265 F.3d 258 (5th Cir. 2001), 00-30683, Karim v Finch Shipping Co.

Docket Nº:00-30683
Citation:265 F.3d 258
Party Name:NOOR BEGUM KARIM, Wife of; FAZAL KARIM, Plaintiffs - Appellants - Cross-Appellees v. FINCH SHIPPING COMPANY, LTD.; ET AL, Defendants FINCH SHIPPING COMPANY, LTD. Defendant - Appellee - Cross-Appellant
Case Date:September 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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265 F.3d 258 (5th Cir. 2001)

NOOR BEGUM KARIM, Wife of; FAZAL KARIM, Plaintiffs - Appellants - Cross-Appellees

v.

FINCH SHIPPING COMPANY, LTD.; ET AL, Defendants

FINCH SHIPPING COMPANY, LTD. Defendant - Appellee - Cross-Appellant

No. 00-30683

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

September 5, 2001

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Louisiana

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,[*]District Judge.

KING, Chief Judge:

In this maritime personal injury case, both parties appeal the judgment of the district court. For the following reasons, we AFFIRM.

I. FACTUAL BACKGROUND

On January 18, 1995, Plaintiff/Appellant/Cross-Appellee Fazal Karim, a citizen of Bangladesh, was engaged as a seaman aboard the M/V LOUSSIO, a Panamanian-flag bulk carrier owned by Defendant/Appellee/Cross-Appellant Finch Shipping Company, Ltd. ("Finch"), a Maltese corporation. While at sea off the coast of Bermuda, on August 17, 1995, Karim was seriously and permanently injured when he slipped and fell some twenty to thirty feet to the bottom of a cargo hold.1 He endured severe injuries from his fall: he fractured his lumbar vertebrae; he fractured, on his left side, his hip, pelvis, leg, ankle, heel, and wrist; he incurred several herniated discs in his back and neck; and he suffered a detached retina in his right eye.

During Karim's evacuation out of the hold, he experienced acute pain. Once in the vessel's infirmary, Karim was administered aspirin and non-narcotic medication because other pain medications, including codeine and morphine, had expired. Karim was unable to move and unable to use the bathroom independently. He remained in this condition for nine days.

Captain Mohammed Yosuf contacted the international medical service, C.I.R.M. Medical Italia, by telex for assistance. Although Captain Yosuf was advised by doctors in Rome to evacuate Karim, Captain Yosuf could not do so because he was unable to obtain helicopter service from Bermuda due to an impending tropical storm. Captain Yosuf chose to proceed past the Bahamas and Florida. Following discussions with the Coast Guard and C.I.R.M. doctors, he directed the vessel to New Orleans. During this nine-day voyage, Karim was in excruciating pain, an ordeal that the district court described as "a window into Hell." Karim v. Finch Shipping Co. ("Karim I"), 94 F.Supp.2d 727, 732 (E.D. La. 2000). Upon arrival in New Orleans, Karim was evacuated by helicopter to Jo Ellen Smith Hospital in Algiers, Louisiana, where he received extensive medical treatment, including various surgeries.

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II. PROCEDURAL HISTORY

On November 30, 1995, Karim and his wife, Noor Begum Karim, brought suit against Finch and six other parties in the Civil District Court for the Parish of Orleans, State of Louisiana. Then, on December 5, 1995, Karim brought suit in the United States District Court for the Eastern District of Louisiana, seeking to enjoin the Immigration and Naturalization Service ("INS") from deporting him. He sought this injunction because of his debilitated condition and urgent need for medical care. The district court granted Karim's request for a temporary restraining order against the INS. Subsequently, on December 15, the district court issued a preliminary injunction preventing Karim's deportation.

Also on December 15, Karim filed an action in the same federal district court against the M/V LOUSSIO in rem, Finch, and several other parties. Finch posted a security bond for the vessel in district court, and it was released on December 21, 1995. Shortly thereafter, on December 26, 1995, Finch entered an appearance and filed an answer and claim.

In addition, on April 3, 1996, Finch instituted a separate limitation of liability proceeding pursuant to 46 U.S.C. App. §a1852 in the same district court. The district court then entered a monition3 and concursus4 in this limitation action, restraining the prosecution of any state court claims and requiring all parties with claims against Finch to direct those claims to its court. Karim filed an answer, contesting Finch's right to limitation of liability and seeking damages for his injuries under the Jones Act, 46 U.S.C. § 688, and general United States maritime law. On October 16, 1996, after receiving the appropriate stipulations, the district court stayed the limitation action, lifted the monition, and permitted Karim to pursue his claims against Finch in state court, all the while preserving Finch's right to seek limitation in its court.

In April 1997, the district court granted Karim's motion to voluntarily dismiss his claims in Karim's federal action and entered judgment in favor of the defendants, which was subsequently affirmed by this court. See Karim v. Finch Shipping, No. 97-31027, 177 F.3d 978 (5th Cir. 1999) (unpublished table opinion). Thereafter, the actions then pending were Karim's state court suit against Finch, and Finch's federal limitation proceeding.

Also, on April 10, 1997, in another proceeding, the district court dissolved the preliminary injunction preventing Karim's deportation because Karim's medical condition had improved and he was capable of travel. Karim was then returned to Bangladesh.

On July 9, 1997, the state trial court found that it lacked personal jurisdiction over Finch, and the Louisiana Fourth Circuit Court of Appeal affirmed. See Karim v. Finch Shipping Co., 97-2518 (La. App. 4 Cir. 8/26/98), 718 So. 2d 572.5 The Louisiana Supreme Court denied review. See

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Karim v. Finch Shipping Co., 98-2499 (La. 11/25/98), 729 So. 2d 568.

On June 30, 1998, Finch moved to dismiss voluntarily its federal limitation action, but the district court denied the motion because the issues regarding claims against the res and limitation of liability had been joined. On May 17, 1999, Finch moved to dismiss its claim for lack of personal jurisdiction, res judicata, and forum non conveniens. Alternatively, Finch moved for summary judgment on Karim's penalty wage claim brought pursuant to 46 U.S.C. § 10313. The district court denied Finch's motion to dismiss, but granted summary judgment in favor of Finch on the penalty wage claim and dismissed Karim's wife's claims for lack of evidence.

The district court conducted a trial on Finch's limitation petition on January 24 and 25, 2000. Additional testimony regarding the law of Bangladesh was heard on March 20, 2000. On April 14, 2000, the district court entered its detailed Findings of Fact and Conclusions of Law in which it made the following rulings: (1) the district court properly had jurisdiction in the matter; (2) Finch was entitled to limitation, but not exoneration, of liability; (3) the choice-of-law analysis pointed to Bangladeshi law; (4) the case was not appropriate for a forum non conveniens dismissal; (5) Karim was entitled to $63,668.16 for past medical expenses, $20,000 for future medical expenses, $13,081.28 for past lost wages, $26,451.70 for lost future wages, and $160,000 for general damages (pain and suffering); (6) Karim was not entitled to nominal, aggravated, or punitive damages; (7) Karim was entitled to prejudgment interest on past losses (totaling $176,749.44) at a rate of 5.6% per annum from the date the limitation action was reactivated in federal court (November 25, 1998) until the date of the district court judgment (April 14, 2000); and (8) Karim was entitled to $70,000 for litigation costs, including attorneys' fees. See Karim I, 94 F.Supp.2d at 746. The district court denied Karim's post-trial motions, seeKarim v. Finch Shipping Co. ("Karim II"), 111 F.Supp.2d 783, 784-85 (E.D. La. 2000), and Karim timely appealed. Finch also timely cross-appealed.

III. PROPRIETY OF THE DISTRICT COURT'S JUDGMENT

As both Karim and Finch are cross-appealing almost all aspects of the district court's ruling, we analyze at the outset those issues presenting threshold matters, which may pretermit the determination of other points on appeal. Therefore, we address the following issues in turn: (1) whether the district court properly determined that it had jurisdiction; (2) whether the district court erred in refusing to dismiss the action on forum non conveniens grounds; (3) whether the district court erred in determining a "quantum" for general damages under Bangladeshi law; (4) whether the district court's general damage award was excessive under Bangladeshi law; (5) whether the district court erred by failing to apply the codified general maritime law of Bangladesh -- the Merchant Shipping Ordinance (the "MSO"); (6) whether the district court erred in granting summary judgment on the United States penalty wage statute; (7) whether the district court erred in failing to award maintenance under the employment contract, the MSO, or the United States general maritime law; (8) whether the district court erred in its determination of prejudgment interest; and (9) whether the district court erred in its determinations of litigation costs, including attorneys' fees.

A. Jurisdiction

We provide first a brief background of limitation of liability actions. Then, we analyze Finch's jurisdictional challenge.

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1. Statutory Background

This case concerns the Limitation of Liability Act of 1851, 46 U.S.C. App. §§a181-196 (amended 1936) (the "Act"). "The Act was primarily patterned after the English limitation act, 26 Geo. 3, ch. 86 (1786)." Vatican Shrimp Co. v. Solis, 820 F.2d 674, 677 (5th Cir. 1987); see also Just v. Chambers, 312 U.S. 383, 385 (1941) (stating that the limitation of liability statutory provisions were "enacted in light of the maritime law of modern Europe and of...

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