Prado v. Sloman Neptun Schiffahrts, A.G.

Decision Date15 December 1992
Docket NumberNo. 91-CA-2450,91-CA-2450
Citation611 So.2d 691
PartiesAntonio PRADO v. SLOMAN NEPTUN SCHIFFAHRTS, A.G., Asiento Shipping Company, et al.
CourtCourt of Appeal of Louisiana — District of US

Waltzer & Bagneris, Bruce C. Waltzer, Paul S. Weidenfeld, New Orleans, for plaintiff-appellant.

D. Kirk Boswell, Charles F. Lozes, New Orleans, for defendant-appellee Asiento Shipping Co. N.V.

Before BYRNES, CIACCIO and LANDRIEU, JJ.

BYRNES, Judge.

The key issue in the case is whether the law of the United States should be applied to this maritime tort where plaintiff, Prado, is a citizen of the Republic of the Philippines; he joined the crew of the Epsilongas in the Philippines; the Epsilongas was a ship of Netherlands Antilles flag and registry and was the only vessel owned by defendant, Asiento, a corporation organized and existing under he laws of the Netherlands Antilles with its principal and only place of business in Willemstad, Curacao; the Epsilongas was a specialized vessel whose service was dedicated to making regular stops with only infrequent exceptions in Louisiana approximately every 12 days to pick up liquified gas which it would then transport to Cartagena, Columbia; plaintiff's employment contract was drafted by the Philippines Overseas Employment Administration (POEA), an agency of the Philippine government, and provided that all claims relative to the contract shall be exclusively resolved through the grievance procedure of POEA and the Philippine Court of Justice; that all rights and obligations of the parties to the contract shall be governed by the laws of the Republic of the Philippines; and, that POEA shall have original and exclusive jurisdiction over all disputes or controversies arising out of or by virtue of the employment contract; at the time of the injury on May 2, 1987, the Epsilongas was plying the international waters of the Yucatan Channel en route to Louisiana, and upon the recommendation of the United States Coast Guard the Epsilongas proceeded to Key West, Florida to obtain medical assistance for plaintiff; he departed the Epsilongas at Key West, he was treated in Miami, and he was repatriated to the Philippines on August 17.

Plaintiff filed suit in the Civil District Court for the Parish of Orleans under the Jones Act, 46 U.S.C.A.App. 688, and the general maritime laws of the United States against defendant, Asiento Shipping Co. N.V., his employer and the owner of the ship on which he was injured. Sloman Neptun Schiffahrts A.G., Norqulf-Uniqas, Inc., and Hanseatic Shipping Company, originally named as defendants, were dismissed by plaintiff as of May 20, 1988. Defendant filed exceptions to the venue, exceptions of no right and no cause of action, and a motion for summary judgment. The trial judge granted the exception of no cause of action. He did not specifically rule on the exception of no right of action or the motion for summary judgment.

Plaintiff previously appealed that decision to this court and we affirmed. Prado v. Sloman Neptun Schiffahrts-A.G., 558 So.2d 712 (La.App. 4 Cir.1990). In those proceedings we ruled that the exception of no cause of action had been improperly granted. At the same time, we took note of defendant's motion for summary judgment which we felt was ripe for adjudication. In the interest of judicial economy, therefore, on our own initiative, we granted summary judgment in favor of the defendant. The plaintiff, Prado, applied to the Supreme Court for writs, which summarily reversed our decision and remanded the case to the district court for consideration of the pending motion for summary judgment. Prado v. Sloman Neptun-Schiffahrts-A.G., 565 So.2d 930 (La.1990).

On remand the trial court granted defendant's motion for summary judgment without written reasons, and it is from that decision that the plaintiff now appeals to this court.

I. JURISDICTION

We find that the frequency and regularity of contacts by the Epsilongas with Louisiana (approximately every 12 days with few exceptions) is sufficient to confer jurisdiction upon this court even though the defendant, Asiento, did not maintain an office in this state as was the case in de Reyes v. Marine Management and Consulting, 586 So.2d 103 (La.1991). "The contacts here are far more than those minimal contacts which suffice for the exercise of long arm jurisdiction over the owner, and which might arise simply from an occasional call at American ports." Mattes v. National Hellenic Am. Line, S.A., 427 F.Supp. 619, 628 (1977). Neither party has raised any objections to our jurisdiction. In fact, counsel for Asiento specifically acknowledged jurisdiction in oral argument.

II. CHOICE OF LAW AND FORUM NON CONVENIENS

The relevant considerations for Jones Act choice of law determinations have been set forth in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Limited v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). Lauritzen listed seven factors to be considered in deciding whether the Jones Act applied: (1) place of wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured party; (4) allegiance of the shipowner; (5) place of the contract; (6) inaccessibility of foreign forum; and (7) law of the forum. 345 U.S. at 583-92, 73 S.Ct. at 928-33. Rhoditis expanded on the Lauritzen test by stating that the seven-factor list "was not intended as exhaustive," and that the test was "not a mechanical one." 398 U.S. at 308-09, 90 S.Ct. at 1733-34. In holding the Jones Act applicable, the Rhoditis court noted that the shipowner's "base of operations" should also be considered. 398 U.S. at 309, 90 S.Ct. at 1734.

The Lauritzen-Rhoditis factors are intended to answer the choice of law question, i.e., should the court apply the law of the United States or the law of another nation. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Hellenic Line, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959).

"We agree with the Fifth, Tenth and Eleventh Circuits that a choice of law determination must be made before a circuit court dismisses a case under forum non conveniens." Pereira v. Utah Transport, Inc., 764 F.2d 686, 688 (9 Cir.1985); See also: Fisher v. Agios Nicolaos V, 628 F.2d 308, 314 (5 Cir.1980). "First, the court must decide, under choice of law principles, whether the law of the United States should be applied. If United States law applies, the case should not be dismissed for forum non conveniens. If the court determines that United States law does not apply, it then examines the traditional considerations of forum non conveniens to determine whether the court should exercise its discretion and decline to assert jurisdiction over the case." Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11 Cir.1983). (Emphasis added).

We agree with the reasoning and cases referred to in Szumlicz, supra. However, in Louisiana "... the doctrine of forum non conveniens is specifically made unavailable in a Jones Act or maritime law case." Miller v. American Dredging Co., 595 So.2d 615, 617 (La.1992); LSA-C.C.P. art. 123. Writs applied for, 60 U.S.L.W. 3844 (May 1992).

Therefore, as we have jurisdiction, if we determine that foreign law applies, we must either remand this case to the trial court to apply it or transfer it to a foreign forum on a basis as other than forum non-conveniens.

III. BASE OF OPERATIONS

Plaintiff concedes in his brief that he can meet none of the seven Lauritzen criteria. Therefore, this court need only consider whether there was a genuine issue of material fact concerning Asiento's "base of operations". If we determine that there is a genuine issue of material fact about the existence of a base of operations, we must then decide whether that factor in the absence of all seven Lauritzen criteria is sufficient in itself to warrant the application of United States law.

Determining the base of operations of a shipping enterprise is a question of fact. Dalla v. Atlas Maritime Co., 771 F.2d 1277, 1278 (9 Cir.1985); Szumlicz v. Norwegian American Line, Inc., 698 F.2d 1192, 1196 (11 Cir.1983); Fisher v. Agios Nicoloas V., 628 F.2d 308 (5 Cir.1980). Moreover, we find that it is a material fact. However, we do not find that Prado has succeeded in raising any genuine issues regarding that fact.

First we will consider all four cases cited by Prado to support his base of operations argument:

1. In Hellenic Lines Limited v. Rhoditis, supra, which established the "base of operations" test, the shipowner, Hellenic Lines Ltd., although nominally a Greek corporation, had its largest office in New York and another in New Orleans. Asiento Shipping has no offices in the United States. In Rhoditis, 95% of the stock in Hellenic Lines was owned by a permanent resident of the United States (although he maintained Greek citizenship) who lived in Connecticut and managed the corporation out of New York. Asiento has no United States ownership.

Rhoditis is so closely identified with the "base of operations" criterion which it established that it is easy to overlook another significant factor in that case--the injury occurred in the United States! Prado, on the other hand was injured in international waters.

2. In Fisher v. Agios Nicholas V, 628 F.2d 308 (5 Cir.1980), the trial court made a factual finding that the shipowner had a base of operations in the United States which finding was affirmed by the appellate court only on the basis that it "... should not be disturbed on review unless clearly erroneous." 628 F.2d at 318. However, the court in Fisher made a number of observations which distinguish it from the instant case:

"The district court held ... that it was ... appropriate to apply United States law to the consequences of this accident in an American port, to which a...

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