case, a jack-up oil

drilling rig, is particularly relevant to our analysis. "The

significance of each factor in a nontraditional maritime context

like offshore oil production may vary from that in the traditional

shipping context in which the Lauritzen-Rhoditis test arose." Id.;

see also Bailey v. Dolphin Int'l, Inc., 697 F.2d 1268, 1275 (5th

Cir. 1983) (jack-up drilling rig); Cuevas v. Reading & Bates Corp.,

770 F.2d 1371 (5th Cir. 1985) (same); Jack L. Albritton, Choice of

Law in a Maritime Personal Injury Setting: The Domestic

Jurisprudence, 43 La. L. Rev. 879 (1983) (discussing the difference

between "bluewater" and "brownwater" cases). The place of the

wrongful act, the allegiance or domicile of the injured, and the

place of the contract, which are less important in the shipping

context, are more significant in nontraditional cases such as this

one. Chiazor v. Transworld Drilling Co., 648 F.2d 1015, 1019 (5th

Cir. 1981). Our review of the district court's decision to apply

United States law is de novo. E.g. Fogleman, 920 F.2d at 282.

The first factor is the place of the wrongful act. Coats'

accident occurred in the territorial waters of the United Arab

19 Emirates, and because this is a nontraditional maritime case, this

factor is entitled to considerable weight.

The second factor is the law of the flag. "The law of the

flag has traditionally been of cardinal importance in determining

the law applicable to maritime cases." Id. (citing Lauritzen, 345

U.S. at 583-84). MIS is not a shipowner and therefore this factor

has no specific application to it. Penrod's Rig 69 flew the United

States flag. Penrod argues that the flag of the vessel in this

case is fortuitous, because Coats was assigned to six different

drilling rigs with different owners and allegiances. the record

indicates that in addition to the PENROD 69, Coats worked aboard

the MARESK VICTORY, the TRIDENT III, the TRANSOCEAN V, the W.T.

ADAMS, and the SEDCO 91. Penrod, however, does not say what flag

each of these vessels flew and we are unable to find this

information in the record. We cannot concluded that Coats' injury

aboard a United States flagged vessel, as opposed to a vessel

registered in another country, was fortuitous without knowing what

flag these other rigs flew.

The third factor is the allegiance or domicile of the

plaintiff, and one that gains added significance in this context.

Coats is a United States citizen, and despite his move overseas, he

maintained his residence in Mississippi. That is where MIS agreed

to fly him for his vacations, and that is where he returned after

the accident. Nevertheless, defendants contend that Coats'

domicile was in the United Arab Emirates. They argue that he moved

to that country with the intent to remain, because his job with MIS

20 was for an indefinite term and one is generally domiciled where he

works. In Fogleman, however, the plaintiff was a Louisiana

resident who had worked in Saudi Arabia for eight years, and we

determined his domicile to be in the United States. Therefore,

Coats is, a fortiori, domiciled in the United States.

Fourth is the allegiance of the defendant shipowner. Penrod's

allegiance is without question to the United States. Rig 69 flies

the United State flag and Penrod's principal place of business is

Dallas, Texas. MIS is not a shipowner, but we still take into

account its organization under the laws of the United Arab

Emirates. This allegiance, however, is diminished somewhat by the

fact that MIS has no employees from that country and a large

percentage of them are from the United States.

The place of the contract is the fifth factor, and another

that is entitled to more weight in this context. As the district

court stated, Coats apparently executed an Arabic contract in the

United Arab Emirates for the purpose of obtaining a work visa;

however, the parties agreed to all of the contract terms in

Mississippi. Thus, Coats' employment contract was formed in

Mississippi, and this factor favors United States law. Cf.

Fogleman, 920 F.2d at 283 (noting that plaintiff signed all eight

of his contracts in Saudi Arabia). The contract between MIS and

Penrod is not relevant to our analysis. See id. (focusing on

plaintiff's contract with his employer without considering

employer's contract with owner/operator of oil platform).

21 The sixth factor, inaccessibility of the forum, is only

relevant to forum non conveniens. Lauritzen, 345 U.S. at 589-90.

The seventh factor is the law of the forum. The general maritime

law of the United States is the law of the forum; however, this

factor is entitled to little weight because, by definition, it

supports the law of the forum. Fogleman, 920 F.2d at 283.

The final factor is the base of operations. In the

nontraditional context, we have held that "'it is the base from

which the rig is operated on a day-to-day basis rather than the

base of operations of the corporate or ultimate owner of the rig

which is important for choice of law purposes.'" Id. at 284

(quoting Bailey, 697 F.2d at 1275 n.22). Penrod has a local office

in the United Arab Emirates to assist in the operation of Rig 69.

The record shows that this office is occupied by the rig

superintendent who frequently communicates with Penrod's office in

Dallas, Texas by facsimile. We addressed a similar situation in

Bailey. There, the local office in Singapore "was in daily contact

with the Houston office by telex or telephone, usually providing it

with drilling reports." 697 F.2d at 1271 n.6. In addition, "the

day-to-day decisions respecting the activities and operations of

the [rig] were made by [the area manager] or [the rig manager and

drilling superintendent] or by personnel on the rig." Id. We

nevertheless agreed that the base of operations was not in the

United States. Id. at 1274. Therefore, we are constrained to

find that Penrod's base of operations for purposes of this case is

in the United Arab Emirates. MIS's base of operations is also in

22 the United Arab Emirates; it has no offices anywhere else. Despite

the business it conducts through Lee's Materials in the United

States and the fact that it has a substantial number of American

employees, its day-to-day operations are clearly conducted in the

United Arab Emirates.

After considering the above factors and giving them the weight

they deserve in this offshore oil drilling context, we agree with

the district court's decision to apply United States law. Of the

factors deemed more significant in this context, only the place of

the wrongful act favors foreign law; the allegiance of the

plaintiff and the place of contract refer us to United States law.

The law of the flag and the allegiance of the defendant shipowner

also point to United States law. In short, the United States has

a greater interest in applying its law to this case than the United

Arab Emirates. Coats was recruited in the United States, accepted

the job while in this country, was supervised by American

employees, suffered injury aboard an American ship, and was flown

home to recover. See Albritton, Choice of Law, supra (noting the

unlikelihood of courts denying the benefit of American maritime law

to an American citizen who is recruited to work overseas and does

not give up his permanent United States residence).

Although prior cases are less instructive in this area, where

our analysis must be based on the facts of each case, our decision

today is consistent with our precedent. With one exception, our

decisions involving nontraditional, "brownwater," vessels have

involved a foreign plaintiff injured off the coast of a foreign

23 country seeking the protections of American law. We have uniformly

rebuffed these attempts. See, e.g. Cuevas v. Reading & Bates

Corp., 770 F.2d 1371 (5th Cir. 1985); Koke v. Phillips Petroleum

Co., 730 F.2d 211 (5th Cir. 1984); Bailey v. Dolphin Int'l, Inc.,

697 F.2d 1268 (5th Cir. 1983); Vaz Borralho v. Keydril Co., 696

F.2d 379 (5th Cir. 1983); Chiazor v. Transworld Drilling Co., 648

F.2d 1015 (5th Cir. 1981).

The one exception is Fogleman, where we refused to allow an

American plaintiff to sue under United States law for an injury

that occurred in Saudi Arabia. Fogleman, a Louisiana resident,

went to work for Fluor Arabia in Saudi Arabia. He applied for the

job by completing a "Foreign Employment Application" and mailing it

to Saudi Arabia. Fluor Arabia is a subsidiary of Fluor

Corporation, a Delaware corporation with its principle place of

business in California, but is only authorized to do business in

Saudi Arabia. Fogelman worked under a series of eight one-year

contracts, all signed in Saudi Arabia, and lived aboard a boat

flying the Saudi Arabian flag. Fluor Arabia had a contract with

ARAMCO, and pursuant to that contract, Fluor Arabia assigned

Fogleman to work with ARAMCO. Fogelman sustained a sharp pain in

his chest while transferring from an oil platform to a workboat

that flew the Panamanian flag and later suffered a heart attack,

allegedly caused by excessive work hours aboard ARAMCO's oil

platform. Fogleman sued ARAMCO and Fluor Arabia, and we affirmed

the district court's application of Saudi Arabian law to ARAMCO and

Fluor Corporation. 920 F.2d at 281.

24 The contacts with the United States in Fogleman were not as

strong as in this case. The vessels involved did not fly the

United States flag, and all of the plaintiffs contracts were signed

in the foreign country. Moreover, the allegiance of both

defendants was foreign. Id. at 282-83. "[T]he only significant

factor pointing to the application of United States law [was] the

domicile of the plaintiff." Id. at 284. As discussed, the

connections with the United States in this case are substantial and

justify a different result than the one we reached in Fogleman.

IV.

Given our affirmance of the district court's application of

the general maritime law, we find no abuse of discretion in the

denial of MIS's motion to dismiss for forum non conveniens. The

private and public factors to be considered do not overcome the

deference due Coats' choice of his home state as the forum and the

fact that this case has already been tried. See In re Air Crash

Disaster Near New Orleans, 821 F.2d 1147, 1167 (5th Cir. 1987) (en

banc) (stating that "[t]he fact that a trial on the merits has

occurred in the plaintiff's selected forum does have some effect on

our decision of whether the district court abused its discretion").

MIS has not shown that it was "greatly prejudiced" by having to

defend the case in Mississippi. Id. at 1168.

V.

Penrod has devoted much of its energy in this appeal to urging

us to abolish or modify the doctrine of joint and several

liability. The jury found Penrod and MIS to be 20% and 60%

25 responsible, respectively, but as a result of joint and several

liability, Coats can look to Penrod for the entire 80%. Coats

would obtain 80% from Penrod though the jury determined Coats and

Penrod to be equally at fault. Thus, Penrod maintains, joint and

several liability is incompatible with comparative fault.13 We

rejected this proposition in Simeon v. T. Smith & Son, Inc., 852

F.2d 1421, 1429-30 (5th Cir. 1988), and we are bound by Simeon

without the en banc court. But see id. at 1436 (Garwood, J.,

concurring in part and dissenting in part) (arguing for "modified

joint liability").

Additionally, Penrod points out that at least thirty-three

states have either abolished or modified the doctrine of joint and

several liability and urges us to change the federal maritime law

based on this statement of policy. We are well aware of our duty

as an admiralty court to look to legislative enactments for policy

guidance. Miles v. Apex Marine Corp., 111 S. Ct. 317, 323 (1990);

Moragne v. States Marine Lines, 90 S. Ct. 1772, 1781-83 (1970).

However, this change in policy among the states is in conflict with

the maritime policy recognized in Simeon:

To date, under general maritime [law], the policy of the Supreme Court has been clear -- ensure that injured plaintiffs are made whole, even at the expense of overburdening defendants.

13 Penrod appears to be motivated in this argument by a fear that the judgment is unenforceable against MIS in the United Arab Emirates, and Penrod may have to absorb the effect of MIS's good fortune. It is true that the doctrine of joint and several liability places such risk of nonrecoverability entirely on the defendants, but we are not convinced that this is an unjust result in this case. The decision to do business with MIS was Penrod's, not Coats.

26 852 F.2d at 1454 (citing Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256, 271-72 n.30 (1979)) (King, J.,

joined by Williams, J., specially concurring). While a strong

statement of policy from the states has much force in this context,

that sentiment must nevertheless give way to a contrary policy

established by the Supreme Court.

Penrod also contends that applying joint and several liability

in the context of comparative fault ignores the jury's findings of

fault and thereby amounts to a violation of its right to a jury

trial under the Seventh Amendment. Under current law, however, a

defendant forced to pay more than its share can recover against its

codefendants for contribution based on the jury's findings of

fault. Thus, the jury's findings are adhered to. This system

simply forces the defendants to work it out between themselves and

ensures the plaintiff that he will in fact recover the judgment.

Ideally, the end result with or without joint and several liability

is the same.

VI.

Coats' cross-appeal does not raise any grounds for reversal.

First, we affirm the district court's summary judgment ruling that

Coats was not a Jones Act seaman. The determination of seaman

status is "an inherently factual question." Barrett v. Chevron

U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) (en banc).

"Nonetheless, if the requisite proof is absent, a court may decide

that seaman status is lacking as a matter of law." Kerr-McGee

27 Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1335 (5th Cir.

1987). Seaman status is a jury question only if there is evidence

that (1) the plaintiff was "assigned permanently to a vessel . . .

or performed a substantial part of his work on the vessel" and (2)

the work he performed assisted the vessel in accomplishing its

mission or contributed to the function or maintenance of the

vessel. Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir.

1959). The requirement of assignment to a vessel also includes

assignment to "an identifiable fleet of vessels." Braniff v.

Jackson Ave.--Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir.

1960).

Because Coats was not permanently assigned to a vessel and did

not perform a substantial part of his work aboard a vessel, his

seaman status turns on whether he worked aboard a fleet. A fleet

is "an identifiable group of vessels acting together or under one

control." Barrett, 781 F.2d at 1074. Although we have decided

that the employer need not be the owner or operator of the group of

vessels, Bertrand v. International Mooring & Marine, Inc., 700 F.2d

240, 245 (5th Cir. 1983), we have "reject[ed] the notion that fleet

of vessels in this context means any group of vessels an employee

happens to work aboard." Barrett, 781 F.2d at 1074. In New v.

Associated Painting Servs, Inc., 863 F.2d 1205, 1208 (5th Cir.

1989), plaintiff, like Coats, worked for an independent contractor

that assigned its employees to perform jobs for owners and

operators of various vessels. He performed sandblasting and

painting aboard vessels owned by at least eight unrelated entities.

28 He was injured aboard a semi-submersible drilling rig owned by one

of these entities and sued his employer under the Jones Act. Id.

at 1207 We affirmed the summary judgment denying seaman status,

because the vessels plaintiff worked aboard were not under common

ownership or control. Id. at 1208. See also Langston v.

Schlumberger Offshore Servs, 809 F.2d 1192, 1194 (5th Cir. 1987)

(plaintiff who performed jobs for ten unrelated owners aboard

fifteen different vessels not a seaman). Likewise, the vessels

Coats worked on were owned by the customers of MIS. MIS did not

own or control these vessels. Therefore, the district court

correctly determined that Coats did not work on a fleet.

Second, by failing to include the transcript of trial in the

record, Coats has waived his contentions regarding the sufficiency

of the evidence to support the jury's finding of contributory

negligence and the directed verdict for Penrod and MIS on the issue

of punitive damages under general maritime law. Rule 10(b)(2) of

the Federal Rules of Appellate Procedure requires an appellant who

intends to argue that a finding or conclusion is unsupported by the

evidence or contrary to the evidence to include a transcript of all

relevant evidence. Fed. R. Civ. P. 10(b)(2). Defendants' appeals

only pertain to pre-trial rulings of law and therefore neither

needed the trial transcript for its arguments, and they did not

order it. Therefore, Coats was required to include the transcript

to challenge the jury's finding of contributory negligence and the

directed verdict. Because the transcript is not in the record, we

cannot consider these arguments.

29 Third, Coats has also waived his claim for prejudgment

interest. Prejudgment interest may only be awarded for past

damages, but Coats did not request a segregation of past and future

damages in the jury interrogatories. See Brister v. AWI, Inc., 946

F.2d 350, 362 (5th Cir. 1991).

We finally consider whether the district court abused its

discretion in failing to award certain costs to Coats. Coats

submitted a Bill of Costs for $34,405.25, and the Clerk taxed that

amount against defendants. After defendants moved the court to

review the taxation of costs, the court agreed that the costs were

excessive and instructed the parties to attempt to reach a

compromise on a lower amount. After their efforts to compromise

failed, the district court awarded $7,889.04. Coats contends for

an additional $23,937.34.

Rule 54(d) of the Federal Rules of Civil Procedure provides

for an award of costs "to the prevailing party unless the court

otherwise directs." Fed. R. Civ. P. 54(d). 28 U.S.C. § 1920

defines recoverable costs,14 and a district court may decline to

award the costs listed in the statute but may not award costs

14 28 U.S.C. § 1920 lists

(1) fees of the clerks and marshals; (2) fees of the court reporter for any and all of the stenographic transcript necessarily obtained for use in the trial; (3) fees and disbursements for printing and witnesses; and, (4) fees for exemplification and copies of papers necessarily obtained for use in a case; (5) docket fees under § 1923 of this title; (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses and costs of special interpretation.

30 omitted from the list. Crawford Fitting Co. v. J.T. Gibbens, Inc.,

107 S. Ct. 2494, 2498 (1987). "Only when a clear abuse of

discretion is shown can an award of costs be overturned." In re

Nissan Anti-Trust Litigation, 577 F.2d 910, 918 (5th Cir. 1978);

see also Fogleman, 920 F.2d at 285-87.

Coats claims an additional $1,179.14 for the cost of

obtaining transcripts of several depositions. Under § § 1920(2)

and (4), prevailing parties are entitled to the costs of original

depositions and copies if "necessarily obtained for use in the

trial." We do not require that a deposition be actually introduced

into evidence to meet this requirement.

If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Similarly, a deposition copy obtained for use during trial or for trial preparation, rather than for the mere convenience of counsel, may be included in taxable costs. Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. We accord great latitude to this determination.

Fogleman, 920 F.2d at 285. The district court awarded $3,548.45

for depositions it determined, as stated in its order, to be

necessarily and reasonably obtained in preparation for trial.

Coats has not demonstrated that the district court's determination

of which depositions were necessary was a clear abuse of

discretion.

The district court denied Coats' request for travel expenses

in the amounts of $711.69 and $642.35, $1,744.96 for "blow-ups"

used at trial, and $1,175.00 in video technician fees incurred for

31 video depositions. These expenses are not included in § 1920 and

therefore are not recoverable.

Coats seeks payment of a witness fee, $87.50, and expert fee,

$1,232.65, for an expert who attended trial but did not testify as

a result of the court's directed verdict and $3,298.84 for a

foreign law expert. Because the expert witness did not testify, we

find no clear abuse of discretion in the refusal to tax the witness

fee. Additionally, expert fees are not recoverable. See 28 U.S.C.

§ § 1821, 1920; Crawford, 107 S. Ct. 2494.

Coats also claims $518.65 for certified copies of various

documents and the cost to photocopy certain documents attached to

depositions in the amounts of $1,831.73 and $121.88. The cost of

these copies may be taxed if the copies were "necessarily obtained

for use in the case." 28 U.S.C. § 1920(4). The district court

awarded $3,045.63 for copies and exemplifications it determined, as

stated in its order, to be necessarily and reasonably obtained. We

will not disturb the court's determination of which copies were

necessary.

Finally, Coats claims an additional $11,392.95 for the "[c]opy

cost of pleadings, correspondence and documents necessary due to

defense counsel's 'paper war.'" According to Coats' Bill of Costs,

almost all of this amount covers "in-house" copying. We cannot

judge the necessity of these expenses without a more specific

statement. In any event, the district court was in the best

position to assess the equities of the alleged "paper war."

AFFIRMED.

32 DeMOSS, Circuit Judge, dissenting:

I am unable to concur with the decision of my colleagues

in one crucial respect: I think proper evaluation of the

Lauritzen-Rhoditis factors requires that the choice of law

determination in this case be made in favor of the law of the

United Arab Emirates (UAE) rather than that of the United States.

My differences with the panel on the Lauritzen-Rhoditis choice of

law factors involve the first factor, i.e. the place of the

wrongful act; the fourth factor, i.e. the allegiance of the

defendant ship owner; and the fifth factor, i.e. the place of the

contract.

Looking first at the place of the wrongful act, the panel

opinion devotes one sentence to analysis of this subject. It

recognizes that "the accident occurred in the territorial waters of

the United Arab Emirates" and that since this is a "nontraditional

maritime case," that factor is entitled to considerable weight.

There is no doubt that Coats was injured while on board the Penrod

69, a jackup drilling rig owned and operated by Penrod Drilling

Corporation (Penrod). Where the Penrod 69 was at the time of the

accident is ambiguously stated in the panel opinion. In the opening

paragraph, the rig is described as being "off the coast of the

United Arab Emirates," but later on in the factual description, it

is described as being "located in the Port of Mina Saqr in the

territorial waters of the United Arab Emirates." In my judgment

there is a crucial difference between being "off the coast" and

being "in port," for the latter necessarily implies that the vessel was within the boundary recognized for international law purposes

as the boundary of the United Arab Emirates and within what would

be referred to under United States nomenclature as the "inland

waters" of Ra's Al Khaymah, the particular emirate in which that

port is located. We are talking about the Penrod 69 being within

inland waters of Ra's Al Khaymah just like we would talk about it

being within the inland waters of the State of Texas if it were in

the Port of Galveston or within the inland waters of the State of

Mississippi, if it were it the Port of Biloxi. Secondly, the

Penrod 69 had been in these inland waters for some eight or nine

months prior to the date of Coats' injury. The records are clear

that on August 12, 1987, the Penrod 69 was surveyed for its annual

condition certificate; and at that time, the survey report

indicates that the "vessel lay jacked-up" in this port. The Penrod

69 was out-of-service, deactivated, not operated, and not occupied

by any personnel other than a watchman, up until January 1988, when

as a result of a new contract for its use in a Persian Gulf

drilling activity, Penrod commenced the task of preparing Penrod 69

to go back into service. During this interval that it was

deactivated, the Penrod 69 functioned solely as an artificial wharf

or dock for the purpose of storing the equipment and facilities

thereon, with its legs standing on the bottom of the port and its

hull up out of the water. In accomplishing the refurbishing work,

Penrod used its own personnel (assumptively the crew of the Penrod

69) and other categories of "contract labor, catering, and service

personnel." MIS was hired by Penrod to assist in the refurbishing

34 work and MIS designated Coats to operate the MIS pump which was

brought on board to provide pressure to test certain pressurized

systems of the rig. The daily reports as to the personnel working

on board the rig, which are in the record, reflect that the totals

of contract labor, catering, and service personnel always exceeded

the number of Penrod personnel. The record does not clearly

indicate whether on the date of injury, April 12, 1988, the Penrod

69 was still in a "jacked-up" position, or whether its hull had

been lowered into the water. Obviously, if it was still at a

jacked-up position, its categorization as a "vessel" is in serious

doubt. Even if it had been lowered into the water, however, the

nature and extent of the work going on, and the number of outside

personnel deployed in such work, clearly demonstrate that the

repair and refurbishing activities were beyond the capacity of the

"crew" of the Penrod 69 to accomplish; and that such work could be

accomplished only with the ready availability and access of shore-

based personnel and facilities. In my view, under these facts, the

"place of the wrongful act" element of the Lauritzen-Rhoditis

factors should be given more than just "considerable weight" as the

panel does. It should be the controlling factor in the choice of

law decision. I have looked for and have been unable to find any

Supreme Court decision or Fifth Circuit decision which has applied

United States law to resolve the claim of a shore-side worker

injured while assisting in the refurbishing of a jacked-up drilling

rig while it was located within the inland waters of another

nation; and in my opinion the panel decision constitutes an

35 unacceptable extension of United States law into areas where simple

comity among nations requires that the law of the place of the

casualty apply.

My second area of disagreement with the panel regarding the

Lauritzen-Rhoditis factors concerns the factor of allegiance of the

defendant shipowner. I do not quarrel with the panel's

determination that the allegiance of Penrod as owner of the Penrod

69, is to the United States. But, in my view, the factor of

"allegiance of the defendant shipowner" has materiality only in the

circumstance where the flag of the vessel and the allegiance of the

defendant shipowner are different (i.e. the flag is a flag of

convenience), and the law of the nation of allegiance of the

defendant shipowner can appropriately be applied to the

determination of rights between that shipowner and his seaman

employee when that vessel is engaged in international commerce. In

this case, however, the allegiance of the defendant shipowner is an

inconsequential factor: first, because Penrod 69 is documented

under the United States flag and Penrod's allegiance is to the

United States and there is no flag of convenience involved; and

secondly, and more importantly, because both the district court and

the panel opinion recognize that there was no employment

relationship as seaman, or otherwise, between Penrod and Coats.

The majority's use of the allegiance of the defendant shipowner to

tip the scales in favor of application of United States law would,

in my judgment, be improvident even if the only defendant in this

case were Penrod; because that factor should be applied only where

36 there is an employment relationship between the injured plaintiff

and the defendant shipowner. But, Penrod is not the only defendant

in this case; and the other defendant, MIS, is not a shipowner; it

is an entity whose allegiance is owed to the laws of the United

Arab Emirates; and it is in fact the employer of Coats. I am truly

puzzled by the statement of the panel opinion that the allegiance

of a MIS is "diminished somewhat" because it has no employees from

the UAE and a large percentage of its employees are from the United

States. When, where, and how did the "allegiance" of a corporate

entity come to be determined (or "diminished") by consideration of

the citizenship or nationality of its employees? Does a

corporation owe "allegiance" to any nation other than the nation

which created it? Would the panel say that a corporation organized

under the laws of the state of Delaware is not truly a Delaware

corporation for purposes of our diversity law unless most of its

employees are from Delaware? I have looked and have not found any

Supreme Court or any Fifth Circuit decision which has applied

United States law to determine the rights and obligations between

a citizen of the United States who is injured in a foreign country

during the course and scope of his employment with a corporate

entity organized under the law of that foreign country. In my

judgment, the panel opinion improvidently extends United States law

to the set of circumstances involved in this case by giving greater

weight to the allegiance of the defendant shipowner instead of to

the allegiance of the defendant employer.

37 Finally, I question the correctness of the panel decision in

evaluating the place of contract factor in the Lauritzen-Rhoditis

analysis. Here again, the majority misconstrues the significance

of this factor. I recognize that Coats was recruited by

representatives of MIS at his home in Mississippi and that the

basic terms of his employment agreement were negotiated and orally

agreed upon during this recruitment visit. However, it is clear

beyond doubt that he was recruited and "employed" to work in the

United Arab Emirates and not aboard any vessel. Furthermore, it is

clear that in order to get the necessary visa to enter the United

Arab Emirates, Coats and MIS "executed an Arabic contract," and

that Coats then applied for and received the necessary work permit

from the UAE which would permit him to reside there during his

employment. This circumstance of a work permit is a special factor

present in this case which has not been present in any of the other

choice of law cases cited in the majority opinion; and, in my view,

necessitates a determination that the law of the UAE should apply

to an injury occurring in the UAE during employment under a work

permit.

In his original appellee's brief, Coats argued: "U.S. Maritime

Law applies whenever a U.S. citizen is injured on a U.S. flag

drilling vessel anywhere in the world." (p. 52). The cases cited

by Coats as precedent for that proposition do not support his

assertion. But the majority opinion in effect arrives at the same

conclusion by misinterpretation and misevaluation of the Lauritzen-

Rhoditis factors. Because I think such a conclusion is bad law

38 under the facts of this case, and will produce undesirable effects

when applied as a precedent, I would reverse the district court's

judgment and remand the case to the district court for retrial in

accordance with the laws of the United Arab Emirates.

In arriving at this result, I rely on the following line of

Fifth Circuit cases: Chiazor v. Transworld Drilling Co., Ltd., 648

F.2d 1015 (1981); Zekic v. Reading & Bates Drilling Co., 680 F.2d

1107 (1982); Bailey v. Dolphin Intern., Inc., 697 F.2d 1268 (1983);

Koke v. Phillips Petroleum Co., 730 F.2d 211 (1984); Schexnider v.

McDermott Intern., Inc., 817 F.2d 1159 (1987); and Fogleman v.

Aramco, 920 F.2d 278 (1991). All of these involve "nontraditional"

vessels similar in nature and function to the Penrod 69 and all of

which determined that the law of another nation, other than the

United States, applied.

c:br\opin\92-7278.dis 39