Hugo Rodriguez v. Flota Mercante Grancolombiana, S.A., Grancolombiana (New York), Inc.

KENNEDY, Before ALARCON II. PERTINENT FACTS NELSON, Judges. Circuit injured May CALI, on the CIUDAD DE while vessel

ALARCON, Judge: in the port of San Francisco. He re- medical hospital ceived treatment at a seaman, Hugo Rodriguez, (Rodriguez) a city of San Francisco. appeals dis- district court’s order missing complaint brought his under the Rodriguez is a Colombian citizen and re- Act,1 law, general Jones and the maritime employment sides there. His contract with injuries to recover damages by for caused signed Flota was in Colombia. con- The negligence. his We employer’s must decide parties provides recognize tract that the whether the facts establish that jurisdiction of the Colombian over courts subject jurisdiction.2 matter con- We might matter that arise from the con- clude that the in district court was correct agreement tract. The also provides determining that subject it lacked matter law of shall apply. Colombia jurisdiction under the Jones Act. Flota is the Flota owner the CIUDAD DE Grancolombiana, S.A., (Flota) Mercante is CALI. The De Cali registered Ciudad is in employer not an scope within the a flag. Colombia and flies Colombian Jones Act. We for a reverse remand home is port vessel’s also in Colombia. determination of sufficiency of the corporation Flota is a Colombian head- brought pursuant claim to the general mar- in quartered Bogota, Eighty Colombia. and, law, so, itime if whether in the exercise percent by of Flota is owned Colombian discretion, jurisdiction district court’s percent interest and 20 Equa- owned should be retained. dorian interests. ofAll Flota’s officers and managers reside in All of Colombia. its I. DISPOSITIVE ISSUES operations business matters and are cen- Bogata. tered In Flota owned 29 contends facts vessels. Thirteen Flota called at presented ships to the district court established ports United States during year. jurisdiction its to hear his claim DE ports CIUDAD CALI called on 15 against Flota. 1979; four of were in the these United We are told that presence of the follow- During States. the CIUDAD DE CALI’s jurisdictional factors satisfied all re- 72-day trip voyage round from Colombia to quirements. America, days spent North six were One. Rodriguez injured while work- ports. United States ing as a seaman on vessel port Flota’s in the $93,493,984 grossed dollars Francisco, of San within the territorial from the call of its vessels in United States waters of the United States. ports. Two. Flota had substantial operational a 1979 Flota had contract with Granco- contacts within the United States to render (New York), (Graneo) lombiana Inc. a New employer Flota an within the Act. Jones corporation, York to service its shoreside Three. The fact that Flota in- has been needs the United States. Two of Gran- volved in a number of lawsuits in the Unit- employees co’s served as Flota’s owner’s ed a plaintiff States as or defendant “is an representatives. The duties of the owner’s indicium of its business relations con- representatives are to husband vessels in tact with the United States.” ports. United States Act, 688, provides 1. The subject Jones § U.S.C. 2. The determination whether “Any part, jurisdiction relevant seaman who shall suffer a exists is of law. We personal employ- thereby the course of his a de must novo standard re- election, may, California, Opie, ment at his maintain an action See Bank view. N.A. v. law, damages right (9th Cir.1981). with the of trial F.2d jury----” (1951). 692, 694, 95 L.Ed. III. DISCUSSION showing, may a district court Upon proper a with a statement our discussion begin We mat- complaint for lack of dismiss procedure which law and of the relevant an ter if the is not challenge when raised applied must be “ Act Hel- ‘employer’ purposes.” for Jones a district court in a jurisdiction of lenic Lines Ltd. v. 398 U.S. Act matter. Jones 1731, 1733-1734, 308-309, L.Ed.2d Subject Matter Pleading A. Jurisdiction

Under the Jones Act in an action Where a defendant Act claims that brought under the Jones complaint A which is “drawn so as over the the court lacks right to recover under the to claim Consti matter, that he is not grounds and laws of the United states tution States” liability under the stat employer subject to Hood, a cause of action. Bell v. ute, ship that the plaintiff the must show 681, 773, 775, 678, 90 L.Ed. 939 66 S.Ct. with the has substantial contacts owner (1946). A tort claim under the Jones Act is as to be considered an United States so that properly plead allegations if it'Contains liability in an employer subject statutory to injured person the is a seaman who was 310, See, 90 e.g., id. at American court. scope employment of his acting within the at 1734. S.Ct. injured. when he was Gebhard v. Ha S.S. Lauritzen, 425 stated Legislator, Supreme waiian F.2d In the Court Cir.1970). should be con- following No issue has been raised as to that the factors particular whether a sufficiency pleading determining the of the under the sidered on “employ- to an that he should be held be Rodriguez alleged Gebhart test. of (1) place under the Jones Act: the injured negli was as the result of Flota’s er” act; (2) flag; the wrongful the the law of gence while an within performing activity injured of the (3) allegiance the or domicile scope employment the of his as a seaman. seaman; (4) the allegiance the of defendant B. Jurisdictional Defense to Jones Act (5) where the contract shipowner; place the made;

Claim (6) the inaccessi- employment of forum; (7) the law of bility foreign of a and An assertion a seaman that the 583-91, at the forum. 345 at 73 S.Ct. U.S. right Jones Act affords him the to recover 928-932. damages injuries resulting from the negligence employer his is sufficient noted Supreme of In the Court empower juris the court to assume the set forth in Lauritzen district seven factors diction over the case determine not to be exhaustive and and “to were intended importance that an additional factor of whether it was or was not well founded Act Larsen, appli- whether the Jones determining law and fact.” Lauritzen v. 571, 575, 921, 924, shipowner’s operations. cable is the base of U.S. 73 S.Ct. 97 L.Ed. at 1734. at (1953). The failure state a claim U.S. under the of equivalent the Jones Act not Wrongful the Law of the Place of C. of “It jurisdiction. lack Flag Law of the Act versus The is well established that failure to state a proper claim calls for a on the the district Rodriguez argues merits and not a dismissal for want of shipowner, over the court had Wood, jurisdiction.” Bell v. 327 U.S. registry flag spite of its Colombian 682, (1946). The fact that a complaint injured port in the Rodriguez was because however, states a not cause of action should A similar issue of San Francisco. be confused with the of whether in Romero presented Supreme Court Co., Operating exists over the matter. International Terminal v. North See Montana-Dakota Utilities Co. Co.,

western Public Service U.S. Romero, $93,493,984.00 Spanish injured seaman was 1. derived gross income in United States territorial waters while ships which called on the United ship Spanish flying aboard a of registry, States in 1979. Spanish flag. The district court dismissed 2. all of “[Virtually CIUDAD the action under the Jones Act for lack of CALI’s in 1979 have contact voyages had jurisdiction on ground pro- that the Act ” with .. ports .. Appellant’s American right vided no of action for an alien seaman Opening Brief at 13. against foreign shipowner under these 3. Flota had three owner’s Supreme representa- circumstances. af- Court firmed the dismissal of the seaman’s Jones tives in the United States. against

Act the shipowner. The Court re- 4. mana- operating fused to place law ger in the United States. act wrongful or omission. The court rea- regularly Thirteen of Flota’s vessels soned as follows: call ports. on United States Although place has often been deemed determinative choice Grancolombiana, 6. “The letterhead of laws, in municipal law conflict such Inc., York, New includes a section which a rule does not fit the accommodations states: Flota Mercante Grancolombiana prudent become relevant in fair and S.A., Street, Francisco, 50 California San regard for the interests of nations Appellant’s California.” Opening Brief regulation in the ships of their own nationals, their own upon and the effect is the listed in San Francisco our interests of our treatment of the le- telephone directories and advertises in gitimate foreign interests of nations. To American publications. impose on ships duty shifting the from one compensation standard of to another The uncontradicted evidence in this mat- as the vessel passes the boundaries of ter opera- establishes that Flota’s “base of territorial waters only would be not an Bogota, tions” was in not in Colombia and but unduly onerous also an speculative the officers mana- United States. Its burden, disruptive of international com- gers in All Bogota. reside of its business merce and expressed without basis in the Bogota decisions made then are in policies of country. this The amount and repre- to its agents transmitted owner type of recovery which a seaman foreign foreign ports. sentatives in Its vessels be- may receive from his foreign employer gin and end their in voyages Colombia. sailing while foreign on a ship should not The fact it agents that has in the United on depend wholly the fortuitous circum- while Amer- States husband its vessels place injury. stance of the ports ican of no significance is determin- Id. at S.Ct. at of operations. Flota’s base See Merren v. (5th 519 F.2d Cir.

Thus, Borgestad, A/S Rodriguez’ claim that the district 1975). fact have court that Flota’s vessels dismissing erred in this matter be- grossed impressive cause amount of income in the to a Colombian seaman on a flying calling ports vessel a Colombian on of the United States does flag, occurred prove San Francisco is operations devoid of merit under not that Flota’s base of is Romero. the We United States. have not been any has referred to case which established

D. of Operations Base on the dollar based foreign shipowner amount derived Rodriguez urges us to reverse the shipments from his to and from United district court because he views facts the as ports. logically It appear States does not showing operations that Flota’s base of was us foreign shipowner’s the relevant that a points United States. He finan- following proof operations depends upon facts as that base base of the Flota’s operations was in shipments the United cial of its to or States. success support Rodriguez’s that a no cause. country. The fact

another mailing has a address in the in Merren affirmed the district court’s shipowner court telephone and is listed in granting summary United States order that its base of The court noted proof jurisdictional grounds. directories is not country. ship- in this There is no operations having to the extent of “except whether any evidence in the record as to who contracted in American ping agents were conducted from operational activities the ports ship’s for the use of the services” premises the listed in 1979. offices and no af- shipowner maintained no organization with in the Unit- any filiation upon by Each of the cases relied Rodri- Id. at 83. In the matter before ed States. view guez support as for his that Flota’s us, organi- only Flota’s affiliation with in the operations base of United States representa- was to maintain owner’s zation readily distinguishable. whose concern was the husband- tives sole shipowner was a Greek contracting its vessels and for their ing of However, it corporation. largest had its services. office in New York and a second office in brief, Rodriguez In his tells us opening 95 percent New Orleans. More than of its Yiosonas, Steamship v. in Gkiafis stock was owned a United States domi- (4th Cir.1967) the Fourth F.2d 460 ciliary who resided in Connecticut and had impelled “was to reverse the district years. been in the for 25 He United States personal injury which had dismissed a suit managed out of New York. corporation general maritime law brought under 307-08, 398 U.S. at 90 S.Ct. at 1733. Under Appellant’s Opening and Jones Act.” Brief Supreme these facts the Court found fact, at 19. We have read Gkiafis. engaged extensive Fourth Circuit affirmed the dismissal of operations country. business in this Id. at Jones Act claim for failure to state cause parallel at 1734. No S.Ct. facts of action. F.2d at 461-62. appear on the record before this court. places heavy reliance on Fisher In Moncada v. Lemuria Shipping Corp., V, Agios Nicolaos 628 F.2d 308 Cir. denied, (2d Cir.), 491 F.2d 470 cert. 417 U.S. denied, 1980), cert. 92, (1981). Rodriguez 70 84 also L.Ed.2d jurisdiction court noted that “Jones Act ex Phillips our attention to v. Amoco directs only ists where there are substantial con Co., (9th Cir.1980), 632 82 Trinidad Oil F.2d tacts between the transaction involved in ” 1999, denied, cert. 101 68 U.S. S.Ct. the case the United States .... Id. inappo L.Ed.2d 312 Both cases are Moncado, at 472. In Americans owned all In problem site to the we must resolve. addition, shipowner. of the stock of the Phillips, this court was both Fisher shipowner all the officers of the were problem. law presented with a choice of shipowner’s American. The base of opera raised in either case as to the No issue was tions the United States. Id. jurisdiction subject court’s of the matter The court concluded that these facts estab Thus, the Act. neither Fisher under Jones lished substantial contacts with the United to us or Phillips provides nor assistance States. judice Id. the matter sub no of the Rodriguez resolving the American owns stock in the isor this jurisdiction district court’s Jones Act of management a member of its team. matter. Merren, 519 F.2d at has been cited to Rodriguez, remaining The cases cited

us for the proposition that “maintenance of Inc., Marine, 650 F.2d v. Jackson Castanho organizational offices or affiliation in the curiam); (5th Cir.1981) (per Chiazor United significant States was factor” Co., Ltd., Drilling 648 F.2d 1015 Transworld determining whether the district court has denied, (5th Cir.1981), cert. subject jurisdiction a shipown- matter over (1982); Anty Open- er under the Appellant’s Jones Act. S.A., Basilio, provides Brief at The Merren case v. CIA. Maritima San pas Cir.1976), denied, (2d F.2d 307 cert. compelled by U.S. was lack matter subject of jurisdiction or because it had determined L.Ed.2d the doctrine of forum non conveniens application are each with concerned the of applicable. simply The order states the of doctrine forum non conveniens to the that “the defendant’s motion to dismiss is particular They facts of each case. shed no granted.” light subject jurisdic on the issue of matter tion under the Jones Act. above, As discussed we have concluded the court subject district did not have

E. Effect the Use the Courts of jurisdiction matter of the of the cause of the United States Flota action the based on Jones Act. We cannot discuss the cryptic court’s order Without citation to authority, whether the district court concluded that it suggests that the fact that Flota jurisdiction lacked matter under the has been involved in litigation the United if, instead, General Maritime it deter- significant States is a contact with this jurisdiction mined not to exercise its under country. None of the enumerated cases forum non conveniens consideration. It is involve alleged Jones Act violations. We our view that the district court should de- fail to see their relevance the matter at termine, instance, first whether a hand.3 proper claim been pleaded has under the We conclude that plaintiff has failed to General Maritime Law and applicability that the shipowner demonstrate had suffi- of the doctrine of forum non conveniens. cient contacts with the United States in CONCLUSION 1979 to make Flota employer under the The dismissal the cause action Jones Act as to give so the district court pleaded under Jones Act is AF- jurisdiction Rodriguez’s over FIRMED. dismissal of the second claim. cause of action is REVERSED. cause remanded for determination the suf- IV. THE GENERAL MARITIME LAW ficiency remaining claim under the AND CLAIM NON FORUM CON- General Act in discre- Maritime its sound VENIENS tion, and whether retention of Rodriguez sought damages for his conveniens forum non appropriate under injuries under Jones Act and under the principles. General Maritime Law before this court. Rodriguez asked us to “[wjhether determine KENNEDY, Judge, concurring: district dismissing erred in I write judgment, sepa- concur in the but action for lack of rately prob- conceptual call attention to a ...” court, however, district cases, lem in char- namely, these whether to requested that the district court dismiss this acterize an Act claim as unsuccessful Jones action ground “either that this Court lacking subject jurisdiction in matter or as subject does not have jurisdiction, matter a failing to cause of action. The state on the basis of forum non conveniens.” majority opts the first and has category, for The district court’s dismissing order precedent it, this Supreme for since the Court action fails to specify Lines, whether its action Hellenic Ltd. v. argues tionary jurisdiction controversy also adjudge that the Colombian to a by forum persuasive is not convenient to him because his ... it is not as to the law which physicians Lauritzen, and medical judged.” records are in the Unit- it shall be 589-90, 345 U.S. at States, Thus, ed he and has retained American coun- the costs 73 S.Ct. 931-932. represent sel who not deposing could him in Colombia. and loss of entailed in the medi- time attorney sending Convenience and the witnesses cal records and the witnesses and by attorney are not factors cited Court Lauritzen American to relevant Colombia while and Rhoditis as determinators of the Jones are not Act issue of forum non conveniens jurisdiction. Although “might determining these factors be Jones relevant factors whether persuasive argument exercising jurisdiction present. a for a discre- Act appears to hold 1731, 1733, majority 252 tics. The

306, 308, 26 L.Ed.2d 90 S.Ct. (relat- jurisdiction” stated, “subject factors matter (1970), labeling the seven this “[o]f coverage) ... four are from con- case, prevented somehow ing to we are against jurisdic- and favor of the in our important precedents sidering such added.) suggest, I how- (Emphasis tion.” Trinidad Oil Phillips v. Amoco court as own un- ever, only passing and that this was 1980). Phil- (9th The Co., Cir. 632 F.2d guarded remark. here, and us directly point for lips case is It should judgment. our supports in fact not one in these cases is The real a choice of because it is not aside pushed be simply but matter case. In to a claim case or failure state law a failure to whether or not there has been there is a whether or not the issue is fact the Jones Act. state a claim for relief under to claim, we resort failure to state recognized Supreme expressly The Court answer Larsen, to principles of law v. 345 standard choice analysis this in Lauritzen itself, in the majority The question. 97 L.Ed. 1254 73 S.Ct. U.S. us, for factors as on the multi-factor test the same leading case case before cites case, I law should so determining did, namely what the Lauritzen Phillips and do- containing both inapplicable. accident Phillips can be fail to see how mestic There the court dismissed started, elements. namely where it The trouble ends a claim under the case failure to state matter, when calling jurisdictional this a rejected the expressly the Jones Act. It issue. a claim is real to state failure it dismiss the suggestion defendant’s jurisdiction, case for lack FOR AFTER PETITION ORDER stating: REHEARING a contention that frequently happens, As KENNEDY, ALARCON Before granting plain- there is some barrier NELSON, Judges. excep- of an tiff’s claim is cast in terms not this matter request that Appellant’s A subject matter. tion to The granted. be remanded under our law was assert- cause of action entirety. is affirmed its the district court here, power to de- ed and the court rehearing is denied. for a petition it was or was well termine whether not shall issue now. mandate law and in fact. founded in Id. at at 924. Supreme

Later Court and lower the Laurit- usually employed

decisions have Romero

zen test in the same fashion. See Co., Operating v. International Terminal America, UNITED STATES U.S. Plaintiff-Appellee, (1959); Intrepid v. Konkar Koupetoris v. (2d 1976); Bartho- Corp., 535 F.2d 1392 Cir. BARRETT, Edwin Thomas Inc., 263 F.2d Tankships, lomew v. Universe Defendant-Appellant. (2d 1959); de Alvarez Cir. Chirinos (3d Corp., Creole Petroleum 613 F.2d No. 81-1622. Drilling 1980); Cir. v. Transworld Chiazor United Appeals, States Court of Co., 1981); Ltd., 648 F.2d 1015 Cir. Ninth Circuit. V, Fisher v. 628 F.2d Agios Nicolaos (5th 1980); Borgestad, Merren v. A/S Argued Cir. and Submitted June 1982. 1975). light F.2d 82 Cir. April Decided authorities, suggest appropriate these I As Amended on Denial Rehearing analysis in cases should be to ask these June claim. whether is a failure to state a there case renders

Unfortunately, present disagreement

this more than a over seman-

Case Details

Case Name: Hugo Rodriguez v. Flota Mercante Grancolombiana, S.A., Grancolombiana (New York), Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 15, 1983

Citation: 703 F.2d 1069

Docket Number: 81-4455

Court Abbreviation: 9th Cir.