Chan v. Society Expeditions, Inc., 92-36868
| Decision Date | 27 July 1994 |
| Docket Number | No. 92-36868,92-36868 |
| Citation | 39 F.3d 1398 |
| Parties | , 30 Fed.R.Serv.3d 481 Benny CHAN; Victoria Chan, individually and as husband and wife, a marital community; Victoria Chan, as Guardian Ad Litem of Samantha Alexis Chan, Zachary Alex Chan, and Amanda Elizabeth Chan, minor children, Plaintiffs-Appellants, v. SOCIETY EXPEDITIONS, INC., a Washington Corporation, Defendant, and Discoverer, a West German corporation; Heiko Klein, a West German citizen, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donovan R. Flora, Seattle, WA, for plaintiffs-appellants.
Thomas F. Paul, David C. Bratz, Le Gros, Buchanan & Paul, Seattle, WA, for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before: GOODWIN, SCHROEDER, and NORRIS, Circuit Judges.
The opinion filed July 27, 1994, slip op. 8417, is amended as follows:
With the opinion thus amended, the panel has voted unanimously to deny the petitions for rehearing. Judge Schroeder has voted to reject the suggestion for rehearing en banc, Judges Goodwin and Norris so recommend.
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.
The petitions for rehearing are DENIED and the suggestion for rehearing en banc is REJECTED.
Benny Chan, his wife, Victoria Chan, and their three children, including their daughter, Samantha, (collectively referred to as the "Chans"), appeal the dismissal of their damages action against Society Expeditions and Discoverer Reederei GmbH. The Chans assert personal injury and related claims against the defendants in connection with the capsizing of an inflatable raft which ferried Benny and Samantha Chan from a cruise ship to an atoll in the South Pacific, near Tahiti.
The district court held: (1) that Washington state workers compensation law barred Benny Chan's suit against his employer, Society Expeditions, Inc.; (2) that the court did not have personal jurisdiction over Discoverer Reederei, GmbH, a German corporation; and (3) that maritime law does not permit the Chans to recover damages for loss of consortium, loss of society, or emotional distress.
We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in part, and remand for further proceedings.
In February 1990, Benny and Victoria Chan booked passage for themselves and their daughter, Samantha, age 7, on the cruise ship, World Discoverer. The World Discoverer is operated by Discoverer Reederei, GmbH ("Discoverer Reederei" or "Discoverer"). Benny Chan's employer, Society Expeditions, Inc., a Washington corporation which is in the business of marketing and chartering cruise ships, chartered the World Discoverer for the cruise at issue. Heiko Klein, a German citizen, is the sole shareholder, chairman, and president of Society Expeditions. At the time of the relevant events, Klein was also the president and sole owner of Discoverer.
The Chans boarded the World Discoverer in Tahiti on March 30, 1990. The next day, passengers from the ship were ferried by inflatable raft to Makatea, a coral atoll in French Polynesia that was the first stop on the day's travel itinerary. While ferrying the last group of passengers ashore, the raft turned broadside to a wave and capsized. The passengers, including Benny and Samantha Chan, were thrown into the surf. The pilot of the raft and a passenger died in the capsizing. According to the Chans' complaint, Benny Chan sustained severe brain and head injuries, as well as other physical injuries, and Samantha Chan sustained both physical and emotional injuries.
At the time of the accident, Benny Chan was a shore-based Society Expeditions employee. He worked in the company's Seattle office, and was responsible for cabin usage and cabin inventory in support of Society's reservation system. After returning to Seattle, Benny Chan filed for state workers compensation benefits. The Washington State Department of Labor & Industries approved the benefits application after concluding that Chan was injured in the course of employment.
The Chans filed this action on July 30, 1990 on behalf of themselves and as guardian ad litem for their three children. They asserted general maritime claims based on negligence and the doctrine of seaworthiness against three defendants: 1) Society Expeditions; 1 2) Discoverer Reederei GmbH; 2 and 3) Heiko Klein.
The district court granted Society Expeditions' motion for summary judgment, dismissing Benny Chan's claim against it on the ground that the employer was immune from tort liability under Washington state workers compensation law. The court also dismissed Benny Chan's seaworthiness claim on the ground that his complaint alleged that he was a passenger at the time of the injury, and thus, he did not qualify as a "seaman" in order to state a claim based on the doctrine of seaworthiness. The court also granted Discoverer's motion to dismiss for lack of personal jurisdiction, and dismissed all claims for loss of consortium and emotional distress. Samantha Chan's personal injury claim against Society Expeditions has been stayed pending this appeal. 3
The district court first held that the exclusive remedy provision of the Washington state workers compensation act bars recovery in tort for the personal injuries Benny Chan sustained on the World Discoverer cruise. For the following reasons, this was error.
As the district court noted, a worker who accepts state workers compensation benefits for injuries is ordinarily barred from suing his employer in tort for the same injuries. Abraham v. Department of Labor & Indus., 178 Wash. 160, 34 P.2d 457 (1934). However, this bar does not apply to a worker who has a right under federal maritime law. Rev.Code.Wash. Sec. 51.12.100, a provision of the Washington state workers compensation law, expressly provides:
(1) The provisions of this title shall not apply to a master or member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees' compensation act for personal injuries or death of such workers.
* * * * * *
(4) In the event payments are made under this title prior to the final determination under the maritime laws or federal employees' compensation act, such benefits shall be repaid by the worker or beneficiary if recovery is subsequently made under the maritime laws or federal employees' compensation act.
Rev.Code Wash. Sec. 51.12.100 (emphasis added).
The Washington Supreme Court has held that, under this statute, a worker who accepts workers compensation benefits may nonetheless sue for his injuries under federal maritime law. Rhodes v. Department of Labor & Indus., 103 Wash.2d 895, 700 P.2d 729, 731 (1985); see also Western Boat Bldg. Co. v. O'Leary, 198 F.2d 409, 411 (9th Cir.1952) (). Subsection 51.12.100(4) requires a worker to repay state benefits if the worker recovers damages under federal law. E .P. Paup Co. v. Director, Office of Workers Compensation Programs, 999 F.2d 1341, 1348 n. 3 (9th Cir.1993).
Society Expeditions contends that this statutory exception does not apply to Benny Chan because he is not a seaman, longshoreman, or harbor worker. It also argues that section 51.12.100 applies only in the case of a conflict between federal and state no-fault compensation remedies. Society Expeditions cites no authority to support these arguments. Nothing in the plain language of the statute limits the exception in any such way. We decline to do so here. 4
Accordingly, we assume for the purposes of this case that because Benny Chan recovered under the workers compensation system as a "worker," he remains a "worker" for purposes of section 51.12.100. We express no opinion whether he was injured in the scope of his employment, but the point is irrelevant on the narrow question in this case. Benny Chan has a federal maritime right to sue Society Expeditions and the operators of the vessel as a passenger, visitor, or vacationing employee on the World Discoverer. 5 Whether or not he is deemed to be an employee for some purposes, he still has a general claim in admiralty for negligence, 6 and adjudication of that claim is governed by federal common law. See Kermarec v. Compagnie Generale, 358 U.S. 625, 629, 79 S.Ct. 406, 409, 3 L.Ed.2d 550 (1958); Carey v. Bahama Cruise Lines, 864 F.2d 201, 203 (1st Cir.1988). 7
The next issue is whether the district court erred in dismissing the Chans' case against Discoverer Reederei for lack of personal jurisdiction. Discoverer Reederei contends: (1) that the Chans failed to serve the company properly, thereby failing to establish jurisdiction over it, and (2) that assertion of personal jurisdiction would not comport with due process.
Discoverer Reederei first claims that it was never served at all. The corporation argues that although the Chans personally served Heiko Klein, owner and president of Discoverer Reederei, that service was in Klein's individual capacity only and thus could not effect service against his corporation. The district court denied Discoverer's motion for summary judgment for want of service. We affirm that ruling.
Under the federal rules, foreign corporations may be served either (1) in accordance with the law of the state in which the district court is located, Fed.R.Civ.P. 4(d)(7), or (2) by delivering a copy of the summons and the complaint "to an officer, a managing or general...
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