Neely v. ClubMed ( 1994 )


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  •                                                                                                                            Opinions of the United
    1994 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    11-15-1994
    Neely v. ClubMed
    Precedential or Non-Precedential:
    Docket 93-2069
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
    Recommended Citation
    "Neely v. ClubMed" (1994). 1994 Decisions. Paper 189.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1994/189
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 93-2069 and 93-2102
    EILEEN ANNE NEELY,
    Appellant in No. 93-2069
    v.
    CLUB MED MANAGEMENT SERVICES, INC.; CLUB MED SALES, INC.;
    CLUB MED, INC., Third-Party Plaintiffs;
    HOLIDAY VILLAGE (ST. LUCIA), LTD.
    v.
    JOSEPH LEMAIRE,
    Third-Party Defendant
    Club Med Management Services, Inc. and
    Holiday Village (St. Lucia) Inc.,
    Appellants in No. 93-2102
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 91-cv-07416)
    Argued August 8, 1994
    Before:   MANSMANN, COWEN and McKEE,
    Circuit Judges
    (Filed   November 15, l994                 )
    M. Kelly Tillery (argued)
    Michael V. Tinari
    Leonard, Tillery & Davison
    1515 Market Street
    18th Floor
    Philadelphia, PA   19102
    Counsel for Eileen Anne Neely
    Bettina B. Plevan (argued)
    Proskauer, Rose, Goetz & Mendelsohn
    1585 Broadway
    New York, NY 10036
    Counsel for Club Med Management
    Services, Inc.; Club Med, Inc.; Holiday
    Village (St. Lucia), Ltd.
    Louis Bell
    Marshall, Dennehey, Warner,
    Coleman & Goggin
    1845 Walnut Street
    Philadelphia, PA 19103
    Counsel for Club Med Management
    Services, Inc.; Holiday Village,
    (St. Lucia) Ltd.
    OPINION OF THE COURT
    COWEN, Circuit Judge.
    This personal injury action was filed with the United
    States District Court for the Eastern District of Pennsylvania
    under the Jones Act, 
    46 U.S.C. § 688
    , and the General Maritime
    Law of the United States.   The plaintiff was a scuba diving
    instructor who received injuries from a diving accident that took
    place in the coastal waters of St. Lucia.      On motion by the
    defendants,1 the district court reduced the verdict in favor of
    1
    . Defendants in this action are: Club Med Management Services,
    Inc.; Club Med Sales, Inc.; Club Med, Inc. (collectively "Club
    Med"); and Holiday Village (St. Lucia), Ltd.
    the plaintiff on the theory that the plaintiff was contributorily
    negligent.    In this appeal, the plaintiff contends the district
    court improperly reduced the jury verdict.      In a cross-appeal,
    the defendants challenge the order of the district court denying
    their motion to dismiss the complaint for lack of subject matter
    jurisdiction.    Because we will reverse the order of the district
    court which concluded there was subject matter jurisdiction, we
    need not address plaintiff's appeal regarding the reduction of
    the jury verdict.
    I.
    A. Factual Background
    Plaintiff Eileen Neely ("Neely") applied for a position
    as a scuba diving instructor with Club Med after vacationing at
    one of their resorts.    Neely traveled to New York City to
    interview with Club Med.    During a subsequent telephone call to
    her home in Pennsylvania from Club Med in New York City, Neely
    was offered a position at the Club Med resort, Holiday Village
    (St. Lucia) Ltd.
    In May of 1991, Neely began work at the Holiday Village
    as a scuba diving instructor.    On May 23, 1991, the vessel Long
    John, a diving boat used by Holiday Village for diving
    excursions, left the resort area for a group dive.       On board the
    vessel was Neely (who was acting in her capacity as a dive
    instructor), another dive instructor, the Dive Master, the
    captain, and a number of Club Med guests.       As they neared the
    dive sight, the captain slowed the forward direction of the boat,
    and put the engines in neutral.   He did not shut off the engines.
    The guests were instructed to put on their diving gear and await
    the signal from the Dive Master before entering the water.
    What happened next remains in dispute.    Neely claims
    that she received the "O.K." signal from the Dive Master, and
    entered the water.   Defendants insist that the signal was never
    given, and Neely entered the water prematurely from the stern and
    without authorization.   In any event, while (unknown to the
    captain of the Long John) Neely was in the water, the captain
    shifted the engines from neutral to reverse.    The churning
    propellers of the twin 350 horsepower diesel engines sucked her
    under the boat and into the ship's propellers.    Seconds later,
    she reappeared on the starboard side of the boat and was rescued
    by the other dive instructor.   Neely sustained multiple severe
    injuries to various parts of her body.
    B. Procedural Background
    Plaintiff Neely is a United States citizen who resides
    in Pennsylvania.   Defendant Club Med Management Services, Inc.,
    is organized under the laws of New York State; Club Med Sales,
    Inc., under the laws of the State of Delaware; Club Med, Inc.,
    under the laws of the Cayman Islands; and Holiday Village (St.
    Lucia), Ltd., under the laws of St. Lucia.
    Neely filed suit in the United States District Court
    for the Eastern District of Pennsylvania under the Jones Act, 
    46 U.S.C. § 688
    , and the General Maritime Law of the United States.
    The defendants filed a motion to dismiss for lack of subject
    matter jurisdiction, which was denied by the district court.     The
    case proceeded to trial and the jury awarded the plaintiff
    $545,000.00 in damages.   After factoring in the percentage of
    contributory negligence which was determined by the jury on the
    Jones Act count of the complaint, the district court entered
    judgment for the plaintiff in the amount of $229,700.00.      These
    appeals followed.   We have jurisdiction over the appeal and
    cross-appeal, which were taken after a final judgment was entered
    by the district court, pursuant to 
    28 U.S.C. § 1291
     (1988).
    II.
    Defendants argue that the district court lacked subject
    matter jurisdiction over plaintiff's complaint alleging claims
    under the Jones Act and General Maritime Law.   We exercise
    plenary review, and thus employ the same standard that the
    district court used to determine whether subject matter
    jurisdiction properly lies in the district court:
    [A] court reviewing a claim to Jones Act
    coverage should determine the substantiality
    of the links to the United States and the
    links to the foreign sovereignty. This
    process is undertaken in order to discern in
    whose "domain" the paramount interest lies.
    Under certain circumstances the Jones Act may
    be far-reaching. However, when the links to
    the United States are weak and the interests
    of another sovereign are substantial, the
    Jones Act is not applicable.
    Chirinos de Alvarez v. Creole Petroleum Corp., 
    613 F.2d 1240
    ,
    1246 (3d Cir. 1980)(citation omitted).   As the party who invoked
    the jurisdiction of the district court, Neely bears the burden of
    proving subject matter jurisdiction when put in issue by the
    defendants and where there are disputed jurisdictional facts.
    Matute v. Procoast Navigation Ltd., 
    928 F.2d 627
    , 632 (3d Cir.),
    cert. denied, 
    112 S. Ct. 329
     (1991).    See also Trentacosta v.
    Frontier Pacific Aircraft Indus., Inc., 
    813 F.2d 1553
    , 1559 (9th
    Cir. 1987)("[t]he party invoking the federal court's jurisdiction
    has the burden of proving the actual existence of subject matter
    jurisdiction . . . .").
    The district court correctly found that resolution
    of the jurisdictional issue turned on the application of the
    eight factor test set forth by the Supreme Court in Lauritzen v.
    Larsen, 
    345 U.S. 571
    , 
    73 S. Ct. 921
     (1953), and Hellenic Lines
    Ltd. v. Rhoditis, 
    398 U.S. 306
    , 
    90 S. Ct. 1731
     (1970).    Neely v.
    Club Med Sales, Inc., No. 91-7416, 
    1992 WL 398378
    , at *2-3 (E.D.
    Pa. Dec. 31, 1992).    The eight factors to be considered in Jones
    Act and maritime jurisdictional disputes are the:    (1) law of the
    flag; (2) shipowner's base of operations; (3) allegiance of the
    defendant shipowner; (4) inaccessibility of a foreign forum; (5)
    place of the wrongful act; (6) place of the employment contract;
    (7) allegiance or domicile of the injured party; and (8) law of
    the forum.   
    Id. at *3
    .   We conclude that the district court erred
    when it found that these factors indicated that the United States
    was the appropriate forum for this lawsuit.   We will address each
    of these factors seriatim.
    1.   Law of the Flag
    The nationality of the vessel's flag is the single most
    important factor in the Jones Act jurisdictional equation.     The
    Supreme Court stated in Lauritzen that "the most venerable and
    universal rule of maritime law relevant to our problem is that
    which gives cardinal importance to the law of the flag."    
    345 U.S. at 584
    , 
    73 S. Ct. at 929
    .    With respect to this factor, the
    district court found that "the diving vessel flies the flag of
    St. Lucia."    Neely, 
    1992 WL 398378
    , at *3.   Neely maintains that
    there was no evidence presented before or during trial to
    establish that the vessel Long John actually flies the flag of
    St. Lucia.    However, the defendants point out that the finding of
    the district court was based on the pre-trial declaration of
    vessel owner, Joseph LeMaire, which was submitted in support of
    his successful motion to dismiss the third-party complaint
    against him.   LeMaire stated that the Long John is registered in
    St. Lucia, and his sworn declaration has not been contradicted.
    Defendants argue that registration of a vessel in a
    particular country is equivalent to "flagging" the vessel.
    Although no authority explicitly states that registration and
    flagging a vessel are one and the same, there is authority which
    indicates that "[a] ship navigating the seas may sail only under
    the flag of the nation in which it is registered . . . ."    1
    Thomas J. Schoenbaum, Admiralty and Maritime Law § 2-21, at 46
    n.1 (2d ed. 1994)(citation omitted).   Thus, since the Long John
    was registered in St. Lucia, it was required to fly a St. Lucian
    flag.
    Neely argues that registration is not the same as
    flagging because a shipowner could register a vessel for a
    variety of purposes, such as obtaining a docking permit.
    However, no country may place its flag on a ship that is already
    registered in another country, except pursuant to a transfer of
    registration, id. at 46, and no proof of such transfer of
    registration has been offered by the plaintiff.    The substance of
    Neely's argument concerning the law of the flag factor is that
    the shipowner was flying a flag of convenience -- the occasional
    practice of some American shipowners to sail under the flag of
    another country whose shipping laws and registry requirements are
    not as stringent as the United States.    However, at no time
    during the proceedings did Neely offer any evidence to prove that
    the Long John was merely flying a flag of convenience.     Nor did
    Neely offer any evidence to indicate that the registration of the
    Long John in St. Lucia was only for docking or other limited
    purposes.
    Because the plaintiff bears the burden of proving
    subject matter jurisdiction, it would even be insufficient if she
    proved that the Long John was not flying a St. Lucian flag.      The
    plaintiff still has the additional hurdle of proving that the
    vessel was flying an American flag in order for this factor to
    weigh in favor of subject matter jurisdiction in the district
    court.   Since the only evidence pertaining to law of the flag
    adduced in the district court indicates that the vessel was a St.
    Lucian flagged vessel, we conclude this factor weighs heavily
    against finding subject matter jurisdiction in the district
    court.
    2.   Shipowner's Base of Operations
    Neely argues that the base of operations is that of
    LeMaire, the shipowner.     Evidence in the record indicates that
    LeMaire's part-time residence in the United States is Miami,
    Florida.     Defendants contend that base of operations means the
    base of operations of the particular vessel, which is clearly St.
    Lucia.     The district court, looking at the base of operations of
    the owner, concluded that this factor was unclear, and favors
    neither the United States nor St. Lucia as the appropriate forum
    for this dispute.
    Even assuming arguendo that plaintiff's definition of
    base of operations, i.e. as that of the shipowner, is correct, we
    find that this factor weighs against finding subject matter
    jurisdiction in the district court.     Plaintiff argues and the
    record supports the conclusion that Holiday Village chartered
    this vessel from the actual shipowner in a manner consistent with
    a bareboat or demise charter.2    A "bareboat" charter or "demise"
    charter exists whenever the:
    vessel is chartered or "leased" to another
    who takes possession, custody and control of
    the vessel.   The master is hired and paid by
    the charterer and becomes the agent and
    2
    .    Appellant/Cross-Appellee's Reply/Answering Brief at 40-47.
    representative of the charterer.   The
    operating expenses of the vessel, such as
    wages, fuel, subsistence, wharfage charges,
    etc., are paid by the charterer.   The owner
    surrenders entire control and possession of
    the vessel and subsequent control over its
    navigation to the bareboat charterer, who
    becomes the owner pro hac vice.
    2 Martin J. Norris, The Law of Seamen § 30:14, at 372 (4th ed.
    1985).   Thus, by contracting a demise charter with the actual
    shipowner, Holiday Village became the owner pro hac vice of the
    Long John.    Since we look to Holiday Village (a St. Lucian
    corporation), rather than LeMaire of Miami, as the owner of the
    vessel, we hold that this factor also weighs against finding
    subject matter jurisdiction in the district court.
    3.   Allegiance of the Defendant Shipowner
    The district court made no definitive finding as to the
    allegiance of the defendant shipowner.   The only finding of the
    district court was that, "Mr. LeMaire is neither a citizen of St.
    Lucia, [n]or the United States, but lives in Miami, Florida.     He
    claims to have dual citizenship in Canada and Guadeloupe."
    Neely, 
    1992 WL 398378
    , at *3.   Additionally, in his declaration,
    LeMaire stated that he currently resides in both Florida and
    Guadeloupe.   On the facts of this case, the allegiance or
    domicile of the actual shipowner is not relevant, since the Long
    John was the subject of a demise charter to Holiday Village.     As
    we related above, Holiday Village is the owner pro hac vice of
    the vessel.   The allegiance or domicile of Holiday Village is St.
    Lucia.   This factor also weighs against finding subject matter
    jurisdiction in the district court, and points to St. Lucia as
    the appropriate forum.
    Alternatively, even assuming arguendo that we look to
    LeMaire rather than Holiday Village as the defendant shipowner,
    we note that he is both a citizen and resident of Guadeloupe.
    However, he is only a resident of the United States.   Therefore,
    we conclude that LeMaire owes his allegiance to Guadeloupe and
    this factor weighs against finding jurisdiction in the district
    court.
    4.   Inaccessibility of a Foreign Forum
    Plaintiff puts forth the argument that St. Lucia is an
    inaccessible forum because she is in no financial position to
    travel to St. Lucia, hire St. Lucia counsel, and pursue an action
    against the defendants in the St. Lucian courts.   Additionally,
    she claims that St. Lucia is an inconvenient forum.
    Similar to Neely, in Rodriguez, the plaintiff argued
    that a foreign forum was not convenient to him because his
    physicians and medical records were in the United States and
    because he had retained American counsel who would not represent
    him in Colombia.   Rodriguez v. Flota Mercante Grancolombiana,
    S.A., 
    703 F.2d 1069
    , 1075 n.3 (9th Cir.), cert. denied, 
    464 U.S. 820
    , 
    104 S. Ct. 84
     (1983).   The Court of Appeals for the Ninth
    Circuit in rejecting the plaintiff's argument stated that:
    Convenience of the witnesses and attorney are
    not factors cited by the Court in Lauritzen
    and Rhoditis as determinators of the Jones
    Act jurisdiction. Although these factors
    "might be a persuasive argument for
    exercising a discretionary jurisdiction to
    adjudge a controversy . . . it is not
    persuasive as to the law by which it shall be
    judged." Lauritzen, 
    345 U.S. at 589-90
    , 
    73 S.Ct. at 931-932
    . Thus, the costs and loss
    of time entailed in deposing the medical
    witnesses and sending the records and the
    American attorney to . . . [a foreign forum]
    while relevant to the issue of forum non
    conveniens are not relevant factors in
    determining whether Jones Act jurisdiction is
    present.
    Rodriguez, 703 F.2d at 1075 n.3.
    We agree with the Court of Appeals for the Ninth
    Circuit that the Supreme Court in Lauritzen did not intend the
    "inaccessibility of a foreign forum" factor to require a forum
    non conveniens analysis.   The Supreme Court in Lauritzen rejected
    the argument "that justice requires adjudication under American
    law to save seamen the expense and loss of time in returning to a
    foreign forum."   
    345 U.S. at 589
    , 
    73 S. Ct. at 932
    .   Lauritzen
    indicates that inaccessibility of the forum and forum non
    conveniens are two separate and distinct matters.   Therefore,
    discounting any claim of inconvenience by Neely in bringing this
    suit in a foreign forum, it is not clear why a forum in St. Lucia
    would be inappropriate.    Neely has offered no credible evidence
    to indicate that St. Lucia will not entertain such a suit or that
    there are other barriers to her being heard in that jurisdiction.
    Since plaintiff bears the burden of proof on this issue, this
    factor weighs against finding subject matter jurisdiction in the
    district court.
    5.   Place of the Wrongful Act
    Although this issue was disputed prior to trial,
    plaintiff now concedes that the accident took place within two
    hundred meters of the St. Lucian shoreline.    This factor,
    therefore, favors jurisdiction in St. Lucia rather than the
    United States.    However, Neely contends that this factor is
    accorded little weight because of the fortuity of the sailing
    vessel being in the particular place where the accident occurred.
    Indeed, in Lauritzen, the Supreme Court stated that, "[t]he test
    of location of the wrongful act or omission, however sufficient
    for torts ashore, is of limited application to shipboard torts,
    because of the varieties of legal authority over waters she may
    navigate."    Lauritzen, 
    345 U.S. at 583
    , 
    73 S. Ct. at 929
    .
    Normally, the place of accident might well be
    fortuitous.    Here, however, the vessel was chartered by Holiday
    Village to be used specifically by diving parties in and around
    St. Lucia.    St. Lucia has set its territorial waters at a breath
    of 12 nautical miles.    6B Benedict on Admiralty Doc. 10-3A, at
    10-62, 10-62.2 (Frank L. Wiswall, Jr., ed., 6th ed. 1994).
    Rarely if ever during its demise charter did the Long John leave
    the territorial waters of St. Lucia.    It is true that the vessel
    had the capability of traveling vast distances, and even
    worldwide.    However, when analyzing whether the location of the
    accident in St. Lucian waters was fortuitous, it becomes clear
    that if the vessel never left the territorial waters, then an
    accident in St. Lucian waters was not simply fortuitous.      In
    fact, anyone sailing aboard the Long John, whether as crew or
    otherwise, would reasonably conclude (as occurred in this case),
    that any accident would occur in the territorial waters of St.
    Lucia.    This factor weighs against finding subject matter
    jurisdiction in the district court and points instead to St.
    Lucia as the proper forum.
    6. Place of Employment Contract
    The district court made a factual finding that the oral
    employment contract entered into between Club Med and Neely, by
    virtue of a phone call from Club Med's offices in New York to
    Neely's residence in Pennsylvania, was situated in Pennsylvania.
    Neely, 
    1992 WL 398378
    , at *4.     Defendants do not challenge the
    district court's finding as clearly erroneous, but instead argue
    that the factor should be given diminished weight since the
    employment services were to be performed outside the United
    States.   The Supreme Court in Lauritzen has explained that,
    "[t]he place of contracting in this instance, as is usual to such
    contracts, was fortuitous . . . .    We do not think the place of
    contract is a substantial influence in the choice between
    competing laws to govern a maritime tort."    Lauritzen, 
    345 U.S. at 588-89
    , 
    73 S. Ct. at 931-32
    .     Thus, although this factor
    points to subject matter jurisdiction in the district court, it
    will be accorded little weight in our analysis.
    7.   Allegiance or Domicile of the Injured Party
    Plaintiff Neely is a United States citizen who lived
    permanently in Pennsylvania until she was hired by Club Med.     She
    returned immediately to the United States for medical attention
    and rehabilitation after the accident.   Thus, this factor favors
    jurisdiction in the United States.
    8.   Law of the Forum
    The district court found that this factor did not weigh
    in favor of either the United States or St. Lucia.   Neely, 
    1992 WL 398378
    , at *4.   Neither party contends on appeal that this
    factor strongly supports one jurisdiction over another, and we
    cannot say as a matter of law that the district court committed
    error.   As such, we conclude that this factor is neutral and does
    not point to either the district court or to some other court as
    the proper forum for this dispute.
    III.   Conclusion
    Based on the totality of these eight factors, we
    conclude that the district court erred in exercising subject
    matter jurisdiction in this suit.    Plaintiff Neely has failed to
    prove that substantial links with the United States exist:    (1)
    the law of the flag, the most important factor, does not point to
    the United States, but rather to St. Lucia; (2) the shipowner's
    base of operations because of the demise charter clearly
    indicates that St. Lucia is the appropriate forum; (3) the
    allegiance of the defendant shipowner points to St. Lucia; (4)
    there is no indication that a St. Lucian court is inaccessible to
    the plaintiff; and (5) the wrongful act occurred in St. Lucian
    territorial waters.   The only factors that weigh in favor of
    jurisdiction in a United States court are: (1) the plaintiff is a
    citizen of the United States; and (2) the place of the employment
    contract was the United States.    However, the latter factor
    receives less weight because of the fortuity of the place of
    contracting.   The law of the forum is a neutral factor.
    After carefully balancing these factors, we conclude
    that subject matter jurisdiction does not exist in the district
    court to entertain this lawsuit.    We will remand this case to the
    district court with directions to dismiss this action for lack of
    subject matter jurisdiction.   Each party is to bear its own costs
    on the appeal and the cross-appeal.