Court of Appeal of Louisiana,Fifth Circuit.

LEJANO v. BANDAK

Feliciano LEJANO and Melinda Lejano v. K.S. BANDAK, et al.

No. 95-C-1011.

-- January 15, 1997

Before BOWES, GRISBAUM, and WICKER, JJ.

Richard J. Dodson, David C. Vidrine, Dodson & Vidrine, Baton Rouge and John J. Molaison,
Jr., W.J. LeBlanc, Jr., Molaison & LeBlanc Gretna and Arthur D. Dupre, Daigle, Sullivan,
Dupre & Aldous, APLC, Metairie, for Plaintiffs, Applicants/Feliciano Lejano and Melinda
Lejano.David B. Lawton, Kevin J. Lavie, Terriberry, Carroll & Yancey, New Orleans, for
Defendants/Respondents, K.S. Bandak, et al.

Plaintiff was injured while in international waters off the coast of Florida.   He filed suit in
Louisiana seeking recovery under the Jones Act, General Maritime Law, and Federal Maritime
Law.   Quasi-in-rem jurisdiction was obtained by the execution of a non-resident writ of
attachment on the vessel while it was docked within the jurisdiction of the district of the 24th
Judicial District Court.

Defendants filed exceptions of no cause of action, no right of action and forum non
conveniens.   On August 3, 1994, the trial court granted all of the peremptory exceptions and
dismissed plaintiff's suit, stating:

IT IS ORDERED, ADJUDGED AND DECREED THAT the Declinatory Exceptions filed

herein by the defendants, KS Bandek and KS Bandek II, be and the same are hereby overruled;
 further,

 IT IS ORDERED, ADJUDGED AND DECREED that the Peremptory Exceptions of No

Cause of Action and No Right of Action filed herein by the defendants, KS Bandek and KS
Bandek II, be and the same are hereby maintained and the plaintiffs' demands against the
defendants are hereby dismissed with prejudice;  further

IT IS ORDERED, ADJUDGED AND DECREED that the doctrine of forum non conveniens is
applicable to this case and the plaintiffs' suit is dismissed on this basis.

Plaintiffs appealed to this Court, which reversed the decision of the trial court and remanded
the case for further proceedings.   This Court found that plaintiff had stated a cause of action,
that plaintiff was afforded a right of action, and that the doctrine of forum non conveniens did
not apply in this Jones Act case.
 2

Defendants filed a motion for partial summary judgment requesting that Norwegian law be
held applicable.   Plaintiff argued against summary judgment and argued that Philippine law
should be applied.

The trial court ruled as follows:

IT IS ORDERED, ADJUDGED AND DECREED that United States Law is not applicable to
this case.   This case is governed by Norwegian or Philippine Law;  further

IT IS ORDERED, ADJUDGED AND DECREED that the forum selection provisions

contained in the applicable employment and contractual arrangements are valid and the
plaintiffs should file their case in the appropriate forum, Norway or the Philippines, and supply
this Court with satisfactory proof that such claim has been filed.   If the plaintiff can show that
the defendants are attempting to frustrate their  efforts to pursue this claim in a foreign forum,
this Court will proceed to adjudicate this claim applying Philippine or Norwegian law.

Plaintiffs filed a motion for new trial, which was denied by the trial court.   Plaintiffs then filed
for writ of review with this Court, which was also denied.   Plaintiffs sought writ of review
with the Louisiana Supreme Court, which granted plaintiffs' writ and remanded the matter to
this Court for briefing argument and opinion.

We have now complied with the directions of the Supreme Court, and on remand have
thoroughly examined the issue again.   Accordingly, we now affirm the decision of the trial
court for the following reasons.

THE DOCTRINE OF LAW OF THE CASE IS NOT APPLICABLE

Plaintiffs first argue that the trial court and this court erred in failing to apply the doctrine of
the “Law of the Case.” It is plaintiffs' contention that this Court, in its prior judgment, ruled on
the issue of the validity of the forum selection clause, and found that the clause was not
enforceable.   Having so ruled, the trial court, and this Court on application for writs, are
precluded from again ruling on whether the forum selection clause was enforceable.

After consideration of the argument advanced by the plaintiff, we hold that in this case, the
doctrine of the “Law of the Case” does not bar the trial court or this Court from considering
whether the forum selection clause was enforceable.

  The “law of the case” principle embodies the rule that an appellate court will not reconsider
its own rulings of law in the same case.   However, the doctrine is discretionary and is not
applicable in cases of palpable error or when, if the law of the case were applied, manifest
injustice would occur.  Vincent v. Ray Brandt Dodge, 94-291 (La.App. 5 Cir. 3/1/95), 652
So.2d 84, writ denied, 95-1247 (La. 6/30/95), 657 So.2d 1034.

 A review of the pleadings filed by defendant reflect that defendants filed peremptory
exceptions of no cause of action, no right of action and forum non conveniens.   In
memorandum to the trial court, defendants argued the issue of applicable law, and the forum
selection clauses, in support of their allegations that plaintiffs failed to state a cause of action
and/or a right of action, and/or that the matter should be dismissed on forum non conveniens.  
The merits of the substantive legal issue of the enforceability of the contractually created forum
selection requirement was not before the court and was not litigated in the hearing on
 3

procedural exceptions;  the trial court did not rule on this issue in its original judgment, which
dismissed plaintiff's suit, (see supra).

As observed previously, the plaintiff appealed that decision, which dismissed his suit on
exceptions, to this Court.   This Court reversed the ruling of the trial court, our holding finding
that plaintiffs' petition stated both a cause and right of action under the Jones Act and under
federal maritime law, and also finding that the exception of forum non conveniens  could not
be urged in a Jones Act case.   This Court did not rule on the issue of whether the forum
selection clause contained in the employment contract signed by plaintiff was enforceable.  
The case was then remanded to the trial court for further proceedings.

Thereafter, both sides filed motions for summary judgment.   Plaintiffs alleged that Philippine
law was applicable to this matter while defendants sought the application of Norwegian law.  
Thus, it seems that both sides concede that the laws of the United States, and more specifically
the Jones Act and the general federal maritime law, are not applicable to the case at bar.   It
was at this juncture that the trial court first considered the issue of enforceability of the forum
selection clause found in the employment contract.

After reviewing this matter, we find that this issue, i.e., the enforceability of the forum
selection clause, was never squarely before the trial court nor was it before this Court in the
prior proceedings, which raised exceptions of no cause and/or right of action and of forum non
conveniens.   The issue was first presented to the trial court by the filing of the motions for
summary judgment (the rulings of which are at issue in this writ application).   Therefore, we
cannot say that the trial court, and this Court, without any discussion whatsoever, have already
reviewed and determined the issue of whether the forum selections clauses are valid and
enforceable.   We, therefore, find that the doctrine of the “Law of the Case”  does not bar
consideration of the issues presented to us in this application for review.

STANDARD OF REVIEW

Both sides have filed motions for summary judgment seeking a determination of the
applicability of the forum selection clauses contained in plaintiff's employment contract.

A motion for summary judgment is proper when the pleadings, depositions, answers and
omissions on file, together with the affidavits submitted, show that there is no genuine issue of
material fact, so that mover is entitled to judgment as a matter of law.  La.C.C.P. art. 966;  
Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La.9/15/96), 679 So.2d 893.

Likewise, summary judgment is appropriate when all the relevant facts are presented before the
court, these facts are undisputed, and the only issue is the ultimate conclusion to be drawn from
those facts.  Smith v. Our Lady of the Lake Hosp., 93-2512 (La.1994), 639 So.2d 730.

When reasonable minds must inevitably conclude that mover is entitled to summary judgment
as a matter of law on the facts before the court, summary judgment is warranted.  Bijou, supra.

Any decision as to the propriety of a grant of the motion must be made with reference to the
substantive law applicable to the case.   Only in  the context of the applicable substantive law
can issues of material fact be ascertained.  Sun Belt Constructors v. T & R Dragline, 527
So.2d 350 (La.App. 5 Cir.1988).
 4

FORUM SELECTION CLAUSE

Plaintiffs first argue that a forum selection clause is merely a procedural device and is
governed by the same rules as forum non conveniens.   They argue that because forum non
conveniens is not a defense in a Jones Act case or admiralty case, a forum selection clause is
automatically unenforceable.   We disagree.   While both the doctrine of forum non
conveniens and a forum selection clause contained in a contract can determine the appropriate
venue in a case, each originates in a different manner and for a different purpose.   Plaintiffs'
statement that the procedural rules applicable to forum non conveniens are equally applicable
to the issue of the enforceability of a contract provision which decides the appropriate forum, is
a very broad statement and we hold that it is incorrect.

 The plaintiffs initially filed this suit alleging a cause of action in federal maritime law and
under the Jones Act.   The issue presented by this writ is the enforceability of a clause in the
plaintiff's employment contract.   A contract for hire of a ship or of the officers and sailors to
man her is within admiralty jurisdiction.  Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct.
886, 6 L.Ed.2d 56 (1961).   Thus, this Court is governed by the  federal substantive admiralty
or maritime law.   Powell v. McDermott Intern., Inc., 588 So.2d 84 (La.1991).   Under federal
admiralty law, a forum selection clause is prima facie valid, and will be enforced unless is it
shown by the resisting party to be “unreasonable” under the circumstances.  M/S Bremen v.
Zapata, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).   The M/S Bremen court further
noted that it should be incumbent on the party seeking to escape his contract to show that the
trial in the contractual forum will be so gravely difficult and inconvenient that he will be
deprived of his day in court.

 In addition, the United States Supreme Court has noted that a heavy burden of proof falls on
the party seeking to challenge a forum selection clause in a maritime case to prove that
enforcement of the selection clause would be unreasonable or that the clause violated
fundamental fairness due to fraud or overreaching.  Carnival Cruise Lines, Inc., v. Shute, 499
U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991).

Finally, we note that jurisprudence from our state courts support a presumption of validity to a
forum selection clause.   This Court has held that forum selection clauses are legal and
binding.   A plaintiff trying to set aside such a clause has a heavy burden. Digital Enterprises,
Inc. v. Arch Telecom., Inc., 95-30 (La.App. 5 Cir. 6/28/95), 658 So.2d 20.

  In Calzavara v. Biehl & Co., 181 So.2d 809, 810 (La.App. 4 Cir.1966), the court noted that
the forum selection provision will be enforced unless it is unreasonable, and the test of
reasonableness principally is concerned with the nationalities of the parties involved and the
accessibility to them of the court given exclusive jurisdiction by the provision.

 In the case before us, the application of the forum selection clause does not appear to be
unreasonable.   Our brethren in the Fourth Circuit have already decided that a contract of
employment, identical to the one at issue, executed between a Philippine seaman and a
Liberian ship, is not a contract of adhesion.  Barcelona v. Sea Victory Maritime, Inc., 619
So.2d 741 (La.App. 4 Cir.1993), writ denied, 626 So.2d 1179 (La.1993).   That case involved
multiple claims, including claims under the Jones Act and general maritime law for the
wrongful death of a Filipino seaman.   In ruling that the forum selection clause was
enforceable, and that the employment contract was not a contract of adhesion, the court said:
 5

The employment contracts are one-page documents with the forum selection provision
appearing plainly above each plaintiff's signature.   A party's signature on a contract
establishes a presumption he saw and understood the terms of the contract.  Lazybug Shops,
Inc. v. American District Telegraph, 374 So.2d 183 (La.App. 4 Cir.1979).   The plaintiffs
offered no evidence to rebut the presumption [that] they had knowledge of the clause.  
Moreover, plaintiffs were seamen of several years' experience and we can reasonably conclude
[that] they were well aware of maritime practice.

 As for the rejection argument, the plaintiffs could have avoided the clause by simply rejecting
the employment as seaman aboard the vessel.   Again from the record, it is apparent that such
positions are well paid and sought after.   The plaintiffs received the benefits from their
employment as seamen and we do not believe holding them to this forum selection clause,
which is required by the Philippine government, not the defendant, is an unreasonable
condition of employment.

At pp. 745-46.  [Emphasis supplied].

In this case it is true that the forum selection clause is required by both the Philippine
government and the Norwegian employer.   However, it is equally true that the clause was
mandated only after negotiations between the Philippine Seamen's union and the Norwegian
government, and these negotiations were a part of the collective bargaining agreement entered
into by the seaman's union.   Furthermore, the clause was on the same page and above the
seaman's signature, and is presumed to have been seen by him.

Plaintiff also urges that the enforcement of the forum selection provision would be
unconscionable, as neither the Norwegian forum nor the Philippine forum provide an adequate
remedy for the plaintiff.   However, the affidavits of both Filipino and Norwegian attorneys
specializing in admiralty law reflect that either jurisdiction would provide appropriate remedies
for this plaintiff.   Ordinarily, our discussion of this issue would include the issue of choice of
law, that is, what substantive law would govern this case.   However, in this case, both
plaintiff and defendant have  admitted that the appropriate choice of law is not law of the
United States law, but the law of either the Phillippines or Norway.   We do not believe that
applying the substantive law of the appropriate forum, in either of these forums, would deprive
the plaintiff of his appropriate legal remedies.

We further note that the clause requiring plaintiff to assert his claim in his home jurisdiction is
not unreasonable.   The accident occurred in international waters off the coast of Florida, the
plaintiff;  a Filipino, was taken to a hospital in Miami and then to the Phillippines;  and the
accident occurred on a Norwegian vessel.   Jurisdiction was obtained in the United States, and
more specifically, in Louisiana, by a writ of attachment when the ship was temporarily docked
here for a mission or reason that was completely unconnected with plaintiff's claim.   There is
absolutely no connexity between Louisiana and the facts of this case or the claim made therein,
and as far as we can tell, none of the witnesses are located in Louisiana.   Thus, it appears that
Louisiana has absolutely no interest in this case at all.

Finally, we are in accord with the decision of the learned trial judge, who relied on the case of
Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691 (La.App. 4 Cir.1992), writ not
considered, 613 So.2d 986 (La.1993), in rendering a conditional grant of summary judgment in
this case.   The Prado case involved an almost identical factual scenario.   In  Prado, the court
ruled that it would retain jurisdiction of the case for a limited time, and should defendant
attempt to thwart plaintiff's attempt to bring the claim in the Phillippines, it would exercise that
 6

jurisdiction and decide the case utilizing Philippine law.   The trial judge here took similar
action.

As in Prado, it appears from the record before us that the plaintiff's cause of action may be
subject to pleas of prescription if now brought in the appropriate forum.   For that reason, we
agree with the trial judge's decision, which amounts to a stay of the present proceedings, rather
than an outright dismissal of the case, so that Mr. Lejano may bring his claim in either the
Phillippines or in Norway.   As the court in Prado noted:

In spite of the fact that Louisiana has no material interest in this cause of action, we are
compelled to make some suitable disposition of the case which we will accomplish by
resorting to Prado's employment contract rather than forum non conveniens.   In making that
disposition we are guided by the time honored and oft expressed principle that:

Seamen, as wards of the court, are entitled to a careful review when a district court refuses to
exercise jurisdiction over their claims.   We are convinced that federal courts must remain
vigilant in protecting the rights of seaman, whether foreign or domestic, in their relations with
their employer.

Castillo v. Spiliada Maritime Corp., 937 F.2d 240 (5 Cir.1991).

We are equally committed to the proposition that this Court should be no less zealous in
protecting the  rights of seaman.   In accordance with this principle we are determined that
Prado's ability to recover will not be prejudiced just because he first made a good faith, well
argued, diligent, non-frivolous, though unsuccessful attempt to pursue a remedy in Louisiana.

For the foregoing reasons, we order that the judgment below be vacated and that this matter be
remanded to the trial court for further proceedings consistent with this opinion.   We further
order that these proceedings be stayed for six-months from the date of this judgment during
which time Prado shall furnish the trial court with satisfactory proof that he has filed his claim
in a forum in the Philippines.

It is further ordered that if Prado fails to produce satisfactory proof to the trial court of the
filing of his claim in the Philippines within the said six months then the trial court may dismiss
this claim with prejudice for failure to comply with the “forum selection” provisions of his
employment contract.

It is further ordered that in the event Prado should produce satisfactory proof to the trial court
that Asiento has attempted to frustrate his efforts to pursue this claim in a Philippine forum by
raising objections based upon the filing of this claim by Prado first in the United States,
including but not limited to objections of jurisdiction, prescription, laches or estoppel, then the
trial court may proceed to adjudicate this claim in a manner consistent with this opinion and
the law of the Philippines.

At pp. 703-04.

 CONCLUSION

For the above discussed reasons, we again find no error in the decision of the trial court, and
again deny plaintiff's application for writs.
 7

WRITS REFUSED;  THE APPLICATION DENIED.