Appeal from the United States District Court for the District of New Jersey; D.C. No. 89-04180.
Stapleton, Cowen and Rosenn, Circuit Judges.
Plaintiff Oscar Matute, a Honduran injured while serving as a crewman on the cargo liner THE LLOYD BERMUDA, filed suit under the Jones Act and general maritime law against the ship's exclusive charterer, Lloyd Bermuda Lines (LBL), a Bermudan corporation which does business in New Jersey, and its United States agent, Trans-Mar Agencies (TMA). Matute alleged in his complaint that the defendants breached their duty to provide him with proper medical attention when Matute developed an eye injury while serving on THE LLOYD BERMUDA. From Matute's complaint and briefs, it appears that he attempts to impose liability on the defendants by casting them as, alternatively, the owner-in-fact of the ship, the employer-in-fact of Matute, and/or the owner's agent responsible for procuring Matute's medical care.*fn1 After five months of discovery, the district court granted the defendants' motion for summary judgment, finding that, as the ship's time charterers, the defendants owed no such duties to Matute, but that Matute's only remedy rested with the ship's owners. We affirm.
The facts, viewed in the light most favorable to the non-moving party, Matute, are as follows. The defendant Lloyd Bermuda Lines (LBL) is a Bermudan corporation with its chief officer John Kearns residing in New Jersey. LBL time chartered the cargo ship THE LLOYD BERMUDA from its owner, Procoast Navigation (Procoast), a German corporation, beginning June 9, 1983 until the ship's sinking in December 1988. During this period, the ship made weekly sailing trips from Port Newark, New Jersey to Hamilton, Bermuda. The defendant Trans-Mar Agencies (TMA), a New Jersey corporation, is LBL's general agent in the United States.
Under the time charter agreement between LBL and Procoast, LBL received the right to use the cargo hold of the LLOYD BERMUDA to ship goods to destinations chosen by LBL. Procoast, however, retained the responsibility for condition of the ship and control over its crew. LBL paid a flat rate of $2000 per day (later $1800) for use of the ship, which was to be provided by its owner in a condition ready to receive and transport cargo. Procoast hired the captain of the ship and, through the captain, the ship's crew. In addition, Procoast, the owner had the duty "to provide and pay for all provisions [and] wages . . . of the Crew." The charterer forwarded money for the charter hire once a month to Procoast's representative in Miami Florida, Ingo Folling. There is no evidence in the record disputing that the relationship between the owners and the charterer as delineated by the time charter agreement was not the relationship-in-fact between these parties.
TMA performed various functions as LBL's agent in the operation of the shipping line. It would obtain crewmembers' U.S. immigration visas, meet arriving crew at the Newark airport and arrange and pay for transportation to the port, and make advances to pay for certain expenses of the ship and crew while docked in New Jersey, the amounts to be deducted from Procoast's monthly charter hire fee (plus 2 1/2% commission). TMA would occasionally assist with the repatriation of foreign crewmen returning to their countries, by preparing immigration documents and making the necessary travel arrangements.
Matute does not dispute that Procoast's captain hired him. The captain sent Matute a letter on August 29, 1986, confirming his employment on the ship. That letter, however, was drafted on TMA stationery. Upon Matute's arrival at Newark Airport, TMA arranged and paid for his transport to the ship.
Matute began his job as an oiler in the engine room of the LLOYD BERMUDA in early September, 1986, but on his second voyage from Newark to Bermuda developed an irritation in his right eye. He complained to the ship's captain and first aid officer but they did not secure medical attention for Matute. While the ship was docked in Newark, Matute also complained of his eye problem to Jose Planas, a representative of TMA whose job it was to come aboard the ship to inquire about the well-being of the crew members and to determine whether they needed anything. Finally, on October 27, 1986, when the ship was docked in Bermuda, the ship's captain made arrangements for Matute to see an eye doctor who was unable to help Matute's eye condition which by that time had progressed to near blindness in his right eye. Three days later when the ship was back in Newark, Jose Planas came aboard the ship and told Matute that he was taking him to see a doctor in New York City. That doctor concluded that "the vision of his right eye cannot be improved at this time due to scar tissue in the retina of indeterminate cause," but that Matute could continue working as long as he wore protective eye glasses.
On November 6, 1986, the ship's captain told Matute that they could not use him anymore. After Matute's termination, TMA purchased an airline ticket and obtained the necessary immigration documents for his return to Honduras. According to Matute's affidavit, Matute thought he worked for TMA because, in the language of his affidavit, "all my communications, every document and letters, all my arrangements for joining the ship, for leaving the ship and for my airline ticket was made by Trans-Mar."
On December 28, 1988, THE LLOYD BERMUDA sank in the North Atlantic Ocean during heavy weather; only 3 of the 11 crewmembers were rescued. Curiously, both the U.S. Coast Guard Report of the accident and the insurance claim forms list the defendant TMA as the "agent" of the owner Procoast. An employee and a manager of TMA both deny that TMA was ever an agent of Procoast; both contend that TMA is the general agent of LBL. The president of Procoast also denies that TMA has ever been an agent of Procoast.
In July 1987 Matute originally filed a complaint under the Jones Act against Procoast for damages arising out of the injury to his eye. In its answer, Procoast admitted to being the owner of THE LLOYD BERMUDA. The district court dismissed that action for lack of subject matter jurisdiction and this court ...