Karim v. Finch Shipping Co. Ltd.
| Decision Date | 14 April 2000 |
| Docket Number | No. Civ.A. 94-4169.,Civ.A. 94-4169. |
| Parties | Noor Begum KARIM, et al. v. FINCH SHIPPING CO. LTD., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Finch Shipping Company, Ltd. ("Finch") petitions this Court for exoneration and limitation of liability from damages sustained by Mr. Fazal Karim when he was injured while serving aboard Finch's vessel, the M/V LOUSSIO. Karim answers contesting exoneration and limitation of liability because he claims his injuries were caused by the negligence of Finch or by the unseaworthiness of the M/V LOUSSIO, of which Finch had privity and knowledge. In addition, Karim has filed a claim in the limitation proceeding seeking maintenance and cure as well as damages under the Jones Act, general maritime law, international law, or other applicable law.1
The transnational nature of maritime activities often produces complex questions of jurisdiction, applicable law, or proper venue. The present case raises issues in each of these areas. A Bangladeshi seaman injured on the high seas aboard a Panamanian flagged vessel, owned by a Maltese corporation with its base of operations in Pakistan and managed by a Danish company, has filed an answer and claim in a limitation proceeding instituted by the foreign vessel owner in the Eastern District of Louisiana. Does the Court have jurisdiction over the limitation proceeding? What is the proper forum for this case? What law should the Court apply? The legal voyage begins with a review of the factual and procedural histories.
Fazal Karim, a Bangladeshi citizen residing near Chittagong, Bangladesh, joined the crew of the bulk cargo vessel, M/V LOUSSIO, as a seaman/helmsman on January, 18, 1995. Prior to boarding the Panamanian flagged vessel in Rotterdam, Netherlands, Karim had passed an annual physical examination and had suffered no physical ailments. He signed shipping articles prepared and negotiated by the Bangladeshi government for the protection and benefit of Bangladeshi seamen.
Finch Shipping Company ("Finch") owned the M/V LOUSSIO. Finch, a Maltese corporation whose principal shareholder, Mohammed Ilyas Shaik, is a Pakistani citizen currently residing in the United Arab Emirates, acquired the M/V LOUSSIO from a Liberian corporation in January 1995. Upon acquiring the M/V LOUSSIO, Finch hired Overseas Shipping Agency of Chittagong, Bangladesh, to staff the crew of the vessel which consisted of Bangladeshi seaman and Pakistani officers. Finch also contracted with Alpina Shipping, a Danish management company based in Copenhagen, Denmark, to manage the daily operations of the vessel and to secure employment and voyage charterers for Finch.
The M/V LOUSSIO engaged in "tramp" trade which involves transporting cargo at the direction of any interested charterer rather than committing to regular voyages for a particular charterer. The itinerary of the M/V LOUSSIO, therefore, depended upon who chartered the vessel and where the charterer directed the vessel to transport cargo. Finch did not decide where the M/V LOUSSIO sailed.
On August 4, 1995, the M/V LOUSSIO left Piraeus, Greece for a Gulf port to obtain a cargo of grain. While at sea off the coast of Bermuda, the crew prepared for the grain shipment by cleaning the holds of the vessel which had stored coal on the previous voyage from South Africa to Greece. This preparation included washing the sides and sweeping the bottom of the No. 7 hold.
At 8:00 a.m. on August 17, 1995, several crew members reentered cargo hold No. 7 to complete their cleaning operations. They remained in the hold until 10:00 a.m. when they suspended their activity and left the hold for morning tea. As the crew members departed, they tracked a mixture of coal dust and water on the ladder way.
To enter and exit the hold, crew members used a ladder way composed of three sections. The first section consisted of four rung-type ladders leading to several platform landings. In the second section, five step pads and a right-side hand railing allowed crewman to navigate a slope sheet that had been installed at a forty-five degree angle from the base of the third landing to prevent cargo from accumulating on the walls of the hold. The third section of the ladder way began at the base of the slope sheet and included a "pigeon hole" ladder that led vertically to the bottom of the hold. This portion of the ladder way consisted of steel sheet in which holes had been cut at twelve inch intervals to serve as rungs and handholds. Crewmen used this ladder way system to access eight of the nine cargo holds in the M/V LOUSSIO.
At 10:30 a.m., the crew members finished their morning tea and returned to cargo hold No. 7. Karim was the first crew member to reenter the hold. Wearing clean boots and gloves, Karim proceeded down the ladder way without incident until he reached the transition area between the slope sheet and the pigeon hole ladder. When making the transition from the sloped sheet to the pigeon hole ladder, his foot slipped causing him to lose his balance and fall some twenty to thirty feet to the bottom of the hold. Only Mokhlesur Rahman, a seaman/helmsman who followed Karim into the hold, witnessed the accident, and his view was partially obstructed.
Karim suffered severe injuries from his fall. He fractured his lumbar vertebrae and hip, pelvis, leg, ankle, heel, and wrist on his left side. Additionally, Karim suffered several herniated discs in his back and neck as well as a detached retina in his right eye.
Karim was moved by fellow crew members to a dry portion of the hold and eventually evacuated using a cargo hook to raise him vertically from the cargo hold on a canvas stretcher which lacked any support. The pain during this period was "unbearable." He was then taken to the ship's infirmary where he was placed on a cot. The second officer of the M/V LOUSSIO, acting as ship's medical officer, monitored his vital signs and administered aspirin and other non-narcotic medication to Karim because other pain medications, including codeine and morphine, had expired. Crew members visited Karim daily to turn and clean him. Because of his injuries, Karim was unable to use the bathroom independently and had to urinate and defecate with the help of crew members who came to his cot.
Captain Mohammed Yosuf notified the owner and manager of the vessel of Karim's situation and contacted the international medical service, C.I.R.M. Medical Italia, by telex for assistance. Although advised by telex from doctors in Rome to evacuate Karim, Captain Yosuf could not obtain helicopter service from Bermuda because of an impending tropical storm. Captain Yosuf chose to proceed past the Bahamas and not to transfer Karim to Bermuda on a smaller vessel or to seek treatment in the Bahamas or Florida. Following discussions with the Coast Guard and doctors from C.I.R.M., Captain Yosuf directed the vessel to its New Orleans destination nine days hence. Throughout this time, Karim endured excruciating pain. His ordeal during this nine-day voyage to New Orleans was a window into Hell.
Up to this point, the United States had no connection to the chain of events surrounding Karim's injury or treatment. The matter involved injuries to a Bangladeshi seaman serving aboard a Panamanian flagged vessel sailing on the high seas of the Atlantic Ocean. As mentioned, the vessel was owned by a Maltese corporation with operations in Pakistan and was managed by a Danish company. Only when Mr. Karim was evacuated by helicopter to Jo Ellen Smith Hospital in Algiers, Louisiana, upon the arrival of the vessel in New Orleans, did the United States become involved. This involvement consisted of first medical services and next legal process. It is appropriate to turn first to the latter.
The legal history of this case began on November 30, 1995 when Karim and his wife brought suit against Finch, Alpina Shipping, and several other parties in the Civil District Court for the Parish of Orleans, State of Louisiana.
Karim first invoked the protections of this Court on December 5, 1995 when he sought to enjoin the Immigration and Naturalization Service from deporting him because of his debilitated condition and urgent need for medical care. (Civil Action No. 95-4021). The Court granted Karim's request for a temporary restraining order on December 5, 1995 and issued a preliminary injunction on December 15, 1995 preventing his deportation. On April 10, 1997, the Court dissolved the preliminary injunction finding that Karim's medical condition had improved and he was capable of travel. The Fifth Circuit Court of Appeals denied Karim's request for a stay pending his appeal. The preliminary injunction ended on April 15, 1997, and Karim was returned to Bangladesh.
On April 3, 1996, one year before Karim's return to Bangladesh, Finch instituted a limitation of liability proceeding in this court pursuant to 46 U.S.C.App. § 181 et seq. (Civil Action No. 96-1175).2 The Court entered a monition and concursus restraining the prosecution of any state court claims and requiring all parties with claims against Finch to direct them to this Court. Karim filed an answer in this proceeding contesting Finch's right to exoneration and limitation and sought damages for his injuries under the Jones Act, 46 U.S.C.App. § 688, general maritime law of the United States, international law, or other applicable law. On October 16, 1996, this Court stayed the limitation proceeding and lifted the monition, and, after receiving an appropriate stipulation, allowed Karim to pursue his claims against Finch in state court while at the same time preserving Finch's right to seek limitation in this Court.3
On July 9, 1997, the Civil District Court for the Parish of Orleans found that Finch had insufficient contacts with...
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Karim v. Finch Shipping Co. Ltd.
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