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De Alvarez v. Creole Petroleum Corp.

decided: January 28, 1980.

MRS. LEONOR MARIA CHIRINOS DE ALVAREZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TELESFORO ALVAREZ, DECEASED, APPELLANT
v.
CREOLE PETROLEUM CORPORATION; MRS. ANA MARIA PENA DE VALERO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RIGOBERTO VALERO, DECEASED, APPELLANT V. CREOLE PETROLEUM CORPORATION; MRS. EDITA BARTOLA CHIRINOS DE MARIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SANTIAGO MARIN, DECEASED, APPELLANT V. CREOLE PETROLEUM CORPORATION; MRS. BERTA ROSA AVILA DE FEREIRA, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RAMIRO ANTONIO FEREIRA, DECEASED, APPELLANT V. CREOLE PETROLEUM CORPORATION ; MRS. ANA MARIA PENA DE VALERO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RIGOBERTO VALERO, DECEASED, APPELLANT V. EXXON CORPORATION; MRS. LEONOR MARIA CHIRINOS DE ALVAREZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TELESFORO ALVAREZ, DECEASED, APPELLANT V. EXXON CORPORATION; MRS. BERTA ROSA AVILA DE FEREIRA, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RAMIRO ANTONIO FEREIRA, DECEASED, APPELLANT V. EXXON CORPORATION; MRS. EDITA BARTOLA CHIRINOS DE MARIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SANTIAGO MARIN, DECEASED, APPELLANT V. EXXON CORPORATION



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Before Gibbons, Higginbotham, Circuit Judges, Weiner, District Judge.*fn*

Author: Higginbotham

In November, 1975 four Venezuelan men died in an explosion while on a crew launch in Lake Maracaibo, Venezuela. Their widows brought suit in the courts of the United States arguing that the laws of the United States the Jones Act, 46 U.S.C. ยง 688, and general maritime law should be applied to their wrongful death and survival actions. The district court dismissed their complaints, reasoning that United States law did not apply because the only significant link between the accident and the United States was the ownership of the vessels by a United States corporation. The court held that United States ownership was insufficient to trigger the application of United States law, especially since the control of the relevant operations of the corporation was based in Venezuela. We agree and will therefore affirm the dismissal of their complaints.

I.

On November 17, 1975, four male employees of the Creole Petroleum Corporation (Creole) were aboard one of Creole's crew launches near a gas compression/reinjection plant owned and operated by Creole on a fixed platform in Lake Maracaibo, Venezuela. Three of the men were sailors; the fourth was an employee who was constantly aboard Creole's launches. An explosion and fire occurred, resulting in the death of the four men.

The crew launches involved in the accident had Venezuelan certificates of registration and special permits entitling them to operate only in the internal waters of Venezuela. The employees and their widows were all residents and citizens of Venezuela. Their employment contracts were written in Venezuela and the accidental deaths of these men are covered by Venezuelan labor law. It is alleged that the explosion was caused by the negligence of Creole, by the unseaworthiness of the vessels and by the failure of Creole to provide proper maintenance and cure.

Since the 1920's Creole has been engaged exclusively in the business of crude oil exploration, production and refining in Venezuela. All of its properties are located there and its corporate headquarters are in Caracas, Venezuela. By 1975, it was the largest producer and refiner of crude oil in Venezuela, with approximately 40% Of the total crude oil production in Venezuela. Most of Creole's production is for export, with between 6%-7% Consumed in Venezuela. One third is exported to the United States.

At the time of the accident five of Creole's six officers were residents of Venezuela: one was a citizen of Venezuela; four were United States citizens who lived in Caracas. Of Creole's seven directors, six were residents of Venezuela. Three were United States citizens who lived in Caracas and three were Venezuelan citizens. Meetings of Creole's board of directors were held monthly, eight meetings per year were held in Caracas and four in New York City. Creole held its annual shareholders meeting in New York City at the headquarters of the Exxon Corporation (Exxon).

Creole was incorporated in Delaware during the 1920's. In 1928, the Standard Oil Company of New Jersey, a predecessor of Exxon, acquired a majority shareholder interest in Creole. By the time of the accident Exxon held 100% Of Creole's stock.

While Creole is incorporated in Delaware, at all times relevant to the action, it did no business in Delaware and only maintained a registered agent there for the purpose of service of process. Creole maintained an export sales office in New York. This office handled the processing of most of Creole's contracts for export sales, regardless of the destination of the oil. Nevertheless, major sales decisions were made in Caracas.

Creole's principal link with the United States is through Exxon. Over the years Exxon has maintained continuing relations with its affiliate. This relationship included Exxon's acting as a clearinghouse for transactions between Creole, Exxon and other subsidiaries or affiliates; providing an interest bearing demand deposit account for Creole, which Creole used in its transactions with Exxon and its subsidiaries or affiliates; and sharing with Creole and other Exxon subsidiaries or affiliates costs of research and technology programs.

II.

The plaintiffs assert that when the district court granted the defendants' motions to dismiss it erred because it resolved questions of fact against them. They argue that under Rule 12(b)(6), Fed.R.Civ.P.,*fn1 the defendants' motions must be treated as motions for summary judgment under Rule 56, Fed.R.Civ.P.*fn2 and as such all factual questions must be resolved in their favor. We agree that all factual disputes should be resolved in favor of the plaintiffs. However, the plaintiffs have not shown us, nor have we been able to find, any instance where the district court made an improper determination which would cause us to reverse its decision.

The order dismissing the plaintiffs' complaint was issued in response to motions to dismiss submitted by both Exxon and Creole. The motions urged dismissal on the grounds that the court lacked subject matter jurisdiction, that the court was not the proper forum under the doctrine of Forum non conveniens, and that the plaintiffs had not stated a cause of action upon which relief could be granted.*fn3

Although the court did not clearly state so, it is apparent from a review of its decision that the dismissal was based primarily on the ground that the plaintiffs had not stated a ground upon which relief could be granted.

First, the court's dismissal was not based on jurisdictional grounds. The court held that it had jurisdiction to consider the claim, Chirinos de Alvarez v. Creole Petroleum Corporation, 462 F. Supp. 782, 785 (D.Del.1978), a determination with which we agree. The Supreme Court's comments in Romero v. International Terminal Operating Co., 358 U.S. 354, ...


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