Aggarao v. MOL Ship Mgmt. Co.

• Citation: 33 IER Cases 1084,675 F.3d 355,2012 A.M.C. 781
• Decision Date: 16 March 2012
• Docket Number: No. 10–2211.,10–2211.
• Parties: Potenciano L. AGGARAO, Jr., Plaintiff–Appellant, v. MOL SHIP MANAGEMENT COMPANY, LTD.; Nissan Motor Car Carrier Company, Ltd., trading as Nissan Carrier Fleet; World Car Carriers, Incorporated, Defendants–Appellees,andJohn Doe A; John Doe B; John Doe C, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

2012 A.M.C. 781

33 IER Cases 1084

675 F.3d 355

Potenciano L. AGGARAO, Jr., Plaintiff–Appellant,

v.MOL SHIP MANAGEMENT COMPANY, LTD.; Nissan Motor Car Carrier Company, Ltd., trading as Nissan Carrier Fleet; World Car Carriers, Incorporated, Defendants–Appellees,andJohn Doe A; John Doe B; John Doe C, Defendants.

No. 10–2211.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2012.Decided: March 16, 2012.

ARGUED: Paul Thomas Hofmann, Hofmann & Schweitzer, New York, New York, for Appellant. M. Hamilton Whitman, Jr., Ober, Kaler, Grimes & Shriver, PC, Baltimore, Maryland, for Appellees. ON BRIEF: David Warren Skeen, Meighan Griffin Burton, Wright, Constable & Skeen, LLP, Baltimore, Maryland; Joseph P. Moschetta, Stephen P. Moschetta, The Moschetta Law Firm, PC, Washington, D.C., for Appellant. Carla Napier Murphy, Ober, Kaler, Grimes & Shriver, PC, Baltimore, Maryland, for Appellees.

Before KING and DUNCAN, Circuit Judges, and J. MICHELLE CHILDS, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN and Judge CHILDS joined.

OPINION

KING, Circuit Judge:

Plaintiff Potenciano L. Aggarao, Jr., a citizen of the Philippines, brought suit against MOL Ship Management Company, Ltd., Nissan Motor Car Carrier Company, Ltd., trading as Nissan Carrier Fleet, and World Car Carriers, Incorporated (collectively, the “defendants”), for damages arising from severe injuries he sustained aboard the M/V Asian Spirit in the Chesapeake Bay near Baltimore.¹ Aggarao's Complaint alleged multiple claims against the defendants, including unseaworthiness, maintenance and cure, breach of contract, violation of the Seaman's Wage Act, and negligence under general maritime law and the Jones Act. The district court dismissed the Complaint for improper venue, concluding that Aggarao is contractually obligated to arbitrate his claims in the Philippines. See Aggarao v. Mitsui O.S.K. Lines, Ltd., 741 F.Supp.2d 733 (D.Md.2010) (the “Opinion”). The court contemporaneously denied as moot Aggarao's motion for a preliminary injunction, by which he sought to compel MOL and World Car to provide maintenance and cure in the United States. As explained below, we affirm in part, vacate in part, and remand.

I.

The devastating injuries suffered by Aggarao that give rise to this civil action occurred while he was employed as an able seaman aboard the Asian Spirit. Prior to his employment thereon, Aggarao had signed several agreements that bear on the resolution of this appeal. The relevant facts are set forth below.²

A.

On June 2, 2008, Aggarao entered into a “Philippine Overseas Employment Administration Contract of Employment” (the “POEA Contract”) with an entity called Magsaysay Mitsui O.S.K. See J.A. 184.³ The Philippine Overseas Employment Administration (the “POEA”)—part of the Philippine Ministry of Labor and Employment—had prepared the POEA Contract, which provides that “the terms and conditions in accordance with [POEA] Department Order No. 4 and Memorandum Circular No. 9 ... shall be strictly and faithfully observed.” Id. The referenced documents in turn incorporate the “Standard Terms and Conditions Governing the Employment of Filipino Seafarers On–Board Ocean–Going Vessels” (the “POEA Terms”), which Aggarao also signed. See id. at 185–90. Together, the POEA Contract and the POEA Terms are intended to ensure minimum employment standards for Filipino seafarers employed by foreign corporations. Section 29 of the POEA Terms includes a mandatory arbitration clause, providing in part:

In cases of claims and disputes arising from this employment, the parties covered by a collective bargaining agreement shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.Id. at 187 (the “Arbitration Clause”). Section 31 includes a choice of law clause, specifying:

Any unresolved dispute, claim or grievance arising out of or in connection with this Contract ... shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.

Id. (the “Choice of Law Clause”). Additionally, Section 20 of the POEA Terms prescribes, in relevant part, the “liabilities of an employer when the seafarer suffers work-related injury or illness during the term of his contract ... as follows”:

If the injury or illness requires medical ... treatment in a foreign port, the employer shall be liable for the full cost of such medical ... surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated....

[P]ayment for injury, illness, incapacity, disability or death of the seafarer under this contract shall cover all claims arising from or in relation with or in the course of the seafarer's employment, including but not limited to damages arising from the contract, tort, fault or negligence under the laws of the Philippines or any other country.

Id. at 186 (the “Liability Clause”).

For purposes of the POEA Contract, Magsaysay Mitsui, a Philippine crewing company, was the agent of defendant MOL—a Japanese company managing the officers and crew of the Asian Spirit. Defendant World Car, a Liberian company, owned, operated, and manned the Asian Spirit. Aggarao was hired as a crewman of the Asian Spirit, which was chartered by defendant Nissan, a Japanese entity. Under the terms of its charter agreement with World Car, Nissan was responsible for instructing the ship on its destination and cargo.

One day after signing the POEA Contract, on June 3, 2008, Aggarao entered into a “Seafarers Employment Contract” (the “Seafarers Contract”) with Magsaysay Mitsui that incorporated the terms of a collective bargaining agreement called the “IBF JSU/AMOSUP–IMMAJ CBA” (the “CBA”). See J.A. 191–221. World Car and Nissan were bound to the CBA through an “IBF [International Bargaining Forum] Special Agreement.” See id. at 1421–22. On about June 3, 2008, the POEA approved the Seafarers Contract. With Aggarao on board as a crewman, the Asian Spirit thereafter departed from Manila.

B.

On August 13, 2008, the Asian Spirit was navigating in the Chesapeake Bay en route to the Port of Baltimore where it was scheduled to load a cargo of motor vehicles. Aggarao was working to raise floor panels in the ship in preparation for receipt of the cargo load. As the crew began raising the floor panels, Aggarao was crushed between a deck lifting machine and a pillar. He was promptly airlifted to the nearby University of Maryland Shock Trauma Center (the “UM Trauma Center”), where he was treated for severe injuries to his spinal column and cord, his chest cavity, and his abdomen. Dr. Thomas M. Scalea performed emergency surgery for “litigation of vessels, bowel resection, and splenectomy.” J.A. 533. During the next few weeks, Aggarao endured a barrage of additional surgeries and medical procedures, twelve in all.

On October 15, 2008, Aggarao was discharged from the UM Trauma Center and, on Dr. Scalea's recommendation, transferred within the University of Maryland Medical System (“UMMS”) to Kernan Orthopaedics and Rehabilitation for follow-up treatment, including physical and occupational therapy in the spinal cord unit. Aggarao presented to Kernan with “T4 ASIA A paraplegia with complete paralysis” and “absent bowel and bladder control.” J.A. 539. Dr. Henry York was Aggarao's physician at Kernan. On November 18, 2008, Dr. York reported that Aggarao had made “excellent progress towards his goals of independent functional mobility” in terms of, inter alia, “bed mobility,” and “transfers between his bed and his wheelchair [and] between level surfaces.” Id. Dr. York contemplated that Aggarao would receive “further physical therapy” and recommended that he acquire an ultra-lightweight wheelchair, so that he could achieve optimal mobility when he returns to the Philippines. Id. at 539–42.

According to a declaration of the defendants' paralegal, made on June 4, 2010, Dr. York and a physical therapist had agreed, at a meeting eighteen months earlier, on December 4, 2008, that Aggarao “had reached as full a recovery as Kernan Hospital could provide him”; “was able to care for himself [as] he had been taught how to catheterize himself[,] manage his wheelchair [, and] get in and out of a car”; and “was ready for the trip to the Philippines.” J.A. 1326. By letter of December 8, 2008, the defendants informed Aggarao that, given the extent of his rehabilitation, the owners and insurers of the Asian Spirit authorized travel arrangements for his return to the Philippines and would not be providing financial assistance to him for further medical care in the United States. Nevertheless, Aggarao declined to be repatriated to the Philippines for fear that he could not receive adequate medical treatment there. He also believed that his aging parents, who live in a remote rural area, would be unable to care for a paraplegic and he would die.

On February 25, 2009, Aggarao was discharged from Kernan and relocated to a nearby Days Inn hotel. Kernan arranged to pay, for seven days only, the costs of his room and board at the hotel, plus a nurse to make regular visits. Meanwhile, the defendants reiterated that the owners, managers, and insurers of the Asian Spirit would honor their obligations under the POEA contract and Philippine law, including providing Aggarao further medical care, but only upon his return to the Philippines. In response, Aggarao insisted that, notwithstanding his course of rehabilitation at Kernan, Dr. Scalea, his UM Trauma Center surgeon, had recommended that he remain in the United States for abdominal reconstructive surgeries. Aggarao forwarded to the defendants Dr. Scalea's letter of March 10, 2009, which explained:

I have been caring for ...