Membreno v. Costa Crociere SPA

• Decision Date: 27 July 2005
• Docket Number: No. 04-16732. Non-Argument Calendar.,04-16732. Non-Argument Calendar.
• Citation: 425 F.3d 932
• Parties: Pablo MEMBREÑO, Plaintiff-Appellant, v. COSTA CROCIERE S.P.A., Prestige Cruises, N.V., Costa Cruise Lines, N.V., L.L.C., d.b.a. Costa Cruise Lines, CSCS International N.V., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

425 F.3d 932

Pablo MEMBREÑO, Plaintiff-Appellant, v. COSTA CROCIERE S.P.A., Prestige Cruises, N.V., Costa Cruise Lines, N.V., L.L.C., d.b.a. Costa Cruise Lines, CSCS International N.V., Defendants-Appellees.

No. 04-16732. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

July 27, 2005.

COPYRIGHT MATERIAL OMITTED

Philip D. Parrish, Philip D. Parrish, P.A., Miami, FL, for Plaintiff-Appellant.

Robert S. Glazier, Law Office of Robert S. Glazier, David J. Horr, Stephanie H. Wylie, Horr, Novak & Skipp, P.A., Miami, FL, for Defendants-Appellees.

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Pablo Membreño appeals the district court's order dismissing his suit based on the Jones Act and general maritime law for forum non conveniens. He also appeals the district court's determination that the law of the United States does not apply to his case.

I.

Membreño, a Honduran citizen and resident, was employed by Cruise Ships Catering & Service International, N.V. ("CSCS") as an oiler on two ships owned by Costa Crociere, S.p.A. ("Costa"). CSCS is a Netherlands Antilles company whose only land-based office is in Curacao, Netherlands Antilles. Costa is an Italian corporation, headquartered in Genoa, Italy. Through an intermediary Italian holding company, Costa is a fully owned subsidiary of Carnival Corporation, a Panamanian corporation with its principal place of business in Miami, Florida. Costa maintains no officers or employees in the United States. Both of the ships on which Membreño worked are Italian-flagged vessels.

Membreño joined the COSTA ATLANTICA, the first Costa ship on which he worked, on June 12, 2000 in Helsinki, Finland. On January 23, 2001, the COSTA ATLANTICA was engaged in a seven-day Caribbean cruise beginning and ending in Fort Lauderdale, Florida. On that date, Membreño alleges that his right wrist was injured when a smokestack door closed on it. When the alleged injury occurred, the COSTA ATLANTICA was in international waters. Membreño contends that, though he reported his injury to his supervisor and the ship's doctor, he did not receive prompt medical attention. Membreño's employment contract ended five days after the alleged accident. He disembarked the ship and was flown back to Honduras.

In March 2001, Membreño traveled back to Fort Lauderdale and began working on the COSTA VICTORIA. The defendants contend that Membreño's wrist injury actually occurred during this voyage. Membreño alleges he complained to the ship's doctor that he had not received any medical care for the wrist injury he had sustained while working on the COSTA ATLANTICA and that his wrist was still bothering him. On September 14, 2001, Membreño received medical attention for his wrist in Barcelona, Spain. Two days later, he disembarked the ship in Naples and was flown home to Honduras by CSCS for medical treatment.

In Honduras, Dr. Francisco Murrillo diagnosed Membreño with Kienbock's disease and recommended surgery. Membreño requested a second opinion, and CSCS offered him the opportunity to procure a second opinion from Dr. Jorge Osejo, another Honduran doctor. Instead, Membreño chose to travel to Miami to see Dr. Jay Dennis, an orthopedic surgeon and wrist and elbow specialist. On May 14, 2002, Dr. Dennis performed surgery on Membreño's wrist. On October 16, 2002, Membreño returned to Honduras and underwent physical therapy.

On June 18, 2003, Membreño filed a complaint in the district court alleging counts under the Jones Act and under general maritime law relating to his wrist injury. There were originally four defendants to the suit: Costa Crociere, S.p.A. ("Costa"); Cruise Ships Catering & Service International, N.V. ("CSCS"); Prestige Cruises, N.V.; and Costa Cruise Lines, N.V. The parties stipulated to the dismissal of two defendants, Prestige Cruises, N.V. and Costa Cruise Lines, N.V.

On October 20, 2003, the remaining defendants, Costa and CSCS, filed a motion to dismiss based on forum non conveniens. The district court determined that the law of the United States did not apply to Membreño's suit, granted the defendants' motion to dismiss based on forum non conveniens, and dismissed the case without prejudice on November 23, 2004. Membreño appeals from that dismissal.

II.

We review choice of law determinations de novo. Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir.1985). We review a district court's factual determination concerning whether a shipowner has a substantial base of operations in the United States only for clear error. Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1196 (11th Cir.1983). We may only reverse a district court's dismissal based on forum non conveniens if it constitutes a clear abuse of discretion. Sigalas, 776 F.2d at 1519.

III.

The first step in determining whether an action should be dismissed for forum non conveniens is to determine whether United States law should be applied to the case. See Szumlicz, 698 F.2d at 1195. The Supreme Court has set out eight factors that should be considered in determining whether the Jones Act and the general maritime law of the United States should be applied: (1) the place of the wrongful act; (2) the flag under which the ship sails; (3) the allegiance or domicile of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of the contract between the injured party and the shipowner; (6) the accessibility of a foreign forum; (7) the law of the forum; and (8) the shipowner's base of operations. Id. at 1195 (citing Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970)).

In this case, six of the eight factors point in favor of the defendants' contention that United States law should not apply. Taking Membreño's version of events to be true, the wrongful act occurred in the Caribbean Sea, outside the territorial waters of the United States. The vessels on which Membreño worked were Italian-flagged ships. Membreño lives in and is a citizen of Honduras. The shipowner, Costa, is an Italian corporation. Membreño entered into a contract to work onboard Costa's ships in Helsinki, Finland. Foreign fora are accessible to Membreño in Italy, Honduras, and the Netherlands Antilles; the defendants have waived any time-bar defenses and have consented to personal jurisdiction in each of these fora. The seventh factor, the law of the forum, "is entitled to little weight because `fortuitous circumstances . . . often determine the forum.'" Sigalas, 776 F.2d at 1517 (quoting Lauritzen, 345 U.S. at 591, 73 S.Ct. at 932).

Thus, the only significant question is whether the defendants have a substantial base of operations in the United States warranting the application of United States law. If the defendants have a substantial base of operations in the United States, this factor alone can justify the application of United States law. See Szumlicz, 698 F.2d at 1195-96.

Membreño's argument that Costa has a substantial base of operations in the United States is based primarily on the fact that, through an intermediary Italian holding company, Costa is a fully owned subsidiary of Carnival Corporation. It is undisputed that Carnival maintains its principal place of business in Miami, Florida. We conclude that this fact is insufficient to establish that Costa has a substantial base of operations in the United States.

Corporate distinctions generally may not be disregarded absent fraud, improper conduct, illegality, or bad faith. See Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1320-22 (11th Cir.1998) (applying...