Cacho v. Prince of Fundy Cruises, Ltd.

1998 ME 249, 722 A.2d 349, 1999 A.M.C. 795, 1998 Me. LEXIS 268
Supreme Judicial Court of Maine·Decided November 24, 1998·Published·Cited by 2 cases

Opinion

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 [351] bareboat charter1 with the registered owner, Transworld Steamship Company, a Panamanian company.2 POFC is a Bermuda corporation with its principle 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 Yar-mouth, 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 Yar-mouth.

[¶ 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 ship-own er/charter er;
(5) the place where the contract of employment was made;
(6) the inaccessibility of a foreign forum;
(7) the law of the forum; and
[352] (8)the shipowner’s/charterer’s base of operations.

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (adding eighth factor and noting list is “not intended as exhaustive”); see also Lauritzen v. Larsen, 345 U.S. 571, 583-91, 73 S.Ct. 921, 97 L.Ed. 1254 (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.1991). The Court must weigh these factors and “apply[ ] the law of th 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, 79 S.Ct. 468, 3 L.Ed.2d 368 (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.

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Cacho v. Prince of Fundy Cruises, Ltd., 1998 ME 249, 722 A.2d 349, 1999 A.M.C. 795, 1998 Me. LEXIS 268 (Me. 1998).

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