CARREON v. CAL TEX PHILIPPINES INC

Reset A A Font size: Print

Court of Appeal of Louisiana,Fourth Circuit.

Sivirino CARREON, Bulig-Bulig Kita Kamaganak Association, Renato Asistorga, Pedro B. Sorima, Arnel N. Galang, Elsa Montiagodo, Erasto Maghacut, Isabel Magno, Lorita Acosta, Acebedo Violeta, Sabulao Faiyaz, Julieta Benaso, Escolastica Baldo, Jose Baguhin v. CAL-TEX PHILIPPINES, INC., Cal-Tex Petroleum, Corp., Cal-Tex Asia, Ltd., Cal-Tex Oil Corp., California Texas Oil Corp., Cal-Tex Philippines Petroleum Company, Inc., Cal-Tex Trading and Transport Corp., Steamship Mutual, et al.

No. 2004-CA-0809.

Decided: March 23, 2005

(Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge TERRI F. LOVE). Michael J. Maloney, Maloney, Martin & Mitchell, L.L.P., Houston, TX and Stevan C. Dittman, Gainsburgh Benjamin David Meunier & Warshauer, New Orleans, LA, for Plaintiffs/Appellees. John A. Bolles, Terriberry, Carroll & Yancey, L.L.P., New Orleans, LA, for the Steamship Mutual Underwriting Association (Bermuda) Limited. Donald R. Abaunza, William W. Pugh, III, Thomas P. Diaz, Liskow & Lewis, New Orleans, LA, and John A. Barrett, William R. Pakalka, Fulbright & Jaworski, Houston, TX, for Defendants/Appellants.

The Appellants/Defendants, CalTex and the Steamship Mutual Underwriting Association (Bermuda) Limited, appeal the judgment of the district court signed on January 27, 2004, reinstating the Appellees'/Plaintiffs' action in the Civil District Court Parish of Orleans.   The Appellees answered the appeal also raising error by the district court.   We affirm the judgment of the district court.

Facts and Procedural History

The instant case arises out of a massive collision that occurred on December 20, 1987, between a Philippine passenger ferry and a Philippine tanker in waters off the coast of the Republic of the Philippines.1

The procedural history is lengthy and complicated;  therefore, we reiterate only the significant procedural history in an effort to broach the issues on appeal.   On December 19, 1988, the plaintiffs filed suit in Civil District Court for the Parish of Orleans.   The district court conditionally dismissed the case under the theory of forum non conveniens and the plaintiffs filed their claims in the regional trial court in Catbalogan, Samar 2 .  The Catbalogan complaint was dismissed under the theory  of prescription.   Thus, the parties came before the Orleans Parish court again on the issue of forum non conveniens.   The district court once again conditionally dismissed the suit and urged the plaintiffs to intervene in a pending suit in Manila.   The Manila court denied the intervention at the same time that the plaintiffs were appealing to this Court their second conditional dismissal by the Orleans Parish court.   On January 9, 2003, this Court remanded the case to determine “what effect, if any [the July 2, 2002 Manila] Judgment has on its decision regarding whether this lawsuit should be dismissed on forum non conveniens ground.” 3  CalTex went on to argue that the judgment in Manila had no effect and the district court subsequently granted CalTex's exception of forum non conveniens on November 30, 2001.

The district court initially found that the case should be dismissed because “there is no more appropriate forum than the Philippines to adjudicate these claims, and no forum less appropriate than Louisiana.”   However, after further argument and pleading by both parties, the district court now concludes that the plaintiffs cannot find a foreign forum that will provide adequate remedy and for that reason the case must be reinstated in the Civil District Court for the Parish of Orleans.

Assignments of Error

CalTex assigned two assignments of error.   First it argues that the district court erred in concluding that Art. 123 of the La. C.C.P. permitted the plaintiffs to return to a Louisiana forum after they actively opposed their claims in the most convenient forum.   Secondly, that the district court erred in concluding that certain foreign claimants did comply with the district court's second forum non conveniens  dismissal when the petitioners filed and then actively opposed their own claims in what CalTex argues would have been a more convenient foreign forum.

The Steamship Mutual Underwriting Association (Bermuda) Limited (hereinafter “Steamship”), argues that the district court erred in reinstating “those plaintiffs whose intervention was denied by the Manila Trial court” after it ruled twice that the courts of Louisiana had no interest in their claims and dismissing their action on forum non conveniens grounds.

In light of the issues presented for review by CalTex and Steamship, this Court finds that the sole issue on appeal is whether the district court erred in reinstating the plaintiff's claim in the Civil District Court for the Parish of Orleans based on the evidence. After thorough review of the record, we find no abuse of discretion by the district court for the reasons that follow.

Standard of Review

 The standard of review in this case is whether the trial judge abused her discretion.   The abuse of discretion standard of review is appropriate because La. C.C.P. art. 123, which treats forum non conveniens, permits-it does not mandate-that a case be transferred if certain conditions are fulfilled.   This gives the trial judge the discretion to grant the motion to transfer or not, and we review whether or not that discretion was abused.   A.O. Smith Corp. v. American Alternative Insurance Corp., 2000-2485 (La.App. 4 Cir. 12/27/00), 778 So.2d 615, 619;  Piper Aircraft Company v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981);  Karim v. Finch Shipping Company Ltd., 265 F.3d 258, 2001 A.M.C. 2618 (5th Cir.9/5/01);  Cantuba v. American Bureau of Shipping, 2001-1139 (La.App. 4 Cir. 2/13/02), 811 So.2d 50.

Louisiana C.C.P. Art. 123, forum non conveniens, reads in pertinent part:

 A.  For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court's own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought ․

B. Upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated upon acts or omissions originating outside the territorial boundaries of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice ․

C․ The court may further condition the judgment of dismissal to allow for reinstatement of the same cause of action in the same forum in the event a suit on the same cause of action or on any cause of action arising out of the same transaction or occurrence is commenced in an appropriate foreign forum within sixty days after the rendition of the judgment of dismissal and such foreign forum is unable to assume jurisdiction over the parties or does not recognize such cause of action or any cause of action arising out of the same transaction or occurrence.

Argument

CalTex argues that there is no connection between Louisiana and the instant case.   It further argues that the district court was correct in its November 30, 2000, Reasons for Judgment when it concluded that Philippine law was more appropriate to settle this matter.   CalTex's main argument centers around the lawsuit filed in Catbalogan which CalTex argues was done in secrecy.   CalTex alleges that only through the secret filing of the suit could the claimants “acquiesce in their dismissal, allow the time for reconsideration to lapse, allow the time for appeal to lapse, and then wait a few more months so that no defendant could challenge the result”.   We find this argument unconvincing.

 CalTex further argues that the petitioners actively opposed their own claims in Manila in an effort to have them dismissed and that this constituted “sabotage.”   Specifically, CalTex claims that the petitioners sabotaged their own Motion to Intervene in the Manila court by failing to provide support for the motion and failing to advise the Manila court of the previous dismissal in Catabalogan.   We find that the record reflects that the petitioners accurately filed their motion in accordance with the appropriate law.   We also find that there is no harm in the petitioner's efforts to seek another forum to litigate.   The record does not reveal any wrongdoing or ill filings on the part of the petitioners that warrants the label of “sabotage” or deceit.   There is little merit to this argument.

Steamship contends that the district court ruled in favor of the plaintiffs as a last resort.   Steamship relies on In re Air Crash, Disaster Near New Orleans, La., 821 F.2d 1147, 1166 (5th Cir.1987), which concluded that the plaintiff can reinstate his suit “in the alternative forum without undue inconvenience or prejudice and that if defendant obstructs such reinstatement in the alternative forum that plaintiff may return to the American forum”.   Steamship maintains that the defendants did not obstruct the petitioners from filing in a foreign forum nor did the defendants attempt to evade the litigation at any time.   It argues that In re Air Crash supports its theory that the petitioner's right to reinstate is not absolute when they acted in an unreasonable or unwarranted matter so as to prejudice their right to proceed in the Philippines and that they should have forfeited their right to reinstatement.

Steamship further contends that the identity of the plaintiffs in the instant case is the main factor in determining whether the forum is correct.   The plaintiffs, however, are an array of individuals totaling approximately 2060 claimants.    Steamship contends that the claimants are divided into three categories;  one group of 76 claimants that Steamship argues has no interest and that their claims have prescribed;  one group of 555 claimants and another group of 1492 claimants who Steamship maintains should file as paupers in Manila because they do not “deserve revival” in Orleans Parish.   We are of the opinion that the argument as to whether the claimants have standing is an issue for the district court only after we determine that the forum is proper.

Legal Analysis

For the purpose of our legal analysis, we adopt the language of the district court in its Reasons for Judgment:

 The doctrine of forum non conveniens presupposes that a plaintiff has an adequate and an available remedy at law in the foreign forum before dismissal can be considered.  Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).   An alternative forum is considered available if the entire case and all parties can come within its jurisdiction.   Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir.2003).   An alternative forum is adequate if “the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court.”  Vasquez at 671, citing Gonzalez v. Chrysler Corp., 301 F.3d 377, 380 (5th Cir.2002).   If a court with subject-matter jurisdiction over a claim and personal jurisdiction over the parties summarily dismisses a claim because the forum was a less convenient forum than some other venue, its ruling would violate due process if no adequate and available remedy were to exist in a foreign forum.  Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947);  Piper Aircraft v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981);  Vasquez, 325 F.3d 665 (5th Cir.2003).

 By enacting Louisiana Code of Civil Procedure article 123, the Louisiana legislature guaranteed the right of return jurisdiction should the foreign forum not provide an adequate or available remedy.”

 Twice the district court ordered the conditional dismissal of the plaintiff's case.   The plaintiffs complied with the order of the district court by filing their claims in Manila and Catabalogan.   Each judgment provided for the reinstatement of the case in the Civil District Court for the Parish of Orleans should the Philippine courts choose not to accept jurisdiction.   While the instant case proves complex procedurally, we cannot conclude that the district court abused its discretion by reinstating the claims of the plaintiffs, especially when the district court clearly rendered its judgments with this possibility in mind.   With the affirmation of the judgment of the district court, we leave for that court to delve into who the proper parties are and whether or not they have standing, an issue too ripe at this time.   We also discredit the argument that the plaintiff's actions were unethical and that they actively sought to have their claims dismissed in one forum for unprincipled reasons.

This Court understands that these claims have been filed in Texas, Manila, Catabologan and Louisiana, however, we are not in a position to opine where the parties are best situated, we are only in a position to determine whether the district court was abusive in reinstating the claims of the petitioners, and the record reveals that it was not.

Answer to Appeal

 In an Answer to the Appeal by the Appellees, the petitioners argue that the district court erred when it modified the January 27, 2004 judgment on February 20, 2004.   They claim that the district court erred by reinstating only those  claimants whose intervention was denied in Manila;  by not prohibiting any of the defendants from reurging a forum non conveniens exception at any time in the future and by not authorizing the intervening claimants in the Manila lawsuit to dismiss the motion to intervene that they had previously filed in the Philippines.   In their Answer, the Appellees pray that the February 20th 2004, judgment be reversed in part and that CalTex and Steamship be ordered to pay the costs incurred by the petitioners.   Our review of the record indicates that the Appellees' Answer has no merit, especially in light of the fact that they offer no legal analysis in an effort to support their claims.

Decree

For the reasons stated herein we affirm the judgment of the district court reinstating the claims of the petitioners in the Civil District Court Parish of Orleans.

AFFIRMED.

Although I agree with the result reached by the majority, I write separately to explain my reasoning.

This case arises out of a December 20, 1987 collision between two Philippine vessels, the M/V DONA PAZ and the M/T VECTOR, that occurred in Philippine waters.   The M/V DONA PAZ-a passenger ferry operated by Sulpicio Lines, Inc., a Philippine corporation-was transporting thousands of passengers.   The M/T VECTOR-a tanker operated by Vector Shipping Corp., a Philippine corporation-was transporting petroleum products pursuant to an afreightment contract between Vector Shipping and Caltex Philippines, Inc., a Philippine corporation.   About five thousand Philippine citizens died in the collision, spurring lawsuits by their family members in both the Philippines and the United States.    Ultimately, suits were filed in two Philippine provinces, Manila and Catbalogan, and two states, Texas and Louisiana.

On December 8, 1988, this suit was commenced in Civil District Court for the Parish of Orleans (the “CDC Suit”).   The plaintiffs in this suit are twelve Philippine citizens, one Philippine association, and an asserted class of otherwise unidentified claimants.1  The defendants in this suit are the owners of the two vessels, Sulpicio Lines, Inc., and Vector Shipping Co.;   the alleged charterers of the M/T VECTOR, who are identified as Caltex related entities; 2  and the insurer of the M/V DONA PAZ, Steamship Mutual Underwriting Association (Bermuda), Ltd. (“Steamship Mutual”).   Plaintiffs, however, requested that service of the petition be withheld.   Indeed, plaintiffs did not request service on any defendant in this suit until December 1993.   Moreover, the petition has never been served on the two vessel owners.

In December 1990 (before they were served with the petition), two of the defendants, Steamship Mutual and Sulpicio Lines, Inc., removed the CDC Suit to federal court.   In September 1990, the federal court remanded the suit to state court.   From September 1990 until December 1993 (when plaintiffs requested service be made on Caltex), the CDC Suit was dormant.   During this time, plaintiffs pursued virtually identical suits in Texas courts.

In December 1989, plaintiffs filed suit in the County of Harris, Texas.   In February 1990, that suit was removed to federal court.   In June 1990, the Texas federal district court dismissed that suit on forum non conveniens grounds.   In August 1990, while the appeal from that decision was pending, a second suit was  filed in Harris County.   In January 1991, that suit was removed.   In July 1991, that suit was consolidated with the first Texas suit.   In March 1992, the Texas federal district court granted Caltex's motion to dismiss on forum non conveniens grounds, finding that the Philippines was the proper situs for the litigation and that the Philippines provided an adequate, available forum.

In 1991, two major tort suits were commenced before Branch 39 of the Regional Trial Court of Manila, Philippines;  in 1992, a third suit was commenced in Manila, and it was consolidated with the other two suits (the “Manila Consolidated Cases”).   These suits remain pending.

In December 1993, plaintiffs requested the CDC Suit be served on Caltex.   In January 1994, Caltex removed the suit to federal court.   In May 1994, the Louisiana federal court remanded the case to state court.   Caltex then filed a motion in Texas federal district court seeking injunctive relief against the plaintiffs pursuing their claims in any American court.   The Texas federal district court denied that motion and the federal Fifth Circuit affirmed, concluding that “the dismissal on f.n.c. [forum non conveniens ] grounds in this case, whether designated as ‘with prejudice’ or ‘without prejudice,’ cannot serve as the res judicata foundation for a later injunction against the Louisiana state proceedings.”  Baris v. Sulpicio Lines, Inc., 74 F.3d 567, 570 (5th Cir.1996)

For the next few years, the focus of the CDC Suit was on discovery aimed at establishing personal jurisdiction over the defendants in Louisiana.   Indeed, the plaintiffs filed a first supplemental and amended petition in October 1998 to allege contacts between Caltex and New Orleans.

In 1999, the Louisiana Legislature amended La. C.C.P. art. 123 to broaden the forum non conveniens doctrine in this state.3  In December 1999, defendants  (Caltex's and Steamship's) filed a joint motion in which they informed the trial court of this recent amendment to La. C.C.P. art. 123 and requested a status conference to discuss the pending forum non conveniens exceptions.   In April 2000, a status conference was held, and in September 2000, a hearing was held.

On November 30, 2000, the trial court granted defendants' forum non conveniens exceptions.   Tracking the language of La. C.C.P. art. 123, the judgment required the defendants to file a waiver of any defense based on prescription that had matured since the commencement of the Louisiana action and indicated that the court would enter a conditional judgment of dismissal upon receipt of that waiver.   Caltex and Steamship complied with that condition.   In its reasons for judgment, the trial court noted that “[t]his case cries out to be heard in the Philippines ․ it is where the accident occurred, where the witnesses and plaintiffs reside, where the defendants have previously litigated cases arising from the accident and the plaintiffs have claims pending against all defendants.”   The court denied plaintiffs' motion for new trial.

In May 2001, plaintiffs filed a timely appeal with this court from the trial court's decision.   However, that appeal was dismissed on joint motion of the parties and remanded to the trial court so evidence could be presented to the trial court regarding the actions plaintiffs had taken in the Philippines during the pendency of that appeal.

On March 6, 2001, plaintiffs filed a complaint in the regional trial court in Catbalogan, Samar;  the defendants were neither served with nor informed of this suit.   In connection with that complaint the plaintiffs filed a Certificate of Non-Forum Shopping in which they averred that all of the U.S. defendants had waived  prescription. On March 28, 2001, the plaintiffs' Catbalogan complaint was dismissed as prescribed.   On July 4, 2001, Caltex filed a motion for reconsideration of that dismissal, which was denied by the Catbalogan court on September 4, 2001.   In its reasons for denying the motion to reconsider, the court stated:

The defendants need not be served with Court processes or orders. They were not served with summons together with a copy of the complaint.   This is a peculiar case where the dismissal of the complaint hurts the defendants.   There is no violation of substantial justice as the law allows the Court to dismiss a complaint which are [sic] patently without jurisdiction.   As in this case, the cause of action has prescribed and it will be useless for the court to entertain either the defendant, the plaintiff or any person for that matter.

Although the Catbalogan court acknowledged that the plaintiffs had certified that all U.S. defendants had waived prescription, it found that this was “․non-availing since the new provision of Rule 9 is mandatory in nature as can be seen from the use of the word “shall” in the provision.”

On September 24, 2001, plaintiffs filed a motion to reinstate their claims in the CDC Suit, citing the Catbalogan court's dismissal of their action.   In their motion Plaintiffs quoted from new Rule 9 referred to above.   That rule provides that “when it appears from the pleadings or evidence on the record that ․ the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.”   According to plaintiffs, this new rule precluded the waiver of prescription in the Philippines.   Citing the return jurisdiction provision of the court's first dismissal order and La. C.C.P. art. 123, plaintiffs requested the court reinstate their claims.

Also on September 24, 2001, Caltrex filed in the CDC Suit a Motion to Dismiss the Plaintiffs' Claims.   Caltrex claimed that plaintiffs did not “commence” a proceeding in the Philippines but rather commenced a “secret” lawsuit and attempted to “sabotage” their claims” in the Philippines.   Alternatively, Caltex  requested the court order plaintiffs to file their intervention in the Manila Consolidated Cases, which were scheduled to be heard on May 14, 2002.

On March 21, 2002, a status conference was held, and the trial court ordered that “[i]n accordance with La. C.C.P. Article 123(C), the defendants are ordered to file within 10 days of the notice of Signing of this Judgment a waiver of any defense based upon prescription that has matured since the commencement of the action in Louisiana.”   The court further stated that upon receipt of that waiver it would enter a conditional judgment of dismissal.   On March 27, 2002, the trial court entered that judgment, which reads:

[T]his matter is dismissed conditionally, the plaintiffs claims to be brought in the Regional Trial Court in Manila.   This dismissal is conditioned upon allowing for reinstatement of the same cause of action in the same forum in the event a suit on the same cause of action or on any cause of arising out of the same transaction or occurrence is commenced in an appropriate forum within sixty days after the rendition of the judgment of dismissal and such foreign forum is unable to assume jurisdiction over the parties or does not recognize such cause of action or any cause of action arising out of the same transaction or occurrence.

The trial court further ordered plaintiffs to file their intervention or petition in the Manila Consolidated Cases well before the May 14, 2002 hearing.   The trial court's reasons for judgment state that “[t]he Regional Trial Court in Manila is a venue where all plaintiffs can seek redress.   It is infinitely more convenient to the plaintiffs.”

Plaintiffs then filed an appeal with this court.   While that appeal was pending, the Manila court on July 2, 2002 denied plaintiffs' intervention.   The Manila court found it was bound by the Catbalogan court's earlier dismissal of plaintiffs' claims as prescribed.   Plaintiffs then filed with this court a motion to supplement the record on appeal with a copy of the Manila court's July 2, 2002 judgment.   Plaintiffs argued that the Manila court had refused to assume jurisdiction over their claims, so the July 2, 2002 judgment from Manila was  relevant to the issue of whether or not dismissal of their claims on forum non conveniens grounds is appropriate.

Because the Manila court's judgment was rendered after the trial court issued its March 27, 2002 judgment, we concluded that it is inappropriate to supplement the record with the Manila court's judgment, which was unavailable to the trial court at the time its decision was rendered.   Citing La. C.C.P. article 2164 and the special circumstances presented, we found that judicial economy required a remand to allow the trial court the opportunity to review the July 2, 2002 Manila court judgment and render a new ruling after determining what effect, if any, this foreign judgment has on its decision regarding whether this lawsuit should be dismissed on forum non conveniens grounds.

On remand, Caltex filed a motion to rule that the Manila court's order had no effect on the court's conditional dismissal of the suit on forum non conveniens grounds because plaintiffs' procedural maneuverings intentionally deprived Caltex of a Filipino forum.   Caltex further argued that good faith is a requirement for a conditional forum non conveniens dismissal and that plaintiffs' bad faith vitiates any right to return to a Louisiana forum.   Plaintiffs countered that they fully complied with the trial court's order and were entitled to have their claims reinstated under La. C.C.P. art. 123 because they was no other forum available to them.

On January 27, 2004, the trial court rendered judgment reinstating plaintiffs' claims.   In its reasons for judgment, the trial court stated:

While the actions of Plaintiffs in both Catbalogan and Manila give the Court pause, this Court finds that Plaintiffs complied with this Court's orders in a difficult situation.   Both the first and second orders of dismissal of this Court provided for reinstatement of the case in the Civil District Court for the Parish of Orleans should a Philippine court refuse to accept jurisdiction over it.   Subsequent to the first dismissal, Plaintiffs filed their claims in the regional trial court in Catbalogan.   This venue was in the locale where the victims lived, boarded the ferry, and nearest to the site of the disaster.   Plaintiffs then filed a  proper motion to intervene in a Manila case following this Court's second dismissal order.   At the time of the Manila intervention, Plaintiffs were appealing the conditional dismissal for forum non conveniens.   Accordingly, Plaintiffs were put in the difficult position of asserting one position in Manila and another with the Fourth Circuit.   Regardless of position taken by Caltex, Plaintiffs have complied with the orders provided by this Court.

Because the doctrine of forum non conveniens presupposes the existence of an available foreign forum, and no other forum would entertain plaintiffs' claims, the trial court found reinstatement was appropriate.   However, the trial court granted the defendants' motion for partial new trial, and imposed the following three limitations on its order reinstating plaintiff's claims:

1.  The Court's January 27, 2004 Judgment reinstates only those plaintiffs whose intervention was denied by the Manila trial court (the “Intervening Plaintiffs”), not the more than 3,800 plaintiffs with cases pending in the Manila trial court;

2.  The Court's January 27, 2004 Judgment does not prohibit any defendant from re-urging a forum non conveniens exception in the event circumstances change in the Philippines (such as the Manila intervention being permitted);  and

3.  The Court's January 27, 2004 Judgment is not intended to authorize the Intervening Plaintiffs to dismiss their motion to intervene filed in the Manila proceedings.

On appeal, defendants contend the trial court erred in reinstating plaintiffs' claims under La. C.C.P. art. 123.   In support of that contention the defendants argue that a good faith requirement should be engrafted onto this provision.   Because, they argue, the plaintiffs were not in good faith in their efforts to have their claims heard by the courts in the Philippines, the trial court should not have reinstated plaintiffs' claims.

The argument, however, ignores the fact that the Philippine courts did not base their dismissal of plaintiffs' claims on any actions or assertions by the  plaintiffs' counsel.   The Philippine courts dismissed plaintiffs' claims because they were prescribed, and, under Philippine law, prescription may not be waived 4 .

Given these circumstances, I agree with the majority's finding that the trial court did not err in enforcing the return jurisdiction provision its conditional dismissal and reinstating plaintiffs' claims.   I also agree with the majority's finding that the trial court did not err in granting defendants' motion for partial new trial and imposing the limitations it imposed.

For these reasons, I respectfully concur.

FOOTNOTES

1.   The facts are undisputed by the parties and detailed in Carreon v. Cal-Tex Philippines, Inc., 02-1307 (La.App. 4 Cir. 7/9/03), 854 So.2d 400.

2.   Claims were also filed in Texas.   A complete procedural history of the Texas litigation can be found at Baris v. Sulpicio Lines, 74 F.3d 567, 567-70 (5th Cir.), reh'g granted, 101 F.3d 367 (5th Cir.1996), cert. denied, Steamship Mut. Underwriting Ass'n v. Baris, 520 U.S. 1168, 117 S.Ct. 1432, 137 L.Ed.2d 540 (1997), and Caltex Petroleum Corp. v. Baris, 520 U.S. 1181, 117 S.Ct. 1460, 137 L.Ed.2d 564 (1997).

3.   Carreon v. Cal-Tex Philippines, Inc., 02-1307 (La.App. 4 Cir. 7/9/03), 854 So.2d 400 at 402.

1.   Although the CDC has been pending since 1988, the asserted class has never been certified.   Although shortly after the collision an attempt was made to bring a class action in the Philippines, that attempt was unsuccessful.

2.   These Caltex related entities are:  Cal-Tex Philippines, Inc.;   Cal-Tex Petroleum Corp.;   Cal-Tex Asia, Ltd.;   Cal-Tex Oil Corp.;   California Texas Oil Corp.;   Cal-Tex Philippines Petroleum Company, Inc.;   and Cal-Tex Trading and Transport Corp. (hereinafter the Caltex entities are referred to for ease of reference collectively as “Caltex.”)   Caltex Corporation, the parent corporation of Caltex Philippines, is a Delaware corporation.   Although Caltex Corporation's present principal place of business is in Singapore, at the time of the collision its principal place of business was in Irving, Texas.

3.   As amended, La. C.C.P. art. 123 permits a court to dismiss an action without prejudice when:  (1) the claim is based on acts or omissions originating outside the state, (2) a more appropriate forum outside the state exists, and (3) the plaintiff is not domiciled inside the state.   1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise:  Civil Procedure § 3.8 (2003 Supp.). However, before the trial court dismisses the suit, the court must require the defendant waive any defense based on prescription maturing after the commencement of the Louisiana action in the event suit is refiled in an appropriate foreign forum within sixty days of the dismissal.  Id. The court may condition the dismissal of the suit on the foreign forum's assuming jurisdiction and recognizing a cause of action arising out of the same transaction or occurrence.  Id.

4.   Although the plaintiffs' withholding service of the Louisiana suit for over five years while they pursued their claims in Texas contributed the fact that almost a decade passed between the collision and the forum non conveniens exception, the defendants must share some responsibility for the long delay.   As the federal court noted, defendants were not totally without fault in that they attempted to remove the case to federal court in 1990.  Baris, 74 F.3d at 574.

 DENNIS R. BAGNERIS, SR., Judge.

MURRAY, J., concurs and assigns reasons. LOVE, J., concurs for the reasons assigned by Judge MURRAY.