Ganpat v. E. Pac. Shipping PTE, Ltd.
| Decision Date | 22 November 2022 |
| Docket Number | Civil Action 18-13556 |
| Parties | KHOLKAR VISHVESHWAR GANPAT, Plaintiff v. EASTERN PACIFIC SHIPPING PTE, LTD., Defendant |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “E” (4)
ORDER AND REASONS
Previously the Court deferred ruling on the choice of law arguments made by the parties because they were premature.[1] Since then, the discovery process has proceeded and concluded.[2] There are five pending motions for summary judgment based on the application of different nations' laws.[3] Accordingly, the Court must resolve the outstanding choice of law issues. To assist the Court, Kholkar Vishveshwar Ganpat (“Plaintiff”) filed a “Memorandum Regarding Choice of Law.”[4] Eastern Pacific Shipping, PTE., LTD. (“Eastern Pacific Singapore,” “Defendant,” or “EPS”) filed a memorandum in response.[5] Plaintiff filed a reply memorandum.[6]
Plaintiff brings the following claims for relief: (1) tort claims under the Jones Act; (2) tort claims under the general maritime law; (3) a claim for breach of a contractual duty to provide disability benefits arising under a collective bargaining agreement; and (4) a claim for “an intentional general maritime law tort” arising out of a lawsuit filed in India against Plaintiff by Eastern Pacific Singapore and Eastern Pacific Shipping (India) Private Limited (“EPS India”), which Plaintiff alleges amounts to “deliberate and malicious efforts to intimidate [Plaintiff] from seeking legal redress in this Court.”[7] The Court will decide the law applicable to each independent claim for relief.
Plaintiff is a resident and citizen of the Republic of India.[8] Eastern Pacific Singapore is an international ship management company incorporated under the laws of the Republic of Singapore with its principal place of business in the Republic of Singapore.[9]
On December 12, 2018, Plaintiff filed his original complaint in this Court.[10] In his original complaint, Plaintiff brought claims under the Jones Act and the general maritime law, and a contractual claim for disability benefits under Article 24 of the “TCC” Collective Agreement, which is made part of the Seafarer's Employment Agreement entered into between Ventnor Navigation, Inc. and Plaintiff.[11] On September 14, 2021, Plaintiff filed his first amended and supplemental complaint (“first amended complaint”).[12] Plaintiff's amended complaint retains his Jones Act, general maritime law, and contractual disability benefits claims set forth in the original complaint, and adds an additional claim against Eastern Pacific Singapore for “an intentional general maritime law tort.”[13]Plaintiff's new claim arises out of a lawsuit filed against Plaintiff in India by Eastern Pacific Singapore and Eastern Pacific Shipping (India) Private Limited (“EPS India”), a subsidiary of Eastern Pacific Singapore. Plaintiff alleges the actions of Eastern Pacific Singapore in the Indian court amount to “deliberate and malicious efforts to intimidate [Plaintiff] from seeking legal redress in this Court,” and that these actions constitute an intentional general maritime law tort.[14]
On August 24, 2021, Eastern Pacific Singapore filed a “Motion to Dismiss - India Law Choice.”[15] Plaintiff opposed the Motion.[16] In its motion to dismiss, Eastern Pacific Singapore argued the law of India governed this dispute and that, under the law of India, Plaintiff's complaint should be dismissed for failure to state a claim upon which relief may be granted.[17] In his opposition, Plaintiff argued Eastern Pacific Singapore's motion to dismiss should be denied because the law of the United States governs the dispute and that, under the law of the United States, he stated a claim under the Jones Act and general maritime law.[18] Eastern Pacific Singapore's “Motion to Dismiss - India Law Choice” was denied.[19] The Court deferred ruling on the choice of law issue, reasoning “determination of the choice of law in this case is premature and more development of the facts is necessary.”[20] Accordingly, the Court put a briefing schedule in place to enable the parties to more fully flesh out the issues once the facts of the case were developed.[21] Eastern Pacific Singapore now argues the law of India, the law of Liberia, or the law of Singapore applies.[22] Conversely, Plaintiff argues United States law applies.[23]
I. Plaintiff's tort claims under the Jones Act and the general maritime law are governed by United States law.[24]
Plaintiff alleges he contracted malaria while working as a crew member aboard the M/V STARGATE.[25] Specifically, Plaintiff alleges Eastern Pacific Singapore (1) failed to provision the M/V STARGATE with sufficient anti-malaria medication while the M/V STARGATE was docked at port in Savannah, Georgia, and (2) failed to administer prophylactic anti-malaria medication to the crew of the M/V STARGATE before, during, and after the vessel arrived in Gabon, a country in Central Africa, which is a region with a high risk of contracting malaria.[26] Plaintiff further alleges he began to suffer malaria symptoms on the high seas as the vessel sailed from Gabon to Brazil,[27] was hospitalized and treated for malaria in Rio de Janeiro, Brazil,[28] and was subsequently repatriated to India where he received further medical treatment for malaria and complications arising therefrom.[29] Plaintiff argues the law of the United States governs his Jones Act and general maritime law tort claims, while, conversely, Eastern Pacific Singapore argues the law of India, Liberia, or Singapore governs. “Whether federal maritime law or foreign law should govern a maritime tort depends on an assessment of eight factors articulated by the Supreme Court in Lauritzen v. Larsen and Hellenic Lines, Ltd. v. Rhoditis.”[30] These factors are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured worker; (4) the allegiance of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner's base of operations.[31] The factors are not exhaustive,[32] meaning courts should consider the totality of the circumstances to resolve choice of law issues.[33]Moreover, the weight given to the factors depends on the maritime activity engaged in by seamen. “Where seamen are not plying the world's seas in traditional international shipping activity, some contacts take on heightened significance and others diminished significance, for some of the rationales concerning the significance of the factors articulated in the Lauritzen” and Rhoditis opinions-both cases involving traditional, blue-water maritime activity-“do not apply with the same force in” non-traditional cases.[34] The difference in the weight given to the Lauritzen factors in a case involving traditional, blue-water activity lies in the transient, as opposed to fixed, nature of a bluewater seaman who plies the world's seas.[35] The Court will now examine the factors outlined above to determine which factors are applicable in the instant case. Then, the Court will weigh those factors, as well as other factors of importance, to determine which law or laws apply.
As to the first factor, Plaintiff alleges in his complaint that tortious acts occurred in Savannah, Georgia while the M/V STARGATE was docked at a local port and before, during, or after the vessel arrived in Gabon.[36] Eastern Pacific Singapore, on the other hand, argues alleged torts occurred in either Gabon or somewhere on the high seas between Gabon and Brazil in the South Atlantic.[37]
The parties dispute whether this factor is determined by looking to the location where the wrongful conduct occurred or where the injury occurred. Circuits are split on this issue. “[F]ederal courts in [some] circuits have held the ‘place of the wrongful act' is not necessarily where the accident occurs, but rather, [is] where the alleged negligence occurs.”[38]
The Fifth Circuit, however, has “consistently found the place of injury, not the place of other alleged negligence is the place of the wrongful act.”[39] Plaintiff began to suffer malaria symptoms on the high seas as the vessel sailed from Gabon to Brazil. Under this rubric, it is clear the injury did not occur in the United States, India, Liberia, Gabon, or Singapore. Accordingly, this factor does not weigh in favor of applying the laws of the United States or the laws of India, Singapore, Gabon, or Liberia.[40] Thus, this factor has no particular application to this case.
With respect to the second factor-the law of the flag-Plaintiff alleges in his complaint, and states in his choice of law memorandum, that the M/V STARGATE bore a “Liberian flag of convenience.”[41] In its choice of law memorandum, Eastern Pacific Singapore agrees the law of the flag is Liberia.[42] The country in which a ship is registered is called its flag state, and it is common parlance to say a ship sails “under the flag” of its country of registration.[43] “A merchant vessel on the high seas [belongs to] the country whose flag she flies.”[44] In Lauritzen v. Larsen, in addressing the importance of the law of the flag factor, the Supreme Court explained as follows:
Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. Nationality is evidenced to the world by the ship's papers and its flag. The United States has firmly...
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