Williams v. Cruise Ships Catering and Service

• Decision Date: 09 June 2004
• Docket Number: No. 03-60158-CIV.,03-60158-CIV.
• Citation: 320 F.Supp.2d 1347
• Parties: Enrique WILLIAMS, Plaintiff, v. CRUISE SHIPS CATERING AND SERVICE INTERNATIONAL, N.V.; Prestige Cruises N.V.; and Costa Crociere, SPA Defendants.
• Court: U.S. District Court — Southern District of Florida

320 F.Supp.2d 1347

Enrique WILLIAMS, Plaintiff, v. CRUISE SHIPS CATERING AND SERVICE INTERNATIONAL, N.V.; Prestige Cruises N.V.; and Costa Crociere, SPA Defendants.

No. 03-60158-CIV.

United States District Court, S.D. Florida.

June 9, 2004.

COPYRIGHT MATERIAL OMITTED

Charles R. Lipcon, Esq., Lipcon, Marguiles & Alsina, David H. Pollack, Esq., Miami, for Plaintiffs.

Richard J. McAlpin, Esq., Jonathan H. Dunleavy, Esq., McAlpin & Brais, P.A., Miami, for Defendants.

AMENDED¹ ORDER DENYING MOTION FOR RECONSIDERATION AND RECOMMENDING CERTIFICATION

GOLD, District Judge.

THIS CAUSE is before the Court upon Defendants' Motions for Reconsideration [DE # 106, filed December 23, 2003; DE # 116, filed January 15, 2004] of the Order Denying Defendants' Motion to Dismiss on Forum Non Conveniens Grounds [DE # 103, filed December 9, 2003]. Plaintiff filed his Opposition to the first Motion on December 31, 2003 [DE # 107] and his Opposition to the second Motion on January 9, 2004 [DE # 114]. Defendants filed their Reply [DE # 111] on January 6, 2004. Upon review of the record, the parties' arguments, and applicable statutory and case law, the Defendants' Motion for Reconsideration is DENIED. Because other Judges in this Court have reached the different conclusions, this case is appropriate for certification pursuant to 28 U.S.C. § 1292(b).

Background

Plaintiff, a Costa Rican citizen, brought this action against Cruise Ships Catering and Service International, N.V. ("CSCS International"), Prestige Cruises, N.V. ("Prestige"), and Costa Crociere, S.p.A. ("Costa Crociere" or "Costa") for injuries he suffered on two separate occasions in October and November 2000 while he worked aboard the M/S Costa Atlantica ("Atlantica"), an Italian-flagged vessel. (Complaint, DE # 1, filed February 3, 2003). Plaintiff alleges claims under the Jones Act and claims for unseaworthiness, failure to cure, and failure to treat. Id. Defendants sought dismissal of the case based on the doctrine of forum non conveniens. For the reasons explained below, I denied Defendants' Motion to Dismiss. See infra Part I. Defendants now urge me to reconsider this decision, and both parties have filed new exhibits in support of and against the Motion for Reconsideration. See infra Part II.

I. Court's Order Denying Defendants' Motion to Dismiss on Forum Non Conveniens Grounds

I will give a brief summary of the Court's Order Denying Defendant's Motion to Dismiss on Forum Non Conveniens Grounds ("Order" or "Order denying dismissal"). The complete Order is attached as Exhibit A. In my previous Order, I explained that under Eleventh Circuit case law, the application of the Jones Act involves a question of choice of law, the determination of which requires a two-pronged inquiry. (Order at 6, citing Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir.1983)). First, the district court must decide, under choice of law principles, whether the law of the United States should be applied. (Id.). If United States law applies, the case should not be dismissed for forum non conveniens. (Id.).

In Lauritzen v. Larsen, 345 U.S. 571, 583-91, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the United States Supreme Court outlined the following seven factors for determining whether the Jones Act is applicable to a claim: (1) the place of the wrongful act; (2) the law of the ship's flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the shipowner; (5) the place where the shipping articles were signed; (6) the accessibility of the foreign forum; and (7) the law of the forum. (Order at 7). The Supreme Court subsequently emphasized that the Lauritzen factors were neither exhaustive nor meant to be applied mechanically to the facts of each case. (Order at 7, citing Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970)). The Court then noted the importance of an eighth factor, the "shipowner's base of operations." (Id., citing Rhoditis, 398 U.S. at 309, 90 S.Ct. 1731). Although the Rhoditis Court referred to the "shipowner's" base of operations, the Court later noted that the operational contacts of both the ship and its owner were to be considered in the choice of law analysis. (Id., citing Rhoditis, 398 U.S. at 310, 90 S.Ct. 1731).

Relying on Rhoditis, the Eleventh Circuit held in Szumlicz that the substantial use of a United States "base of operations" by the vessel's owner, along with any other U.S. contacts, justified the application of the Jones Act, and, thus, precluded dismissal on the basis of forum non conveniens. (Id. at 8, citing Szumlicz, 698 F.2d at 1195). As in Rhoditis, the Szumlicz court reached this conclusion even though almost all of the other Lauritzen factors favored the defendant. (Id., Szumlicz, 698 F.2d at 1196).

Applying this Eleventh Circuit case law, I denied the Motion to Dismiss primarily due to my conclusion that Defendants' base of operations is in the United States. (Order at 11-22). As set forth in the Order denying dismissal, the M/S Costa Atlantica's owner is Costa Crociere, an Italian company that is at least 99% owned by Carnival, a Panamanian company with its principal place of business in Florida. (Order at 2 (citations omitted)). Costa Crociere, in turn, is the principal shareholder of the remaining Defendants.² (Order at 4 (citation omitted)). Finally, through Costa's wholly-owned subsidiary, Costa's decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean, N.V. or through its authorized agent, International Risk Services, Inc. (IRSI). (Order at 5 (citation omitted)). IRSI administers medical benefits for CSCS International's employees and handles third party claims made against the company. (Id. (citation omitted)).

Based on the record before me, it was undisputed in the record that members of the Costa group sought to derive advertising and marketing benefits in this country through the use of the general identifying corporate name of "Costa" and that Costa Cruise Lines, another Costa subsidiary, participated in a coordinated effort to conduct a passenger cruise business in the United States. (Order at 13). Without dispute, Costa had been financially successful through its advertising and marketing efforts in the United States. (Id. at 14). I explained that the important question was whether these contacts amounted to a substantial relation to the United States. (Id. at 17, citing Sigalas, 776 F.2d at 1518). I concluded that the contacts did amount to a substantial relation, particularly due to the following facts. The Costa corporations, though nominally separate and distinct corporate entities, all function as interrelated parts of a worldwide "Costa" corporate group. (Id.). The key link to the United States is that Carnival, a Panamanian corporation, with its principal place of business in Miami, is the principal shareholder (99%) of the parent company, Costa Crociere who, in turn, is the principal shareholder of the remaining defendants. (Id.). I noted that Carnival's SEC filings state that a 50% ownership interest typically evidences a "significant influence over financial and operating policies." (Id. at 18). Further, I stated that Carnival's principal shareholders are the Arisons, who live in Miami and conduct other business here. (Id.) These facts indicated that Carnival, the direct owner of Costa Crociere, had a significant influence over Costa's financial and operating policies and conducts its daily business operations in Miami, Florida. (Id.). I also found the following additional contacts: (1) during the period in question (October and November 2000), Costa operated the M/V Costa Atlantica, along with other ships, in the Carribean market, stopping in Ft. Lauderdale and Key West, Florida. (Id. at 19), (2) during one of these stops, Plaintiff was treated by a doctor in Ft. Lauderdale for the injuries in question (Id.), (3) through Costa's wholly-owned subsidiary, decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean or through its authorized agent, IRSI (Id. at 20), and (4) benefits checks were being issued out of Florida on the CSCS International account as late as January 2003 (Id.). Accordingly, I denied the Motion to Dismiss.

II. New Filings

The parties have filed a number of new exhibits and documents in support of and against reconsideration.³ Based on Eleventh Circuit case law, I do not have to consider the filings that were available but not filed for my review before I issued the Order Denying Defendant's Motion to Dismiss. See Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167 (11th Cir.2002) ("[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.") (quotation omitted). Several of Defendants' and Plaintiff's filings fall within this category. Even upon a review of these materials, however, I conclude that the decision to deny dismissal was proper.

The record before me on Defendants' Motion to Dismiss indicated that Carnival's principal place of business was in Florida and that the corporation owned at least 99% of Costa's shares. (Order at 2). The record that is before me now confirms that Carnival's headquarters are in Miami (Miguez Deposition at 155) and shows that Carnival owns 100% of Costa's shares (2000 Annual Report at Note 1). In the "Notes to Consolidated Financial Statements," Carnival states that it operates six cruise lines under various brand names, including Costa. (Id. at Note 1). Carnival explains that since June 1997, it owned 50% of Costa, and on September 29, 2000 it completed the acquisition of the remaining 50% interest in Costa from Airtours at a cost of approximately $510 million....