In tort action brought by survivors of Indian citizen killed in waters of United Arab Emirates, Texas Supreme Court holds that its courts may entertain suit because Article 14(1) of International Covenant on Civil and Political Rights grants U.S. citizens equal treaty rights to bring such suits in India

Michael Avery, Attorney in Fairfax, Virginia

Alimuddin Sirajuddin Kazi, a citizen of India not residing in the United States, lost his life while employed on an oil rig in the coastal waters of the United Arab Emirates. His survivors (plaintiffs), all Indian citizens, brought a wrongful death action in the Texas state courts in 1993 relying on Section 71.031 of the Texas Civil Practice and Remedies Code.

This provision admits wrongful injury or death suits to the Texas courts, inter alia, if: “in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.”

[emphasis supplied]

Defendants include Dubai Petroleum Company, Inc., Conoco, Inc., Dresser Industries, Inc. d/b/a Dresser-Rand Co., Aeroquip Corporation, Solar Turbines Incorporated, and Energy Service International, LTD a/k/a ESI., Inc.

Concluding that U.S. citizens lack “equal treaty rights” in India, the trial court dismissed the case for lack of jurisdiction based on failure to comply with Section 71.031. The intermediate appellate court reversed, holding that the statute pertained to the statement of a substantive cause of action and was not jurisdictional. It also held that both India and the U.S. are parties to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, 6 I.L.M. 368 (ICCPR) and it provides U.S. citizens equal treaty rights in India. On certiorari, the Texas Supreme Court affirms and remands.

The Court first notes that the legislative history of the statutory language and the case law throw little or no light on its intended meaning. The statute would ordinarily not assume that a treaty conferred specific substantive rights on U.S. citizens.

“Absent any other reasonable construction, the most plausible reading of the ‘equal  treaty rights’ provision is that the Legislature intended to condition a foreign citizen’s right to sue on personal injury or death claims on the r injured party’s country of citizenship and pursue a personal injury or death claim to the same extent that a citizen of that country could do so. As we noted earlier, ‘equal treaty rights’ does not mean that the foreign country must provide the same substantive rights, procedures, or remedies as Texas law. The provision simply means that the foreign country’s law must, based on a treaty, afford United States citizens access to its courts to pursue any remedies available to its own citizens for personal injury or wrongful death.” [80]

Since U.S. courts tend to interpret treaties broadly, an applicable treaty need only imply equal court access such as by providing for general due process protections or by otherwise indicating that the other nation’s courts would be open to U.S. plaintiffs. The presence of appropriate language in a Convention to which both India and the U.S. belong raises a rebuttable presumption in support of plaintiffs’ case. Defendants can destroy the presumption by producing evidence that U.S. citizens do not in fact have equal access to Indian courts under its laws. Plaintiffs retain the overall burden, however, of persuading the court that such equal access is available to U.S. plaintiffs.

Under the restraints placed on the states by Zschernig v. Miller, 389 U.S. 429 (1968), this Court cannot engage in minute inquiries into the actual administration of a foreign nation’s legal system or into the credibility of foreign diplomatic statements. It has to limit its statutory inquiry to whether the law of the foreign state on its face or in theory grants U.S. citizens equal treaty rights.

Although plaintiffs cited eight different treaties to the Court, they relied mainly on Article 14(1) of the ICCPR. It provides that: “[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….”

In the Court’s view, this language suggests that United States citizens will be able to pursue any remedies available in India’s courts, including those for personal injury and wrongful death. Defendants countered by pointing to the U.S. Senate’s Declaration in consenting to the President’s ratification that the first twenty-seven articles of the ICCPR were not “self-executing.” If this is binding, Article 14(1) would arguably not confer judicially enforceable rights on Indian citizens in the U.S. legal system. The Court sidesteps this issue, however.

“Under our construction of the ‘equal treaty rights’ requirement, the only issue is whether–based on a treaty–Indian law allows United States citizens to pursue claims for personal injury or death to the same extent that it allows Indian citizens to pursue these claims. Because our focus is on the rights of United States citizens in Indian courts, we need not consider whether or not the Covenant grants rights to Indian citizens in the courts of this country.” [82]

The bottom line is that plaintiffs have triggered a presumption that Indian law does grant equal rights to U.S. plaintiffs. This is enough to require a remand to the trial court where the parties can, pursuant to Tex. R. Evid. 203, fully litigate the issues of what Indian law actually provides. Methods of proof might include, for example, expert testimony or affidavits, treatises, authoritative statutes, regulations and so forth. [Compare Fed. R. Civ. P. 44.1 dealing with proof of foreign law in U.S. federal courts. See generally J. Schmertz, A Modern Procedural Framework for Establishing the Law of a  Foreign Country, 28 Practical Lawyer 63 (1982).]

Citation: Dubai Petroleum Company v. Kazi, 43 Tex. Sup. Ct. J. 412, 12 S.W.3d 71 (2000).

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.

First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Contact

Michael L. Avery, Sr., Esquire

The Avery Law Firm

10382 Democracy Lane | Fairfax, Virginia 22030

P: 703-462-5050 F: 703-462-5053

Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes

* Vehicle Rollovers

* Motor Vehicle Fatal Injuries

* Commercial Vehicle Accidents

* Uninsured / Underinsured Motorist

* Claims

* Distracted Driver Accidents

* Road Rage

* Truck Accidents

* Hit-and-Run Accidents

* DUI Accidents

* Passenger Injuries

* Motorcycle Accidents

* Bicycle Accidents

* Pedestrian Accidents

* Slip and Fall

* Personal Injury

Experience

Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Education

Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

References

Law Firm Website: https://averyassociateslaw.com/

Blog: https://averyassociateslaw.com/blog/

Blog: https://michaelaveryesq.law.blog

News: https://attorneygazette.com/michael-avery%2C-virginia

News: https://hype.news/michael-avery-esq

Attorney Profile: https://solomonlawguild.com/michael-avery%2C-attorney

LinkedIn Profile: https://www.linkedin.com/in/michael-l-avery-sr-6b02012/

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