Cruz v. Maritime Co. of Philippines

• Decision Date: 12 October 1982
• Docket Number: No. 80 Civ. 6599 (PNL).,80 Civ. 6599 (PNL).
• Citation: 549 F. Supp. 285
• Parties: Nathaniel CRUZ, Plaintiff, v. MARITIME COMPANY OF PHILIPPINES, Defendant.
• Court: U.S. District Court — Southern District of New York

549 F. Supp. 285

Nathaniel CRUZ, Plaintiff, v. MARITIME COMPANY OF PHILIPPINES, Defendant.

No. 80 Civ. 6599 (PNL).

United States District Court, S. D. New York.

October 12, 1982.

Florrie L. Wertheimer, New York City, for plaintiff.

John R. Geraghty, Healy & Baillie, New York City, for defendant.

OPINION AND ORDER

LEVAL, District Judge.

This is an action by a seaman to recover damages for personal injuries sustained while serving aboard a vessel owned and operated by the defendant. Defendant moves to dismiss on the ground of forum non conveniens. The motion is granted.

Facts and Allegations

Plaintiff Nathaniel Cruz is a citizen, and on the date of the injury was a resident of the Philippines. At the time of his injury, he was a seaman on a Philippine vessel, passing through United States waters. He has lived in the United States since that date and now claims to be a resident of the United States, having applied for political asylum in this country. Defendant Maritime Company of the Philippines ("MCP") is a Philippine corporation, having its principal place of business in the Philippines. MCP is owned by shareholders all of whom are citizens and residents of the Philippines. All of MCP's directors and four of its five officers are citizens and residents of the Philippines. The fifth officer, a vice president and general manager, is a permanent resident of the Philippines but a citizen of the United States.

Plaintiff entered into an oral agreement with defendant in the Philippines to serve as a seaman aboard the M. V. Zamboanga, a Philippine flag vessel owned and operated by MCP. The Zamboanga carried a crew of Philippine citizens and residents, all of whom were engaged by MCP in the Philippines.

In 1980, MCP owned seven vessels, including the Zamboanga, and operated thirteen other vessels pursuant to bareboat charters. MCP controlled the routing of all of its vessels from its office in the Philippines. In addition, MCP hired its crews, handled its vessels' accountings and paid most of its vessels' expenses from its office in the Philippines. MCP engaged a partially owned subsidiary, North American Maritime Agencies ("NAMA"), to act as its agent in the United States to assist it in soliciting American cargo and to act as a liaison with MCP's American customers. NAMA performs several functions for MCP, including arranging for U. S. stevedoring, collecting and accounting for freights payable in the United States, appointing husbanding agents, and paying routine expenses when payable in the United States. NAMA accounts to MCP at least every ten days for monies received by it on account of MCP freights and receives a percentage of MCP's United States freights as its agency fee. NAMA is an American agent for six shipping lines in addition to MCP and performs similar functions for each. A full time employee of MCP serves as MCP's "local representative in New York" (Deft's Reply Brief p. 6) and maintains an office in NAMA's suite of offices. MCP derives approximately 29% of its worldwide operating revenues from its United States operations.¹

On November 12, 1980, several members of the Zamboanga's crew were removing the cover from one of the ship's hatches. In the course of that operation, the cover struck plaintiff in the leg. At the time, the ship was moored in the port of Camden, New Jersey. Six crewmembers are known to have been witnesses to the accident. Plaintiff claims that Edward R. Aziz (an American employee of NAMA), Harry Finnegan (the port captain) and unidentified longshoremen were witnesses to the accident. Defendant claims that Aziz denies having witnessed the accident. No affidavits of such persons have been submitted attesting to any knowledge of the accident.

After the accident, plaintiff was taken by ambulance to a hospital in Camden, New Jersey, where he remained as an inpatient until January 1981. At that time, he was advised that he would soon be repatriated to the Philippines for further treatment, whereupon he signed himself out of the hospital. Plaintiff claims that he took this action because he had been told he would be returned to the Philippines by boat and didn't believe that he could survive such a trip. Defendant claims that it advised plaintiff that he would be returned to the Philippines by air. In any event, plaintiff later admitted himself to the Hospital for Joint Diseases and Orthopaedic Institute where he continued to receive medical attention. On May 7, 1981, his leg was amputated above the knee. Since that time, plaintiff has obtained a prosthesis and has continued to receive medical care. To date, he has incurred medical expenses in this country of at least $158,251.47.

Discussion

Plaintiff asserts that the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States govern this case. Defendant asserts that the law of the Philippines applies. If the Jones Act and the general maritime law of the United States apply, then the court is without power to dismiss on grounds of forum non conveniens. Antypas v. Cia. Maritime San Basilio, S.A., 541 F.2d 307, 310 (2nd Cir. 1976). If on the other hand, Philippine law applies, then the court is required to exercise its discretion to determine whether or not the matter should be dismissed and the parties directed to litigate in a different forum. I conclude that Philippine law applies.

Choice of Law

In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the Supreme Court identified seven factors that bear on the choice of law in cases of maritime torts, namely the place of the wrongful act; the law of the ship's flag; the allegiance or domicile of the injured seaman; the allegiance of the shipowner; the place where the contract of employment was made; the inaccessability of a foreign forum; and the law of the forum. The Court noted in Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 308-09, 90 S.Ct. 1731, 1734, 26 L.Ed.2d 252 (1970), that the Lauritzen list was not intended as exhaustive. "The shipowner's base of operations is another factor of importance in determining whether the Jones Act is applicable; and there may be others." The Court also cautioned that the test is not a mechanical one and that the significance of each factor must be considered in light of the national interest served by the assertion of Jones Act jurisdiction. The significant factors in this case point to the application of Philippine law.

The fact that plaintiff was injured on American waters provides some support for his contention that American law should apply, but it should not be given great weight. "The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate." Lauritzen v. Larsen, 345 U.S. at 583, 73 S.Ct. at 929.

It is more significant that the Zamboanga sailed under the flag of the Philippines. Maritime torts are ordinarily governed by the law of the ship's flag because of the practical necessity that a single unvarying legal standard govern shipboard life. Lauritzen v. Larsen, 345 U.S. at 585, 73 S.Ct. at 930. See Romero v. International Terminal Operating Co., 358 U.S. 354 at 384, 79 S.Ct. 468 at 486, 3 L.Ed.2d 769 ("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."). For this reason, the courts of this country apply the law of the flag to maritime torts unless some heavy counterweight appears. In this case there is none.

Also significant is that plaintiff is a citizen of the Philippines and at the time of the accident was a resident of the Philippines, who entered into defendant's employ in the Philippines. His claim to have established a residence in this country since that time has no bearing on the choice of law. See Nunez-Lozano v. Rederi, 634 F.2d 135, 137 (5th Cir. 1980); Frangiskatos v. Liberian M/V Konkar Pioneer, 471 F.2d 714 (2nd Cir. 1972).

Defendant is a Philippine corporation, owned entirely by Philippine nationals. It is not a foreign shell created by American interests to avoid the requirements of American law. Cf. Hellenic Lines v. Rhoditis, 398 U.S. 306, 310, 90 S.Ct. 1731, 1734, 26 L.Ed.2d 252 (1970), in which a foreign corporation substantially owned by an American resident was subjected to the Jones Act. Defendant does not derive substantially all of its income from American shipping, nor does it have a principal base of operations in this country. As plaintiff concedes, defendant's principal base of operations is in the Philippines. See Plaintiff's Attorney's Affidavit at 1. That is the place from which defendant controls the routing of its vessels, hires its crews, handles its vessels' accountings and pays most of its vessels' expenses. Defendant's maintenance of a single full-time employee in the United States and its reliance on the services in the United States of a partially owned freight agent does not require application of American law to this case. See Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392 (2d Cir. 1976). If it did, virtually all foreign shipowners whose vessels sail to and from American ports would find themselves subject to this nation's maritime tort laws.

I conclude that this forum has no interest in applying its law to this case and that the significant factors point overwhelmingly to the application of Philippine law. See Lauritzen v. Larsen.

Forum Non Conveniens

There is ordinarily a strong presumption that a plaintiff's choice of forum should not be disturbed unless an alternative forum has jurisdiction to hear the case and the private interests of the litigants and the public interests of the forum clearly point towards trial in the alternative forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235,...