                          REVISED AUGUST 27, 2002

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                                 No. 02-40317



                           ALISTAIR J. MACPHAIL,

                                                         Plaintiff-Appellee,


                                     VERSUS


                    OCEANEERING INTERNATIONAL, INC.,

                                                         Defendant-Appellant.




             Appeal from the United States District Court
                  For the Southern District of Texas
                              August 7, 2002




Before DAVIS, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

     This is an appeal from an action brought by Alistair MacPhail

(MacPhail)     as   an   admiralty    and     maritime   law   claim   against

Oceaneering International, Inc. (Oceaneering) in the United States

District Court for the Southern District of Texas.             Specifically,

this appeal concerns the validity of contractual forum selection

clause   and   an   injunction    preventing     Oceaneering    from   further
prosecuting any action against MacPhail in Australia.

      Oceaneering presents two issues on appeal: (1) whether the

district court abused its discretion when it enjoined Oceaneering

from prosecuting its contract claims against MacPhail in Australia;

and   (2)    whether    the    district   court   erred     when      it     denied

Oceaneering’s Motion to Dismiss.



                                  BACKGROUND

      In    May   of   1998,   MacPhail   was   working     as   a    diver     for

Oceaneering onboard a dive support vessel, which was operating in

the South China Sea off the Coast of China.             MacPhail was employed

to perform saturation diving, which required him to be “stored” at

a depth of approximately 100 feet for a 30-day period.1                       While

saturation diving, MacPhail breathed a mixture of helium and oxygen

and   undertook    approximately    fifteen     “bell    runs”   in    which     he

descended to a work area on the seabed in a diving bell, exited the

bell for several hours and then returned in the bell to the vessel.

      On the second bell dive, MacPhail observed oil, mud, and

sludge coating the hoses and the inside of the bell.                       MacPhail


  1
   Saturation diving is based on the principle that at certain
depths and after certain amounts of time have passed, the amount of
time it takes to decompress is the same.       This is the diver’s
saturation point. Therefore, divers are placed in a tank, which
places the divers under pressure and maintains them at this level
of pressure to avoid decompression sickness or “the bends.” The
divers can then be lowered to the ocean floor through a diving bell
and brought back up to the tank, with no ill effects due to
decompression sickness.

                                      2
experienced severe headaches, loss of concentration, and decreased

coordination.    After the bell returned to the vessel, MacPhail

reported his problems to surface management and the interior of the

bell was cleaned by the deck crew.    MacPhail continued to make his

scheduled dives to the bottom but experienced headaches, loss of

appetite, nausea, vomiting, and other medical problems.       Later

analysis of the seabed indicated the mud on the bottom contained

toxic levels of arsenic, mercury, cyanide, hydrogen sulfide, and

polychlorinated biphenyls.

      At the end of his 30-day diving period, MacPhail was brought

to the surface and released from the saturation tank. MacPhail was

weak, disoriented, and needed medical attention.       MacPhail was

transported to Hong Kong, where he received one day of medical

treatment.    He was then transported to Singapore for additional

treatment, after which he was returned to Australia, where he

resided.2    MacPhail saw additional doctors in Australia that were

provided by Oceaneering.     Over the next several months, MacPhail

continued to suffer from numerous complications including sleep

loss, depression, fainting spells, and headaches.       During this

time, MacPhail requested that experts in hyperbaric medicine and

toxicology examine him.    However, Oceaneering told MacPhail it was

looking for, but was unable to locate appropriate specialists.



  2
   MacPhail's Original Complaint below notes that he is “a resident
and citizen of Australia.”

                                  3
      Eventually, MacPhail was told nothing more medically could be

done for him; and the parties negotiated an agreed settlement.

Despite being advised by Oceaneering to obtain legal counsel,

MacPhail     chose     not   to   be   represented     by   counsel   during   the

negotiations and when he signed the Deed of Release and Discharge

(“Release”).3        The Release provided:           “This Deed of Release and

Discharge will be governed by and construed in accordance with the

laws of Western Australia.”            In addition, the Release included a

forum selection clause:

             In the event of any dispute in respect of or
             arising from this Deed of Release and Discharge or
             any matter relating thereto the parties hereby
             agree to submit their dispute to the exclusive
             jurisdiction of the District or Supreme Court of
             Western Australia, or to the Federal Court of
             Australia and the parties hereby agree to submit to
             the exclusive jurisdiction of the said Courts.

      In consideration of the Release, MacPhail received $280,000;

Oceaneering's commitment to provide him with additional training

courses;     and   a   $25,000     escrow     fund   to   cover   future   medical

expenses.4    Additionally, on November 5, 1999, MacPhail filed suit

against Oceaneering in the District Court of Western Australia,

Perth; and that court entered final judgment based on the Consent


  3
   In a letter dated November 2, 1999, Oceaneering’s counsel
advised MacPhail of the proposed settlement agreement and advised,
“[w]e would recommend that you obtain legal advice as soon as
possible . . . [c]ould you kindly notify us in writing when you
have considered the documents and obtained legal advice on the
same.”
  4
   The $25,000 escrow account has since been exhausted.

                                          4
Order between MacPhail and Oceaneering.5

      In November 2000, MacPhail traveled to the United States for

treatment and was diagnosed with various physical abnormalities,

including brain and nerve damage, all linked to toxic chemical

exposure and decompression sickness.      As a result, in September of

2001, MacPhail filed this lawsuit against Oceaneering in the

Southern   District   of   Texas,   invoking   the    court's   admiralty

jurisdiction and claiming seaman status under 46 U.S.C. § 688.

Oceaneering filed a Motion to Dismiss based on the Release and its

forum selection clause.

      On October 17, 2001, the district court issued an Order

Denying Oceaneering’s Motion to Dismiss.             The district court

concluded that the forum selection clause in the Release was

“unreasonable and therefore unenforceable because its enforcement

would violate a strong public policy and because Plaintiff would

thereby be deprived of his day in court.”

      On January 9, 2002, Oceaneering filed a Writ of Summons in the

Supreme Court of Western Australia seeking to enforce specific


  5
    Under Section 9(1)(a) of Australia’s Admiralty Act of 1998,
Federal Courts, the courts of the Territories and State courts have
jurisdiction over in personam maritime claims.            Under Sections
4(3)(c) and (d), such maritime actions include claims for personal
injury sustained as a consequence of a defect in a ship or arising
out of an act or omission of the owner of the ship, or a person in
possession or control of a ship, or a person for whose wrongful
acts or omissions the owner of the ship is liable. See DAMIEN J.
CREMEAN, ADMIRALTY JURISDICTION: LAW AND PRACTICE IN AUSTRALIA 37-42 (The
Federation Press 1997) (discussing Sections 4(3)(c) and (d) of the
Admiralty Act of 1988).

                                    5
performance of the Release. The Writ commanded MacPhail to make an

appearance in the Australian forum within 10 days.                    MacPhail,

however, was scheduled to travel to the United States in mid-

January for further treatment and independent medical examinations.

As a result, MacPhail filed a Motion to Enjoin his admiralty suit

in the Southern District of Texas.        In his motion, MacPhail argued

that   Oceaneering   filed    the   Australian    lawsuit       to   effectively

circumscribe the Southern District of Texas’ jurisdiction and to

interfere with MacPhail’s medical treatment.              Oceaneering filed a

Motion in Opposition and asked the district court to reconsider its

previous    Order   denying   Oceaneering's      Motion    to    Dismiss.    On

February 11, 2002, the district court issued an order granting

MacPhail's Motion to Enjoin and denied Oceaneering's Motion for

Reconsideration.     Oceaneering appeals from that order.



                                 DISCUSSION

Issue I:     Whether the district court erred when it enjoined
             Oceaneering from prosecuting its contract claims against
             MacPhail in Australia.

       A.   Standard of Review

       We review the district court's decision to grant injunctive

relief for abuse of discretion.       Kaepa, Inc. v. Achilles Corp., 76

F.3d 624, 626 (5th Cir. 1996).        Under this standard, “findings of

fact are upheld unless clearly erroneous, whereas legal conclusions

are subject to broad review and will be reversed if incorrect.”


                                      6
Id. (internal quotations omitted).

       B.   Analysis

       Two factors are relevant to our comity analysis as we evaluate

the district court’s granting of MacPhail’s Motion to Enjoin

Oceaneering from prosecuting its action for specific performance in

the    Supreme    Court    of   Western       Australia:     whether     the   foreign

litigation is duplicitous and vexatious litigation; and whether the

injunction is necessary to protect the court’s jurisdiction.                         See

id. at 627.

       Oceaneering’s instituting an enforcement action in Australia

is    not   duplicitous     or    vexatious.           The   two   suits       are   not

duplicitous.      The suit filed by MacPhail in the Southern District

of    Texas,   although    arising      out    of    facts   contemplated       in   the

Release, is a maritime tort claim alleging substantial injuries.

The    Australian      lawsuit    filed       by    Oceaneering    seeks       specific

performance of the settlement agreement that the Australian court

had    already    approved.       Furthermore,         Oceaneering's      Australian

lawsuit is not vexatious.          If the District Court of Australia had

proper jurisdiction to rule on the validity of the Release, as it

already had, it is hard to imagine how seeking enforcement of that

ruling would be vexatious.

       We reject MacPhail’s argument that the district court had to

issue the injunction to protect its jurisdiction.                  Whether or not

the    District    Court    for   the     Southern      District    of     Texas     has


                                          7
jurisdiction of this case is a function of whether or not the

Australian court had jurisdiction of the suit filed by MacPhail to

secure that court’s approval of his original settlement agreement

and release with Oceaneering.        The District Court of Western

Australia established prima facie jurisdiction when it approved the

Release and the settlement between Oceaneering and MacPhail long

before the Southern District of Texas enjoined Oceaneering from

proceeding with its lawsuit in Australia.   Furthermore, nothing in

the record suggests MacPhail will be barred from arguing the

validity of the Release and the forum selection clause in the

Australian forum.    Accordingly, we find that the district court

abused its discretion when it enjoined Oceaneering; and we VACATE

the district court’s order granting MacPhail’s Motion to Enjoin and

denying Oceaneering’s Motion for Reconsideration.

Issue II: Whether the district court erred when it denied
          Oceaneering’s Motion to Dismiss MacPhail’s suit in
          contravention of the forum selection clause.

     A.    Standard of Review

     The enforcement of a forum selection clause is an issue of

law, and we review the district court's conclusions of law de novo.

Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir.

1998). Further, we review de novo a district court's determination

that a contract clause is unenforceable based on public policy

grounds.    Fidelity & Deposit Co. v. Connor, 973 F.2d 1236, 1241

(5th Cir. 1992). This Court has held, however, that federal courts


                                 8
must presumptively uphold forum selection clauses in international

transactions.       Haynesworth v. Corporation, 121 F.3d 956, 962 (5th

Cir. 1997).     Therefore, we review the district court's denial of

Oceaneering's Motion to Dismiss de novo.

     B.    Analysis

     For some of the same reasons stated above in Issue I, we

conclude the district court’s order denying Oceaneering’s Motion to

Dismiss must be vacated.       However, given the posture of this case,

we REMAND this proceeding to the Southern District of Texas with

instructions to hold this case in abeyance pending a judgment by

the Supreme Court of Western Australia concerning the negotiated

settlement.    If the Australian court grants Oceaneering’s suit to

enforce the prior settlement agreement made in that court, then the

district    court     will   dismiss   this   admiralty   proceeding   with

prejudice.    If the Australian court sets aside the settlement

agreement for any reason, then the district court will restore this

case to its active docket and determine whether it has jurisdiction

over MacPhail’s claims under the theories asserted in his petition.



                                 CONCLUSION

     Having carefully reviewed the record in this case and the

parties’ briefing and for the above reasons, we conclude the

district court abused its discretion when it enjoined Oceaneering

from pursuing its action for specific performance in the Supreme


                                       9
Court of Western Australia. We VACATE the district court’s order

granting MacPhail’s Motion to Enjoin and Oceaneering’s Motion for

Reconsideration.   Further, we STAY the district court proceedings

pending judgment by the Australian court.   We REMAND this case to

the district court for proceedings consistent with this opinion.

          VACATED in part, STAYED, and REMANDED.




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