Chick Kam Choo v. Exxon Corporation – Oral Argument – March 30, 1988

Media for Chick Kam Choo v. Exxon Corporation

Audio Transcription for Opinion Announcement – May 16, 1988 in Chick Kam Choo v. Exxon Corporation

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William H. Rehnquist:

We’ll hear argument first this afternoon in No. 87-505, Chick Cam Choo v. Exxon Corporation.

Mr. Musslewhite, you may proceed whenever you’re ready.

Benton Musslewhite:

Thank you, Mr. Chief Justice and may it please the court:

At the outset I would like to try to articulate what I think is the crucial issue here, and that is where simply stated a federal court has dismissed a case on grounds of forum non conveniens and the Plaintiffs refiled in the state court; whether or not that federal court can then enjoin the state court despite the provisions of the anti-injunction statute?

Now having said that, I’d like to go into a little detail about the procedural facts involved here, because I think they’re important.

And particularly important for what was not decided in the original federal court action in the light of this Court’s decision in Atlantic Railway.

After the case was dismissed on grounds of forum non conveniens by the initial federal court and suit was filed in the state court, the Respondents removed to the federal court; the federal court, though, requested to do so by the Petitioners, to remand the case; and refused to remand; and again dismissed the case; and that was appealed; and the Fifth Circuit reversed that decision and ordered that the case be remanded.

Once the case was remanded to the state court, the respondents then went to the federal court in a new suit and got the permanent injunction, which is the basis of this hearing here.

Now, in the mean time, that went up on appeal to the Fifth Circuit; and while that was being done, there was another case proceeding out on the West Coast in the Ninth Circuit, called the Zipfel case, and the Fifth Circuit in this case, in a split decision held, that the injunction was proper under the relitigation exception, apparently… that’s the way I read the decision… because even though there was a difference between the Texas forum non conveniens law and the federal forum non conveniens law, the federal forum non conveniens doctrine pre-empted the state doctrine; and therefore, there was the basis for entering… issuing, the injunction.

Judge Reavley dissented and held that on the basis of Atlantic Coast Line and other Supreme Court decisions that that was not a proper decision, and those matters should be left to the state courts to decide; and that the injunction was not proper.

His dissent agreed almost foursquare with the unanimous decision of the Ninth Circuit in the Zipfel case which held that in a similar situation… also a maritime case, the injunction was improper.

Having said that, I’d like to as I said a moment ago, to point out what was not decided in the original federal court action: it was not decided that, as contended by… the Respondents and some of the amici briefs, that the case could not be tried anywhere in the United States; nor was it decided that it had to be tried in Singapore.

What was simply decided was that federal court would not accept a case on grounds of forum non conveniens; that that federal court did not feel that it was a convenient forum for the case; and imposed conditions so that, if the Plaintiffs wanted to, they could go to Singapore and have the case adjudicated there.

Antonin Scalia:

It was decided that Singapore law would apply, though wasn’t it?

Benton Musslewhite:

It was decided that American law would not apply, and the court’s discussion of that indicated that it felt Singapore law should apply.

Antonin Scalia:

Wasn’t there in the attempted state action a claim under state law filed?

Benton Musslewhite:

There was a contention under state law, the state wrongful death act.

Antonin Scalia:

Do you concede that that, at least, could be enjoined?

Benton Musslewhite:

No, Your Honor, I don’t because–

Antonin Scalia:

Why not?

That was decided by the federal court.

Benton Musslewhite:

–It was dismissed under forum non conveniens, that state law.

Antonin Scalia:

But the necessary predicate of that forum non conveniens decision was the determination that the governing substantive law was not the law of the United States.

Benton Musslewhite:

Was not that a federal maritime law?

Antonin Scalia:

Just federal?

Benton Musslewhite:

Just federal.

There was no decision that the state… they dismissed the state law claims on the grounds of forum non conveniens.

They did not decide that state law could not apply.

Antonin Scalia:

Didn’t they say that Singapore law governed?

Benton Musslewhite:

The court indicated that American federal maritime law did not apply, and in so-doing indicated that it felt like the foreign law would apply.

Benton Musslewhite:

That was the decision, but it did not–

Antonin Scalia:

It did say that foreign law applied?

Benton Musslewhite:

–That is the essence of the decision.

Antonin Scalia:

If that’s the essence of the decision, why can’t they enjoin the bringing of an action under the law of any of the United States?

Benton Musslewhite:

Well, because we’re getting into the forum non conveniens issue as it relates to choice of law, and really what we have here is a forum non conveniens issue and not choice of law.

Certainly the foreign law claims were not adjudicated.

That is, Texas has a statute, Justice Scalia, which allows a plaintiff to adjudicate its rights under foreign laws.

Antonin Scalia:

I’m not talking about that now.

I’m just talking about trying to bring an action saying after the federal court said Singapore law applies; that’s all been fought out; it’s been litigated; it’s been decided; then you try it again in state court, and we think state law should govern.

Federal court just said no.

Benton Musslewhite:

I would next concede that Defendants, or the Respondents in the state court action contend that that was collateral estoppel or directly estopped by the determination by the federal court, the first federal court, that Singapore law applied; and by implicitly rejecting the state law claim.

Antonin Scalia:

And if that’s so, the federal court could, if the other requirements of the discretionary judgment are met, could enjoin the bringing of that claim that is already determined by the federal court?

Benton Musslewhite:

No, Your Honor.

I would have to disagree on that.

I do not believe that the anti-injunction statute as construed by this Court in a number of cases, beginning with Atlantic Coast Line to Vendo Co. v. Lektro-Vend, and as recently as Parsons Steel.

I do not believe that under that doctrine a collateral estoppel or direct estoppel issue is the subject of an injunction of a relitigation statute.

Only cases as fully adjudicated upon the merits, as a revisors notes say, can be the basis of the injunction under 2283, and that’s what is the bottom line here, that there are certain collateral estoppel issues that can probably be successfully asserted in the state court action, which is where this belongs now.

But there are not issues, even though they might amount to direct estoppel or collateral estoppel, which could be the basis of an injunction under the relitigation section.

Byron R. White:

I suppose you are saying that, if there is an estoppel, that claim should be first made in the state court?

Benton Musslewhite:

That’s one thing.

Byron R. White:

–Wouldn’t you think, if the issue has been decided in the federal… if Singapore law applies, certainly Texas can’t apply it’s wrongful death statute?

Benton Musslewhite:

That would be true.

Byron R. White:

All right, so when the federal claims were dismissed in the state court, and you didn’t complain about that.

Benton Musslewhite:

The federal claims were dismissed; that was appealed but we lost.

Byron R. White:

So that just leaves the Texas claim.

Benton Musslewhite:

And the foreign law claims, Your Honor.

Texas has a statute that allows the Plaintiffs to bring the foreign law claims in the Texas courts and have those adjudicated.

Byron R. White:

Well, in any event, the defendants in the Texas courts could claim collateral estoppel?

Benton Musslewhite:

I think there is no question they could claim it.

Byron R. White:

Would they win?

Benton Musslewhite:

I would have to say that on the basis of the fact that the federal court, if the federal court decision is that clear… and I do not think it is that clear, Justice Scalia… there is no question there is intimations in that federal court judgment to the effect that they believe Singapore law should apply, and not American.

Byron R. White:

All right, so if the Texas courts rejected that collateral estoppel claim, it would come on up through the state courts and could get here?

Benton Musslewhite:

That’s right, Justice White.

I think that is–

Byron R. White:

You think the estoppel claim should win in the state court, if it was made?

Benton Musslewhite:

–Knowing the background of this case in this particular case, I do not think it should win because the court did not directly address that issue, even though, as I conceded to Justice Scalia, the first federal court did not say

“We’re now going to decide whether Texas’ wrongful death statute will apply to these claims. “

It just simply said federal maritime law doesn’t apply, and the reason we don’t think federal maritime law applies is because it appears to us that the federal law should apply.

William H. Rehnquist:

But you say whether the collateral estoppel claim would win or lose would not be the basis for an injunction under the Anti-Injunction Act?

Benton Musslewhite:

Exactly, Your Honor.

In your decision, in your opinion in Vendo v. Lectro-vend, you indicated that we should look to the pre Toucey cases because of the revisors notes refers to those cases when the 1948 amendment was enacted.

And in looking at those cases and I read every one of them, there’s not a single case that did not involve a complete adjudication on the merits of the case.

As a matter of fact, Justice Read, in his dissent referred to the complete adjudications.

Byron R. White:

Why didn’t you object to the dismissal of the federal claims?

Benton Musslewhite:

Well, we did.

We lost, Your Honor.

Byron R. White:

Well, I know.

Weren’t you… was that dismissal correct?

Benton Musslewhite:

I don’t agree with it, but it based the law.

It’s the law of the case.

Byron R. White:

If the federal court dismissed them because there wasn’t any… couldn’t be a federal claim if Singapore law applied?

Benton Musslewhite:

That’s true if federal–

Byron R. White:

It’s like a motion… you dismiss for failure to state a cause of action.

Benton Musslewhite:

–That could be construed, under Romero.

Romero indicates that that’s the way you construe that, when you find that federal maritime law does not apply, then it could properly be a dismissal for failure to state a claim.

Byron R. White:

And you don’t think that would be… you think you can retry that out in a state court?

Benton Musslewhite:

Well, the reason it couldn’t be a complete… they didn’t solve all the problems, Justice, we had the other claims there.

Byron R. White:

I know, but how about the federal claims?

Couldn’t the federal court enjoin the retrial or attempted retrial of the federal claims in the state court?

Benton Musslewhite:

Your Honor, I submit that they could not.

Benton Musslewhite:

I think that they would be successful, Justice White, going into the state court, raising the collateral estoppel or direct estoppel, as to the federal claims, I think the Respondents would be successful.

We concede.

Byron R. White:

Just like they would be on the state claims?

Benton Musslewhite:

Well, Your Honor, I would disagree on the state claim, there is a considerably more serious question there I concede because it was plead.

But foreign law was not plead in the original federal court claim, so I don’t think that there is any question that there is no estoppel, direct, collateral, or any other kind of res judicata against the foreign law claims being prosecuted in the state court.

Antonin Scalia:

Mr. Musslewhite, is it clear that the federal decision was not a decision on the merits with regard to the state claim and the federal law claim?

Benton Musslewhite:

It was a decision on the merits with regard to the federal law claim.

They held that the Jones Act… that the plaintiff was not a seaman.

That’s a decision on the merits.

Lewis F. Powell, Jr.:

Why isn’t the decision that there is no claim under Texas law, if they made that?

I understand you can test that whether that’s clear, but why isn’t that equivalently a decision on the merits?

Benton Musslewhite:

Because it’s a decision on the grounds of forum non conveniens.

They dismissed the state law claims and all other claims other than the federal maritime law claims on the forum non conveniens, Your Honor, without prejudice.

The Order says “without prejudice”.

So it cannot be a decision on the merits as I see it; and certainly it’s not the basis of an injunction under 2283.

It does not constitute that kind of an order that can be subject to a relitigation exception injunction.

At any event, what else was not decided in the case below was, and this is very important when we read Atlantic Coast Line, that the pre-emption question was not raised or decided in the federal court action.

Moreover, the state law forum non conveniens law, that is, what law would apply and what is a state law and how it would apply in this particular case, and whether or not the case would be appropriately dismissed on the grounds of forum non conveniens under state law was not raised or decided in the federal court action, the first original federal court action.

So that, when you read Atlantic Coast Line, the bottom line to all of it is, is that Atlantic Coast Line, as I respectfully read it, says, that unless issues are actually raised, cannot form the basis of the injunction on the basis of the relitigation section.

So these issues, not having been raise, as occurred in Atlantic Coast Line, the pre-emption question was not raised there; for the majority, the court held that the injunction was not proper; and the same thing would apply here.

And I think Atlantic Coast Line in that regard is pretty well dispositive of that issue.

Even if pre-emption could be the basis, and I say that even if a pre-emption had been raised, I don’t think pre-emption is the kind of thing when you read three decisions, that would be Vendo, Atlantic Coast Line, and Amalgamated Clothing Works.

All three of those cases speak very strongly about, and Chief Justice Rehnquist in his opinion in Vendo, said that whenever you have the question of pre-emption, or federal interest versus the Anti-Injunction statute, that federal interest pre-emption question must give way.

The Court will not sit and balance those matters; they’ll leave it to Congress.

And therefore, as stated in Atlantic Coast Line, pre-emption is not one of the exceptions to the anti-injunction statute, so that I think the Respondents are misplaced in trying to contend, as was Judge Gee in the Fifth Circuit that, on the basis of pre-emption, an injunction can issue.

I think it’s clearly contrary to those three decisions.

Byron R. White:

What do you mean by “pre-emption”?

Benton Musslewhite:

Well, the Respondents have contended, Justice White, that they concede there is a difference between the federal forum non conveniens law and the state forum non conveniens law, but that the reason that an injunction can issue is because the federal forum non conveniens law, such as the maritime case, pre-empts the state forum non conveniens law.

And that therefore an injunction can issue.

And I’m saying that–

Byron R. White:

So you think that… is that different than talking about estoppel?

Collateral estoppel, or res judicata?

Benton Musslewhite:

–It’s different, yes sir, it is.

I think that Chief Judge Brown of the Fifth Circuit says pre-emption does not equal res judicata.

It’s just… what I’m saying is they can’t bootstrap themselves into a res judicata type of situation which would justify an injunction under the relitigation section using the doctrine of pre-emption.

And that’s stated very foursquare by this Court on various occasions.

So I’m saying that, even if they had raised the issue exemption, the issue of pre-emption being the focal point of how they try to justify this injunction, this injunction must fall.

Now even if they had… if the pre-emption doctrine could be the basis of an injunction in other cases, and it could possibly have been in Atlantic Coast Line, it certainly could not be in a forum non conveniens case.

And there is a reason for this:

The main reason is that the test laid down for both the second and third exception to the Anti-Injunction statute, being in the second, in aid of jurisdiction; and the third being the relitigation exception, or to effectuate and preserve a judgment… is that the, in order for the injunction to be justified, the action in the state court must in some way interfere with the adjudication by the federal court?

Must “impair”, as I believe the term was used, “impair the adjudication” by the federal courts.

It’s hard for me to see how the state court action in this case could impair the federal court in adjudication of this matter when the federal court says we don’t want to adjudicate it.

We refuse to adjudicate it.

We’re dismissing it on grounds of forum non conveniens, and by using the test that was laid down, and I believe it was Chief Justice Rehnquist in the Vendo case said that test applies to both the second and third exception; and this was also discussed in Atlantic Coast Line.

That being the test, I don’t see how any injunction could be justified in this case because there is nothing in the state court action now that the federal court has said we don’t want to adjudicate this case; how it could be said that the state court action could in any way impair the right of the power of the federal court to adjudicate a case it doesn’t want to adjudicate?

So also, we believe that the doctrine itself, when you look at the Supreme Court cases, this Court’s cases on forum non conveniens.

And I’m speaking primarily of Missouri v. Mayfield and Parsons v. Chesapeake.

Missouri v. Mayfield is a very important case, in my opinion; the Respondents try to downplay it.

And it was an FELA case, not a maritime case; and it was not a 2283 case, Anti-Injunction case.

But what this Court held in Missouri v. Mayfield was that a state court has the right to have a doctrine of forum non conveniens if it wants to; it has a right not to have a doctrine of forum non conveniens if it wants to… which may very well be the Texas situation under it’s open forum statute; or it may have one and it’s criteria may differ from the federal criteria.

William H. Rehnquist:

But don’t you read Judge Gee’s opinion… which I realize you are challenging, as saying that in maritime cases such as this, a state doesn’t have the latitude that it might have in an FELA case, to have its own forum non conveniens doctrine?

Benton Musslewhite:

Well Your Honor, I go right to Justice O’Connor’s opinion in Talentire, and you talk about the savings to suitor clause, and I just do not believe and see that there is any way that there can be a pre-emption under uniformity or whatever, a reverse-Erie, of a forum non conveniens determination.

The Supreme Court, in describing what a forum non conveniens determination is in Missouri v. Mayfield and Parsons v. Chesapeake, has indicated quite clearly that each court has a right to decide what that doctrine is and decide it itself.

Now, all the cases I have read on the maritime pre-emption, Your Honor, have dealt with substantive rights, and Justice O’Connor has made that statement at least about four or five times in that opinion in Talentire.

And it seems to me that what this Court held in Talentire was that the savings to suitor clause is reserved to the state court’s right the right to proceed.

The right to the jurisdiction; the concurrent jurisdiction of handling maritime cases and admiralty cases.

And if you were to agree with the Respondents in this case, the savings to suitor clause would be wholly nullified, because Talentire said that the law, the law of the state, the substantive law of the state, must give way to the substantive law of the federal maritime law, and I can understand that.

But there’s nothing in Talentire and there’s nothing in any of the uniformity and pre-emption cases that indicates that a procedural doctrine like forum non conveniens can be th subject of pre-emption or reverse-Erie or uniformity.

So particularly is that true when you look at how the Supreme Court has described that doctrine in Missouri v. Mayfield and Parsons v. Chesapeake.

So that my answer is, that I believe that it does not pre-empt.

Benton Musslewhite:

But I go back to my point, Mr. Chief Justice, that even if it did not pre-empt, it cannot be the subject of an injunction under 2283.

William H. Rehnquist:

Those are two both different points.

Benton Musslewhite:

I understand.

Also, another reason that the forum non conveniens doctrine is not the kind of a doctrine that can be either pre-empted because it’s not substantive, or is not the kind of a doctrine that can be the basis of an injunction under the relitigation exception is, if you read this Court’s decisions in Piper v. Reyno and Gulf Oil v. Gilbert, we concede that this doctrine is a discretionary doctrine; is one that says, presupposes, that this case can be tried somewhere.

Byron R. White:

But I thought that one of the elements in forum non conveniens adjudication as Judge Gee said, is what law applies?

Benton Musslewhite:

It is a factor, and this Court stated in Piper v. Reyno that it’s a factor.

Byron R. White:

And accordingly, the federal court certainly held that United States law didn’t apply.

That Singapore laws apply.

And that part of its adjudication, it seems to me, I don’t know why that is not conclusive on the state court?

Benton Musslewhite:

I think it probably will be, Justice White.

But it has to be asserted in the state court.

It cannot be done with the injunction route, because–

Byron R. White:

I know, but I’m talking to your claim that forum non conveniens just isn’t one of those doctrines that can be a subject to pre-emption or preclusion or whatever you want to call it.

But if part of it is what law applies, and the federal court is deciding what law applies, it seems to me it is finding… you can’t relitigate that.

Benton Musslewhite:

–You probably can’t.

You certainly can’t, and I concede, you could not relitigate whether federal maritime law applied in the state court.

You could not relitigate it.

But that would be a matter for the state court to decide, and once they raise the issue of collateral estoppel and do it now.

William J. Brennan, Jr.:

What is the state law claim, is it a wrongful death claim?

Benton Musslewhite:

The state law claim is the wrongful death claim, Justice Brennan.

William J. Brennan, Jr.:

And if you could proceed with it, what law would apply?

Benton Musslewhite:

Well, if we could proceed with the state law wrongful death claim, the Texas state law would apply.

If we could not, then foreign law would apply, and under old Article 467871.031–

William J. Brennan, Jr.:

Then you’d have to prove what laws?

Benton Musslewhite:

–Then we would come in and try the case under Singapore law in the Texas state court, and the statute persists–

Byron R. White:

Under the Texas wrongful death statute?

Benton Musslewhite:

–It’s a statute adjunct to the law.

Byron R. White:

I know, but it wouldn’t be… your Texas wrongful death claim would be kaput.

It’s a substantive claim.

Benton Musslewhite:

Yes.

Benton Musslewhite:

But there is a part of that statute, Your Honor, or subsequent to it, adjunct to it, which talks about procedures, and it’s the one that is the open forum, Your Honor, which talks about… it gives a right–

Byron R. White:

So you would try to make a wrongful death claim under foreign law?

Benton Musslewhite:

–That’s one thing we’d feel comfortable–

William J. Brennan, Jr.:

You’d have to plead it, would you not?

Benton Musslewhite:

–Justice–

William J. Brennan, Jr.:

Would you not have to plead the wrongful death under Singapore law?

Benton Musslewhite:

–We did plead it in state court.

William H. Rehnquist:

Where did this accident take place and where do the Plaintiffs reside?

Benton Musslewhite:

The plaintiff is from Singapore and the accident took place in the harbor of Singapore where an American traditional blue-water vessel was there temporarily; at least it was owned by an American company through another company; and the Exxon Corporation; and it was there temporarily for repairs and Plaintiff, the decedent, was on this vessel to assist in repairs and was killed when a spindle fell through the deck onto his head.

William H. Rehnquist:

Texas really means what it says when it says “open courts”, then, doesn’t it?

Your Honor, that’s for the Texas legislature to say and I’m not going to sit here and criticize or not, but nevertheless, it has been, as Judge Gee states in the opinion, it appears based on what the Supreme Court of Texas commented in Katz v. Chevron that its intent is to allow its in personam jurisdiction to allow the matter to proceed through the Texas courts even though it may be on the basis of foreign law.

Mr. Musslewhite, I’m trying to understand what your contention with regard to the collateral estoppel effect of the federal court determination, if assuming it was made, and I understand you are not willing to concede it was, but assuming the federal court in the course of determining forum non conveniens, did decide that Singapore law applies; Texas law does not apply.

As I understand you, you say you can’t issue an injunction against the bringing of a Texas law action, because the federal decision was not a merits decision.

Had the federal decision been a merits decision, then you would be able to enjoin?

Benton Musslewhite:

Yes, sir.

Antonin Scalia:

Even though you’re not seeking to overturn the federal decision in the latter case; you’re just trying to relitigate one fact.

Let’s assume the federal decision was on some tort action under federal law and it decided that A did not hit B.

And then you bring a suit and the federal claim is dismissed… then you bring a suit in a state court, a totally different cause of action; a state cause of action; but it is essential to prove your case to show that A hit B.

Now, could that state proceeding be enjoined?

Benton Musslewhite:

That would, in my opinion, would have been a decision on the merits of the case and it could be.

Antonin Scalia:

It could be.

What difference… well, in both cases you’re just protecting the collateral estoppel effect of a matter that was fully litigated before federal court.

Why should you draw the line between the matter that was fully litigated resulted in a merits dismissal or a non-merits dismissal in order to determine whether you can prevent the collateral estoppel?

Benton Musslewhite:

But that’s just it, Justice Scalia, it was not fully litigated.

The issues under foreign law; the issues, I contend, under Texas law, weren’t fully adjudicated.

The case was dismissed on grounds of forum non conveniens.

What was fully adjudicated, we concede, was the Jones Act question, because the basis of that was the summary judgment on the grounds that he was not a Jones Act seaman.

Antonin Scalia:

Whether Texas law applies was fully-litigated.

That issue was fully-litigated, wasn’t it?

Benton Musslewhite:

Assuming that is correct as you stated, and I–

Antonin Scalia:

Yes, yes.

I understand.

Benton Musslewhite:

–proceed in arguendo, then it would have been fully litigated.

But the foreign law claim is not litigated, Your Honor and in Atlantic Coast Railway, within the context of 2283, that’s what this case is all about, not what the Texas court ought to do if these issues are raised before the Texas court, but whether or not the federal–

Byron R. White:

It would win on the foreign law claim anyway in the Texas court no matter what.

Benton Musslewhite:

–I believe so, Your Honor, but I concede that it was not an issue determined in the–

Byron R. White:

You concede that the state law claim would probably couldn’t go forward if the federal court decision was pleaded in the state court?

Benton Musslewhite:

–The reason I have some problems with an answer yes–

If it was pleaded in the–

–state court, but our position would be that the court did not directly address that issue.

The court, in order to have collateral estoppel, as I understand the doctrine, or direct estoppel, as Judge Gee described it, it must have been clearly adjudicated.

What the court really did is–

Byron R. White:

–You would say, though, even if that issue of the applicable law was clearly adjudicated, you would say that no injunction could issue; that you would have to plead it in the state court.

Benton Musslewhite:

–That is correct, that is correct.

That is what Atlantic Coast Line says.

That’s the way it proceeds.

That’s why under the principles of federalism, that you allow the state court to proceed and then after it proceeds the appeal can come up to the supreme court through the normal appellate processes.

I reserve my time to close.

William H. Rehnquist:

Thank you, Mr. Musslewhite.

We’ll hear now from you, Mr. Cooney.

James Patrick Cooney:

Thank you, Mr. Chief Justice, and may it please the Court:

I think it would be useful at this time to focus in on the situation in the state court as to exactly what law applied in the state court as to exactly what law applied following the federal dismissal, and then to consider what I think is the real issue here and that is the res judicata effect of the foreign non conveniens dismissal out of the federal court.

The federal court in dismissing the case held as has been admitted, the Singapore law applied and dismissed Jones Act Longshoremen and Harborworkers and OSHA, and conditioned the dismissal on the defendant making itself available in Singapore.

I think there is a real question as to whether Texas or any state claim that can still be in existence.

The facts of this case are very straightforward: a shipyard worker resident in Singapore died while employed by a Singapore shipyard working on a Liberian flag vessel which is admittedly indirectly owned by Exxon.

Byron R. White:

What about the foreign law claim?

James Patrick Cooney:

I think the foreign law claim… it’s difficult to see how the foreign law claim comes up, and certainly not in the context that Mr. Musslewhite suggests.

Byron R. White:

I know, but didn’t they plead a claim under foreign law in the state court?

James Patrick Cooney:

They claim under foreign law in the Texas wrongful death statute.

The section that we’re dealing with provides for foreign law claims.

James Patrick Cooney:

And the reason I raise the question, it may simply be a point of technicality, but as I understand Talentire, if it stands for anything, it says that state law cannot provide a wrongful death remedy, or even cannot augment a wrongful death remedy in a maritime situation, as a matter of a United States general maritime law, Singapore law applies.

That’s the choice of law decision.

Byron R. White:

So you claim the foreign law claim was just plead as a part of the Texas wrongful death?

James Patrick Cooney:

It is part of a Texas wrongful death claim, yes, Your Honor, because that was the statute that was invoked here.

Byron R. White:

It didn’t claim a right to recover under Singapore law?

James Patrick Cooney:

They claimed a right, but as I understand it, the right claimed was a part of–

Byron R. White:

Let’s assume it appeared in the complaint as a separate count, as a claim for damages of some sort under Singapore law.

That could have gone forward, couldn’t it?

James Patrick Cooney:

–That claim is alive, and that claim is subject to be adjudicated–

Byron R. White:

And it was not foreclosed by the federal–

James Patrick Cooney:

–Absolutely not.

And that’s the whole point of the forum non conveniens dismissal, yes Your Honor.

To the extent that it’s–

Byron R. White:

–So it’s alive?

James Patrick Cooney:

–Yes, Your Honor.

To the extent that it’s alive… it’s not.

To the extent that it’s alive in Singapore.

To give some history: the 1980–

Byron R. White:

I thought the injunction just forbade the Texas court going ahead at all?

James Patrick Cooney:

–Going ahead at all.

Here’s the procedural situation: in 1980 this case was dismissed as forum non conveniens.

No action was commenced in Singapore.

Instead an action was commenced in the courts of the State of Texas.

And we have taken the position here that the forum non conveniens dismissal in a maritime situation under the uniformity doctrine is binding on the state courts, and that this particular type of forum non conveniens dismissal constitutes more substantive determination, which essentially decides that the courts of this country are going to decide this issue because of international comity; because of the contacts of a foreign state; because the fact that the foreign state’s law applies under our general maritime law, it would be better to determine it in that fashion.

And so the federal court has decided to stay its hand.

Antonin Scalia:

Well, but did the federal court decide that law you just described?

James Patrick Cooney:

I believe that it did, Your Honor.

You know, it didn’t come out and say in bold letters in the judgment,

“This case shall be decided only in the courts of Singapore. “

But it did hold, number one, that the Singapore law applied, and it conditioned the forum non conveniens dismissal–

Antonin Scalia:

Well, it didn’t even say that in so many words, did it?

The magistrate said that it was the conclusion of the magistrate that the contacts do not warrant the application of federal maritime law of the United States to otherwise foreign transactions, that’s all it said, isn’t it?

James Patrick Cooney:

–I think it goes on to discuss, Your Honor, the fact that it appears to be controlled by the law of Singapore.

John Paul Stevens:

I don’t find that.

James Patrick Cooney:

I believe that it’s in there, Your Honor.

And specifically it conditioned the dismissal–

John Paul Stevens:

It says there are remedies available in the courts, in the Singapore courts.

James Patrick Cooney:

–Yes, and that was proved up in the district courts.

Thurgood Marshall:

What is the statute of limitations in Singapore?

James Patrick Cooney:

As it now stands, Your Honor, I am advised… I don’t know for a fact, that they have expired, principally because no litigation was commenced in Singapore in 1980 or 1981.

They, I think, have a six-year statute.

This case… this man died in 1977.

The case began in 1978 and has been going on a long time.

The narrow issue here, I think, is the propriety of the injunction; and that raises the question whether under the uniformity doctrine, a state court is bound to apply the same forum non conveniens doctrine that has developed in the maritime courts of this country following Gilbert and following Reyno.

I would suggest to the Court that this doctrine is somewhat different from the Gulf v. Gilbert and the Reyno decisions.

Both of those are diversity cases.

Gulf v. Gilbert in the decision admitted that it was drawing from maritime sources for the doctrine of forum non conveniens.

But I think the doctrine of forum non conveniens as it now stands in the federal courts as a maritime doctrine, is different, and it’s different in this respect: it is a hybrid.

It relies at least in part on this Court’s decisions in Lauritzen and Rhoditis, and Romero, where the Court specifically addressed the choice of law problem with regard to our Jones Act; with regard to our general maritime law, and addressed the problems of international comity.

The accommodations that have to restrain our courts and any court… any maritime court, from exercising its power to its fullest scope.

Antonin Scalia:

Federal court opinion didn’t cite any of these cases.

It didn’t get into this analysis, did it?

James Patrick Cooney:

Your Honor, it did cite Lauritzen, and Lauritzen was clearly briefed.

Antonin Scalia:

Did it decide this particular legal issue that you are now asking us to decide?

James Patrick Cooney:

I believe that it was at the genesis of this development, Your Honor, and let me put it this way: clearly the argument… in fact, at this time, there were cases on the books, and this determination in the district court can be interpreted to mean simply that once you made the Lauritzen… Rhoditis determination of choice of law, if it was not U.S. law, forum non conveniens automatically followed.

In years subsequent, the doctrine has become somewhat more developed, and is continuing to develop.

Antonin Scalia:

At this stage I am really less interested in whether it really follows.

It may follow as night the day; then I am interested in whether the federal court concluded that it followed.

So that the federal court has already decided this issue, we don’t have to wait for the state court to decide it first.

James Patrick Cooney:

The issue was presented to the federal court in that fashion.

James Patrick Cooney:

I think the briefs are in the Appendix; it was argued as a Lauritzen… Rhoditis; and admittedly in 1980 the next step, and that is whether a full-blown Gilbert analysis was necessary or whether simply a dismissal forum non conveniens once the choice of law matter was determined, was up in the air.

Admittedly the district court’s order is a little sketchy on this point, but I think when you look at the context of how the case was argued and submitted to the court, yes, indeed, Your Honor, I think that it was–

Sandra Day O’Connor:

Mr. Cooney, to repeat, you say that you argued to the district court that federal forum non conveniens determinations pre-empted state forum non conveniens determinations?

James Patrick Cooney:

–No, Your Honor, I’m not suggesting that.

I don’t think it was even necessary.

Sandra Day O’Connor:

You didn’t argue that; you just argued a traditional forum non conveniens argument?

James Patrick Cooney:

Under the maritime concept of forum non conveniens as it was then developing.

Sandra Day O’Connor:

So the pre-emption issue really hasn’t been litigated?

James Patrick Cooney:

I believe that it has, Your Honor.

I think starting with Jensen, the pre-emption issue is really the uniformity issue, and there is no pre-emption issue here.

It’s a question of whether a forum non conveniens decision made by a federal court in a maritime context is preclusive: does it constitute a res judicata… collateral estoppel binding effect on the state court, given the fact that the state courts under the fact that the savings to suitors clause, are bound to follow federal law.

That’s the whole essence of the uniformity doctrine.

The pre-emption cases that counsel alludes to are statutory pre-emption matters that are entirely different from the situation we have here.

Atlantic Coast Line, there was a strike down in Florida, a railroad strike.

That district court enjoined that court under federal law.

Subsequent to that injunction, as I understand it, another case held that state law under which an injunction had been obtained against the strike, was pre-empted under federal law, and immediately the parties went back to the federal district court and said,

“Give us an injunction to keep the state injunction from being enforced. “

I think that’s an entirely different situation.

William H. Rehnquist:

You go back to Amalgamated Clothing Workers v. Richmond, which Atlantic Coast Line reaffirms, and you have a flat case where the claim was the state court has no business in this area because these kinds of suits are pre-empted by the NLRA, and this Court said,

“that may be so, but you can’t enjoin it. “

James Patrick Cooney:

That’s right, Your Honor.

And absolutely–

William H. Rehnquist:

Then why is this case different?

James Patrick Cooney:

–A judgment: a judgment saying this case should be dismissed for forum non conveniens, and that is the very crux of the issue.

Without the judgment, I will readily admit a federal court could not issue an injunction to keep a state court from hearing any case.

In this situation, we have a judgment of a federal court saying that this case before us because of the contacts it has with a foreign nation, cannot be tried by a state court.

Thurgood Marshall:

You also said “without prejudice”?

That’s a very broad reading of the state law.

What do you think about “without prejudice” now?

James Patrick Cooney:

I think they had to say “without prejudice”, Your Honor, because without doing that there would be nothing left to try in Singapore.

James Patrick Cooney:

Let me give you… this was addressed by the–

Thurgood Marshall:

They could have said that.

They said “without prejudice”.

James Patrick Cooney:

–Yes, Your Honor.

And it had to be forum non conveniens dismissal just as say, a dismissal under the act of state doctrine is without prejudice.

William H. Rehnquist:

Why would a federal court have any business in a forum non conveniens motion before it saying that a state court has no jurisdiction to try this?

James Patrick Cooney:

Depending on what kind of forum non conveniens determination we’re making, Your Honor, following Gulf v. Gilbert, Congress passed 1404A, so that virtually any indigenous domestic forum non conveniens determination in the federal courts is now made on the basis of the transfer statute.

The only time forum non conveniens comes up in the federal context is in Piper v. Reyno type situations, where the question is should this federal court… is this the convenient forum, or is the convenient forum outside of the United States?

And I suggest to you that under the rubric of forum non conveniens we now have essentially two different problems that are being addressed and two different solutions.

One we have the ease in convenience problem… why try this case in Virginia when it’s easier to try it in Washington because that’s where everyone is?

Versus the case, as in this case, as in the Kassapas case, which decided an almost identical situation, but for injunction, out of the courts of Louisiana.

Antonin Scalia:

Mr. Cooney, I don’t think you’re answering the Chief Justice’s question.

I think he wanted to know why, in order to make its decision about whether this federal court was a convenient forum or not, that federal court would have had to address the question of whether a state court could go ahead.

It’s totally unnecessary to its decision… unlike, I might add, and I would wish you address more of your fire to that… unlike the decision of whether Texas law could apply… that I can understand was necessary to its forum non conveniens decision.

But I don’t see how it’s necessary for its decision to determine whether the state court could entertain this suit if it wanted to?

James Patrick Cooney:

Your Honor, I think it depends on the facts in the case and what we’re trying to do with forum non conveniens.

I think that there is… the federal court could have said,

“our dockets are crowded; it’s not convenient to try the case here; we frankly don’t care you try it; try it elsewhere. “

On the other hand, the federal court could have said,

“This is not governed by federal law; it’s governed by the law of another nation. “

“The contacts of that other nation are predominant; we do not believe that any court in this country should try the case; it should be tried in Singapore or in Nigeria or in Great Britain, or wherever. “

“And I think those are two different things. “

Antonin Scalia:

It might have said that.

It could have said it’s going to rain tomorrow too.

But it wouldn’t be necessary to its decision to dismiss the suit for federal forum non conveniens in the case before it.

James Patrick Cooney:

I think that it again depending upon what policy the court was addressing, it is in fact necessary, and perhaps logically necessary.

If we’re talking about an accommodation of the international concerns that were addressed in Lauritzen and Rhoditis, and to some extent in Piper v. Reyno.

To say that a court can sit down and decide that this case should not properly or suitably be brought or tried in the United States, and then refuse to give any meat to that decision, and allow a state court six blocks down the street to pick up the case completely nullifies what the doctrine is all about.

If we’re speaking–

William H. Rehnquist:

That suggests a forum non conveniens that is kind of almost a constitutional type thing, not just a doctrine of convenience as among federal courts.

James Patrick Cooney:

–Your Honor, I would suggest that we’re approaching that.

I don’t suggest that it is a constitutional thing.

I suggest, however, that it is in line with the concerns with the Court in Lauritzen.

It is a manner, or at least it is a device, and I think it is used by the maritime courts as a device to handle the accommodations that these courts think are necessary when cases that have absolutely no contact with the United States are brought here.

All that–

William H. Rehnquist:

Could I walk in… could I, as a defendant, walk into federal court and make a motion where the plaintiffs have filed action saying

“I want this dismissed for forum non conveniens and I want a declaratory judgment that the state court in Houston has no jurisdiction? “

Would a federal court entertain that sort of thing?

James Patrick Cooney:

–Well, in fact, in the Zipfel case, as I understand it, that’s about what happened, Your Honor, when they got their forum non conveniens dismissal, because there was already a state action pending in Texas.

This was out of a Ninth Circuit and Certiorari is pending in this case.

They requested the district court to enter an injunction at that time, and the injunction was entered and it was vacated.

And in fact this was a case joined to this one as a matter of conflict.

In that case, it was clear that an airplane accident had occurred in Indonesia; the operator of the airplane was an Indonesian, and as far as I can read that determination, the district court was contemplating that this was the kind of case that ought to be tried in Indonesia… not simply

“I am an inconvenient forum, or it’s going to be difficult for the parties before me to prosecute this case. “

A much more fundamental issue, Your Honor.

Thurgood Marshall:

I just have great difficulty seeing jurisdiction in the federal court decide what a state court can do on forum non conveniens?

James Patrick Cooney:

Well, Your Honor–

Thurgood Marshall:

I don’t think forum non conveniens can apply to any but that court.

Not only that, I don’t think it can decide if any other federal court… they only say “for this court”.

Is a forum non conveniens.

That’s all the court… any court… can say.

James Patrick Cooney:

–I would respectfully disagree on that on two grounds, Your Honor.

First of all, at least in this context–

Thurgood Marshall:

Straighten me out.

James Patrick Cooney:

–in this context a state court handling a maritime matter is acting pursuant to a savings to suitors clause, and is therefore bound by what has been referred to as the “reverse-Erie” doctrine or the ‘uniformity “doctrine”.

The second thing is, I think what has developed in Chiazor and Vaz Borralho and a number of cases in the Fifth Circuit–

Thurgood Marshall:

And this would be binding on the state court?

James Patrick Cooney:

–That’s right.

Thurgood Marshall:

By what jurisdiction… what statute… does that happen on?

Come on?

James Patrick Cooney:

It happens in this sense, Your Honor, and only in this sense: admittedly forum non conveniens is a discretionary tool; the district judge does not have to grant it.

Thurgood Marshall:

To protect its jurisdiction… and not somebody else’s?

You want it to protect somebody else’s too?

James Patrick Cooney:

No, I’m not after protecting the jurisdiction, Your Honor.

I simply–

Thurgood Marshall:

You want to protect the state court’s jurisdiction.

You want the federal court to protect the state court’s jurisdiction.

James Patrick Cooney:

–All I can say, Your Honor, that if a dismissal from a federal court contemplating further litigation in a foreign country is not binding on the state courts, at least in the maritime situation.

It’s a nullity.

And it does not accomplish the purpose that the courts were attempting to reach.

Thurgood Marshall:

It’s a matter of necessity.

That’s your theory?

James Patrick Cooney:

Not completely that, because I think there are good policy grounds for doing this.

Thurgood Marshall:

That the state court can’t protect itself?

James Patrick Cooney:

The state court in this instance, Your Honor, is a maritime court.

It is bound to apply the same law as the federal court.

We believe that it is also bound to apply the same forum non conveniens analysis that the federal maritime court is bound to apply.

If that’s the case; if that issue has already been decided, it’s a collateral estoppel, or a direct estoppel by judgment… that decision has been made, providing the objective facts do not change, as was found in this case… nothing changed.

This was not a decision made on the basis of overloaded docket or direct convenience to the parties.

And I think that the cases that have followed in the Fifth Circuit and this is perhaps the broader issue that we face here… and in other circuits, have moved towards the idea that once we decide U.S. law does not apply, that it is a matter of international comity, that a line has to be drawn.

If the uniformity doctrine does not apply, that same rule of decision to the state courts, so that the state courts are bound once a federal court makes a decision, then literally in a forum non conveniens context, of a foreign claim… I’m not talking about a U.S. claim here, but of a foreign claim, that if a federal court says,

“no, we won’t hear it. “

the plaintiffs are free to go from court to court until they find someone who will take it.

John Paul Stevens:

May I ask, Mr. Cooney, supposing a federal court had said there are a lot of factors that one looks at in your forum non conveniens determination, one of which is the law to apply.

And it analyzed the law and found that Singapore law and American maritime law were pretty much the same, and says,

“I’m really not certain about the law. “

It may well be that American law would apply.

“But nevertheless, I’m going to dismiss the complaint because all of the witnesses are in Singapore; the accident took place there; the plaintiff lived there; a lot of other reasons. “

And then dismissed on forum non conveniens grounds.

Would you make the same kind of argument here?

James Patrick Cooney:

I doubt I would unless–

John Paul Stevens:

Your argument depends entirely on the fact that there was a determination on the choice of law issue?

James Patrick Cooney:

–No.

It relies on an important part on that, but not entirely, Your Honor.

I think that’s an important component on what I would suggest is the developing hybrid concern.

The courts that the decisions that have gone in this direction to say these cases belong in courts other than the United States courts, rely on choice of law; the place of the accident… really a contacts analysis of what nation has the primary interest, if you will, or primary contacts with this particular piece of litigation.

And that, you know, is the situation here as a good example.

John Paul Stevens:

I’m still a little puzzled.

What is your answer to my question?

You would or would not make the claim that the federal court in the hypothesis I gave you could enjoin the state proceeding?

James Patrick Cooney:

If the federal court completely–

John Paul Stevens:

Say it says that American maritime law applies, or it’s the same as Singapore law, but all these other factors support a determination that–

James Patrick Cooney:

–I don’t think I have the same case, Your Honor.

John Paul Stevens:

–I know you wouldn’t have the same case, but would you have any case at all?

James Patrick Cooney:

I don’t think so.

I think if we say–

John Paul Stevens:

So your case does, then, rest entirely on the choice of law point?

James Patrick Cooney:

–I would disagree that it’s entirely on the choice of law point.

I think it’s that plus, you know, the circumstances of the case.

But certainly that, and I would have to say that, if you took the choice of law, the determination that foreign law applied, and said American law applied, I do not have my case and I would not be making the arguments that I’m making.

John Paul Stevens:

Why is it that you say a Texas court could not say

“we will… the Texas legislature couldn’t pass a statute saying, we will entertain causes of action based on Singapore law? “

James Patrick Cooney:

Your Honor, I think that they can, and that’s another question.

I think the narrow question here is whether after they have passed that statute, they are free to exercise that law given the federal determination.

John Paul Stevens:

The federal court determination is controlling in the case.

James Patrick Cooney:

It’s binding.

–The argument here–

John Paul Stevens:

Well, then why can’t Texas say,

“We grant the fact that we must apply Singapore law, but we’re willing to try the case and involve Singapore law? “

James Patrick Cooney:

–You see, I go one step further, Your Honor, and say that the forum non conveniens dismissal, once it has been made, is also binding on the state court because the state court has a savings to suitors maritime court is bound to apply the same law as the federal court.

John Paul Stevens:

Which is Singapore law.

Why can’t–

James Patrick Cooney:

No, not the forum non conveniens law, Your Honor.

Excuse me, I think we’re confusing the point.

John Paul Stevens:

–You’re saying that because it’s a maritime case the Texas court must apply precisely the same analysis that the federal court does in its forum non conveniens analysis?

James Patrick Cooney:

It must frame the issues under federal law as would be framed, and he must apply the same criteria… clearly it’s discretionary.

If he were looking at it initially, he perhaps could come to a… a state judge could perhaps come to a conclusion, but as in Pastewka, in the Third Circuit, once that determination is made, once that discretion has been exercise, an estoppel by judgment arises and that issue has been decided.

There is nothing left for the state court to decide.

John Paul Stevens:

Is the question whether an estoppel by judgment has arisen a question of federal law or a question of state law?

James Patrick Cooney:

In this instance it’s a question of federal law.

It would be a question of federal maritime law as to what effect a federal maritime court would give–

John Paul Stevens:

What is your authority for that?

James Patrick Cooney:

–I think generally, Your Honor, courts have the power, and I think there is a case in my brief though it does not come to mind immediately, that has the power to determine the effect of their own judgment, and that’s kind of an inherent power of the court.

I don’t think that it’s for the state court as a maritime court applying maritime law… it’s going to have to apply federal law also to determine what law applies.

John Paul Stevens:

I understand the determining the effect of its own judgment, but that freely is analytically different from the second court determining whether or not that judgment must be given res judicata or collateral estoppel affecting its court, and that’s what–

James Patrick Cooney:

That becomes the uniformity question, Your Honor, and that gets, I guess to the nub of this case, and that is whether the federal forum non conveniens law as a rule of decision is binding upon the state courts under the uniformity doctrine?

I don’t believe that that analysis involves pre-emption, as I have tried to make clear.

I think the pre-emption cases involve an entirely different circumstance.

This is a uniformity case and it’s a res judicata case.

Byron R. White:

–I still can’t get through my mind why you think the claim stated in the state court based on Singapore law would not go forward in that court?

James Patrick Cooney:

Absent the forum non conveniens determination?

Byron R. White:

No, no.

With it.

James Patrick Cooney:

Okay, well then, my answer simply is that the forum non conveniens determination is binding on the state court, and it is not–

Byron R. White:

Why is it binding on the state court?

James Patrick Cooney:

–Because its maritime law is binding on the state court.

Byron R. White:

So that’s a pre-emption?

It’s really a pre-emption–

James Patrick Cooney:

No, it’s a uniformity question, Your Honor.

I think there is a difference in determining what the res judicata effect or binding effect of a law–

Byron R. White:

–So you’re saying that it’s just a reverse Erie?

Yes, sir.

It’s a reverse-Erie question.

It’s a reverse-Erie question, so it’s a ruling on the merits?

James Patrick Cooney:

–Yes, and I think–

Byron R. White:

And it’s a substantive rule under maritime law?

James Patrick Cooney:

–It’s a substantive… yes, Your Honor, because if my analysis of what maritime forum non conveniens is, it fully adjudicates the case in the United States, subject to the conditional retention of the case, should it not go forward in the foreign forum.

John Paul Stevens:

Yes, but now you’re arguing that the determination on the choice of law issue isn’t all that important, and you gave me the exact opposite answer earlier.

James Patrick Cooney:

The choice of law argument, Your Honor, is a constituent… it’s a difficult situation.

Let me back up and try to give some background: up until very recently, at least in the Fifth Circuit, and in many of the circuits, the analysis for forum non conveniens was initially a two-step analysis, and first was doesn’t U.S. law apply under Lauritzen and Roditis?

If the answer to that is no, then you proceed to step two, which is the Gilbert v. Gulf.

Byron R. White:

Judge Clark thought that this was a pre-emption issue.

He said,

“I agree with Judge Gee that, if I have to follow his course, I agree with him that maritime law pre-empts. “

James Patrick Cooney:

I think that both Judge Gee and Judge Clark’s use of the word, “pre-emption” has been very unfortunate, and I regret it.

Byron R. White:

I would think so.

James Patrick Cooney:

It has given everyone an opportunity to focus on pre-emption, because–

Byron R. White:

And to rely on Atlantic Coast Lines.

James Patrick Cooney:

–And I don’t think this is a pre-emption case.

This is a reverse-Erie case.

This is a res judicata case.

Anthony M. Kennedy:

Counsel, if you do not prevail in your argument and these cases can routinely proceed in Texas courts, would federal district courts change their forum non conveniens determinations… and should they?

James Patrick Cooney:

Certainly they can.

I think what you would do is you would take the meat out of the forum non conveniens laws that now exist, in federal maritime courts.

And we’re having a lot of these cases.

This is not an isolated problem.

There are many of these cases coming up.

If we don’t win here, we go forward in state court, which means that the battle has been won in the federal courts.

The reason that the focus is now in the state courts is that the federal courts have accepted this doctrine; they are dismissing cases for trial overseas; they are issuing injunctions… this is not the only injunction.

Sandra Day O’Connor:

But there is a new federal statute affecting it, isn’t there?

James Patrick Cooney:

I’m not aware of the new statute, Your Honor.

Sandra Day O’Connor:

I thought one of the amicus briefs talked about a new federal statute?

James Patrick Cooney:

Oh, I think that it’s supportive of the policy behind this.

It does not directly solve this case.

Sandra Day O’Connor:

Well, it doesn’t apply to this one.

It was enacted later.

James Patrick Cooney:

And this was in response to this problem of foreign maritime workers coming to this country.

An amendment was passed to the Jones Act to specifically deprive them of Jones Act general maritime law remedies, again conditioning it upon the availability of the national or foreign forum, the non-U.

S. forum.

I would suggest to the Court that that pronouncement from Congress supports the policy underlying what has been developing in the non-oil worker cases… these are all offshore… this Amendment is specific to offshore oil workers.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Cooney.

Mr. Musslewhite, you have two minutes remaining.

Benton Musslewhite:

Thank you, Mr. Chief Justice.

I will try to be very brief.

William H. Rehnquist:

You don’t have much choice.

Benton Musslewhite:

I go to the question asked by Justice O’Connor that I think was answered very clearly, Justice O’Connor.

The pre-emption nor the state forum non conveniens issue, they were not raised in the federal court… the original federal court, and they were not decided.

Secondly, 688(b), I think is a good… not that you raised that point, is a good point to close on.

That was a comprehensive examination of this whole situation by Congress.

They did not provide for an injunction against state court proceedings in that law; no injunction is provided for in the “savings to suitors” clause; there’s no injunction that specifically covers this situation in the Anti-injunction Act, so I say it’s clear, we respectfully submit, that Congress did not intend to allow an injunction to be used in this kind of situation.

If there are no further questions?

John Paul Stevens:

Yes, I just have one question.

The magistrate’s recommendation was that your opponent waive any statute of limitations if the case was dismissed.

Did they do that?

Benton Musslewhite:

We never pursued our remedies in Singapore.

My client has instructed me to try to pursue the remedies in the state court, so we did not file suit in Singapore, so I cannot tell you whether they did or did not.

John Paul Stevens:

And you’re filing in the Texas court was within the limitations period, I take it, I gather?

Benton Musslewhite:

Yes, Your Honor.

We have a statute that says you can file within a certain number of days after it is dismissed out of federal court.

Benton Musslewhite:

If not any further questions–

William H. Rehnquist:

Thank you, Mr. Musslewhite.

The case is submitted.