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referring to the "the employer or shipowner's base of operations" in analyzing this factor
Summary of this case from Tarasewicz v. Royal Caribbean Cruises Ltd.Opinion
Case No. 04-20144-CIV-JORDAN.
May 25, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR FORUM NON CONVENIENS AND FINAL ORDER OF DISMISSAL
For the reasons explained below, Cruise Ship Catering and Services International, N.V.'s ("CSCS International's") motion to dismiss the amended complaint on forum non conveniens grounds [D.E. 206] is GRANTED in light of the Eleventh Circuit's decision in a very similar case, Membreno v. Costa Crociere, 425 F.3d 932, 936 (11th Cir. 2005), and this case is DISMISSED. All pending motions are DENIED AS MOOT and this case is CLOSED.
BACKGROUND
Mr. Reyes is a citizen and resident of Guatemala. He was employed by the defendant, CSCS International, as a second storekeeper to work on board cruise vessels owned by Costa Crociere, S.p.A. Mr. Reyes worked aboard the M/V Costa Classica from November 24, 1999, to March 4, 2000, and aboard the M/V Costa Atlantica from January 14, 2001, until May 2, 2001. While in the service of the two vessels, Mr. Reyes alleges that he became "ill with cirrhosis of the liver and a venous insufficiency or vascular disease." See Amended Complaint at 3 [D.E. 145]. Mr. Reyes last disembarked a Costa vessel on May 2, 2001, in New York. CSCS International provided for his repatriation to Guatemala. CSCS International provided additional medical treatment for Mr. Reyes in Guatemala. It also provided Mr. Reyes with maintenance and cure until December 20, 2002, when his treating physician, Dr. Raul A. Aldana, determined he had reached medical maximum improvement. Thereafter, Mr. Reyes filed a two-count compliant against CSCS International for failure to provide maintenance and cure under the general maritime law of the United States until Mr. Reyes had reached an unequivocal medical maximum improvement (Count I), and for failure to provide him with prompt, proper, and adequate medical care in violation of the Jones Act, 46 App. U.S.C. § 688.
CSCS International is an employer of crew members who work for passenger vessels. It is a Netherlands Antilles company organized and existing under the laws of the Netherlands Antilles, with a registered office in the Netherlands Antilles. Since September of 2003, CSCS International's shore side administrative functions have been performed by its registered permanent establishment in Genoa, Italy. Before that time CSCS International's shore side administrative functions were performed by companies in Monaco. CSCS International does not maintain any employees, directors, officers, representatives, business agents, or registered agents in Florida or elsewhere in the United States. According to the amended complaint, CSCS International is "an agent of the shipowner and/or ship operator." During the periods at issue, CSCS International contracted with International RISK Services, Inc. ("IRSI") to provide CSCS International with "claims administration services to facilitate the handling of crew medical claims made by CSCS crew members." Klutz Aff at 1. IRSI, which maintains its sole office in Hollywood, Florida, acts as a "third party claims administrator pursuant to its contract with [CSCS International]." Id. at 1-2.
The two vessels on which Mr. Reyes worked have, during the relevant period, operated under foreign flags. The M/V Costa Classica sailed under the flag of Liberia until September 4, 2000. Since then it has sailed under the flag of Italy. Likewise, the M/V Costa Atlantica sails under the flag of Italy. Costa Crociere, the owner and operator of the two ships, is an Italian corporation and maintains its headquarters and sole base of operations in Genoa, Italy.
ANALYSIS
CSCS International moves to dismiss Mr. Reyes amended complaint on grounds of forum non conveniens. It argues that United States law does not apply to this matter, and that both private and public interests counsel in favor of dismissal. Dismissal of an action for forum non conveniens is appropriate if (1) under choice of law principles, the Jones Act and general maritime law of the United States do not apply to the case and (2) the traditional considerations of forum non conveniens counsel against asserting jurisdiction over the case. See Membreno v. Costa Crociere, 425 F.3d 932, 936 (11th Cir. 2005) (affirming dismissal on grounds of forum non conveniens of action by crew member against Costa Crociere and CSCS International, among others) (citing Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983)).
As to the first prong of the analysis — the choice of law inquiry — the Supreme Court has set out eight factors that should be considered in determining if United States law should be applied: (1) the flag under which the ship sails; (2) the allegiance or domicile of the injured party; (3) the allegiance of the shipowner; (4) the place of the contract between the injured party and the shipowner; (5) the accessibility of a foreign forum; (6) the law of the forum; (7) the shipowner's base of operations; and (8) the place of the wrongful act. See Membreno, 425 F.3d at 936; Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 309-10 (1970); Lauritzen v. Larsen, 345 U.S. 571, 582-92 (1950).
Notably Mr. Reyes has filed suit only against CSCS International, not the shipowner and operator, Costa Crociere. The relevant case law — namely, Lauritzen and its progeny — frame the choice of law factors in terms of the shipowner's domicile, base of operations, and contract with the plaintiff. Those cases, unlike this matter, involved seamen's suits against the shipowner. I do not, however, address whether the choice of law analysis is meant to inquire into the domicile, base of operations, and place of contract of the shipowner regardless of whether the owner is a defendant or whether the inquiry should focus on the named defendant. Regardless of whether the inquiry is focused on Costa Crociere or CSCS International, the outcome remains the same — that is, the relevant factors weigh against applying United States law.
Here, the parties do not dispute: (1) that the two vessels on which Mr. Reyes worked were at all relevant times, operating under the flags of Liberia and/or Italy; (2) that Mr. Reyes is a citizen and resident of Guatemala; (3) that Costa Crociere is domiciled in Italy and maintains its headquarters and only base of operations in Italy, and that CSCS International, the actual defendant here and Mr. Reyes' employer, is domiciled in the Netherlands Antilles; and (4) that Mr. Reyes signed his employment contract in Guatemala. These four factors weigh against the application of United States law. Likewise, because three alternative foreign fora are available to Mr. Reyes, the fifth factor also weighs against the application of United States law. Specifically, Guatemala is an appropriate forum since Mr. Reyes is a citizen of Guatemala. Italy is also an appropriate forum since Costa Crociere, the owner of the two vessels on which Mr. Reyes worked, is an Italian corporation based in Italy, and since CSCS International carries out all of its shore side operations there. The Netherlands Antilles is likewise an appropriate alternative forum given that CSCS International is incorporated there. Moreover, CSCS International has consented to personal jurisdiction and waived any time-bar defenses in each of the fora, and this dismissal is conditioned on such action by CSCS International. See Membreno, 425 F.3d at 936 (waiver of time-bar defenses and consent to personal jurisdiction in foreign fora weighed against applying United States law). I am satisfied that a foreign forum is accessible under these circumstances.
Mr. Reyes argues that CSCS International's domicile should carry little weight, but offers no case law in support of this contention. I am, therefore, not convinced that this factor should be given less weight. Even if I were to ascribe less weight to the domicile of either Costa Crociere or CSCS International, the choice of law analysis does not necessarily favor application of United States law, as Mr. Reyes' citizenship and domicile carry significant weight in the choice of law calculus. The Eleventh Circuit "has found the plaintiffs domicile to be especially significant in choice of law analysis." Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1517 n. 6 (11th Cir. 1985). Accordingly, even if I were to assign less weight to CSCS International's domicile, the weight I am required to assign to Mr. Reyes' domicile would still tip the scales heavily in favor of applying foreign law rather than United States law.
The sixth factor, the law of the forum, is "entitled to little weight because `fortuitous circumstances . . . often determine the forum.'" Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1517 (11th Cir. 1985) (quoting Lauritzen, 345 U.S. at 591). See also Membreno, 425 F.3d at 936 (relying on Sigalas and Lauritzen and assigning little weight to foreign plaintiffs decision to file suit against CSCS International and other foreign defendants in the United States). Likewise, a foreign plaintiff's choice of forum is afforded little deference in the forum non conveniens analysis. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981). In Piper Aircraft the Supreme Court explained that
a plaintiffs choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiffs choice deserves less deference.Id. Consistent with Piper Aircraft and its progeny, and absent any case law or argument by Mr. Reyes to the contrary, I am inclined to assign little weight to Mr. Reyes' choice to file suit in the United States rather than in Guatemala, his home country. Accordingly, the sixth factor also weighs against applying United States law in this case.
The seventh factor, the shipowner's base of operations, also weighs against application of United States law. There is no dispute that Costa Crociere's operations are based in Genoa, Italy. CSCS International's administrative functions are also based in Genoa, Italy. Mr. Reyes argues that I should ascribe little weight to this factor because CSCS International outsourced its maintenance and cure duties to IRSI — an Florida corporation based in Hollywood, Florida. Mr. Reyes, however, offers no case law suggesting that outsourcing the administration of maintenance and cure claims to a third party makes the employer or shipowner's base of operations irrelevant. I am, therefore, not inclined to give less weight to the base of operations of Costa Crociere and/or CSCS International. I am also especially reluctant to consider IRSI in this prong of the analysis since it is not even a party to this suit. Accordingly, because Costa Crociere and CSCS International are not based in the United States, the seventh factor weighs in favor of applying foreign law. Even if this factor weighed somewhat in favor of Mr. Reyes, it would not outweigh the other factors.
Mr. Reyes also alleges that CSCS International is owned by Carnival Corporation, a Panamanian corporation with its principal place of business in Miami, Florida, and therefore that CSCS International's base of operations is effectively in Florida. The Eleventh Circuit concluded in Membreno, however, that this fact is "insufficient to establish that [the shipowner or CSCS International] have a substantial base of operations in the United States." Membreno, 425 F.3d at 936.
The eighth and final factor in the choice of law analysis, the place of the wrongful act, points in favor of applying foreign law. Mr. Reyes argues that because IRSI administered maintenance and cure claims for CSCS International non-European employees, the place of the wrongful act occurred in Hollywood, Florida at the time IRSI terminated Mr. Reyes maintenance and cure. He argues that this suit ultimately boils down to a Florida corporation's violation of the Jones Act and general maritime law, and therefore, that United States law should apply. Mr. Reyes argues that CSCS International has contractually delegated its maintenance and cure duties to IRSI, and therefore, that IRSI's actions relating to his maintenance and cure dictate the choice of law analysis. I disagree. A shipowner's duty or liability to provide maintenance and cure "is imposed by law itself as one annexed to the employment [of the seaman]" and "no agreement is competent to abrogate the [duty]." Vaughan v. Atkinson, 369 U.S. 527, 532-33 (1962). Accordingly, liability for maintenance and cure continues to reside with the shipowner regardless of CSCS International's contractual relationship with IRSI. Even if IRSI erroneously withheld Mr. Reyes maintenance and cure, the shipowner is still liable to Mr. Reyes under Vaughan. In other words, the duty to provide maintenance and cure resides with Costa Crociere, the shipowner, and cannot be transferred to a third party, regardless of IRSI's contractual relationship with either CSCS International or Costa Crociere. Accordingly, the eighth factor also weighs against application of United States law here.
Mr. Reyes is a Guatemalan citizen who worked for Italian or Liberian flagged ships, owned by an Italian corporation. He was employed by a corporation registered in the Netherlands Antilles whose land-based operations, albeit limited, are in Italy. Mr. Reyes has received treatment from Guatemalan physicians. Aside from CSCS International's contract with IRSI to administer its non-European employees' maintenance and cure claims — which is inconsequential in the choice of law analysis — I find no other connection between this matter and this forum, and therefore, find no compelling reason to balance the choice of law factors in favor applying United States law.
Having concluded that foreign law most appropriately governs Mr. Reyes' claims, I now turn to the second prong of the analysis — the traditional forum non conveniens determination. A "`party seeking to have a case dismissed based on forum non conveniens "must demonstrate that (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.'" Membreno, 425 F.3d at 937 (quoting Leon v. Million Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001)). As discussed earlier, the first and third elements are satisfied here. Alternative fora are available in Guatemala, Italy, and the Netherlands Antilles, and CSCS International has waived any jurisdictional and time-bar defenses in all three fora. Moreover, because I am dismissing this case without prejudice, should Mr. Reyes run into difficulty filing suit in a foreign fora, he is not prohibited from filing another suit in this court.
As to the second element, private interest factors include "ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses . . . and all other practical problems that make trial of a case easy, expeditious and inexpensive." Leon, 251 F.3d at 1314 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Mr. Reyes argues that because he is seriously ill traveling abroad to litigate this matter would be very inconvenient if not impossible, and therefore, that Italy and the Netherlands Antilles are impractical fora. Consistent with what Mr. Reyes alleges about his medical condition, it is equally inconvenient and impractical for him to travel to the United States. Given his infirmity, the only practical and convenient forum for Mr. Reyes to litigate this matter is his home country since that would require the least amount of travel for him. Mr. Reyes, however, also argues that Guatemala is an inadequate forum because its judicial system is "clogged due to inefficiency and corruption." This argument is unavailing because Mr. Reyes presents no evidence relating to the alleged inadequacy of the Guatemalan judicial system. His argument alone, therefore, does not create a basis for me to retain jurisdiction over this matter. In Leon, the Eleventh Circuit explained that when a plaintiff alleges that an alternate forum is inadequate because of delay and/or corruption the "defendants have the ultimate burden of persuasion [as to the adequacy of the forum], but only where the plaintiff has substantiated his allegations of serious corruption or delay. Thus, where the allegations are insubstantially supported . . . a District Court may reject them without considering any evidence from the defendant." 251 F.3d at 1312. Having pointed to no evidence in the record to support his claim of corruption and delay, I am not satisfied that the judicial system in Guatemala is inaccessible to Mr. Reyes. Moreover, as noted earlier, the presumption that a plaintiff has chosen a sufficiently convenient forum "weakens when the plaintiff is a foreigner litigation far from home." Id. at 1315.
Additionally, aside from any treatment he received while on board the two vessels, Mr. Reyes has received all of his medical treatment by physicians in Guatemala. Accordingly, if the matter was litigated here, key medical evidence would have to be translated from Spanish to English. Mr. Reyes, however, argues that any records from IRSI relating to the payment and termination of his maintenance and cure are in English and would need to be translated into Spanish or Italian if the case was not litigated in the United States, and therefore that because this evidence is located in IRSI's offices in Florida, it is more convenient to litigate this matter here. Because Mr. Reyes may run into problems accessing and translating evidence regardless of whether he litigates in Guatemala or the United States, this consideration provides little guidance on whether to dismiss the case.
Mr. Reyes also argues that the alternative foreign fora are inadequate because they lack a maintenance and cure remedy, and asserts, that I should retain jurisdiction in this matter. I disagree. "[I]f the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, [an] unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice." Piper Aircraft Co., 454 U.S. at 254-55. Mr. Reyes, however, has not suggested that he would receive no remedy at all in these alternative fora. That the remedy may not be identical to that which he might receive in the United States is not grounds for retaining jurisdiction over this matter. Id.
Although the private interests do not unequivocally favor dismissal, when balanced against the public interests, dismissal is nonetheless appropriate. Public-interest factors "include the sovereign's interests in deciding the dispute, the administrative burdens posed by trial, and the need to apply foreign law." Membreno, 425 F.3d at 937 (internal citations and quotation marks omitted). The public interest factors weigh in favor of dismissal here. Mr. Reyes is a foreign plaintiff, and foreign law will apply to his claims. Application of foreign law "is a public-interest factor that mitigates strongly in favor of dismissal." Id. (citing Sigalas, 776 F.2d at 1520)). Moreover, given the attenuated contact between the wrongful act — namely, IRSI's alleged involvement in the decision to terminate maintenance and cure — and the United States I am inclined to dismiss this case. Under these circumstances, Guatemala, Italy, and the Netherlands Antilles have a stronger interest in adjudicating this dispute between their citizens, vessels, and corporations. See Membreno, 425 F.3d at 938.
CONCLUSION
The forum non conveniens factors weigh in favor of dismissal. Accordingly, this case is DISMISSED WITHOUT PREJUDICE conditioned upon CSCS International consenting to jurisdiction and waving any time-bar defenses in Guatemala, Italy, or the Netherlands Antilles if suit is filed within one year of this order. All pending motions are DENIED AS MOOT and this case is CLOSED.
DONE and ORDERED.