Szumlicz v. Norwegian America Line, Inc., 81-6045

• Decision Date: 28 February 1983
• Docket Number: No. 81-6045,81-6045
• Citation: 698 F.2d 1192
• Parties: Ryszard SZUMLICZ, Plaintiff-Appellee, v. NORWEGIAN AMERICA LINE, INC., etc., Global Cruises, Ltd., etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1192

698 F.2d 1192

Ryszard SZUMLICZ, Plaintiff-Appellee, v. NORWEGIAN AMERICA LINE, INC., etc., Global Cruises, Ltd etc., Defendants-Appellants.

No. 81-6045.

United States Court of Appeals Eleventh Circuit.

Feb. 28, 1983.

Frank J. Marston, Miami, Fla., for defendants-appellants.

Elizabeth K. Clarke, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Defendant Norwegian America Line, Inc., appeals from a judgment, entered on a jury verdict, awarding $35,000.00 damages to plaintiff Ryszard Szumlicz, in a suit brought by him for unseaworthiness and under the Jones Act, 46 U.S.C. Sec. 688. ¹ Defendant urges error in the refusal of the district court to refrain from exercising jurisdiction under the doctrine of forum non conveniens and error in setting aside the jury's finding of contributory negligence, resulting in the full assessment of compensatory damages awarded to the plaintiff. ² We affirm.

Plaintiff, a citizen and resident of Poland, entered the service of the VISTAFJORD in Hamburg, Germany on December 16, 1978, to work for a period of six months as a musician. The ship proceeded from Hamburg to another port in Germany where passengers boarded, and thence to England where additional passengers came aboard. The vessel then sailed to the Canary Islands, and from there to South Florida where she arrived on January 19, 1979. Between that date and February 17, 1979, when the plaintiff was hospitalized, the VISTAFJORD called at Port Everglades, Florida every two weeks. During a four-month period the vessel called at that port nine times. The ship flies the Norwegian flag and is owned by Norwegian companies whose offices are in Norway. It is substantially financed by American concerns.

The defendant maintains offices in Fort Lauderdale, Florida, and in New York, New York. The VISTAFJORD and other Norwegian America Line vessels operate on a regular basis out of Port Everglades, in Fort Lauderdale. Defendant advertises and operates two, three and four week Caribbean cruises, commencing and terminating in Fort Lauderdale. Special rates are offered to passengers flying in from various points in the Continental United States. The VISTAFJORD and other cruise ships of Norwegian America Line have their Caribbean cruise routes based in Florida with scheduled stops in other United States ports such as San Juan, Puerto Rico, and St. Thomas and St. Croix in the Virgin Islands. Defendant has shipping agents in Fort Lauderdale, and has a physician there who regularly treats defendants' seamen.

Plaintiff saw the ship's doctor on February 9 or 10, 1979 for chest pains. He saw the doctor again on February 14 and 15. Without advising the plaintiff the nature of his illness, the doctor permitted him to continue working through February 15. Finally, on February 16, the doctor told plaintiff to discontinue working, again without disclosing his diagnosis. When the ship put into Fort Lauderdale on February 17, the port doctor hospitalized him. Plaintiff ultimately returned to Europe. He was paid the monetary benefits provided for in the Norwegian Seaman's Act.

Defendant, in its amended answer, asserted that the court should decline to exercise jurisdiction of the action under the doctrine of forum non conveniens and later filed a motion for summary judgment. The court deferred ruling on the motion and the case proceeded to trial. The jury returned a verdict for the plaintiff for $35,000.00, but found the defendant ten percent at fault and the plaintiff ninety percent at fault, resulting in a net award of $3,500. Subsequently, the court denied defendant's motion for summary judgment and struck the portion of the verdict finding the plaintiff ninety percent at fault, and entered judgment in favor of the plaintiff for $35,000.00.

In striking the portion of the verdict finding contributory negligence the court concluded that it was error to instruct the jury to consider this issue in the absence of any evidence that the plaintiff was himself negligent. We agree. In sum, the defendant argues that the plaintiff should have self-diagnosed his heart attack and should have stopped working even though the ship's doctor did not disclose plaintiff's illness or instruct him not to work. Defendant argues that plaintiff could have quit his job. These contentions do not merit discussion. The record discloses a total absence of evidence of contributory negligence.

Rather than concern ourselves with plaintiff's argument that there was a procedural basis for the court to have denied defendant's motion for summary judgment, we address the real issue--the choice of law problem--which is presented here where the plaintiff, a foreign seaman, seeks to recover personal injury damages from the defendant, a foreign shipowner.

After noting that the criteria listed in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), as supplemented by Hellenic Lines v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) did not neatly fit this case, the district court concluded "that sufficient contacts were adduced to justify retaining jurisdiction over this cause and to make the application of American Law appropriate under the circumstances of this case. This conclusion is based upon a finding that the defendants conducted substantial business in United States ports and that plaintiff was treated for his medical condition in the United States while serving aboard defendant's vessel and in their employment."

Whether the Jones Act applies in this case involves a question of choice of law, the determination of which requires a two-pronged inquiry. 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. Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir.1982); Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015 (5th Cir.1981).

As we pointed out in Fisher v. Agios Nicolaos V, 628 F.2d 308, 316 (5th Cir.1980), the factors for determining the choice of law question

have been set out by the United States Supreme Court in the Lauritzen--Romero--Rhoditis trilogy: Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Romero v. International Terminal Operating Company, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953).

Lauritzen set out seven connecting factors generally regarded as significant, to be listed below, and in the case before it held that the overwhelming preponderance of these factors favored application of the foreign law, thus rejecting the application of the American Jones Act sought by plaintiffs. Romero held that the Lauritzen factors...