Holland America Line v. Wärtsilä North Amer.
| Decision Date | 07 May 2007 |
| Docket Number | No. 05-35572.,05-35572. |
| Citation | 485 F.3d 450 |
| Parties | HOLLAND AMERICA LINE INC; and Windstar Sail Cruises Ltd, on behalf of themselves as former agents, owners and operators of the former vessel M/S/Y Wind Song, and together on behalf of their subrogated insurers, Plaintiffs-Appellants, v. WÄRTSILÄ NORTH AMERICA, INC., Defendant, and Wärtsilä Finland Oy; Wärtsilä Corporation; Bureau Veritas S.A.; Bureau Veritas (Canada) Inc.; Bureau Veritas North America, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank Brucculeri and Bradley M. Rose, Kaye, Rose, and Partners, Los Angeles, California, for the plaintiffs-appellants.
Christopher B. Kende and Rodney Q. Fonda, Cozen O'Connor, Seattle, Washington; and Gerald Zingone, Thelen Reid Brown Raysman & Steiner, LLP, Washington, D.C., for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; Ricardo S. Martinez, District Judge, Presiding. D.C. No. CV-04-01368-RSM.
Before BETTY B. FLETCHER, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.
At the heart of this tangled jurisdictional dispute is a simple but unfortunate accident. In 2002, the Wind Song, a Bahamian cruise ship, was sailing from Papeete, Tahiti, to Huahine, Tahiti. A fire broke out during the voyage, and it eventually spread through the ship, destroying the ship entirely. Holland America Cruise Line ("Holland America") and Windstar Sail Cruises ("Windstar") seek to hold defendants Bureau Veritas S.A. ("Bureau Veritas"), Bureau Veritas North America, Inc. ("BVNA"), Bureau Veritas (Canada) Inc. ("BV Canada"), Wärtsilä Corporation ("Wärtsilä"), and Wärtsilä Finland Oy ("Wärtsilä Finland"), among others, liable for the loss of the Wind Song. Before the suit can go forward, we must determine whether the United States District Court for the Western District of Washington may exercise jurisdiction over these parties. This interlocutory appeal concerns only that issue. We hold that the Western District of Washington was not the proper forum; we affirm the district court's dismissal of the Bureau Veritas entities for lack of venue and Wärtsilä and Wärtsilä Finland for lack of personal jurisdiction.
The appeal involves multiple parties, both foreign and domestic. The underlying dispute arising from the accident is not before us. Nonetheless, in order to analyze the jurisdictional claims, we first identify the parties, put them in context, and summarize the proceedings in the district court.
Holland America is a Washington corporation that operates passenger sail cruises. It also acts as an agent for some of its subsidiaries, including Windstar, in contracting for services and repairs. Windstar, a Bahamian corporation headquartered in Seattle, Washington, also operates passenger sail cruises and owned the Wind Song, the sunken ship at issue in this appeal.1
Bureau Veritas is a French classification society which sets standards for the quality and integrity of ships and performs ship surveys to determine compliance with the classification society's rules and regulations, national laws, and international conventions. BVNA, a separate Delaware corporation, provides classification surveys for vessel owners in the United States, and BV Canada is a Canadian corporation that performs similar services. Bureau Veritas surveyed the Wind Song before its launch, and Holland America claims that some combination of the Bureau Veritas entities failed to conduct adequate surveys, which in turn resulted in the loss of the ship.
The Wärtsilä entities consist of three separate companies: Wärtsilä, Wärtsilä Finland, and Wärtsilä North America ("Wärtsilä NA"). Wärtsilä is a Finnish holding company that indirectly owns both Wärtsilä Finland and Wärtsilä NA — it does not manufacture or design products. Wärtsilä Finland designs and manufactures marine engines, but did not supply the marine engine for the Wind Song. Wärtsilä NA, a Maryland corporation, sells, repairs, and services marine engines. Holland America alleges that some combination of these corporations either designed, manufactured, or sold a faulty engine part that may have contributed to the accident. Some but not all of the parts sold and used by Wärtsilä NA are manufactured by other Wärtsilä entities, including Wärtsilä Finland.
In its first complaint, Holland America named multiple Wärtsilä entities and Bureau Veritas as defendants. After jurisdictional discovery, Wärtsilä Australia and Wärtsilä New Zealand were dismissed voluntarily from the case and Wärtsilä Finland was dismissed for lack of personal jurisdiction. The district court also granted Bureau Veritas's motion to dismiss on the ground that the French forum selection clause in the contract between Bureau Veritas and Holland America governs the venue of any proceedings.
Holland America then twice amended its complaint to include defendants Wärtsilä, Wärtsilä NA, BVNA and BV Canada. Wärtsilä, BVNA and BV Canada subsequently moved to dismiss. The district court granted Wärtsilä's motion to dismiss for lack of personal jurisdiction. It also granted BVNA and BV Canada's joint motion to dismiss, holding that the French forum selection clause applied to BVNA and BV Canada, just as it applied to Bureau Veritas.
These orders left Wärtsilä NA as a party in the case. The district court entered a certification under Federal Rule of Civil Procedure 54(b) and thus we consider these jurisdictional issues in an interlocutory appeal.
We first examine whether the district court properly dismissed the Bureau Veritas entities. We review for an abuse of discretion a dismissal based on a forum selection clause. Murphy v. Schneider Nat'l Inc., 362 F.3d 1133, 1137(9th Cir.2004) (as amended). The trial court must draw all reasonable inferences in favor of the nonmoving party. Id. at 1138. However, the pleadings need not be accepted as true, and the court may consider facts outside the pleadings. Id. at 1137.
Whether Holland America may litigate its dispute with the BV entities in Washington state depends on which of several contracts govern their relationship. Holland America claims that the Bureau Veritas entities agreed to a forum selection clause providing for venue in Washington. The Bureau Veritas entities dispute this proposition, relying on two earlier contracts that provide for dispute resolution in the Court of Nanterre, France.
Bureau Veritas and Windstar signed two contracts at the outset of their relationship. The first contract, in 1988, was made among Bureau Veritas, Windstar, and Barber Ship Management (Windstar's agent). The contract contained a forum selection clause which provided that "[a]ny dispute shall be submitted to the court of Nanterre (France)." The second contract, signed in 1991, by Bureau Veritas, Windstar, and Holland America contained the same clause. In June 2000, Bureau Veritas issued new general conditions that it attached to future surveying contracts. Article 12.3 of these new conditions provides that disputes other than those related to invoices are subject exclusively to arbitration in London and that English law applies.
Holland America alleges that its purchase orders for services and repairs include a forum selection clause that provides for all litigation to take place in federal court in Seattle or state courts in Washington. In support of its effort to bring the Bureau Veritas entities under the umbrella of this forum selection clause, Holland America offers a single affidavit stating that it placed telephone orders for surveys of the Wind Song by calling BV Canada and, more recently, BVNA, and that it emailed its terms and conditions to andre.laroche@ca.bureauveritas.com.
Even taking these facts as true, Holland America does not meet its burden to establish jurisdiction under the Washington forum selection clause. See Dole Food Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir.2002) (). This case does not present a question of fact, but rather a lack of facts that even raise a question about jurisdiction. Indeed, the facts alleged are more notable for their omissions than their substance. Holland America offers not a single purchase order or email with any Bureau Veritas entity, let alone a purchase order with accompanying terms. Holland's bare assertions are just that — bare of any date, identity of contracting party, identity of transaction, or any other details that would tie the unspecified purchase order to the allegations in the complaint. For example, Holland America never states that it delivered its terms to Bureau Veritas, much less claims that Bureau Veritas agreed to such terms. Holland America does not state when it emailed its terms to Andre LaRoche, who emailed them, or whether LaRoche or anyone at Bureau Veritas, BVNA, or BV Canada ever accepted them. If the terms were delivered after 2002, they would have no bearing on this dispute. (No copy of the purported email has been produced.) Nor does the mere placement of phone orders demonstrate anything about a written purchase order, let alone support a claim that those orders constituted an agreement meant to supersede the 1988 and 1991 contracts.
Holland America's forum selection argument boils down to a claim that it emailed terms to someone at BV Canada. Nothing offered by Holland America even links this statement to a report or service order that is implicated in this dispute. In short, the facts and allegations in Holland America's complaint and its affidavits are too thin to meet its initial burden to support jurisdiction under the Washington forum selection clause.
Holland America makes much of the fact...
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