Sawicki v. K/S STAVANGER PRINCE

802 So. 2d 598, 2001 WL 1557833
CourtSupreme Court of Louisiana
DecidedDecember 7, 2001
Docket2001-C-0528
StatusPublished
Cited by62 cases

This text of 802 So. 2d 598 (Sawicki v. K/S STAVANGER PRINCE) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sawicki v. K/S STAVANGER PRINCE, 802 So. 2d 598, 2001 WL 1557833 (La. 2001).

Opinion

802 So.2d 598 (2001)

Andrezj SAWICKI
v.
K/S STAVANGER PRINCE and Assuranceforeningen Skuld.

No. 2001-C-0528.

Supreme Court of Louisiana.

December 7, 2001.
Rehearing Denied February 1, 2002.

*599 Richard J. Dodson, Kenneth H. Hooks, III, Law Office of Richard J. Dodson, Baton Rouge, Counsel for Applicant.

David B. Lowton, Kenneth J. Gelpi, Jr., Michael M. Butterworth, Laurence R. De-Buys, IV, Terriberry, Carroll & Yancey, New Orleans, Counsel for Respondent.

CALOGERO, Chief Justice.[*]

Subsection A(2) of Louisiana Revised Statute 23:921 is a provision which, in part, prohibits enforcement of forum selection clauses contained in employment contracts or collective bargaining agreements unless the clause is "expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action." La.Rev.Stat. 23:921A(2) was enacted in 1999, after this court rendered its decision in Lejano v. K.S. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158.

*600 We granted this writ to determine whether the portion of La.Rev.Stat. 23:921A(2) concerning the enforcement of forum selection clauses is applicable to a cause of action which accrued prior to the amendment. We answer that question in the affirmative, finding that the portion of subsection A(2) concerning the enforceability of forum selection clauses is procedural in nature and should be applied retroactively. The lower courts, however, failed to apply La.Rev.Stat. 23:921A(2) to the forum selection clause at hand, and hence, issues of material fact remain as to whether the clause is enforceable under that statute. We therefore remand the matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Andrezj Sawicki, is a resident and citizen of Poland. For three consecutive years, beginning in 1993, he worked aboard the M/V Stavanger Prince, a Norwegian flag vessel, owned by a Norwegian partnership (KA Stavanger Prince), and operated by a Norwegian Company (DSD Shipping AS). This lawsuit stems from an event which occurred on board the M/V Stavanger Prince, on January 14, 1995.

On that date, Sawicki was working aboard the vessel which at the time was located approximately 30 miles off the coast of Galveston, Texas. While attempting to remove and replace the engine cams of the vessel, one of the cams became stuck. Sawicki began tapping on it with a hammer, and a metal splinter struck him in his left eye, damaging his retina. He received treatment in New Orleans where surgery was performed to remove the metal splinter. Following the surgery, plaintiff was required to keep his head in a face down position for one month so that the retina could reattach.

After the injury, Sawicki's claim representative asked DSD Shipping AS to remit disability payments pursuant to a collective bargaining agreement (CBA). The CBA was not part of Sawicki's 1995 employment contract, but it was incorporated into the document by reference. Line 10 of the employment contract reads as follows:

wages/overtime pay and other conditions according to the collective agreement between ASO and POLISH SEAMEN UNION.

On August 26, 1996, DSD mailed a letter to Sawicki, indicating that the company had remitted $10,800.00 in disability compensation and that the payment was in accordance with the collective bargaining agreement. Plaintiff signed a receipt but did not sign an attendant release. At trial plaintiff testified that he understood the disability payments that he had accepted were pursuant to the collective bargaining agreement.

On January 13, 1998, Sawicki filed a Jones Act claim against K/S Stavanger Prince and its insurer, Assuranceforeningen Skuld, in Louisiana's thirty-fourth judicial district court, parish of St. Bernard. Jurisdiction in the Louisiana court was obtained by use of a non-resident writ of attachment on the M/V Stavanger Prince. On January 15, 1998, defendants posted a $750,000 bond and the vessel was released.

On February 11, 1999, defendants filed a motion for partial summary judgment, contending that plaintiffs claim should be dismissed by the Louisiana court because of a forum selection clause of the collective bargaining agreement. That clause reads as follows:

This agreement is subject to Norwegian law and the jurisdiction of the courts in Norway.
The contracts of engagement between the Company and the seafarers shall *601 have provisions which indicate that the contracts of employment are subject to Norwegian law and jurisdiction of Norwegian Courts. Legal action against the Company concerning an employee's service on board the vessel, may however, be brought either in the courts of Norway or in the courts of the country where the employee is domiciled.

Defendants argued that the clause required Sawicki to bring his claim either in Norway or in Poland (Sawicki's domicile) and, hence, suit was not proper in a Louisiana court.

On March 5, 1999, the district court granted defendants' motion and ordered plaintiff's action dismissed. Sawicki appealed, and the trial court judgment was affirmed. The court of appeal found that Sawicki was subject to the collective bargaining agreement and that the forum selection clause contained therein was enforceable under this court's holding in Lejano v. K.S. Bandak 97-0388 (La.12/12/97), 705 So.2d 158.

Plaintiff's writ application to this court was granted. In his appeal, Sawicki argues that the collective bargaining agreement which contains the forum selection clause is inapplicable to his claim and that even if the CBA does apply, the forum selection clause therein is not enforceable because of the 1999 amendment to La.Rev. Stat. 23:921A(2).

LAW AND DISCUSSION

Article III, § 2 of the United States Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction."[1] In 1789, the First Congress created United States district courts, giving them admiralty jurisdiction.[2] The current grant of admiralty jurisdiction to the federal courts is contained in 28 U.S.C. § 1333 which grants district courts subject matter jurisdiction over admiralty and maritime cases, "saving to suitors in all cases all other remedies to which they are otherwise entitled."[3]

28 U.S.C. § 1333 has been interpreted so as to require in rem actions to be brought in federal court while most other admiralty and maritime actions may be filed in either state or federal forums. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 452, 121 S.Ct. 993, 1003, 148 L.Ed.2d 931 (2001)("the saving to suitors clause does not reach actions in rem").

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