Ioannidis/Riga v. M/V Sea Concert, No. CV-00-693-ST.

• Decision Date: 23 January 2001
• Docket Number: No. CV-00-693-ST.
• Parties: Maria IOANNIDIS/RIGA, as guardian for Ioannis Ioannidis, Plaintiff, v. M/V SEA CONCERT, her engines, tackle, apparel and equipment; Golf Maritime Ltd., and Brave Maritime Corporation, Inc., Defendants.
• Court: U.S. District Court — District of Oregon

132 F.Supp.2d 847

Maria IOANNIDIS/RIGA, as guardian for Ioannis Ioannidis, Plaintiff, v. M/V SEA CONCERT, her engines, tackle, apparel and equipment; Golf Maritime Ltd., and Brave Maritime Corporation, Inc., Defendants.

No. CV-00-693-ST.

United States District Court, D. Oregon.

January 23, 2001.

Michael E. Haglund, Haglund & Kirtley LLP, Portland, OR, for Plaintiff.

ORDER

HAGGERTY, District Judge.

On October 12, 2000, Magistrate Judge Stewart issued a Findings and Recommendation (doc. # 35-1) recommending that the defendant Golf Maritime's Motion to Dismiss and to Strike (doc. # 10-1) should be GRANTED ON CERTAIN CONDITIONS, as follows:

(1) A WAIVER BY Golf Maritime of any statute of limitations defenses applicable in a foreign forum;

(2) A GENERAL APPEARANCE BY ALL DEFENDANTS AND SUBMISSION TO PERSONAL JURISDICTION in the foreign country selected by plaintiff;

(3) THE POSTING OF FULL SECURITY as required by the foreign court;

(4) ACCEPTANCE OF JURISDICTION by the foreign court;

(5) A STIPULATION BY GOLF MARITIME that all depositions and documentary evidence obtained in the United States are admissible in the foreign court in lieu of live testimony.

Plaintiff filed objections to this Findings and Recommendation. On November 8, 2000, the Findings and Recommendation and objections were referred to this court for review.

When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

Plaintiff has filed objections in a timely manner, in accordance with the filing schedule provided by the Magistrate Judge in her Findings and Recommendation. The court has given the file of this case a de novo review, and has also carefully evaluated the Magistrate's Findings and Recommendations, the objections, and the Record of the case. For the following reasons, the Magistrate Judge's Findings and Recommendation is adopted.

The facts and underlying issues in this case have been presented thoroughly by Magistrate Judge Stewart in her Findings and Recommendation, and need only brief summary here. Plaintiff, acting as guardian for her husband, Captain Ioannis Ioannidis, brings this action against defendants, the vessel M/V SEA CONCERT, Golf Maritime Ltd., ("Golf Maritime"), and Brave Maritime Corporation, Inc. ("Brave Maritime"), seeking to recover for injuries suffered by her husband aboard the M/V SEA CONCERT. The Captain was injured while working inside a cargo hold of the M/V SEA CONCERT on May 7, 2000, when the vessel was moored in Astoria, Oregon. Plaintiff seeks recovery for maritime negligence, but has conceded that her Second Claim for Relief, alleging a violation of 42 U.S.C. § 1985, should be dismissed. This court has federal question jurisdiction over her claims under 28 U.S.C. § 1331.

Defendant Golf Maritime moved to dismiss, and the Magistrate Judge properly determined that this motion should be treated as a motion under Fed.R.Civ.P. 12(b)(3), and that "the court need not accept the pleadings as true and may consider facts outside of the pleadings." See Findings and Recommendation at 2-3. The Magistrate Judge went on to determine that before addressing Golf Maritime's argument for dismissal based on forum non conveniens, the court was first required to decide whether plaintiff could state a claim under the Jones Act. The Magistrate Judge concluded that to do so, the seven factors described by the United States Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 583-93, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), had to be applied. Having completed this analysis, the Magistrate Judge recommended that plaintiff could not state a claim under the Jones Act, and that Golf Maritime's motion to dismiss was well-taken.

Plaintiff's objections to this recommendation assert that the Magistrate Judge erred in applying the Lauritzen factors because the parties had agreed that Cyprus law would govern in a forum selection clause that was part of the employment contract the Captain signed previously with defendants. Plaintiff then argues that because Greece is a member state of the European Community and has adopted two international conventions that, according to plaintiff, negate the selection of Cyprus, Greece should be construed as providing the governing law. And, since Greek law incorporates American law, including the Jones Act, plaintiff contends that that the court cannot dismiss her claim for forum non conveniens. Plaintiff insists that this analysis is based upon applying the federal common law's choice-of-law rules.

The Magistrate Judge's reasoning on this issue is sound and well-supported by controlling authorities.

See Findings and Recommendation at 10-12 ("in cases such as this, courts in the Ninth Circuit make their own choice of law determination, guided by the factors delineated in Lauritzen);" citing Zipfel v. Halliburton Co., 832 F.2d 1477, 1486-87 (9th Cir.1987), cert. denied sub nom. Crowley Maritime Corp. v. Zipfel, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988), as modified, 861 F.2d 565 (9th Cir.1988); Villar v. Crowley Maritime Corp., 782 F.2d 1478 (9th Cir.1986); Pereira v. Utah Transp., Inc., 764 F.2d 686, 688 (9th Cir. 1985), cert. dismissed, 475 U.S. 1040, 106 S.Ct. 1253, 89 L.Ed.2d 362 (1986). Plaintiff's objections offer no grounds for rejecting this conclusion.

Alternatively, plaintiff also asserts in her objections that the doctrine of renvoi should be applied to reach the conclusion that United States maritime law should apply in this case. The Magistrate Judge noted that this doctrine has been "rejected by federal courts," Findings and Recommendation at 19, and referred to Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1518 (11th Cir.1985), in which the court considered a party's attempt to apply Liberian law — "because Liberia by statute has adopted American court-made admiralty law as its own" — as "a renvoi argument" and rejected it. The Magistrate Judge also explained that this court has also rejected similar arguments. See Forsythe Int'l. U.K. Ltd., v. M/V RUTH VENTURE, 633 F.Supp. 74, 77 (D.Or.1985) (argument to apply renvoi rejected; "renvoi has not enjoyed overwhelming acceptance" and has been "rejected by this court on similar facts"). The Magistrate Judge's sound conclusion that plaintiff's alternative renvoi argument is unsupported by any relevant law and contravenes important public policy concerns withstands plaintiff's objections. This court concludes that plaintiff's reliance in her objections upon passages from the Restatement (Second) of Conflict of Laws and upon alternative policy concerns is unpersuasive.

Finally, this court notes that defendants' arguments that plaintiff's objections were untimely are without merit. Plaintiff complied with the specific filing schedule provided by the Magistrate Judge in the Findings and Recommendation.

CONCLUSION

This court adopts the Magistrate Judge's conclusions that, based upon the application of the Lauritzen factors, foreign law applies to plaintiff's claim under maritime law and she fails to state a claim under the Jones Act or other general maritime law. Moreover, plaintiff's claims must be dismissed for forum non conveniens, as Greece or Cyprus provide a better forum for this lawsuit, and Golf Maritime's Motions to Dismiss and to Strike (doc. # 10-1) are GRANTED under the conditions established in the Findings and Recommendation, as follows:

(1) a waiver by Golf Maritime of any statute of limitations defenses applicable in a foreign forum;

(2) an agreement from all defendants to make a general appearance in the foreign country selected by plaintiff and to submit to personal jurisdiction in that forum;

(3) Golf Maritime posting whatever security for the vessel the foreign court requires (4) the foreign court's acceptance of jurisdiction over this case; and

(5) a stipulation by Golf Maritime that all depositions of witnesses and other documentary evidence obtained in the United States are admissible in a foreign court in lieu of live testimony.

This action is dismissed, subject to compliance with the conditions above.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiff, Maria Ioannidis/Riga ("Ioannidis")¹, acting as guardian for her husband, Captain Ioannis Ioannidis, brings this action against defendants, the M/V SEA CONCERT, Golf Maritime Ltd. ("Golf Maritime"), and Brave Maritime Corporation, Inc. ("Brave Maritime"), seeking to recover for injuries suffered by her husband aboard the M/V SEA CONCERT. Captain Ioannidis allegedly sustained injuries while working inside one of the cargo holds of the M/V SEA CONCERT on May 7, 2000, when the vessel was moored at the Port of Astoria, Oregon. Ioannidis' First Claim for Relief seeks recovery for maritime negligence and her Second Claim for Relief alleges a violation of 42 USC § 1985. This court has federal question jurisdiction over her claims under 28 USC § 1331.

Defendant Golf Maritime's Motions to Dismiss and to Strike (docket # 10) are now before the court. For the reasons stated below, those motions should be granted.

PRELIMINARY ISSUE

In support of their respective positions, both parties have submitted material outside the pleadings. A motion to dismiss under Federal Rule of Civil Procedure ("FRCP") 12(b)(6), however, is limited to the allegations of the complaint which are taken as true and viewed in the light most favorable to the non-moving party. Cassettari v. Nevada County, Cal., 824 F.2d 735, 737 (9th Cir.1987). If the parties submit, and the court considers, material submitted outside the pleadings to support or oppose a motion to dismiss, FRCP 12(b)(6) converts the motion to dismiss to...