Henry v. Windjammer Barefoot Cruises, 3D02-93.

• Decision Date: 21 May 2003
• Docket Number: No. 3D02-93.,3D02-93.
• Citation: 851 So.2d 731
• Parties: Esmond HENRY, Appellant, v. WINDJAMMER BAREFOOT CRUISES, etc., et al., Appellees.
• Court: Florida District Court of Appeals

851 So.2d 731

Esmond HENRY, Appellant, v. WINDJAMMER BAREFOOT CRUISES, etc., et al., Appellees.

No. 3D02-93.

District Court of Appeal of Florida, Third District.

May 21, 2003.

Rehearing and Rehearing Denied August 13, 2003.

Sweetapple, Broeker, Varkas & Feltman, and Paul B. Feltman, for appellant.

Houck, Hamilton & Anderson, Jerry Hamilton, and Jennifer Quildon Miller, Miami, and Gregory A. Reed, for appellees.

Before COPE, GODERICH and RAMIREZ, JJ.

Rehearing and Rehearing En Banc Denied August 13, 2003.

PER CURIAM.

The plaintiff, Esmond Henry, appeals from an order granting final summary judgment in favor of Windjammer Barefoot Cruises [WBC] and International Maritime Resources, Inc. [IMR]. Henry also appeals from an order granting the defendants' motion to dismiss finding that Henry failed to establish subject matter jurisdiction under the Jones Act, 46 U.S.C. app. 688 and general maritime law. We reverse and remand for further proceedings.

Henry slipped and fell on the deck of the vessel S/V Polynesia. Henry brought this action against IMR, WBC, and Polynesia seeking damages for Jones Act negligence, unseaworthiness, and failure to provide maintenance and cure.

The trial court limited discovery to matters concerning forum non conveniens and subject matter jurisdiction. The trial court denied the motion to dismiss for forum non conveniens. Thereafter, the defendants filed a motion to dismiss alleging that the trial court lacked subject matter jurisdiction based on the factors set forth in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). WBC and IMS also filed a motion for summary judgment.

The trial court held hearings on the motions. The discovery presented at the hearing reflects that Henry signed his employment contract while aboard the S/V Polynesian in St. Maarten, and that pursuant to his employment contract, he was "governed by the Laws of the Government into which jurisdiction the vessel shall sail." The discovery further reflected that the home port of the S/V Polynesia was Philipsburg, St. Maarten; the S/V Polynesia is a Honduran flagged vessel; the S/V Polynesia was owned by Polynesia, a Panamanian corporation; the accident occurred while the S/V Polynesia was in the waters of Philipsburg, St. Maarten; the S/V Polynesia has never called on ports in the United States; Henry is a Guyana national; following his accident, Henry was treated in St. Maarten, Guyana, and Jamaica; and Polynesia's sole asset is the S/V Polynesia.

In opposing the motions, Henry presented evidence indicating that the S/V Polynesia is a member of the Windjammer Fleet, which is operated by several Florida corporations all based at the same Miami Beach office. The Windjammer corporations are owned and run by Captain Michael Burke and/or his six children. Further, Polynesia is a Panamanian corporation whose Director/Treasurer is Robert Rios Osorio. Mr. Osorio is also the Director/Treasurer of another Panamanian company, Gerente de Barcos. This company maintains a bank account in South Florida. Evidence was presented indicating that Burke family companies utilize the funds in that account and that funds in that account are also utilized to reimburse Polynesia for expenses.

The affidavit of IMR's ex-Human Resource Coordinator was submitted and averred that the S/V Polynesia was part of the Windjammer Fleet; IMR, WBC, and Polynesia were in reality one and the same, that they operated out of the same office in Miami Beach, and that the monies and assets of these companies were comingled; all vessels, including the S/V Polynesia, were controlled by the Burke family from the Miami Beach office; the Burke family practice was to withdraw money from the "Gerente de Barcos" account and have a courier deliver the money to various vessels to pay crew members; crew members were treated as employees of the Windjammer Fleet and were freely moved from ship to ship, but this practice ended after Mr. Henry's accident; prior to Mr. Henry's accident, all crew member employment files were kept at the Miami Beach office; and the captains of each vessel reported solely to the Burke family. In a deposition given in another case, this ex-employee stated that in 1998, WBC wanted to go public, and therefore, an audit was performed. The audit revealed that the true owner of the Panamanian corporations was Captain Burke. As a result, a $20,000,000 fine was assessed by the Internal Revenue Service.

The deposition of Mike Burke, who is Captain Burke's son, was submitted. He testified that he is the sole shareholder of IMR. IMR is an agent for Windjammer, Inc., a Panamanian company. As Supervisor of Human Resource Management for IMR, he advertises and solicits crew members for the Windjammer fleet of vessels. Payroll records for crews of the various ships are also kept at IMR's Miami Beach office. IMR is compensated from the Gerente de Barcos account for business with Polynesia.

Following the hearings, the trial court granted the motions. Henry's motion for reconsideration was denied. This appeal follows.

The issues presented in this appeal have been addressed by the Eleventh Circuit in Fantome, S.A. v. Frederick, No. 02-10890, 2003 WL 215812, ___ So.2d ____ (11th Cir. Jan.24, 2003), which was not available to the trial court at the time of its decision. Rather than repeat the well-reasoned analysis contained therein, we adopt the unpublished opinion of the Eleventh Circuit as the opinion of this Court. Accordingly, we reverse the orders under review and remand for further proceedings. The Fantome opinion recites as follows:

Sarah Frederick and other claimants appeal the district court's order dismissing their action on forum non conveniens grounds. The district court concluded that United States law was inapplicable to the action and then determined that Panama, rather than the district court in Florida, was the appropriate forum. As we find that United States law is applicable to the action, we reverse.

BACKGROUND

The S/V FANTOME was a 282-foot schooner, which operated as a cruise ship in the Caribbean. It was one of seven vessels comprising the Windjammer Fleet, which is owned entirely by Captain Michael Burke and his six children. Each ship within the fleet is owned by a separate foreign corporation bearing its name. At the time of the FANTOME's disappearance, it was owned by Fantome, S.A., a Panamanian corporation, and was flagged under the laws of Equatorial Guinea. Burke, a Miami Beach resident, was the principal shareholder of Fantome. Burke's son, Michael D. Burke, is the president of International Maritime Resources, Inc. (IMR), the operating agent of the Windjammer Fleet. IMR was responsible for facilitating the operations of the FANTOME, as well as the other vessels in the fleet. The fleet's advertising, reservations, and sales were handled by Windjammer Barefoot Cruises, Ltd. Both of these entities operate out of and are located in Miami Beach, Florida.

As was the case with each of the vessels in the Windjammer Fleet, the FANTOME never entered a United States port. The ship's home port was in Honduras, and it had ports of call at various locations in the Caribbean, where all of the FANTOME's day-to-day operations and repairs took place. Windjammer's Miami Beach headquarters communicated with the FANTOME and the rest of the Windjammer Fleet via satellite phone, facsimile, and computer. The ship's crew members were hired in various foreign ports, and their contracts were signed and kept on the ship.

In late October of 1998, as the ship set sail, Hurricane Mitch, a late-season Category Five hurricane, was forming in the Atlantic Ocean. When the Windjammer headquarters in Miami Beach informed the FANTOME's captain that the hurricane was approaching the ship, a decision was made to sail to Belize and discharge all passengers and nonessential crew members. After the passengers and crew members were discharged, the ship sailed east in an attempt to outrun the hurricane. On October 27, 1998, the thirty-one crew members who remained on the ship perished when the ship disappeared and presumably sank.

Thereafter, the surviving family members of the deceased crew members filed suits in state court against Fantome, IMR, Windjammer Barefoot Cruises, Ltd., and Burke (the petitioners). The suits alleged that the petitioners negligently ordered the ship into the hurricane's path. In response to the suits, the petitioners brought the instant action for limitation of liability pursuant to the Limitation of Vessel Owner's Liability Act, 46 U.S.C. app. §§ 181-196, seeking to limit their liability under § 185. In turn, the family members filed claims in that action, seeking recovery for wrongful death and survival damages pursuant to the Jones Act, 46 U.S.C. app. § 688, and the Death on the High Seas Act, 46 U.S.C. app. §§ 761-768.

In August of 1999 the petitioners filed a motion to dismiss the family members' claims under the doctrine of forum non conveniens, arguing that Honduras was the appropriate forum. Almost a year later, following a period of discovery, the petitioners filed a new motion, advocating Panama as the appropriate forum for the action. The district court eventually granted the petitioners' second motion, dismissing the family members' claims on the grounds that United States law was inapplicable and that Panama was the appropriate forum for the action.

STANDARD OF REVIEW

We review the district court's choice of law determination de novo. Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir.1985). The district court's factual findings should be disturbed only if clearly erroneous. Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1196 (11th Cir.1983). The district court's dismissal on grounds of forum non conveniens is reviewed for abuse of discretion. Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424, 1429 (11th

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