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Cacho v. Prince of Fundy, corrected 11-30-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 249
Docket:	Cum-98-271
Argued:	October 8, 1998	
Decided:	November 24, 1998

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.



ANTONIO CACHO v. PRINCE OF FUNDY CRUISES, LTD.


DANA, J.

	[¶1]  Antonio Cacho appeals from a judgment entered in the Superior
Court (Cumberland County, Cole, J.) granting Prince of Fundy Cruises, Ltd.'s
motion for summary judgment.  Cacho argues that the court incorrectly held
that neither United States general maritime law nor the Jones Act, 46 U.S.C.
§ 688 (Supp. 1998), apply to his claims to recover damages for personal
injuries.  We agree and vacate the judgment.
	[¶2]  Cacho, a Honduran citizen, worked as a deck hand and crew
member on the M/S Scotia Prince.  The Scotia Prince is registered in
Panama and flies the Panamanian flag.  Prince of Fundy Cruises, Ltd. (POFC)
operates the Scotia Prince pursuant to a bareboat charter{1} with the
registered owner, Transworld Steamship Company, a Panamanian company.{2}  
POFC is a Bermuda corporation with its principal place of business in
Bermuda.  POFC's owner resides in Bermuda, and POFC's President, Henk A.
Pols, a United States citizen, resides in Maine.
	[¶3]  POFC operates the Scotia Prince from May to October carrying
automobiles and passengers between Portland and Yarmouth, Nova Scotia. 
During the other six months the Scotia Prince is berthed in Nova Scotia,
where crew members perform maintenance work.  POFC does not operate
any other vessel. 
	[¶4]  POFC conducts its day to day operations in Portland, where it has
a marketing department, reservations department, accounting department,
and operations center.  The Portland office employs about twelve permanent
employees and an additional thirty to forty workers from May to October. 
POFC maintains bank accounts in Portland from which it makes payments
for payroll, regular bills from suppliers, and certain insurance obligations.    
	[¶5]  POFC also maintains an office in Yarmouth, staffed by Canadian
citizens, who regularly take reservations and provide ticketing services. 
POFC works closely with the Canadian government and the provincial
government of Nova Scotia to promote tourism.  POFC also maintains bank
accounts in Yarmouth.  	
	[¶6]  Cacho signed his employment contract in Portland.  The
employment contract provides that "[t]he material decision of the
arbitration court exclusively has to be found in accordance with the law of
[Panama]." 
	[¶7]  Cacho suffered injuries working on the Scotia Prince while it was
docked at the International Marine Terminal in Portland.  He brought an
action against POFC for violation of the Jones Act, 46 U.S.C. § 688,{3} general
United States maritime law, and for failure to provide maintenance and cure.  
The court granted a summary judgment to POFC because it found United
States law inapplicable to Cacho's claims.
THE JONES ACT AND UNITED STATES MARITIME LAW
	[¶8]  The trial court may enter a summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, referred to in the statements required by [M.R. Civ.
P.] 7(d) show that there is no genuine issue as to any material fact set forth
in those statements and that any party is entitled to a judgment as a matter
of law."  M.R. Civ. P. 56(c).  Whether the facts as found by the trial court
require the application of United States law to Cacho's claim is a question of
law that we review de novo, but we review the court's factual findings only
for clear error.  See Paffhausen v. Balano, 1998 ME 47, ¶ 5, 708 A.2d 269,
270-71.
	[¶9]  To determine whether United States law should apply, we must
consider at least the following factors:
	(1)	the place of the wrongful act;
	(2)	the law of the flag; 
	(3)	the allegiance or domicile of the injured seaman;
	(4)	the allegiance of the defendant shipowner/charterer;
	(5)	the place where the contract of employment was made;
	(6)	the inaccessibility of a foreign forum;
	(7)	the law of the forum; and
	(8)	the shipowner's/charterer's base of operations.
Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970) (adding eighth
factor and noting list is "not intended as exhaustive"); see also Lauritzen v.
Larsen, 345 U.S. 571, 583-91 (1953). "The importance of each choice-of-
law factor may vary from case to case depending on the totality of the
circumstances."  Walters v. Prince of Fundy Cruises, Ltd., 781 F. Supp. 811,
814 (D. Me. 1992).  The Court must weigh these factors and "apply[ ] the
law of the state with the most substantial contacts giving rise to the
claim . . . ."  Carbotrade S.p.A. v. Bureau Veritas, 99 F.3d 86, 90-91 (2d. Cir
1996).  These factors apply to both the Jones Act and United States
maritime law generally.  See Romero v. International Terminal Operating
Co., 358 U.S. 354, 382 (1959).  
	[¶10]  We consider each of these factors in turn.
1. The Place of the Wrongful Act.
	[¶11]  The trial court found that Cacho was injured while the Scotia
Prince was docked in Portland, but it considered the place of injury
"fortuitous" and worthy of little weight.  We place greater significance on
this factor than did the trial court.
	[¶12]  The significance of the place of the wrongful act depends on
the circumstances.  See Neely v. Club Med Management Servs., Inc., 63 F.3d
166, 190 (3rd Cir. 1995).  When a vessel conducts traditional shipping
activities that require sailing the world's seas and stopping at many different
ports, courts consider the place of the wrongful act fortuitous and of
minimal importance.  See Romero, 358 U.S. at 384; Kukias v. Chandris
Lines, Inc., 839 F.2d 860, 862 (1st Cir. 1988) (noting this factor is of "little
significance" with respect to injury sustained aboard cruise ship).  On the
other hand, "[w]here seamen are not plying the world's seas in traditional
international shipping activity, some contacts take on heightened
significance . . . ."  Neely, 63 F.3d at 190 (finding place of wrongful act more
significant where vessel travelled only in St. Lucia waters for scuba diving
expeditions); see also Marriott v. Sedco Forex Int'l Resources, Ltd., 827 F.
Supp. 59, 64 (D. Mass. 1993) ("[T]he significance of each factor in a
nontraditional maritime context like offshore oil drilling varies from that in
the traditional shipping context . . . .").  The Scotia Prince's limited travel
compels this Court to place greater significance on the place of injury.
	[¶13]  Unlike ships that sail the world's seas, the Scotia Prince sails
between two ports, Portland and Yarmouth.  Consequently, the fact that
Cacho was injured in Portland was not fortuitous and should not be
dismissed as of "little significance."  Cf.  Garcia v. M/V Kubbar, 4 F. Supp. 2d.
99, 105 (N.D.N.Y. 1998) (place of wrongful act given significant weight when
seaman hired to perform work in Guatemala and wrongful act was in
Guatemala).  But see Walters, 781 F. Supp. at 814 (site of wrongful act of
"little significance" where deck hand on Scotia Prince injured in Nova
Scotia).  The place of the wrongful act weighs in favor of applying United
States law to this case.	
2. The Law of the Flag
	[¶14]  The law of the flag is of "'cardinal importance' in determining
the choice of law in maritime cases."  Kukias, 839 F.2d at 862 (quoting
Lauritzen, 345 U.S. at 584).  The Scotia Prince flies the flag of Panama.  The
law of the flag weighs in favor of the application of Panamanian law.
3. The Allegiance or Domicile of the Injured
	[¶15]  The fact that Cacho is a Honduran citizen is "significant" in a
choice of law analysis.  See Kukias, 839 F.2d at 862.  This factor weighs in
favor of the application of the law of Honduras. 
4. The Allegiance of the Defendant Shipowner/Charterer
	[¶16]  POFC, as the bareboat charterer of the Scotia Prince, is
considered the owner pro hac vice.  Reed v. Steamship Yaka, 373 U.S. 410,
412 (1963).  POFC is a Bermuda corporation, a fact that is "significant" in a
choice of law analysis.  Walters, 781 F. Supp. at 814-15.
	[¶17]  Courts will examine the corporate makeup of the defendant
shipowner and charterer and "'look through the facade of foreign
registration and incorporation to find the true ownership of the vessel' and
its operator."  Kukias, 839 F.2d at 862 (quoting Villar v. Crowley Maritime
Corp., 782 F.2d 1478, 1481 (9th Cir. 1986)).  Such scrutiny is necessary
because "a practice has grown, particularly among American shipowners, to
avoid stringent shipping laws by seeking foreign registration eagerly offered
by some countries."  Lauritzen, 345 U.S. at 587.
	[¶18]  Although POFC maintains a base of operations in Portland, this
does not establish that true ownership lies with American interests and that
POFC is a "foreign shell created . . . to avoid the requirements of American
law." Kukias, 839 F.2d at 862.  Consequently, this factor weighs in favor of
applying the law of Bermuda.
5. The Place Where the Parties Signed the Contract of Employment
	[¶19]  The trial court found that Cacho signed the contract aboard the
Scotia Prince in Portland, but held that the place of contracting is fortuitous
and therefore generally accorded "little weight."  See Kukias, 839 F.2d at
862. 
	[¶20]  We do not accord this factor "little weight" because the Scotia
Prince's travels are limited to only two ports.  In the traditional seafaring
context, the place of contract, like the place of injury, is often considered
fortuitous because of the variety of ports and seas the vessel may travel.  See
Neely, 63 F.3d at 190.  Here, however, the limited nature of the Scotia
Prince's travel renders the place of contract less fortuitous and more worthy
of weight by this Court.  See id.  Unlike a traditional international shipping
operation, POFC is unlikely to take on crew members at random ports.  See
id. at 192.  Consequently, we find that this factor weighs in favor of applying
United States law.
	[¶21]  The trial court found that the choice of law provision in Cacho's
contract with POFC required the application of Panamanian law to disputes
arising from the employment relationship.  "[C]hoice of law expressed in the
contract may be much more important" than the place of contract.  Kukias,
839 F.2d at 862 (quoting Villar, 782 F.2d at 1481); see also Walters, 781 F.
Supp. at 815 (construing choice of law provision in POFC employment
contract to weigh against application of United States law).  But see Fisher v.
Agios Nicolaos V, 628 F.2d 308, 316 n.13 (5th Cir. 1980) ("Probably due to
the disparity in bargaining power between the seaman and his employer,
American courts have generally accorded little determinative weight to such
contractual choice of law provisions.").  Although we find that the choice of
law provision weighs in favor of applying Panamanian law, we do not
discount the fact that the parties signed the contract in Portland.  
6. The Inaccessibility of a Foreign Forum
	[¶22]  Neither party submitted evidence with respect to the
accessibility of a foreign forum, therefore, we do not analyze this factor.
7. The Law of the Forum
	[¶23]  This factor is accorded little weight when the defendant is
"involuntarily made a party."  Kukias, 839 F.2d at 863 (citing Sosa v. M/V
Lago Izabal, 736 F.2d 1028, 1031 (5th Cir. 1984)).  Cacho acknowledges that
the law of the forum is often accorded little weight, but he urges the Court
to consider that POFC requires all passengers injured upon the Scotia Prince
to seek redress in a court in the State of Maine.  Although this undermines
POFC's argument that it is not submitting to this forum, we do not accord
significant weight to this factor favoring the application of United States law. 
See Kukias, 839 F.2d at 863; Walters, 781 F. Supp. at 815. 
8. The Base of Operations
	[¶24]  To effectuate the liberal purposes of the Jones Act, "the facade
of the operation must be considered as minor, compared with the real
nature of the operation and a cold objective look at the actual operational
contacts that [the] ship and [the] owner have with the United States." 
Rhoditis, 398 U.S. at 310.  The base of operations is a "significant factor" in
a maritime choice of law analysis.  Kukias, 839 F.2d at 864.  
	[¶25]  The evidence supports the trial court's finding that POFC's base
of operations is in Portland.  POFC's President admitted that the direct and
actual operation of POFC is conducted in Portland.  The marketing director,
POFC's treasurer, the director of operations and maintenance, and the
reservations department are all based in Portland.  Most of POFC's full-time
employees work in Portland.  More than half of the Scotia Prince's supplies
are purchased in Maine, and POFC pays all crew members from a Portland
bank account.  The fact that Portland serves as POFC's base of operations is a
significant factor that weighs in favor of applying United States law.	
	[¶26]  The preceding factors, considered in their totality and
accorded the appropriate weight, favor the application of United States law. 
Accordingly, we hold that the Superior Court erred when it dismissed
Cacho's claims pursuant to the Jones Act and United States maritime law.
	The entry is:

Judgment vacated.  Remanded for further
proceedings consistent with this opinion.

Attorneys for plaintiff: John P. James, Esq., (orally) Friedman & James LLP 132 Nassau Street, Suite 900 New York, NY 10038 Michael X. Savasuk, Esq. Bradley & Savasuk P O Box 267 Portland, ME 04112-5060 Attorney for defendant: Leonard W. Langer, Esq., (orally) Tompkins, Clough, Hirshon & Langer, P.A. P O Box 15060 Portland, Me 04112-5060
FOOTNOTES******************************** {1} . A bareboat charter is "[a] document under which one who charters or leases a boat becomes for the period of the charter the owner for all practical purposes." Black's Law Dictionary 149 (6th ed. 1990). {2} . Transworld is not a defendant in this case. {3} . The Jones Act, 46 U.S.C. § 688, provides in pertinent part: Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . . . Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. 46 U.S.C.A. § 688(a) (Supp. 1998).