Texas Supreme Court grants mandamus petition to dismiss wrongful death action on forum non conveniens grounds where incident occurred on oil rig in Singapore waters

Paul Merema (“Paul”), an Australian citizen, was a contract worker on the oil rig ENSCO 104 in the
territorial waters of Singapore. He was killed when a valve assembly malfunctioned. Singapore
authorities investigated the incident. Paul’s employment contract through Total Marine Services (TMS) provided that the laws of Western Australia applied, and any dispute was to be resolved through arbitration in Perth, Western Australia.

Paul’s widow, Margaret Merema (“Merema”), filed suit in Australia against TMS. She also sued the
owner of the oil rig and its parent company (jointly “ENSCO”) in Dallas, Texas. ENSCO moved to dismiss the Dallas case based on forum non conveniens because none of the alleged negligent acts occurred in Texas. The trial court denied ENSCO’s motion. The court of appeals denied ENSCO’s mandamus request. ENSCO then filed for a writ of mandamus with the Supreme Court of Texas.

The Supreme Court of Texas, in a per curiam opinion, conditionally grants the mandamus because the
trial court abused its discretion by failing to dismiss the case based on forum non conveniens.

As for the procedure, the Court notes when a motion to dismiss on forum non conveniens is erroneously denied, an appeal is not appropriate, but mandamus relief.

In Texas, a statute lists the factors to be considered by a trial court in ruling on forum non conveniens:

“If a court of this state, on written motion of a party, finds that in the interest of justice and for the
convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:”

“(1) an alternate forum exists in which the claim or action may be tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to
the moving party;

(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise
jurisdiction over all the defendants properly joined to the plaintiff’s claim;

(5) the balance of the private interests of the parties and the public interest of the state predominate in
favor of the claim or action being brought in an alternate forum, which shall include consideration of theextent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.”

“TEX. CIV. PRAC. & REM.CODE § 71.051(b). The word ‘shall’ in the statute ‘requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas.’” [311 S.W.3d 924]

The Court then proceeds to apply the factors to the case at bar. ENSCO argues that either Australia or
Singapore offer an adequate forum for this case. Merema responds that ENSCO was attempting to
obscure by lumping Australia and Singapore together as potential forums. The Court disagrees. Section 71.051 does not require the designation of one specific forum when there are several available forums.

A forum is inadequate if the remedies it offers are so unsatisfactory that they provide no remedy at all. Merema further argues that ENSCO should have explained the trial procedures of Australia and
Singapore to show that they are adequate. The Court again disagrees. Comparative analysis of
procedures in different forums is generally not appropriate in a forum non conveniens analysis. Such
exercises involve complicated analysis in comparative law, and should only be used if the potential
forum offers no remedy at all.

The Court then reviews the third factor, whether litigating the case in Texas would work a substantial
injustice to the moving party, ENSCO. Here, the Court agrees with ENSCO. The lack of compulsory
process in Texas for the majority of the foreign witnesses is substantially unjust.

Also, the fact that ENSCO has a suit pending against TMS in Australia mandates dismissal, because it is more convenient to resolve all claims in one trial.

The fourth statutory factor, whether the alternate forum has jurisdiction over the defendants, weighs in favor of ENSCO, as all defendants have agreed to submit to jurisdiction in either Singapore or Australia.

The Court then turns to the fifth statutory factor, the balancing of the public and private interest factors.

“A consideration in this balancing is the extent to which Paul’s death resulted from acts or omissions
that occurred in Texas. ... Private interest considerations include ease of access to proof, availability and cost of compulsory process, and other practical problems that make trial easy, expeditious, and
inexpensive. ... ENSCO points out that in this case relevant documents and potential witnesses are
located around the world. For example, the investigating officials and employees of the shipyard are in Singapore. Paul’s family, a psychologist who provided services after the incident, and TMS and its
employees are located in Australia. ... Of the twentynine men assigned to work on the ENSCO 104 at the time of the incident, twentyone were TMS employees and all but two of the men on duty at the time of the incident were citizens of Australia or New Zealand, as were three of the four men who witnessed the incident. ... Even if some witnesses are located in the United States, the fact remains that compulsory process is unavailable for the vast majority of witnesses. See TEX.R. CIV. P. 176.3. Similarly, although Merema asserts that copies of documents located in Australia and Singapore can be shipped or sent by email, that fact does not cure the problems and difficulties posed by the lack of compulsory process to secure production of the documents and other evidence. ...”

“Aside from the fact that compulsory process is unavailable to compel the majority of witnesses to
appear in Dallas County or to require production of documents, the practical problems that make trial
easy, expeditious, and inexpensive must be considered. ... The physical evidence is in storage in
Singapore and onboard the ENSCO 104, which was operating off the shores of Malaysia when the trial court rendered its decision and off the shores of Australia when ENSCO filed its brief. This evidence is under ENSCO’s control, but ENSCO presented evidence that the cost of airfare from Singapore or Australia to Dallas was approximately five times the cost of airfare between Australia and Singapore.

Travel time between Australia and Singapore was five hours compared to over twenty hours for travel between Australia or Singapore and Dallas. ... The cost, time, and scheduling difficulties to obtain evidence and present witness testimony would be far greater if the case were tried in Texas.”

“Another consideration in the fifth factor is the extent to which Paul’s death resulted from acts or
omissions that occurred in this state. TEX. CIV. PRAC. & REM.CODE § 71.051(b)(5). Merema asserts that she need not prove that Paul’s death resulted from acts or omissions occurring in Texas by a preponderance of the evidence, but that she need only make a prima facie showing that it did so. She claims her burden was fulfilled by evidence that actions and inactions of ENSCO corporate management led in part to Paul’s death. Merema relies on a statement in a report produced by TMS entitled ‘Human Factors Investigation into the fatality that occurred on board the jackup rig ENSCO 104 on 23 April 2005.’ [...]”

“We disagree with Merema’s premise as to her burden of proof. The forum non conveniens statute does not place the burden of proof on either party. To the extent evidence is necessary to support a party’s position, the trial court must base its decision on the greater weight of the evidence. ... Here, Merema has not identified any corporate policy linked to Paul’s death, and the report on which she relies states that if safety practices were not being performed, failure to comply was possibly due to a lack of commitment from ENSCO shore management. ENSCO presented uncontroverted evidence that persons addressed by the report ‘rig management and shore management’ were employed by a separate corporation located in Singapore and landbased personnel were based in Singapore and Australia. Accordingly, the report is no evidence that Paul’s death resulted from an act or omission that occurred in Texas.”

“The public interest factors to consider in determining the fifth factor include administrative difficulties related to court congestion, imposition of jury duty on citizens who have no relation to the litigation, local interest in having localized controversies decided at home, and trying the case in a forum that is at home with the law that governs the case. ... But as previously noted, Merema did not offer evidence that the ENSCO defendants’ actions or omissions in Texas contributed to Paul’s death. Nor did she identify any other Texans who have an interest in the case. The case involves an injury that happened in Singapore’s territorial waters on a Liberianflagged vessel to an Australian citizen employed by an Australian company. ...Further, the fact that the trial court has jurisdiction over the defendants because their offices are in Dallas is a separate issue from whether the case should be dismissed on forum non conveniens grounds. ...”

“Another consideration in determining the fifth statutory factor is whether Texas law will govern the
case. ... ENSCO and Merema disagree regarding what law will govern. ENSCO asserts that Merema’s claims are governed by the law of Australia or Singapore because those forums have the most significant relationship to the underlying incident. ... Merema counters that if the suit is maintained in Texas, the trial court will apply Texas law or the federal Death on the High Seas Act. See 46 U.S.C. § 30301. But Merema does not explain why Texas law would apply. The applicable law is determined in Texas by the Restatement’s ‘most significant relationship’ test. ... [RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 6, 145 (1971)]. The factors to consider in determining the applicable law for a tort case such as this are (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the residence, nationality, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. ... [RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2) (1971)]; see also TEX. CIV. PRAC. & REM.CODE § 71.031(c) (providing that in an action for the
death caused by actions outside the state, the court shall apply the rules of substantive law that are
‘appropriate under the facts of the case’). There is evidence of only one of these factors that points to
Texas: the residence, nationality, and place of business of ENSCO. And if Merema’s claim falls under the federal Death on the High Seas Act, a similar analysis applicable to maritime cases is required to
determine whether foreign law applies. ... Even assuming Texas law applies, however, all other public
interest factors favor dismissal of the case. ... We conclude that the fifth statutory factor weighs in favor of granting ENSCO’s motion.” [311 S.W.3d 9268]

Finally, also the sixth statutory factor counsels dismissal on forum non conveniens. Dismissal of this suit does not result in unreasonable duplication or proliferation of litigation. TEX. CIV. PRAC. & REM.CODE § 71.051(b)(6). If this case is dismissed, it may result in consolidation of this claim with other claims that are already pending in Australia.

The Court therefore conditionally grants the mandamus. The writ will issue if the trial court fails to
dismiss the case.

Citation: In re Ensco Offshore International Company, 311 S.W.3d 922 (Texas 2010).