Firoz P. Vesuna v. C.S.C.S. International, N.V., et al.
Plaintiff, Firoz P. Vesuna ("Vesuna"), filed this action under the Jones Act, unseaworthiness, failure to provide maintenance and cure against defendants Catering and Services International (CSCS) a Netherlands Antilles corporation.
Defendants filed a motion to dismiss on forum non conveniens and to compel arbitration. Vesuna was employed by CSCS aboard two different cruise ship vessels. CSCS and Vesuna had entered into an employment contract where Vesuna agreed to the terms of the contract which incorporated, by reference of the terms of the Collective Bargain Agreement between CSCS and certain unions.
Specifically the CBA contained a forum selection and arbitration clause ordering all questions to be directed to a court in Italy and required compulsory arbitration.
Vesuna filed this complaint against six defendants leaving only his employer and the vessel owners. Vesuna alleged that while he was working aboard one of the vessels, he injured his lower back while lifting a heavy load.
The injury, Vesuna contended, occurred on or about Jan 1, 2006 when the ship was in dry-dock. The ship was not in the United States while being dry-docked.
Did this Court grant defendants' motion to dismiss for forum non conveniens and to compel arbitration?
Defendants argued that the US law does not apply to this action and that the forum non conveniens factors weigh in favor of dismissal.
Vesuna, on the other hand, argued that recent Jones Act amendments has impliedly imposed a limit on a court's discretion to dismiss a case based on forum non conveniens.
Specifically, Vesuna asserts that the language "so that the action may be brought wherever the seaman's employer does business" evidenced an intention to limit the Court's ability to dismiss a Jones Act case based on FNC. However, this Court pointed to repeated language in the House report that the amendments would not change existing law. Therefore, they were not enacted to limit the ability to dismiss.
Moreover, this Court held that United States law did not apply to this action upon weighing certain factors. In a Forum Non Conveniens dismissal requires a two-pronged approach (1) Whether the US law applies, and if not (2) a traditional analysis for forum non conveniens.
Weighing of the factors, does not support the application of US law. (1) The place of the wrongful act was not alleged to have occurred in the US or US waters (2) the vessels were not US flagged (3) the plaintiff failed to allege his place of domicile and defendants claim he is a resident/citizen of India (4) the ship owner is registered in Italy and has no offices in the US and is not registered to conduct business there (5) plaintiff failed to argue whether he had access to the foreign forum, but defendants allege that Vesuna does have access to several for a including Italy.
Accordingly, based on those factors weighing in favor of defendants, this Court held that US law did not apply and that upon weighing the traditional forum non conveniens factor, this action was dismissed.
In deciding a forum non conveniens motion to dismiss the court will take a two-pronged approach. First (1) Whether US law applies and then if not, (2) applying the traditional test.
First prong:
In determining whether US law applies the court balances the following factors (1) The place of wrongful act (2) The law of the Flag (of the vessel) (3) The allegiance or domicile of the injured party (4) The allegiance of the shipowner (5) The place of the contract (6) the inaccessibility of the foreign forum (7) The law of the forum (8) The Shipowner's Place of Operations.
Second prong:
If this weighs in favor of not applying US laws the party seeking dismissal must then demonstrate: (1) An adequate alternative forum is available (2) Public/private factors weigh in favor of dismissal (including - availability of witnesses - convenience to parties - interest of local jurisdiction hearing the case - etc) and (3) The plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.
Steve Gordon
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