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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-30030
_______________
WARREN ROY JACKSON,
Plaintiff-Appellant,
VERSUS
NORTH BANK TOWING CORPORATION; ET AL,
Defendants,
NORTH BANK TOWING CORPORATION AND J. RAY MCDERMOTT, INC.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
June 2, 2000
ON PETITION FOR PANEL REHEARING
PER CURIAM:
The petition for panel rehearing is
Before HIGGINBOTHAM and SMITH,
GRANTED. The opinion, 201 F.3d 415 (5th
Circuit Judges, and FALLON, District
Cir. 2000) (per curiam), is VACATED, and
Judge.*
the following opinion is substituted:
Warren Jackson appeals the dismissal of his
*
foreign law tort claims for negligence and
District Judge of the Eastern District of
maintenance and cure. Because Jackson's
Louisiana, sitting by designation.

claims previously were dismissed in Louisiana
IT IS FURTHER ORDERED,
state court, res judicata bars relitigation of
ADJUDGED AND DECREED, that the
them. We therefore affirm the dismissal, but
Motion for Reconsideration of the
on grounds different from those relied on by
Motion for Summary Judgment of
the district court.
defendants as to any and all Mexican
law claims, Honduran law claims or any
I.
and all foreign law claims is hereby
Jackson, a non-resident alien and citizen of
granted and those claims are dismissed
Honduras, was employed as a seaman by
without prejudice, at plaintiff's sole
North Bank Towing Corporation, a Louisiana
cost, subject only to plaintiff's right to
corporation, aboard M/V MARTHA EU-
pursue such claims in an appropriate
GENIA, owned and operated by J. Ray Mc-
jurisdiction in Mexico and/or
Dermott, Inc. (with North Bank, collectively
Honduras;
"defendants"). Jackson was injured when he
fell aboard the vessel while it was engaged in
IT IS FURTHER ORDERED,
offshore oil and gas exploration off the coast
ADJUDGED AND DECREED, that the
of Mexico.
Motion for Reconsideration of the
Motion for Summary Judgment of the
Jackson first sued in state court, alleging a
defendants as to any and all Mexican
variety of state, federal, and foreign law
law claims, Honduran law claims or any
maritime and tort claims. Defendants
foreign law claims which are not in
responded with a motion for summary
conflict with 46 U.S.C. §688(b) or gen-
judgment on all claims, asserting that § 688(b)
eral maritime law is hereby granted and
of the Jones Act barred any action by Jackson,
those claims are dismissed without
absent a showing of no-available-remedy in the
prejudice, at plaintiff's sole cost, pur-
courts of the country(ies) with jurisdiction. In
suant to Louisiana Code of Civil
February 1998, the state court granted the
Procedure art. 123 ("foreign non
motion to dismiss all United States and inter-
conveniens") subject only to plaintiff's
national maritime claims under § 688(b), but
right to pursue such claims in an
deferred, pending further argument, decision
appropriate jurisdiction in Mexico
on the motion to dismiss all other foreign law
and/or Honduras.
claims. Then, on July 8, 1998, the court
granted the motion to dismiss all foreign law
(Emphasis added.) Finally, in January 1999,
claims as well, based on forum non con-
the court clarified that § 688(b), and not forum
veniens, stating:
non conveniens, was the basis of the July 8
dismissal of all foreign law claims.
IT IS HEREBY ORDERED, AD-
JUDGED AND DECREED, that all
Jackson appealed, arguing that the trial
State law claims are hereby dismissed
court (1) had improperly invoked forum non
with prejudice, at plaintiff's sole cost, as
conveniens and (2) had erred in dismissing his
set forth in this Court's written reasons
claims pursuant to § 688(b). In March 1999,
for judgment dated February 2, 1998;
the court of appeal affirmed the dismissal, rea-
soning that § 688 barred both foreign and
2

United States law claims and that Jackson had
history of the Jones Act that supported
"not shown any evidence of a lack of remedy
defendants' argument that Congress intended
in foreign venues." Jackson v. North Bank
for foreign law claims to be foreclosed as well,
Towing Corp., 742 So. 2d 1, 7 (La. App. 3d
and notwithstanding the fact § 688(b)(2)
Cir. 1999).
supported an inference that these claims
should be available only once the plaintiff
In the meantime, however, in January 1998,
could establish that foreign fora would not be
Jackson had sued in federal court. Jackson
available to him. We reasoned that this
again asserted negligence claims pursuant to
subsection still could have meaning if we
the Jones Act and, alternatively, the tort laws
applied it only to United States maritime
of Mexico and Honduras and the international
claims brought by foreign seamen, because
lex maritime, and unseaworthiness claims pur-
"for a foreign seaman to bring an action under
suant to the maritime law of the United States,
any maritime law of the United States, he must
the laws of Mexico and Honduras, and the in-
first establish that foreign law remedies are not
ternational lex maritime; additionally, he as-
available to him in other fora." Id. at 417.
serted a claim for maintenance and cure under
the general maritime law of the United States.
Thus, we left it to Congress to amend the
plain text of the statute if our result was
Then, in October 1998, before the state trial
contrary to its intent. We now grant
court was affirmed, the defendants moved for
defendants' petition for rehearing, however,
summary judgment in federal district court,
because we need not have addressed the
seeking dismissal of all Jackson's claims
admittedly difficult interpretation question that
pursuant to § 688(b). That motion was
was previously decided in Louisiana state
granted and is the subject of the instant appeal.
court.
II.
III.
In our original opinion, we addressed the
Although Jackson does not argue that the
underlying substantive issue, decided by the
claims that were the subject of the earlier state
district court, whether 46 U.S.C. § 688(b) bars
court lawsuit and dismissal were different from
not only claims made pursuant to the Jones
those he reasserted in federal district court, he
Act or other maritime laws of the United
contends that res judicata does not apply, be-
States, but also foreign law claims. Because
cause the state court dismissed "without
the plain text of § 688(b)(1) bars only actions
prejudice," indicating that there should be no
brought under the maritime laws of the United
preclusive effect under Louisiana law. Al-
States, and because it made no mention of
ternatively, Jackson argues that we should
foreign law claims, we held that the district
consider this issue waived on appeal, because
court had improperly dismissed Jackson's
defendants did not raise it as an affirmative
claims brought under the laws of Mexico and
defense in the district court, and that we
Honduras and the international lex maritime.
should not exercise our discretion to consider
Jackson v. North Bank Towing Corp., 201
it sua sponte.
F.3d 415, 418 (5th Cir. 2000) (per curiam).
A.
This was so notwithstanding the legislative
Our first issue is whether the state court's
3

dismissal "without prejudice" should have any
or Honduran) courts. But notwithstanding the
preclusive effect for future claims in Louisiana
trial court's designation of the dismissal as
and federal court. Louisiana's doctrine of res
"without prejudice," the "subject to" language
judicata was substantially changed in 1990 by
indicates that the dismissal would have
new LA. R.S. 13:4231, which "provides a
preclusive effects in all but the Mexican or
broad application of res judicata; the purpose
Honduran courts.
is to foster judicial efficiency and protect the
defendants from multiple lawsuits." Fine v.
First, this is the natural interpretation of the
Regional Transit Auth., 676 So. 2d 1134,
court's language; it would be wholly
1136 (La. App. 4th Cir. 1996). "The statute
unnecessary to state that Jackson could refile
was amended in 1990 to make a substantive
his claims in these foreign courts if the
change in the law: a judgment bar to all causes
dismissal was to have no preclusive effect.
of actions arising out of the same occurrence."
Second, this reading is consistent with the
Id. The statute's broad principle of preclusion
court's finding that Jackson had not made a
is subject to exceptions, however, and LA.
showing that these foreign courts were
R.S. 13:4232 provides:
unavailable to him. Thus, it is logical that the
trial court would leave open to him this option
A judgment does not bar another
specifically contemplated by the Jones Act.
action by the plaintiff:
Finally, the Louisiana courts have
(1) When exceptional circumstances jus-
interpreted the res judicata rule broadly, while
tify relief from the res judicata effect of
narrowly constricting § 4232's exceptions.
the judgment;
For example, in Centanni v. Ford Motor Co.,
636 So. 2d 1153, 1155 (La. App. 3d Cir.), writ
(2) When the judgment dismissed the
denied, 644 So. 2d 656 (La.1994), the court
first action without prejudice; or
noted that the exception for dismissals without
prejudice "is designed to protect those drawn
(3) When the judgment reserved the
into error by an awkward factual or legal sce-
right of the plaintiff to bring another
nario, not by those who can allude to no
action.
circumstance to justify no action at all." And
under facts slightly different from those
Jackson relies on the second of these
present here, another Louisiana court of
exceptions. But, because the Louisiana trial
appeal held that a settlement and dismissal was
court's dismissal also provided that it would
res judicata, even though the dismissal was
be "subject only to plaintiff's right to pursue
without prejudice. See Medicus v. Scott, 744
such claims in an appropriate jurisdiction in
So. 2d 192, 196 (La. App. 2d Cir. 1999). The
Mexico and/or Honduras," the third exception
court reasoned that "[p]ublic policy favors
is also relevant.
compromises and the finality of settlements."
Id. Likewise, the broad application of res jud-
Apparently, no Louisiana or Fifth Circuit
icata serves the purpose of "foster[ing] judicial
cases interpret a similarly-worded dismissal, as
efficiency and protect[ing] the defendants from
to whether it should operate as a preclusive
multiple lawsuits." Fine, 676 So. 2d at 1136.
decision in state and federal (but not Mexican
4

The application of res judicata works no
attention to the issue by technically
undue hardship on Jackson. Instead, this is a
correct and exact pleadings. We do so
textbook case for claim preclusion, because
sua sponte.
both parties had their day in court on these
very issues. Moreover, Jackson is not left
(Internal citations omitted.) Thus, it follows
without a forum, because the Mexican and
that we can consider the issue when it
Honduran courts are still available to him. As
expressly was raised by the defendants, even
a result, the Louisiana trial court's dismissal
where they failed to argue it in the district
was "without prejudice" only with respect to
court.
Jackson's right to bring foreign law claims in
Mexican or Honduran courts. In contrast, the
Second, other considerations counsel in fa-
"subject only to" language indicates that the
vor of our considering the res judicata issue.
dismissal would be preclusive in state and
The reason defendants did not raise this
federal courts.
argument in the district court is that Jackson's
state case was not yet final at that time. The
B.
state appeal was still pending when the federal
The only remaining issue, then, is whether
district court granted the motions for summary
defendants have waived this argument by not
judgment and dismissed. Consequently,
raising it in federal district court. We conclude
defendants cannot be blamed for addressing
they have not. First, the defendants correctly
the matter for the first time on appeal.
point out that we can raise this issue sua
sponte, even where neither party mentions it.
Also, principles of comity counsel that we
For example, in Russell v. SunAmerica Sec.,
should respect the final decisions of the
Inc., 962 F.2d 1169, 1172 (5th Cir. 1992), we
Louisiana courts, and, as in Russell, we are
noted:
presented with all the facts necessary to make
the res judicata determination. Accordingly,
Under Federal Rule of Civil Procedure
we vacate our earlier o pinion and affirm the
8(c), the doctrine [of res judicata] must
judgment dismissing Jackson's claims.
be affirmatively pled. Failure to so
plead usually precludes the district court
AFFIRMED.
and appellate courts from considering
the doctrine. We have held, however,
that we may raise the issue of res
judicata sua sponte "as a means to affirm
the district court decision below." . . .
In the posture of this case, . . . where all
of the relevant facts are contained in the
record before us and all are uncontro-
verted, we may not ignore their legal ef-
fect, nor may we decline to consider the
application of controlling rules of law to
the dispositive facts, simply because nei-
ther part y has seen fit to invite our
5