575 F.3d 1151 (11th Cir. 2009), 08-13830, Cooper v. Meridian Yachts, Ltd.

Docket Nº:08-13830.
Citation:575 F.3d 1151
Opinion Judge:TRAGER, District Judge.
Party Name:Jameson COOPER, Plaintiff, v. MERIDIAN YACHTS, LTD., a British Virgin Islands corporation, in personam, The M/Y MEDUSE, a 198 foot Fedship registered in the Cayman Islands with Official Number 729007, her engines, tackle, apparel and other appurtenances, in rem, Vulcan, Inc. a Washington corporation, Vulcan Maritime, Ltd., a foreign corporation, in
Attorney:Cindy Lea Ebenfeld, Hicks, Porter, Ebenfeld & Stein, P.A., Hollywood, FL, Mark Hicks, Hicks, Porter, Ebenfeld & Stein, P.A., Mark Richard Houck, Richard R. McCormack, Houck Anderson, P.A., Miami, FL, for Third-Party Plaintiffs-Appellants. Hugh J. Turner, Jr., Akerman Senterfitt, Ft. Lauderdale, F...
Judge Panel:Before BARKETT and FAY, Circuit Judges, and TRAGER,[*] District Judge.
Case Date:July 21, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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575 F.3d 1151 (11th Cir. 2009)

Jameson COOPER, Plaintiff,

v.

MERIDIAN YACHTS, LTD., a British Virgin Islands corporation, in personam, The M/Y MEDUSE, a 198 foot Fedship registered in the Cayman Islands with Official Number 729007, her engines, tackle, apparel and other appurtenances, in rem, Vulcan, Inc. a Washington corporation, Vulcan Maritime, Ltd., a foreign corporation, in personam, Third-Party Plaintiffs-Appellants,

De Vries Scheepsbouw, B.V., d.b.a. Feadship, F. De Voogt, NA, d.b.a. Feadship, Feadship America, Inc., d.b.a. Feadship, De Voogt Naval Architects, B.V., Third-Party Defendants-Appellees.

No. 08-13830.

United States Court of Appeals, Eleventh Circuit.

July 21, 2009

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Cindy Lea Ebenfeld, Hicks, Porter, Ebenfeld & Stein, P.A., Hollywood, FL, Mark Hicks, Hicks, Porter, Ebenfeld & Stein, P.A., Mark Richard Houck, Richard R. McCormack, Houck Anderson, P.A., Miami, FL, for Third-Party Plaintiffs-Appellants.

Hugh J. Turner, Jr., Akerman Senterfitt, Ft. Lauderdale, FL, for Third-Party Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and FAY, Circuit Judges, and TRAGER,[*] District Judge.

TRAGER, District Judge.

This case concerns an injury to a sea captain and the subsequent settlement of his claims by the third-party plaintiffs. The present appeal arises out of the third-party plaintiffs' attempt to recover the sums paid to settle the maritime personal injury action. Specifically, the third-party plaintiffs seek indemnity, contribution and equitable subrogation from the third-party defendants, who allegedly constructed, designed or maintained the defective foodlift that caused the injury. The crucial question below was whether Dutch law or federal maritime law applied to the third-party action. The district court, finding in favor of Dutch law, dismissed the action, determining on summary judgment that the third-party claims were barred by a ten-year statute of repose.

The first set of issues presented before this Court revolve around a shipbuilding agreement entered into between the shipowner third-party plaintiff and the shipbuilder third-party defendant. Two provisions within the shipbuilding agreement are particularly relevant: a Dutch choice of law clause and a limitation of liability provision. We first look at whether either of these two provisions govern any of the third-party claims. If so, we then determine the effects the applicable provision has on those claims.

As a signatory to the agreement, the shipowner is the only third-party plaintiff who is potentially bound by the Dutch choice of law provision. The broad wording of that choice of law provision indicates that it is applicable to the shipowner's third-party claims against the shipbuilder. In any event, whether Dutch law applies to the shipowner's third-party claims is ultimately immaterial because the agreement's limitation of liability provision explicitly prevents the shipowner from recovering consequential damages or other indirect damages, effectively barring the shipowner's third-party claims against either the shipbuilder as well as the ship-designer because of another, related clause in the agreement.

The second set of issues presented before this Court center on those third-party

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claims that are wholly independent of the shipbuilding agreement. With respect to those third-party claims, it must first be determined whether they are governed by Dutch law, federal maritime law, or a third jurisdiction's law. The substance of the applicable law must then be analyzed in order to find whether such law would bar the action as untimely. The other third-party plaintiffs include the ship on which the sea captain was injured, the ship's manager and the injured sea captain's maritime employer.

The claims brought against the Dutch shipbuilder and designer by the third-party plaintiffs who are non-signatories to the shipbuilding agreement are governed by Dutch law because the Netherlands would have an interest in the resolution of those disputes, whereas the United States has little or no such interest. Moreover, the third-party plaintiffs have failed to provide relevant information regarding other possibly interested jurisdictions.

A review of Dutch law indicates that the third-party claims that are based on a strict liability theory are barred by the Dutch statute of repose. However, the third-party plaintiffs also allege general tort claims. For these claims, Dutch law provides a separate statute of limitations. That statute of limitations allows the general tort claims to proceed.

Finally, federal maritime law applies to the claims against the Dutch shipbuilder's and designer's American affiliate, which is incorporated in the United States, making all third-party claims against that defendant timely.

FACTUAL BACKGROUND

(1)

On the 28th or 29th of July 2005, Jameson Cooper ("Cooper"), the captain of a 198-foot motor yacht named the M/Y MEDUSE (the " MEDUSE"), was injured when the ship's dumbwaiter or foodlift (referred to by the parties as the " foodlift") landed on his leg, causing severe injuries. According to Cooper, the accident occurred while he was attempting to retrieve some of his clean laundry that had become lodged in a space between the floor of the foodlift and the ship's deck. In an effort to free the clothes, Cooper placed his left foot on the floor of the foodlift and his right foot on the deck of the MEDUSE. At the moment that he was able to free the articles of clothing, the foodlift fell, injuring his leg. The MEDUSE was located somewhere in the Red Sea at the time of the accident.

De Vries Scheepsbow B.V. ("De Vries") is the entity that constructed the MEDUSE for Meridian Yachts LTD ("Meridian"). F. De Voogt, N.A. ("De Voogt") is the entity that De Vries subcontracted to design the ship. De Vries and Meridian entered into a shipbuilding agreement (the " agreement") on January 31, 1994, which governed the purchase and manufacture of the vessel. The agreement, which was written in English, was executed by Meridian as buyer and De Vries as builder. The ship was built in the Netherlands and was delivered to Meridian on January 24, 1997. The delivery, according to appellees, took place at a Dutch seaport. The parties further agreed that the ship's shakedown cruise would be to waters off North America and that when the MEDUSE arrived in Florida waters, De Vries would send a finish crew to resolve any issues that became apparent during that cruise. Final payment for the MEDUSE was to be made in Florida after the finish crew completed its job.

The shipbuilding agreement contains four relevant clauses. Article 13 has a choice of law provision:

This Agreement, and all disputes arising out of or in connection with it, shall be

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construed in accordance with and shall be governed by the Dutch law.

The agreement also contains a limitation of liability provision in Article 10. Its critical language provides:

[T]he Builder shall have no liability whatsoever for any loss or damage directly arising from the defectiveness or deficiency of parts ... except if resulting from intentional conduct or gross negligence of the Builder or his servants. Liability of the Builder for loss of business, loss of profits, consequential damages or other (indirect) damage, however, is always excluded ....

Additionally, Article 11 of the agreement appears to permit third-parties to take advantage of the limitation of liability provision. It provides:

All exonerations and limitations of liability stipulated in favor of any party, shall also apply in favor of the servants, sub-contractors and suppliers of such party and of those directly or indirectly contracted by sub-contractors and suppliers.

However, another clause in the agreement, Article 20(4), appears to prevent third-parties from benefitting from any portion of the agreement by stating:

Nothing in this Agreement, whether express or implied, is intended to confer any benefits, rights or remedies on any person other than the parties to this Agreement.

(2)

The MEDUSE was and is registered in the Cayman Islands. The ship travels worldwide and has docked in South Florida as well as at other ports in the United States. Meridian, which both originally purchased and currently owns the MEDUSE, is a business entity organized under the laws of the British Virgin Islands. Vulcan Maritime LTD ("Vulcan employer"), Cooper's employer at the time of his accident, is a British Virgin Islands Corporation. Vulcan, Inc. ("Vulcan manager"), which was alleged by Cooper to have been the manager of the MEDUSE and its crew at the time of his accident, is incorporated in the state of Washington-where the four appellants allege it has its principal place of business (Vulcan manager and Vulcan employer are referred to as the " Vulcan appellants" and Meridian, the MEDUSE, and the Vulcan appellants together are referred to as " appellants" or the " four appellants").1 The four appellants state in their briefs that, as alleged by the plaintiff Cooper in his complaint, Meridian and Vulcan employer have their principal places of business in Florida. In their answer to Cooper's complaint, however, the four appellants had denied these allegations. The four appellants also claim that they are all beneficially owned by a U.S. citizen and that a U.S. citizen is president of Meridian, Vulcan manager and Vulcan employer. However, in their answer to...

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