Wai v. Rainbow Holdings
| Decision Date | 23 February 2004 |
| Docket Number | No. 03-61197-CIV.,03-61197-CIV. |
| Citation | 315 F.Supp.2d 1261 |
| Parties | Aung Lin WAI, Plaintiff, v. RAINBOW HOLDINGS; M.T.M. Ship Management, Pte., Ltd.; and M.T. Maritime Management (USA) LLC, in personam, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Michael Frederick Guilford, Guilford & Rash, Miami, FL, Craig Thomas Downs, Julio Jesus Ayala, Jr., Fort Lauderdale, FL, for Aung Lin Wai, plaintiff.
William R. Boeringer, Hayden & Milliken, Coral Gables, FL, for Rainbow Holdings, M.T.M. Ship Management Pte. Ltd., M.T. Maritime Management (USA) LLC, In Personam, M/T Chembulk Westport, In Rem, defendants.
ORDER ON PENDING MOTIONS
THIS CAUSE came before the Court upon Defendants, Rainbow Holdings, M.T.M. Ship Management Pte. Ltd., and M.T. Maritime Management (USA) LLC's (collectively "Defendants") Motion to Dismiss Seaman's Complaint for Damages ("Motion to Dismiss") (D.E.15); and Defendants' Motion to Stay Discovery Pending Ruling on Motions to Dismiss ("Motion to Stay Discovery") (D.E.41). The Court has reviewed the Motions, the response and reply memoranda, applicable law, and heard oral argument on the Motion to Dismiss.
Plaintiff, Aung Lin Wai's ("Wai") action arises out of an accident aboard the vessel, M/T Chembulk Westport, while it was docked at Port Everglades, Florida, on or about May 9, 2003. The M/T Chembulk Westport is a tanker ship registered in Liberia. Defendant, Rainbow Holdings, a Liberian company, is the disponent owner of the M/T Chembulk Westport. Defendant, M.T. Maritime Management (USA) LLC ("Maritime Management"), is a United States corporation that acts, and on May 9, 2003 acted, as the cargo operator for the M/T Chembulk Westport. Wai was employed by Defendant, M.T.M. Ship Management Pte., Ltd. ("Ship Management"), a Singapore company, as an assistant chief officer on the vessel. Wai was a citizen and resident of the Union of Myanmar, which is the former Burma. He joined the M/T Chembulk Westport in China on February 20, 2003.
It is alleged that on May 9, 2003, Wai suffered severe and permanent injuries when a high tension mooring line slipped off its bit and/or snapped under great tension, striking Wai in the face and head. (Complaint, ¶ 10). It is further alleged that Defendants owned, operated, engaged, maintained and/or controlled the M/T Chembulk Westport (Complaint, ¶ 4), and that Defendants were "Wai's employer and/or acted as an agent for an undisclosed principal who was the owner and/or operator of said ship." (Complaint, ¶ 5).
In support of the Motion to Dismiss, Defendants have filed the Declaration of Maung Win Kyaw (D.E.21). The Kyaw Declaration states that Ship Management is a Singapore limited liability company with its principal offices in Singapore, where its daily business is conducted. (Declaration of Maung Win Kyaw ("Kyaw Decl."), ¶ 1). Ship Management has no offices in Florida or in the United States. (Id. ¶ 2). Ship Management is primarily involved in the business of providing a full range of ship management services to various companies, specializing in chemical and parcel tankers and especially tankers engaged in ocean trades in the inter-Far East, Southeast Asia (westbound), and the Arabian Gulf (east and west). (Id. ¶ 3). The officers and directors of Ship Management are located in and reside in Singapore, as do the majority shareholders. (Id. ¶ 4). The majority of revenue earned by Ship Management is derived from sources outside of the United States. (Id. ¶ 5). Ship Management, through its Singapore office, acts as managing owner of the M/T Chembulk Wesport, and has responsibilities for hiring the crew. (Id. ¶ 6). The majority of the crew, including Wai, are hired pursuant to a collective bargaining agreement. (Id. ¶ 6).
According to the Kyaw Declaration, Rainbow Holding has no offices in Florida or in the United States. (Id. ¶ 8). Additionally, all officers and directors of Rainbow Holding, with only one exception,1 are located in Singapore. (Id. ¶ 9). The shares of Rainbow Holding are owned by Strategic Shipping, Inc., a Liberian company, and all officers and directors of this company, save for one,2 are located in Singapore. (Id. ¶ 9). The majority of shareholders of Strategic Shipping, Inc. are also located in Singapore. (Id. ¶ 9). The majority of the revenue earned by Rainbow Holdings is derived from outside the United States. (Id. ¶ 10).
With regard to Maritime Management, the Kyaw Declaration states that this company "acts as agents for various ship owning and operating companies, including as a cargo operator for the M/T Chembulk Westport in the United States," but "does not charter the vessel and does not hire the crew, and acts as an agent only on behalf of its clients." (Id. ¶ 11) (emphasis in original).
In response to the Motion to Dismiss, Wai has filed a printout from "MT Maritime Management Group's" website in the United States (D.E.30). The website printout reads, in relevant part, as follows:
MTM U.S.A.
The chartering team at MTM U.S.A. acts as agents for various ship owning and operating companies. The main companies represented are Chembulk Trading, Inc. and Strategic Bulk Carriers Inc. The staff at MTM Carriers makes commercial and operational decisions for parcel tankers while in the Western Hemisphere as well as overall tonnage allocation, and handy size bulk carriers operated worldwide.
M.T. Maritime Management (USA) LLC
500 Post Road East
Westport, CT 06880
U.S.A
* * * * * *
MTM Singapore
This consists of two Group companies, MT Maritime Pte. Ltd. and MTM Ship Management Pte. Ltd. The former represents the commercial interests of the MTM Group throughout Asia, in particular commercial and operational decisions for parcel tankers engaged in trades inter-Far East, Southeast Asia westbound, and Arabian Gulf east and west.
M.T. MARITIME PTE. LTD. SINGAPORE
78 Shenton Way, # 13-02
SINGAPORE 079120
* * * * * * MTM Ship Management provides the full range of ship management services to Group and third-party companies, specializing in chemical and parcel tankers.
M.T.M. SHIP MANAGEMENT PTE LTD
78 Shenton Way, # 13-01
SINGAPORE 079120
(MT Maritime Management Group's Website Listing, D.E. 30, p. 1-2) (emphasis in original).
Wai is a member of a union known as the Seaman Employment Control Division, Department of the Marine Administration, Ministry of Transport, Union of Myanmar ("SECD"). The SECD has a collective bargaining agreement with employers. As is common with collective bargaining agreements, the SECD collective bargaining agreements are not signed by individual employees, but rather are executed by the employers and the SECD. The SECD has a collective bargaining agreement with Ship Management.
The collective bargaining agreement executed between the SECD and Ship Management on January 9, 1999, titled the "Collective Bargaining Agreement Made Between Seamen Employment Control Division, Yangon and M.T.M. Ship Management Pte. Ltd, Singapore for Employment of Myanmar Seamen," (hereinafter referred to as "CBA"), provides in pertinent part:
It is mutually agreed between the Seaman Employment Control Division, Department of Marine Administration, Ministry of Transport, Union of Myanmar (hereinafter called S.E.C.D. and the M.T.M. SHIP MANAGEMENT PTE. LTD (hereinafter called the Company)) that the S.E.C.D. agrees to supply and the Company agrees to employ Myanmar Seamen who are registered with S.E.C.D. consisting of Masters, Officers and ratings for serving on board the vessels owned/managed or operated by the Company, in accordance with terms and conditions contained in this agreement.
(emphasis in original). The CBA also contains the following forum selection clause:
The law for the time being in force in the REPUBLIC OF SINGAPORE shall apply to this agreement and the same shall be interpreted and applied in accordance with such laws and parties hereby agree to submit [to] the jurisdiction of the Courts of SINGAPORE.3
(Motion to Dismiss, Exh. A, p. 1) (bold emphasis added; other emphasis in original). The CBA addresses the terms and working conditions of Myanmar Seamen's employment with Ship Management (members of the crew, duration of service, extension of service, re-employment, termination, compensation, working hours, overtime, public holidays, leave pay, discipline, rules of conduct, grievance procedures, repatriation, medical examinations and treatment, medical leave and sick pay, allowances, working apparel, safety equipment, and fees and charges). (Motion to Dismiss, Exh. A, p. 2-11). One Addendum to the CBA, "Annexture (B)," "covers compensation for permanent injury or death to Myanmar Seamen occurring during the course of contract." (Motion to Dismiss Exh. A., p. 12) (emphasis in original).
There exists a letter of employment or letter of engagement, dated February 11, 2003, between Ship Management and Wai (hereinafter referred to as the "Letter"). (See Motion to Dismiss, Exh. B). In the Letter, Wai was offered the position of assistant chief officer on the M/T Chembulk Wesport, subject to the condition that he read and agree to abide by all of the terms of the CBA. By signing the Letter, Wai affirmed that he had read the CBA and agreed to its terms and conditions. (Id.). The Letter was signed by Wai before he joined the vessel, and later signed by the Captain on behalf of Ship Management when Wai joined the vessel approximately a week later.
Prior to joining the M/T Chembulk Westport, Wai also signed a "Guarantee." In the "Guarantee," Wai stated that he was fully aware and understood the contents of the CBA. (Motion to Dismiss, Exh. C). The "Guarantee" was also executed by the Captain of the vessel.
Wai sues Defendants under 46 App.U.S.C. § 688 (the "Jones Act"), 46 U.S.C. § 10313 (the "Seaman's Wage Act"), and under the general maritime law of the United States. In...
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