Rodriguez v. Flota Mercante Grancolombiana, S.A.

• Decision Date: 15 March 1983
• Docket Number: No. 81-4455,81-4455
• Citation: 703 F.2d 1069
• Parties: Hugo RODRIGUEZ, Plaintiff-Appellant, v. FLOTA MERCANTE GRANCOLOMBIANA, S.A., Grancolombiana (New York), Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1069

703 F.2d 1069

1984 A.M.C. 2315

Hugo RODRIGUEZ, Plaintiff-Appellant, v. FLOTA MERCANTE GRANCOLOMBIANA, S.A., Grancolombiana (New York), Inc., Defendants-Appellees.

No. 81-4455.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1982.

Decided March 15, 1983.

Opinion on Denial of Rehearing March 15, 1983.

Allan I. Shatkin, San Francisco, Cal., for plaintiff-appellant.

James J. Tamulski, Graham & James, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before KENNEDY, ALARCON and NELSON, Circuit Judges.

ALARCON, Circuit Judge:

Hugo Rodriguez, (Rodriguez) a seaman, appeals from the district court's order dismissing his complaint brought under the Jones Act, ¹ and the general maritime law, to recover damages for injuries caused by his employer's negligence. We must decide whether the facts establish that the court had subject matter jurisdiction. ² We conclude that the district court was correct in determining that it lacked subject matter jurisdiction under the Jones Act. Flota Mercante Grancolombiana, S.A., (Flota) is not an employer within the scope of the Jones Act. We reverse and remand for a determination of the sufficiency of the claim brought pursuant to the general maritime law, and, if so, whether in the exercise of the district court's discretion, jurisdiction should be retained.

I. DISPOSITIVE ISSUES

Rodriguez contends that the facts presented to the district court established its jurisdiction to hear his Jones Act claim against Flota.

We are told that presence of the following factors satisfied all jurisdictional requirements.

One. Rodriguez was injured while working as a seaman on Flota's vessel in the port of San Francisco, within the territorial waters of the United States.

Two. Flota had substantial operational contacts within the United States to render Flota an employer within the Jones Act.

Three. The fact that Flota has been involved in a number of lawsuits in the United States as a plaintiff or defendant "is an indicium of its business relations and contact with the United States."

II. PERTINENT FACTS

Rodriguez was injured on May 18, 1979 on the CIUDAD DE CALI, while the vessel was in the port of San Francisco. He received medical treatment at a hospital in the city of San Francisco.

Rodriguez is a Colombian citizen and resides there. His employment contract with Flota was signed in Colombia. The contract provides that the parties recognize the jurisdiction of the Colombian courts over any matter that might arise from the contract. The agreement also provides that the law of Colombia shall apply.

Flota is the owner of the CIUDAD DE CALI. The Ciudad De Cali is registered in Colombia and flies a Colombian flag. The vessel's home port is also in Colombia.

Flota is a Colombian corporation headquartered in Bogota, Colombia. Eighty percent of Flota is owned by Colombian interest and 20 percent is owned by Equadorian interests. All of Flota's officers and managers reside in Colombia. All of its business matters and operations are centered in Bogata. In 1979, Flota owned 29 vessels. Thirteen Flota ships called at United States ports during that year. The CIUDAD DE CALI called on 15 ports in 1979; four of these were in the United States. During the CIUDAD DE CALI's 72-day round trip voyage from Colombia to North America, six days were spent in United States ports.

In 1979, Flota grossed $93,493,984 dollars from the call of its vessels in United States ports.

In 1979 Flota had a contract with Grancolombiana (New York), Inc. (Granco) a New York corporation, to service its shoreside needs in the United States. Two of Granco's employees served as Flota's owner's representatives. The duties of the owner's representatives are to husband vessels in United States ports.

III. DISCUSSION

We begin our discussion with a statement of the relevant law and procedure which must be applied when a challenge is raised to the jurisdiction of a district court in a Jones Act matter.

A. Pleading Subject Matter Jurisdiction Under the Jones Act

A complaint which is "drawn so as to claim a right to recover under the Constitution and laws of the United States" states a cause of action. Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90 L.Ed. 939 (1946). A tort claim under the Jones Act is properly plead if it contains allegations that the injured person is a seaman who was acting within the scope of his employment when he was injured. Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1308 (9th Cir.1970). No issue has been raised as to the sufficiency of the pleading under the Gebhart test. Rodriguez alleged that he was injured as the result of Flota's negligence while performing an activity within the scope of his employment as a seaman.

B. Jurisdictional Defense to Jones Act Claim

An assertion by a seaman that the Jones Act affords him the right to recover damages for injuries resulting from the negligence of his employer is sufficient to empower the district court to assume jurisdiction over the case and "to determine whether it was or was not well founded in law and fact." Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 924, 97 L.Ed. 1254 (1953). The failure to state a claim under the Jones Act is not the equivalent of the lack of subject matter jurisdiction. "It is well established that failure to state a proper claim calls for a judgment on the merits and not a dismissal for want of jurisdiction." Bell v. Wood, 327 U.S. 673, 682, (1946). The fact that a complaint states a cause of action should not however, be confused with the question of whether jurisdiction exists over the subject matter. See Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951). Upon a proper showing, a district court may dismiss a complaint for lack of subject matter jurisdiction if the shipowner is not an " 'employer' for Jones Act purposes." Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-309, 90 S.Ct. 1731, 1733-1734, 26 L.Ed.2d 252 (1970).

Where a defendant in an action brought under the Jones Act claims that the court lacks jurisdiction over the subject matter, on the grounds that he is not an employer subject to liability under the statute, the plaintiff must show that the shipowner has substantial contacts with the United States so as to be considered an employer subject to statutory liability in an American court. See, e.g., id. at 310, 90 S.Ct. at 1734.

In Lauritzen, the Supreme Court stated that the following factors should be considered on determining whether a particular shipowner should be held to be an "employer" under the Jones Act: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum. 345 U.S. at 583-91, 73 S.Ct. at 928-932.

In Rhoditis, the Supreme Court noted that the seven factors set forth in Lauritzen were not intended to be exhaustive and that an additional factor of importance in determining whether the Jones Act is applicable is the shipowner's base of operations. 398 U.S. at 309, 90 S.Ct. at 1734.

C. Law of the Place of the Wrongful Act versus The Law of the Flag

Rodriguez argues that the district court had jurisdiction over the shipowner, in spite of its Colombian registry and flag because Rodriguez was injured in the port of San Francisco. A similar issue was presented to the Supreme Court in Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 769 (1959).

In Romero, a Spanish seaman was injured in United States territorial waters while aboard a ship of Spanish registry, flying a Spanish flag. The district court dismissed the action under the Jones Act for lack of jurisdiction on the ground that the Act provided no right of action for an alien seaman against a foreign shipowner under these circumstances. The Supreme Court affirmed the dismissal of the seaman's Jones Act against the shipowner. The Court refused to apply the law of the place of the wrongful act or omission. The court reasoned as follows:

Although the place of injury has often been deemed determinative of the choice of law in municipal conflict of laws, such a rule does not fit the accommodations that become relevant in fair and prudent regard for the interests of foreign nations in the regulation of their own ships and their own nationals, and the effect upon our interests of our treatment of the legitimate interests of foreign nations. To impose on ships the duty of shifting from one standard of compensation to another as the vessel passes the boundaries of territorial waters would be not only an onerous but also an unduly speculative burden, disruptive of international commerce and without basis in the expressed policies of this country. The amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly fortuitous circumstance of the place of injury.

Id. at 384, 79 S.Ct. at 486.

Thus, Rodriguez' claim that the district court erred in dismissing this matter because the injury to a Colombian seaman on a vessel flying a Colombian flag, occurred in San Francisco is devoid of merit under Romero.

D. Base of Operations

Rodriguez urges us to reverse the district court because he views the facts as showing that Flota's base of operations was in the United States. He points to the following facts as proof that Flota's base of operations was in the United States.

1. $93,493,984.00 in gross income derived from ships which called on the United States in 1979.

2. "[V]irtually all of the CIUDAD CALI's voyages in 1979 have had contact with American ports ...." Appellant's Opening...