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LOBERIZA v. CALLUNA MARITIME CORP.

January 14, 1992

RENATO LOBERIZA, Plaintiff,
v.
CALLUNA MARITIME CORP. and EUROPEAN NAVIGATION, INC., Defendants.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 This is an action for damages alleging violations of the Jones Act, 46 U.S.C. § 688, the general maritime law of the United States, and 46 U.S.C. § 10313 et seq. Defendants move jointly for an order: pursuant to Fed. R. Civ. P. 12(b)(1) dismissing the Complaint for lack of subject matter jurisdiction; pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(2) quashing service and dismissing the Complaint for lack of personal jurisdiction; pursuant to Fed. R. Civ. P. 12(b)(6) dismissing the Complaint for failure to state a claim; and dismissing the Complaint on grounds of forum non conveniens. For the reasons set forth below, Defendants' motion is granted.

 BACKGROUND

 Plaintiff Renato Loberiza is a Philippine citizen. Defendant Calluna Maritime Corporation ("Calluna") is a Liberian corporation whose principal place of business in Liberia, and Defendant European Navigation, Inc. ("European") is a Liberian corporation with a place of business in Greece. At all relevant times, Calluna was the owner of the M/V Amazon Venture (the "Amazon"), European was the vessel's manager and operator, and the vessel was operating pursuant to time charters in the "tramp trade." *fn1"

 Loberiza was employed by European as a seaman on the Amazon pursuant to an employment contract executed in the Philippines. The contract contains a Philippines forum selection clause which covers claims arising from personal injuries. Loberiza alleges that he was injured during a voyage from Bermuda to New York and now seeks damages from Calluna and European:

 (1) for injuries sustained by reason of the Defendants' alleged negligence pursuant to the Jones Act, 46 U.S.C. § 688;

 (2) for injuries sustained by reason of the unseaworthiness of the Amazon, the Defendants' failure to provide proper medical care and attention, and the Defendants' failure to repatriate him in a manner which would not aggravate his injuries, pursuant to the general maritime law of the United States; and

 (3) for wages not paid pursuant to 46 U.S.C. § 10313.

 DISCUSSION

 I. SUBJECT MATTER JURISDICTION OVER § 10313 CLAIM

 In certain circumstances, 46 U.S.C. § 10313 permits a seaman to sue in the United States courts for the recovery of unpaid wages. Section 10313 also provides for the imposition of penalties on shipowners for non-payment or late payment of wages after a seaman's discharge. In enacting the penalty wage provisions, Congress sought to prevent seaman from being left destitute at a foreign port far from home. Cuevas v. Reading & Bates Corp., 770 F.2d 1371, 80 (5th Cir. 1985). Accordingly, § 10313(i) provides, "This section applies to a seaman on a foreign vessel when in a harbor of the United States. The courts are available to the seaman for the enforcement of this action."

 Here, Loberiza was not left destitute in New York, but rather he returned to the Philippines. Affidavit of Paul Edelman, sworn to on October 28, 1991 ("Edelman Aff.") at 2. Furthermore, the plain language meaning of § 10313(i) seems to require that the foreign vessel be in a United States harbor for the section to apply. Because there has been no showing that the Amazon or the Plaintiff was in New York at the ...


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