This Amended Order makes the following change: in the Order Denying Motion for Reconsideration and Recommending Certification (DE #127, filed March 31, 2004), I stated that Carnival is "a Florida corporation, with its principal place of business in Miami. . . ." Order Denying Motion for Reconsideration at 4, citing Order Denying Defendant's Motion to Dismiss on Forum Non Conveniens Grounds (DE #103, filed December 9, 2003) at 17. In both the Order Denying Motion for Reconsideration and the Order Denying Motion to Dismiss, however, I relied on the fact, supported by citations to the record, that Carnival is a Panamanian corporation with its principal place of business in Miami. See Order Denying Reconsideration at 3 (citations omitted); Order Denying Motion to Dismiss at 2 (citations omitted). Accordingly, this Amended Order corrects the one reference to Carnival as a Florida Corporation with its principal place of business in Miami and consistently refers to Carnival as a Panamanian Corporation with its principal place of business in Miami.

ALAN GOLD, District Judge

THIS CAUSE is before the Court upon Defendants' Motions for Reconsideration [DE #106, filed December 23, 2003; DE #116, filed January 15, 2004] of the Order Denying Defendants' Motion to Dismiss on Forum Non Conveniens Grounds [DE #103, filed December 9, 2003]. Plaintiff filed his Opposition to the first Motion on December 31, 2003 [DE #107] and his Opposition to the second Motion on January 9, 2004 [DE #114]. Defendants filed their Reply [DE #111] on January 6, 2004. Upon review of the record, the parties' arguments, and applicable statutory and case law, the Defendants' Motion for Reconsideration is DENIED. Because other Judges in this Court have reached the different conclusions, this case is appropriate for certification pursuant to 28 U.S.C. § 1292(b).

Background

Plaintiff, a Costa Rican citizen, brought this action against Cruise Ships Catering and Service International, N.V. ("CSCS International"), Prestige Cruises, N.V. ("Prestige"), and Costa Crociere, S.p.A. ("Costa Crociere" or "Costa") for injuries he suffered on two separate occasions in October and November 2000 while he worked aboard the M/S Costa Atlantica ("Atlantica"), an Italian-flagged vessel. (Complaint, DE #1, filed February 3, 2003). Plaintiff alleges claims under the Jones Act and claims for unseaworthiness, failure to cure, and failure to treat. Id. Defendants sought dismissal of the case based on the doctrine of forum non conveniens. For the reasons explained below, I denied Defendants' Motion to Dismiss. See infra Part I. Defendants now urge me to reconsider this decision, and both parties have filed new exhibits in support of and against the Motion for Reconsideration. See infra Part II.

I. Court's Order Denying Defendants' Motion to Dismiss on Forum Non Conveniens Grounds

I will give a brief summary of the Court's Order Denying Defendant's Motion to Dismiss on Forum Non Conveniens Grounds ("Order" or "Order denying dismissal"). The complete Order is attached as Exhibit A. In my previous Order, I explained that under Eleventh Circuit case law, the application of the Jones Act involves a question of choice of law, the determination of which requires a two-pronged inquiry. (Order at 6, citing Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983)). First, the district court must decide, under choice of law principles, whether the law of the United States should be applied. ( Id.). If United States law applies, the case should not be dismissed for forum non conveniens. ( Id.).

In Lauritzen v. Larsen, 345 U.S. 571, 583-91 (1953), the United States Supreme Court outlined the following seven factors for determining whether the Jones Act is applicable to a claim: (1) the place of the wrongful act; (2) the law of the ship's flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the shipowner; (5) the place where the shipping articles were signed; (6) the accessibility of the foreign forum; and (7) the law of the forum. (Order at 7). The Supreme Court subsequently emphasized that the Lauritzen factors were neither exhaustive nor meant to be applied mechanically to the facts of each case. (Order at 7, citing Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970)). The Court then noted the importance of an eighth factor, the "shipowner's base of operations." ( Id., citing Rhoditis, 398 U.S. at 309). Although the Rhoditis Court referred to the "shipowner's" base of operations, the Court later noted that the operational contacts of both the ship and its owner were to be considered in the choice of law analysis. ( Id., citing Rhoditis, 398 U.S. at 310).

Applying this Eleventh Circuit case law, I denied the Motion to Dismiss primarily due to my conclusion that Defendants' base of operations is in the United States. (Order at 11-22). As set forth in the Order denying dismissal, the M/S Costa Atlantica's owner is Costa Crociere, an Italian company that is at least 99% owned by Carnival, a Panamanian company with its principal place of business in Florida. (Order at 2 (citations omitted)). Costa Crociere, in turn, is the principal shareholder of the remaining Defendants. (Order at 4 (citation omitted)). Finally, through Costa's wholly-owned subsidiary, Costa's decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean, N.V. or through its authorized agent, International Risk Services, Inc. (IRSI). (Order at 5 (citation omitted)). IRSI administers medical benefits for CSCS International's employees and handles third party claims made against the company. ( Id. (citation omitted)).

The remaining Defendants consist of the following parties. Prestige, a Netherlands Antilles company, acted as the bareboat charterer of the vessel at certain times. (Order at 4 (citation omitted)). CSCS International, also a Netherlands Antilles corporation, was Plaintiff's employer. ( Id. (citation omitted)). Costa Cruise Lines, another subsidiary of the Costa group, is the sales and marketing agent for Costa Crociere's vessels that call in the United States. ( Id. (citations omitted)). Costa Cruise Lines is organized under the laws of the Netherlands Antilles and does business in the United States. ( Id. (citation omitted)).

Based on the record before me, it was undisputed in the record that members of the Costa group sought to derive advertising and marketing benefits in this country through the use of the general identifying corporate name of "Costa" and that Costa Cruise Lines, another Costa subsidiary, participated in a coordinated effort to conduct a passenger cruise business in the United States. (Order at 13). Without dispute, Costa had been financially successful through its advertising and marketing efforts in the United States. ( Id. at 14). I explained that the important question was whether these contacts amounted to a substantial relation to the United States. ( Id. at 17, citing Sigalas, 776 F.2d at 1518). I concluded that the contacts did amount to a substantial relation, particularly due to the following facts. The Costa corporations, though nominally separate and distinct corporate entities, all function as interrelated parts of a worldwide "Costa" corporate group. ( Id.). The key link to the United States is that Carnival, a Panamanian corporation, with its principal place of business in Miami, is the principal shareholder (99%) of the parent company, Costa Crociere who, in turn, is the principal shareholder of the remaining defendants. ( Id.). I noted that Carnival's SEC filings state that a 50% ownership interest typically evidences a "significant influence over financial and operating policies." ( Id. at 18). Further, I stated that Carnival's principal shareholders are the Arisons, who live in Miami and conduct other business here. ( Id.) These facts indicated that Carnival, the direct owner of Costa Crociere, had a significant influence over Costa's financial and operating policies and conducts its daily business operations in Miami, Florida. ( Id.). I also found the following additional contacts: (1) during the period in question (October and November 2000), Costa operated the M/V Costa Atlantica, along with other ships, in the Carribean market, stopping in Ft. Lauderdale and Key West, Florida. ( Id. at 19), (2) during one of these stops, Plaintiff was treated by a doctor in Ft. Lauderdale for the injuries in question ( Id.), (3) through Costa's wholly-owned subsidiary, decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean or through its authorized agent, IRSI ( Id. at 20), and (4) benefits checks were being issued out of Florida on the CSCS International account as late as January 2003 ( Id.). Accordingly, I denied the Motion to Dismiss.

II. New Filings

The parties have filed a number of new exhibits and documents in support of and against reconsideration. Based on Eleventh Circuit case law, I do not have to consider the filings that were available but not filed for my review before I issued the Order Denying Defendant's Motion to Dismiss. See Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167 (11th Cir. 2002) ("[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.") (quotation omitted). Several of Defendants' and Plaintiff's filings fall within this category. Even upon a review of these materials, however, I conclude that the decision to deny dismissal was proper.

Plaintiff filed a Notice of Filing Documents in Opposition to Defendant's Motion for Reconsideration (DE #108, filed December 31, 2003) consisting of the following documents: October 27, 1998 Casino Gaming Concession Agreement (Plaintiff's Exh. 1); June 1, 1998 Agreement appointing Carnival project manager in connection with the construction of a cruise ship for Costa (Plaintiff's Exh. 2); June 1, 1998 letter from Carnival to Costa (Plaintiff's Exh. 3); November 4, 2000 Casino Consulting Agreement (Plaintiff's Exh. 4); November 25, 2002 guarantee letter (Plaintiff's Exh. 5); January 1, 1995 Agency Agreement (Plaintiff's Exh. 6); July 1, 1999 Consulting Agreement (Plaintiff's Exh. 7); January 1, 2002 Consulting Agreement (Plaintiff's Exh. 8); March 1, 2002 Sublease Agreement (Plaintiff's Exh. 9); Costa Cruise ticket's forum selection clause (Plaintiff's Exh. 10); and December 4, 2000 Power of Attorney agreement (Plaintiff's Exh. 11). Plaintiff states that these documents were "recently obtained on December 17, 2003, as part of Production in another Costa case." (Notice of Filing at 1). Plaintiff also filed Carnival's 2000, 2001, and 2002 financial documents in opposition to the Motion for Reconsideration. (DE #109, filed December 31, 2003). Finally, Plaintiff filed the February 26, 2004 deposition of Enrique A. Miguez, Carnival's Assistant General Counsel (Miguez Deposition). (DE 124, filed March 4, 2004).
Defendants' also filed additional documents (DE #110, filed January 5, 2004; DE #113, filed January 9, 2004; DE #1119, filed January 30, 2004) for me to consider: the December 12, 2002 Miguez deposition transcript (2002 Miguez Deposition); the July 24, 2001 Alberto Sacconaghi deposition transcript (Sacconaghi Deposition); Cavanna Deposition Stipulation; Bautista v. Cruise Ships Catering Serv. Int'l, N.V., Case No. 03-60160 (S.D. Fla. Jan. 5, 2004) (order denying motion for reconsideration); Rodriguez v. Cruise Ships Catering Serv. Int'l, N.V., Case No. 03-60288 (S.D. Fla. Jan. 5, 2004) (order denying motion for reconsideration); and January 21, 2004 Cavanna Sworn Statement (Cavanna Statement). Defendants also filed the same February 26, 2004 deposition transcript of Miguez that Plaintiff filed. (DE #123, filed March 4, 2004).

The record before me on Defendants' Motion to Dismiss indicated that Carnival's principal place of business was in Florida and that the corporation owned at least 99% of Costa's shares. (Order at 2). The record that is before me now confirms that Carnival's headquarters are in Miami (Miguez Deposition at 155) and shows that Carnival owns 100% of Costa's shares (2000 Annual Report at Note 1). In the "Notes to Consolidated Financial Statements," Carnival states that it operates six cruise lines under various brand names, including Costa. ( Id. at Note 1). Carnival explains that since June 1997, it owned 50% of Costa, and on September 29, 2000 it completed the acquisition of the remaining 50% interest in Costa from Airtours at a cost of approximately $510 million. ( Id. at Note 3). Further, according to Carnival's Chief Financial Officer, Carnival owns 100% of Costa's share capital and does not "contemplate reducing or disposing of [its] aforesaid control of Costa. . . ." (Plaintiff's Exh. 5).

In addition to providing further evidence of Carnival's presence in Florida and ownership of Costa, the new filings also demonstrate (1) contractual duties Carnival Corporation ("Carnival") undertakes on behalf of Costa, (2) the use of Florida law pursuant to these contracts and other Costa materials, (3) Carnival's assistance with Costa's debts, (4) advertising efforts Carnival conducts on behalf of Costa, (5) Carnival's control over Costa through its officers, (6) Carnival's control over Costa's environmental compliance procedures, (7) Carnival's practice of reporting Costa's financial results, and (8) Defendants' contacts with the United States through international Risk Services ("IRSI").

A. Contractual Duties Carnival Undertakes on Behalf of Costa

Carnival has entered into several contracts which allow it to perform duties on Costa's behalf. In one of these contracts, executed on June 1, 1998, Carnival was appointed project manager in connection with the construction of a Costa cruise ship. (Plaintiff's Exh. 2). On the same day, Carnival wrote Costa a letter agreeing to act as the "owner's representative" on behalf of Costa in connection with the construction of the cruise ship. (Plaintiff's Exh. 3). Another agreement entered into on October 27, 1998 established Carnival as the exclusive provider of casino services on board eight Costa ships (Casino Gaming Concession Agreement, Plaintiff's Exh. 1 ¶ 1), including the M/S Costa Marina "through November 30, 2003 or until the conclusion of the cruise which ends at or most approximate to that date" (Plaintiff's Exh. 1 ¶ 2). Carnival agrees to provide at its sole expense the equipment necessary for the casino operations. ( Id. at ¶ 3(b)). Carnival also agrees to repair, maintain, and replace the equipment as needed at its sole cost and expense. ( Id.). The agreement allows Carnival to appoint personnel to manage CSCS's casino operations. ( Id. at ¶ 3(g)). The agreement provides that Carnival's gaming equipment will receive insurance coverage under CSCS's hull and machinery policy at no extra cost to Carnival. ( Id. at ¶ 5(a)(ii))).

Prestige Executive Managing Director and financial director Alberto Sacconaghi's deposition reveals the existence of another Costa agent in the United States. According to him, Costa provides for and pays a maritime port agent in the United States to assist captains with any problems with their vessels. (Sacconaghi Deposition at 30).

Carnival entered into another agreement, this time with Costa itself, titled "Service and Procurement Agreement." (Miguez Deposition at Attachment marked Plaintiff's Exh. 1). This agreement allows Carnival, through its Global Source Division (CGS), to "negotiate and execute, in the name and on behalf of Costa, the supply of the products and services" set forth in the agreement. (Miguez Deposition at Attachment marked Plaintiff's Exh. 1 ¶ 3.1). In furtherance of the agreement, CGS can use Costa employees, instruments, and equipment. Further, "[e]very activity related to the performance which implies the access of CGS' employees to the offices of Costa, shall be carried out during normal working hours, without any interruption or disturbance to the activities carried out therein." (Miguez Deposition at Attachment marked Plaintiff's Exh. 1 ¶ 2.5(b)). Costa also grants CGS the power to (1) place supply and service orders in the name of and on behalf of Costa, (2) negotiate, execute and deliver notice, receipts, acknowledgments, amendments, addenda, or other documents, and (3) take actions or sign otherwise execute and deliver further documents or agreements that CGS deems necessary. ( Id. at ¶ 3.2). The agreement grants John Meszaros, a United States citizen and Chief Procurement Officer of CGS, the power of attorney. ( Id. at Exh. B). Pursuant to this power, Meszaros can undertake the above-listed actions to obtain food and beverage products, vessel equipment, entertainment services, and fuel products required for the cruises on behalf of Costa. ( Id. at ¶¶ 1, 2, 4, 5). Further, Meszaros can negotiate, execute, and enforce agreements regarding embarkation and disembarkation with harbor authorities on behalf of Costa. ( Id. at ¶ 3). Finally, he can "do all such things and take all such actions and sign or otherwise execute and deliver further documents or agreements as CGS shall in its discretion shall deem necessary or desirable" in order to effectuate the agreement. ( Id. at ¶ 8). Miguez describes this power of attorney as granting Carnival the ability to seek bids and prices from vendors on behalf of Costa in Carnival's Miami office. (Miguez Deposition at 96).

B. Defendants' Practice of Providing for Florida Law in their Agreements

Several of these contracts provide for the use of Florida law and courts in the event of a dispute. The Casino Gaming Concession Agreement states that it "shall be governed by the statutory Federal Maritime Law of the United States to the extent governed by Maritime Law and otherwise by the laws of the State of Florida." (Plaintiffs Exh. 1 ¶ 16). Disagreements regarding the interpretation or operation of the agreement may be arbitrated in Miami. ( Id. at ¶ 17). A Casino Consulting Agreement between these two parties in November 4, 2000 also provides that the agreement "shall be governed by and construed in accordance with the substantive laws of Florida law" and that any dispute arising out of the agreement shall be settled by arbitration in Miami. (Plaintiff's Exh. 4 ¶¶ 5, 6).

Costa's cruise ticket also provides for the use of Florida law. The ticket states that all claims against Costa involving cruises which depart from, return to, or make any port call at a United States port shall be "instituted only in the courts of Miami-Dade County, Florida." (Plaintiff's Exh. 10 ¶ 19(a)).

C. Carnival's Assistance with Costa's Debts

Carnival has provided a guarantee on several of Costa's debts. In 2001, Costa issued 300 million euro worth of bonds, guaranteed by Carnival, to fund the purchase of a vessel and refinance its debt. (2002 Miguez Deposition at 23). In a letter dated November 25, 2002, Carnival guaranteed a credit line for the issuance of a bank guarantee in the amount of 16.5 million dollars in the interest of Costa in order to comply with United States law. (Plaintiff's Exh. 5). Carnival has also guaranteed, through the PI club (the insurance company for the vessels), Costa's financial responsibilities for calling on U.S. ports. (Miguez Deposition at 131-132). The PI club issued the guarantee to the United States government. ( Id. at 132). If the PI club seeks reimbursement from Costa, and Costa fails to pay, PI club can obtain the money from Carnival. ( Id. at 132).

D. Carnival's Advertising Efforts on Behalf of Costa

Carnival advertises on behalf of Costa. (Miguez Deposition at 116-117). Carnival created a program it calls "World Leading Cruise Lines" under which all Carnival operating brands, including Costa, participate. ( Id.). Although Miguez states that Costa pays Carnival for the advertising conducted under the program, he cannot recall ever seeing written contract memorializing this payment for services. ( Id. at 117).

E. Carnival's Control over Costa through its Officers

Assistant General Counsel to Carnival Enrique Miguez states that the above-referenced contracts and agreements are "arms length transactions" that are negotiated between "separate legal entities." (Miguez Deposition at 78). As evidence of their separate status, he references the fact that the companies have independent management and marketing and finance decisions. ( Id. at 79, 83). He admitted, however, in his December 12, 2002 deposition that as 100% shareholder, Carnival ultimately controls the Board of Directors of Costa Crociere. (2002 Miguez Deposition at 5). At the time of that deposition, the Costa Crociere Board consisted of four members, and "the dominant presence" on the Board was Carnival Cruise or Carnival Corporation management and Board. ( Id. at 18). Specifically, three out of the four members were Carnival Board members and directors and "obviously, exercise significant influence over the Board management decisions. ( Id. at 25).

By the time of Miguez's February 26, 2004 deposition, Costa's Board consisted of five members, including Arison, Howard Frank, Gerry Cahill, Pier Foschi and Nicola Costa. (Miguez Deposition at 13). Arison, Howard, and Cahill live and work in Miami. (Miguez Deposition at 50, 52). Micky Arison is Carnival's Chief Executive Officer. (Miguez Deposition at 48). He and his family own 43% of Carnival's stock. (Miguez Deposition at 46). Howard Frank is Carnival's Vice Chairman and Chief Operating Officer. ( Id. at 51). Cahill is Carnival's Executive Vice President, Chief Financial Officer, and Chief Accounting Officer of Carnival Corporation. ( Id. at 51). Roberto Martenoli, the Senior Vice President of Shipboard Operations for Carnival, was formerly in charge of Costa's operations department. (Miguez Deposition at 34).

Pier Foschi, the Chief Operating Officer of Costa, sits on Carnival's Board as well and travels to Carnival's Miami office periodically. (Miguez Deposition at 119-120, 148, 153). Carnival's stock option plan is given to Costa and Carnival employees. (Miguez Deposition at 151-152). In February 2004, Foschi exercised these options, resulting in about two hundred thousand shares sold for the amount of 9.1 million dollars. (Miguez Deposition at 154). Carnival also offered its shareholders discounted room credits aboard various cruises, including Costa Cruises. (Carnival's 2000, 2001 and 2002 Annual Reports at Sections titled "Shareholder Benefit").

F. Carnival's Control over Costa's Environmental Compliance Procedures

Carnival entered into an environmental compliance plan pursuant to a settlement agreement with the United States (Miguez Deposition at 138-141). Although Costa was not present during negotiations, it has to comply with the program and implement certain procedures pursuant to the plan. ( Id.).

G. Carnival's Practice of Reporting Costa's Financial Results

Carnival's annual reports include financial information about Costa. Costa's operating results in October and November 2000 were recorded as a direct adjustment to retained earnings in Carnival's November 30, 2000 consolidated balance sheet. ( Id.). Carnival's November 30, 2000 consolidated balance sheet includes Costa's November 30, 2000 balance sheet. ( Id. at Note 3 and Note 5). Further, "[c]ommencing in fiscal 2001, Costa's results of operations will be consolidated on a current month basis in the same manner as the Company's other wholly-owned subsidiaries." ( Id. at Note 3). Financial results reported in Note 10, "Segment Information," include Costa in Carnival's cruise segment assets. ( Id. at Note 10). Carnival includes $13.1 million of nonrecurring gains related to the reversal of certain Costa's tax liabilities in its net income figures for fiscal quarter ended February 20, 2000 and May 31, 2000. ( Id. at Selected Quarterly Financial Data (Unaudited)).

During the year 2001, Carnival transferred two vessels from its North American brands to Costa Cruises to accelerate its growth in the European vacation Market. (2001 Annual Report at 2). Carnival states, "[W]e are capitalizing on Costa's powerful brand recognition in Italy, France and Spain through the introduction of three new vessels specifically designed for the European vacation market. We are expanding Costa's presence in Europe by offering a cruise product created to appeal to the preference of our German guests." ( Id. at 3). Its cruise segment included six cruise brands "which have been aggregated as a single operating segment based on the similarity of their economic and other characteristics." ( Id. at Note 12). Approximately $340 million of Carnival's cruise operating cost increase was due to the consolidation of Costa, and the remaining $83 million of its cost increase was due to its other brands. (2001 Annual Report at 26). Approximately $98 million of its selling and administrative expenses increase was due to the consolidation of Costa, and the remaining $33 million of the increase was from Carnival's other brands. ( Id.). The 2001 Annual Report further states that Carnival "recorded income of $77 million during 2000 from [its] interest in Costa." ( Id. at 27).

In the year 2002, Carnival's long-term debt included a euro floating rate note, collateralized by one Costa ship, for a total of $118,727 in United States dollars. (2002 Annual Report at Note 6). The ships under contract for construction as of November 30, 2002 included three Costa ships for a total estimated cost of approximately $1.6 billion dollars. (2002 Annual Report at 12). In the contingencies section of its 2002 Annual Report, Carnival includes a description of actions that have been filed against Costa. ( Id. at Note 8). It also includes information regarding Cost in its "Income and Other Taxes" section, stating that in fiscal 2002, it recognized a net $57 million income tax benefit primarily due to a new Italian investment incentive law, which allowed Costa to receive $51 million income tax benefit based on contractual expenditures during 2002 on the construction of new ships. ( Id. at Note 9). The 2002 Annual Report also states that during fiscal 2002, Carnival borrowed $232 million, which included $150 million under Costa's euro denominated revolving credit facility. ( Id. at 28). In addition, Carnival made $190 million of principal repayments, primarily on Costa's revolving credit facility and Costa's collateralized debt. ( Id.).

In his sworn statement, Costa General Counsel Paolo Cavanna states that the reason Carnival presents a consolidated balance sheet and financial statements which include Costa's financial performance is because as a New York Stock Exchange, it has to present its information to stockholders in accordance with United States law, which means it has to give stockholders a complete picture of the state of the company where they have put their money. (Cavanna Statement at 18-19). Miguez states that Carnival includes Costa in its financial reporting pursuant to Generally Accepted Accounting Principles (GAAP) and "in order to present a clear, complete and fair picture of the financial results of the company [Carnival includes] the operations of all its operating companies into the financial statements." (Miguez Deposition at 19-20).

H. Defendants' Contacts with the United States through IRSI

The new exhibits provide further evidence of Defendants', especially CSCS', ties with the United States through IRSI, a Florida corporation with an address in Miami Beach. (Plaintiff's Exh. 7). IRSI and CSCS entered into a Consulting Agreement on July 1, 1999 whereby IRSI agrees to handle all medical and insurance claims for onboard personnel. ( Id. at 3(a)). The agreement states that CSCS shall cause Costa Cruise Lines to sublet office space in Miami to IRSI. ( Id. at ¶ 6). An attachment to the agreement titled "Crew Claims Arising In the Western Hemisphere" allows IRSI to develop a detailed procedure to handle all past, current, and future claims on behalf of CSCS. Finally, the agreement provides that it "shall be governed by and construed in accordance with the substantive laws of Florida." ( Id. at ¶ 10(g)).

CSCS has an additional United States contact: a First Union account in Miami that holds few thousand dollars to take care of expenses and emergencies in the United States (Sacconaghi Deposition at 37, 40). Alberto Sacconaghi, the Executive Managing Director of Prestige, can sign on the account. ( Id. at 37).

The two parties entered into another consulting agreement on January 1, 2002. (Plaintiff's Exh. 8). This time the IRSI office involved in the contract was IRSI in Hollywood, Florida. ( Id.). The agreement states that it "shall be governed by and construed in accordance with the substantive laws of Florida. ( Id. at ¶ 10(g)). An attachment to the agreement requires IRSI to develop detailed procedures to process all past, current, and future crew claims.

Costa Cruise Lines entered into a sublease agreement with IRSI on March 1, 2002 whereby Costa Cruise liens leased premises to IRSI in Hollywood, Florida. (Plaintiff's Exh. 9).

CSCS entered into a Power of Attorney on December 4, 2000 appointing IRSI's principal, Laurence Klutz of Miami Beach, Florida, "the true and lawful attorney for and on behalf of the Company." (Plaintiff's Exh. 11). The Power of Attorney authorizes Klutz to act in the name of CSCS in connection with claims, mediations, arbitrations, litigation and trial brought by crew against CSCS. ( Id.). It also empowers Klutz, in his absolute discretion, to take all actions he deems necessary or appropriate in connection with the above powers. ( Id. at ¶ 3). Miguez states in his deposition that Klutz works in some capacity for Costa or one if its companies, perhaps as a consultant. (Miguez Deposition at 66).

Cavanna states that many of CSCS's crew functions are handled in Genoa, so IRSI does not provide all the crew personnel functions for CSCS's employees. (Cavanna Statement at 33). Although Cavanna denies any relationship between Costa and IRSI, he admits that IRSI has to obtain approval from Costa's subsidiaries before offering services to a competitor. (Cavanna Statement at 32).

Legal Standard

A motion for reconsideration may be brought pursuant to Rule 59(e) or Rule 60(b). See Sussman v. Salem, Saxon Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) ( quoting Lewis v. United States Postal Service, 840 F.2d 712, 713 n. 1 (9th Cir. 1988)). Under which Rule the motion falls "turns on the time at which the motion is served. If the motion is served within ten days of the rendition of the judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b)." Id. Here, Defendants filed two identical Motions for Reconsideration. One Motion, however, was filed within ten days of the judgment, making it fall under Fed.R.Civ.P. 59(e), while the other Motion was filed after the ten-day period, making it fall under Fed.R.Civ.P. 60(b). Accordingly, I will examine the Motion under both standards.

While Rule 59(e) does not set forth any specific criteria, the courts have delineated three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Sussman v. Salem, Saxon Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994); see also 18 Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (1981). In order to reconsider a judgment, there must be a reason why the court should reconsider its prior decision, and the moving party must set forth facts or law of a "strongly convincing nature" to induce the court to reverse its prior decision. Id. The district court's decision regarding a Rule 59(e) motion is reversible only for abuse. See Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982).

Federal Rule of Civil Procedure 60(b) does set forth specific grounds for relief. It provides that upon motion, "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). Rule 59(e) does not set forth any specific grounds for relief, and the district court has considerable discretion in whether to reconsider an issue. See American Homes Assur. Co. v. Glenn Estess Associates, 763 F.2d 1237, 1238-39 (11th Cir. 1985).

District court decisions on motions for reconsideration are reviewed for abuse of discretion, thus affording the courts with substantial discretion in their rulings. See id.; see also Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992). A district court abuses its discretion when a "relevant factor deserving a significant weight is overlooked, when an improper factor deserving of significant weight is overlooked, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales." See id. ( citing United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1992)). Furthermore, reconsideration of a previous order is "an extraordinary remedy, to be employed sparingly." See Mannings v. School Board of Hillsborough County, 149 F.R.D. 235, 235 (M.D. Fla. 1993).

Analysis

Applying the above-stated legal standards to the facts of this case leads me to deny reconsideration. Defendants' arguments are not based on an intervening change in controlling law or fraud, misrepresentation, or other misconduct on the Plaintiff's part. See supra Part titled "Legal Standard" regarding grounds for reconsideration under Rules 59(e) and 60(b). Accordingly, I will examine Defendants' Motion under the remaining Rule 59(e) and Rule 60(b) standards: (1) mistake, inadvertence, surprise, or excusable neglect, or the need to correct clear error and (2) new evidence. I will then discuss why this case is appropriate for certification (see infra Part III).

I. Mistake, Inadvertence, Surprise, Excusable Neglect, or the Need to Correct Clear Error

Defendants argue that my Order denying dismissal was incorrect due to the following reasons: (1) the proper scope of the base of operations factor focuses on the day-to-day operations, not on corporate stock ownership; (2) the Court wrongly cited to Carnival's accounting policies to show Defendants' contacts with the forum; and (3) assertions of American stock ownership are incorrect. As set forth below, I conclude that none of these grounds warrant reconsideration.

Defendants' first major argument is that I misapplied the base of operations factor as articulated in Rhoditis and Sigalas by focusing on corporate stock ownership rather than the day-to-day operations. Both these cases, however, do examine corporate stock ownership in analyzing the base of operations factor. The Rhoditis Court concluded that the base of operations of the ship and its owner was in the United States based on the following evidence: (1) a U.S. domiciliary held ninety-five percent of the stock of the Greek corporation that owned the vessel and (2) the vessel was not a "casual visitor" to the United States but rather earned "income from cargo originating or terminating here." Rhoditis, 398 U.S. at 310. The Sigalas court also examined the stock ownership of the Defendant corporation and noted that the 80% of the stock was owned by Greek individuals. Sigalas, 776 F.2d at 1518. It distinguished the Rhoditis case partly because of the fact that 95% of the stock of the vessel owner was ultimately owned by an American domiciliary. In this case, 100% of the vessel owner's stock is owned by Carnival, which is headquartered in Miami. Further, I previously concluded, in addition to the fact that Costa's stock is owned by a company headquartered in Miami, that members of the Costa group sought to derive advertising and marketing benefits in this country through the use of the general identifying corporate name of "Costa" and that Costa Cruise Lines, another Costa subsidiary, participated in a coordinated effort to conduct a passenger cruise business in the United States. (Order at 13). Without dispute, Costa had been financially successful through its advertising and marketing efforts in the United States. ( Id. at 14). I also found the following additional contacts: (1) during the period in question (October and November 2000), Costa operated the M/V Costa Atlantica, along with other ships, in the Carribean market, stopping in Ft. Lauderdale and Key West, Florida. ( Id. at 19), (2) during one of these stops, Plaintiff was treated by a doctor in Ft. Lauderdale for the injuries in question ( Id.), (3) through Costa's wholly-owned subsidiary, decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean or through its authorized agent, IRSI ( Id. at 20), and (4) benefits checks were being issued out of Florida on the CSCS International account as late as January 2003 ( Id.). Thus, applying Supreme Court and Eleventh Circuit case law to the facts of this case, I concluded then as I do now, that Defendants' base of operations is in the United States.

Defendants next argue that the Court wrongly cited to a Note in an SEC filing regarding Carnival's accounting policies to show Defendants' contacts with the forum. They state that the Note merely indicates that Carnival's accounting policies mandate Costa's financial performance be included in Carnival's consolidated financial reports. Portions of the record before me now indicate that Carnival extensively reports Costa's financial performance (see supra Part titled "Background" at II.G) to meet GAAP requirements and to provide stockholders with a complete picture of the state of the company in which they have invested their money. (Miguez Deposition at 19-20; Cavanna Statement at 18-19). The fact that Carnival's own accounting policies and GAAP require including Costa's financial performance in Carnival's reports indicates that these companies are closely related and thus further buttresses my conclusion that Carnival uses Costa to conduct business.

Finally, Defendants argue that assertions of American stock ownership are incorrect because Carnival CEO Arison is not an American citizen and Carnival is a Panamanian, not American, corporation. My previous Order, however, did not state that Arison is an American citizen; rather, it stated that he resides in Florida and that the parties did not dispute this point during oral argument. (Order at 3). Further, the Order correctly stated, based on Carnival's SEC filings, that Carnival is a Panamanian corporation with its principal place of business in Florida. (Order at 2). In Rhoditis, the 95% stock owner of the shipowner was a Greek citizen who resided in the United States. Rhoditis, 398 U.S. 306. Thus, the facts that Arison resides in and conducts business in Florida (Order at 3-4), and that Carnival's principal place of business is in Florida (Order at 2) supports my conclusion that Defendants' base of operations is in the United States.

II. Newly Discovered Evidence

As indicated in the Background section, supra, of this Order, the parties submitted a number of additional exhibits for me to review in considering whether to grant reconsideration. These filings simply provide further evidence of Defendants' United States-based operations. The exhibits reveal (1) numerous contractual duties Carnival Corporation ("Carnival") undertakes on behalf of Costa, (2) the use of Florida law pursuant to these contracts and other Costa materials, (3) Carnival's assistance with Costa's debts, (4) advertising efforts Carnival conducts on behalf of Costa, (5) Carnival's control over Costa through its officers, (6) Carnival's control over Costa's environmental compliance procedures, (7) Carnival's practice of reporting Costa's financial results, and (8) Defendants' contacts with the United States through International Risk Services ("IRSI"). These facts demonstrates Costa's and its subsidiaries' use of the United States-based Carnival Corporation and the use of Florida law when conducting their business. Thus, a review of the entire record simply strengthens my conclusion that Defendants' base of operations is in the United States.

Defendants also filed new decisions in support of their Motion. See Bautista v. Cruise Ships Catering Serv. Int'l, N.V., Case No. 03-60160 (S.D. Fla. Jan. 5, 2004) (order denying motion for reconsideration) and Rodriguez v. Cruise Ships Catering Serv. Int'l, N.V., Case No. 03-60288 (S.D. Fla. Jan. 5, 2004) (order denying motion for reconsideration). Judge Dimitrouleas' decisions began with the premises that reconsideration requires more than simply restating arguments, that arguments not made in earlier motions will be deemed waived, and that reconsideration is an extraordinary remedy. Bautista, Case No. 03-60160 at 1-2; Rodriguez, Case No. 03-60288 at 1-2. Applying these principles, Judge Dimitrouleas rejected Plaintiffs' Supplemental B arguments and refused to consider Plaintiffs' "new evidence" because it might have been available earlier and because it did not present new facts. Bautista, Case No. 03-60160 at 2; Rodriguez, Case No. 03-60288 at 2. I already explained in detail my reasons for disagreeing with Judge Dimitrouleas' decisions dismissing his cases on forum non conveniens grounds (Order at 14-19). I agree with his rejection of Plaintiff's Supplemental Rule B argument. Further, although I agree that I do not have to consider new evidence that was available before, even upon considerations of these new filings, I conclude that reconsideration is not warranted.

I disagree with Judge Donald L. Graham's decision in Hernandez v. Cruise Ships Catering and Services International, Case No. 03-20302 (S.D. Fla. Dec. 8, 2003) (order granting dismissal on forum non conveniens grounds), which was based on the Bautista and Rodriguez decisions, for the same reasons I disagree with Judge Dimitrouleas' decisions. ( See Order at 14-19). In Judge Graham's case, the two plaintiffs alleged that the lifting and carrying of heavy objects onboard the Victoria, the Costa vessel involved in that case, caused them to suffer personal injuries. Hernandez, Case No. 03-20302 at 2. Citing solely to Bautista and Rodriguez during his discussion of the base of operations, Judge Graham concluded that "while Costa Crociere performs certain marketing, sales and crew maintenance activities in Florida through its agents, it does not, however, utilize this state as its base of operations." Id. at 4-5. Judge Graham stated that other than making infrequent stops in Florida, every decision regarding the Victoria's daily operations takes place outside the United States. Id. Judge Graham then concluded that "based on the weight of the eight applicable factors" that foreign law was applicable to the case. Id. at 5.
Judge Graham did not consider several factors that led me to deny dismissal based on forum non conveniens grounds. First, he does not address the fact that Carnival is the principal shareholder of Costa who, in turn, is the principal shareholder of the remaining defendants. He does not examine the fact that Carnival's principal shareholders are the Arisons, who live in Miami and conduct other business here. Nor does he discuss the facts that decisions regarding payment of maintenance and cure benefits were made in Florida through Costa's wholly-owned subsidiary and that benefits checks were being issued out of Florida on the CSCS International account as late as January 2003. These facts indicated that Carnival, the direct owner of Costa Crociere, had a significant influence over Costa's financial and operating policies and that Costa conducts its daily business operations in Miami, Florida. Accordingly, I respectfully disagree with Judge Graham's decision, which did not consider several of the factors I found persuasive in denying dismissal.

Plaintiffs make a new argument for jurisdiction based on Supplemental Rule B. Supplemental Rule B authorizes garnishment of assets of a foreign or other entity if that entity cannot be found in the forum. In this case, there was Supplemental Rule B attachment. The Middle District of Florida has held that this type of attachment establishes personal jurisdiction. Linea Naviera de Cabotaje, C.A. v. Mar Caribe Dr. Navegacion, C.A., 169 F. Supp.2d 1341 (2001). The court explained that Rule B attachment occurs when the defendant is not found in the district. Id. at 1351. In denying a defendant's motion to dismiss based on forum non conveniens, the court stated, "Therefore, this action is only here because of [the defendant's] limited contact with the forum. That is simply the nature of the proceeding. [Defendant's] requests to dismiss on the basis of convenience is not well taken." Id. The court concluded that by virtue of Supplemental Rule B attachment of the defendant's bank account, it had personal jurisdiction. Id. The court also stated that it had not found any Eleventh Circuit case on point. Id. Defendants, however, cite a number of cases that suggest differently. (Reply, DE #111, at 2 (citations omitted)). Further, they point out that the Eleventh Circuit has dismissed based on forum non conveniens even where a "Letter of Undertaking" in an in rem proceeding was before the lower court. See Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1515 (1985).
I conclude that Plaintiff's Rule B argument is unconvincing. It is based on one Middle District of Florida case that does not include extensive analysis, and there is no Eleventh Circuit case law directly on point. Further, Defendants cite several cases that take the opposite view. Upon review of the parties' arguments and the case law, I conclude that I should conduct an independent forum non conveniens analysis rather than simply establishing jurisdiction through an early proceeding that does not require an in-depth analysis of jurisdiction.

III. This case is appropriate for certification.

28 U.S.C. § 1292(b) allows a party to seek interlocutory review of a case under certain circumstances which are present in this case. Specifically, Section 1292(b) provides as follows:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of litigation, he shall state so in writing in the order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. . . .

28 U.S.C. § 1292(b).

This case involves a controlling question of law, whether the United States can be considered the base of operations for a shipowner that is owned by a company that primarily conducts its business in the United States. There is substantial ground for difference of opinion regarding this issue, as evidenced by the different conclusions three Judges in this Court have reached when examining the same issue. Further, an immediate appeal from this Order may materially advance the ultimate determination of this litigation. Proceeding with this case will require the use of the parties' time and money and considerable judicial resources to examine each of Plaintiff's claims and potentially proceed to trial. If the Eleventh Circuit, however, decides to review this case and determines that dismissal is warranted, these resources can be conserved. Accordingly, I conclude that this case is appropriate for certification. Defendants shall have ten days from the date of entry of this Order to seek immediate review before the Eleventh Circuit.

Based on the foregoing, it is hereby ORDERED and ADJUDGED:

1. Defendants' Motions for Reconsideration (DE #106, 116) are DENIED.

2. Defendants have ten days from the date of entry of this Order to seek immediate review before the Eleventh Circuit pursuant to 28 U.S.C. § 1292(b).

DONE AND ORDERED.

EXHIBIT A ORDER DENYING DEFENDANT'S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss on Forum Non Conveniens Grounds [DE #63, July 23, 2003]. Plaintiff filed his Opposition on August 22, 2003 [DE #73], and Defendants filed their Reply [DE #91] on October 7, 2003. The Court held oral argument regarding the Motion on November 14, 2003. Upon review of the record, the parties' arguments, and applicable statutory and case law, the Defendants' Motion to Dismiss on Forum Non Conveniens Grounds is DENIED.

Jurisdiction

The Court's jurisdiction is invoked pursuant to the Jones Act, 46 App. U.S.C.A. § 688, and the general maritime law of the United States. Complaint ¶ 4 [DE #1, February 3, 2003].

Factual Background

These facts derive from the allegations contained in the Complaint and from the exhibits in evidence.

I. Allegations

II. The Defendants

The M/S Costa Atlantica's owner is Costa Crociere, an Italian company that is at least 99% owned by Carnival Corporation ("Carnival"). [Costa Crociere Affidavit ¶ 7]. Carnival is a Panamanian company with its principal place of business in Florida. [Costa Crociere Affidavit ¶ 7; 10-K filing with the Securities and Exchange Commission ("SEC") for fiscal year ending November 30, 2002 (listing a Miami, Florida address as Carnival's principle executive offices); Carnival's 10-Q filing for the quarterly period ending May 31, 2003 (listing a Miami, Florida address as Carnival's principle executive offices)].

At the November 14, 2003 hearing, the Court requested a copy of Carnival's SEC filings and financial statements, some of which were referenced in the record but were not submitted in their entirety. Plaintiff delivered a copy of these document to the Court on November 25, 2003 but did not actually file them. On the same day, Plaintiff also delivered Carnival's Notices of Annual Meetings and Carnival's 10-Q filing for quarterly period ending May 31, 2003. The Court will issue a separate Order directing the Clerk of Court to file these documents with the Court.

Carnival's 10-K filing for the fiscal year ending November 30, 2002 describes the corporation as a "global cruise vacation and leisure travel provider that operates six cruise lines under brand names" including Costa Cruises. [ Id. at Notes to Consolidated Financial Statements, Note 1]. Carnival states in its SEC filing that it "consolidate[s] subsidiaries over which [it has] control, as typically evidenced by a direct ownership interest of greater than 50%." [ Id. at Note 2]. Further, "a direct ownership interest from 20% to 50%" typically evidences a "significant influence over financial and operating policies." [ Id.].

Carnival is listed on the New York Stock Exchange. [Carnival's Notice of Annual Meetings at 34, May 12, 2003]. Shareholders wishing to obtain copies of Carnival's SEC filings in May 2003 were instructed to send a written request to Carnival Corporation in Miami, Florida. [ Id. at 13]. Carnival's 2002 Stock Plan, effective January 14, 2002, provided that the Plan be governed by and construed in accordance with Florida law. [ Id. at 12]. As of May 12, 2003, Florida residents Micky Arison and other members of his family and trusts for their benefits beneficially owned shares representing approximately 44% of the voting power of Carnival Corporation and had approximately 33% of the combined voting power. [ Id. at 20]. Micky Arison has been Chief Executive Officer ("CEO") since 1979, Chairman of the board of directors of Carnival since October 1990, and a director since June 1987. [ Id. at 22]. Arison is also the Chairman, CEO, and indirect sole shareholder of Florida Basketball Associates, Inc., which entered into transactions with Carnival during fiscal year 2002. [ Id. at 50].

At the November 14, 2003 hearing, the Court directed the parties to state the undisputed facts in the record. The parties did not dispute that the Arisons reside in Florida. Oral Argument regarding Motion to Dismiss at 00:04:33 a.m.-00:04:44 a.m.

Although some of these facts are derived from portions of the record dated after the accidents forming the basis of this action took place, the parties agreed that many of these facts are undisputed. Oral Argument regarding Motion to Dismiss at 00:04:05-00:06:26. Further, the Court wishes to provide a complete picture of Defendants' contacts with the forum.

Costa Crociere is the principle shareholder of the remaining Defendants. [Costa Crociere Affidavit ¶¶ 9-24]. Defendant Prestige Cruises, N.V., a Netherlands Antilles company, acted as the bareboat charterer of the vessel at certain times. [ Id. at ¶ 11]. Defendant CSCS International, also a Netherlands Antilles corporation, was Plaintiff's employer. [Compliant ¶ 6]. Finally, Costa Cruise Lines, another subsidiary of the Costa group, is the sales and marketing agent for Costa Crociere's vessels that call in the United States. [Plaintiff's Exh. 2 at 6; Plaintiff's Exh. 3 at 25; Plaintiff's Exh. 4]. Costa Cruise Lines is organized under the laws of the Netherlands Antilles and does business in the United States. [Costa Crociere Affidavit ¶ 22(h)]. Costa Cruise Lines sells approximately 33,000 tickets annually to United States passengers. [Plaintiff's Exh. 2 at 6]. Its revenue from ticket sales to United States passengers last year totaled 28 million dollars. [Plaintiff's Exh. 2 at 21]. Costa Crociere spent approximately five to six million dollars marketing its ships in North America. [Plaintiff's Exh. 2 at 21].

In their Motion to Dismiss, Defendants state that Prestige is an improperly named Defendant because it was not the bareboat charterer of the vessel at times relevant to this action. Prestige, however, has not filed a motion to remove itself from this case.

III. The Accidents

Plaintiff's claims arise from two accidents which occurred in the fall of 2000. On October 13, 2000, Plaintiff was transporting a trolley full of wet towels to the laundry while the Atlantica was on the high seas in international waters. [Complaint ¶ 9, 11]. Plaintiff injured his back while lifting the trolley over a metal latch at the bottom of a door. [ Id.] The second accident occurred in early November 2000. While Plaintiff was standing in front of an elevator, the elevator door opened, and luggage which had been piled in the elevator fell out and struck Plaintiff's left leg and left knee. [ Id. at ¶ 16, 18].

IV. Fort Lauderdale Ports of Call

During the time of the accidents, Costa Crociere operated the Atlantica, along with other ships, in the Carribean market, stopping in Fort Lauderdale and Key West, Florida. [Costa Crociere Affidavit ¶ 6]. The vessels made these trips on a regular basis over a four month period during 2000. [ Id.] Plaintiff received treatment for his injuries from Dr. Jeffrey Rich, who is located in Miami, Florida, during one of Atlantica's regular stops in Fort Lauderdale. [Klutz Affidavit ¶ 20].

V. Maintenance and Cure Benefits

Through its wholly-owned subsidiary, Costa's decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean, N.V. or through its authorized agent, International Risk Services, Inc. (IRSI). [Maintenance and Cure letters attached to Complaint]. IRSI administers medical benefits for CSCS International's employees and handles third party claims made against the company. [Plaintiff's Exh. 6 at 38].

CSCS Caribbean, N.V., a corporation authorized to do business in Florida, acted as the staffing or crewing agent for the personnel employed on board the ships owned or operated by Costa Crociere. [Plaintiff's Exh. 3 at 27]. CSCS Carribean ceased doing business in Florida in 1999, but it was not put into liquidation until May 31, 2001, and it sent a letter to Plaintiff paying him benefits on January 9, 2001. [ Id.; Plaintiff's Exh. B. at 12; Maintenance and cure checks attached to Complaint]. Further, benefits checks were being issued out of Florida on the CSCS International account as late as January 2003. [Plaintiff's Exh. 4 at 56, 58; Plaintiff's Exh. 5 at 10].

Legal Standard

Under Eleventh Circuit case law, the application of the Jones Act involves a question of choice of law, the determination of which requires a two-pronged inquiry. Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983). First, the district court must decide, under choice of law principles, whether the law of the United States should be applied. If United States law applies, the case should not be dismissed for forum non conveniens. Id. If the court determines that United States law does not apply, it shall then examine the traditional considerations of forum non conveniens to determine whether the court should exercise its discretion and decline to assert jurisdiction over the case. Id.

Jones Act Factors

Before conducting the forum non conveniens analysis as suggested by Defendants, this Court is obligated to determine whether the Jones Act is applicable under the facts of the case. Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983). The Jones Act provides the following:

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 . . . 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. app. § 688(a).

In Launitzen v. Larsen, 345 U.S. 571, 583-91 (1953), the United States Supreme Court outlined the following seven factors for determining whether the Jones Act is applicable to a claim: (1) the place of the wrongful act; (2) the law of the ship's flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the shipowner; (5) the place where the shipping articles were signed; (6) the accessibility of the foreign forum; and (7) the law of the forum. The Supreme Court subsequently emphasized that the Lauritzen factors were neither exhaustive nor meant to be applied mechanically to the facts of each case. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970). The Court then noted the importance of an eighth factor, the "shipowner's base of operations." Id. at 309. Although the Rhoditis Court referred to the "shipowner's" base of operations, the Court later noted that the operational contacts of both the ship and its owner were to be considered in the choice of law analysis. Id. at 310. Otherwise, an alien owner with substantial business operations in the United States might escape his obligations as a Jones Act "employer" and unfairly disadvantage citizens of this country engaged in the same business. 398 U.S. at 309. The Court in Rhoditis held that the Defendant's "base of operations" was in the United States because: (1) the owner, who held ninety-five percent of the stock, was a U.S. domiciliary; and (2) the ship was not a "casual visitor" to New York, but rather earned "income from cargo originating or terminating here." Rhoditis, 398 U.S. at 310. As the Rhoditis court explained:

Rhoditis was brought under the Jones Act by a Greek seaman injured on board a Greek ship docked at the port of New Orleans. The vessel was owned by a Greek corporation, whose owner was a Greek citizen, residing in the United States. The ship sailed under a Greek flag, and the injured seaman's contract, which was signed in Greece, provided that Greek law applied to disputes between the seaman and the employer. The contract provided that any such disputes are to be adjudicated in a Greek court. Rhoditis, 398 U.S. at 308.

The flag, the nationality of the seaman, the fact that his employment contract was Greek, and that he might be compensated there are in the totality of the circumstances of this case minor weights in the scales compared with the substantial and continuing contacts that this alien owner has with this country . . . [T]he facade of the operation must be considered minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States.

Id.

Relying on Rhoditis, the Eleventh Circuit held in Szumliez that the substantial use of a United States "base of operations" by the vessel's owner, along with any other U.S. contacts, justified the application of the Jones Act, and, thus, precluded dismissal on the basis of forum non conveniens. 698 F.2d at 1195. As in Rhoditis, the Szumliez court reached this conclusion even though almost all of the other Lauritzen factors favored the defendant. Szumliez, 698 F.2d at 1196. In Szumliez, the nationality of the flag was Norwegian, the "place of the contract" was Norway and Germany, the " forum" and "law of the forum" were Norwegian, and the "place of the wrongful act" was in international waters. Id. Thus, the Eleventh Circuit has placed significant weight on the Rhoditis base of operations factor, where, despite the facade of foreign management, the ship and the shipowner have close operational contacts with the United States. The Eleventh Circuit upheld the district court's conclusion "that sufficient contacts were adduced to justify retaining jurisdiction over the cause and to make the application of American Law appropriate under the circumstances of this case." Id.; 698 F.2d at 1194-95. This conclusion was based upon a "finding that the defendants conducted substantial business in United States ports and that plaintiff was treated for his medical condition in the United States while serving aboard defendant's vessel and in their employment." Id.

In Sigalas v. Lido Maritime, Inc., 776 F.2d 1512 (11th Cir. 1985), without discussing or acknowledging its earlier decision in Szumlicz, the court determined that the Jones Act did not apply because the case was "very different" from Rhoditis. Id. at 1518.
When two Eleventh Circuit opinions conflict, and there is no intervening Supreme Court decision, the earlier opinion governs. See, e.g., Leonard v. Enterprise Rent A Car, 279 F.3d 967 (11th Cir. 2002) ("Where an intra-circuit conflict of law exists, the earliest panel opinion is controlling.") (citation omitted). Thus, to the extent that Sigalas conflicts with Szumlicz, the Court must follow the Szumlicz decision. The Court's opinion today, however, does not conflict with either case. Significantly, in Sigalas, 80% of the stock of the relevant corporations was held by Greeks, who exercised complete control of the vessel. 776 F.2d at 1514. Here, as later discussed, 99% of the stock is held by an American corporation who, through its subsidiaries and agents, exercised in the United States significant control over maintenance and care of crew members, and earned substantial revenues from business operations relating to the vessel in the United States at all times material to this case.

Analysis

Applying the above well-established principles to the case at hand, the Court DENIES the Motion to Dismiss. This decision rests largely upon the eighth choice of law factor under the Jones Act, the base of operations factor.

I. The Lauritzen Factors

Similar to the circumstances in Rhoditis and Szumlicz, several of the seven Lauritzen factors weigh in Defendants' favor. Of the seven factors, the first three support Defendants' position: (1) the place of the wrongful act is not the United States but the high seas; (2) the law of the ship's flag is Italian; and (3) Plaintiff is domiciled in Costa Rica. [ See Complaint].

Defendants argue that the fourth factor, the allegiance of the shipowner, weighs in their favor as well because Costa Crociere's headquarters are in Italy. [Costa Crociere Affidavit ¶ 3]. Plaintiff, however, disputes this statement and argues that core functions such as passenger and ticket sales and marketing take place in the United States. [Plaintiff's Exh. 2 at 6, 21]. The Plaintiff's arguments here are similar to those he makes when discussing the base of operations, and the Court will address these arguments when discussing that factor.

Regarding the fifth factor, the place where the shipping articles were signed, the employment contract does not indicate where it was signed, but this fact is not material. Although it considered this factor, the Lauritzen Court explained that the "place of contracting in this [maritime action], as is usual to such contracts, was fortuitous" because "a ship takes on crew at any port where it needs them." 345 U.S. at 1271. Further, the Court stated, "[w]e do not think the place of contract is a substantial influence in the choice between competing laws to govern a maritime tort." Id.

Regarding the sixth factor, the accessibility of the foreign forum, Defendants argue that Italy, Costa Rica, or the Netherlands Antilles are available alternate fora, yet Plaintiff once again echoes its base of operations argument by stating that the case has little or no connection with Italy or the Netherlands Antilles other than several of Costa Crociere's phantom shell companies, which are nominally located there. [Plaintiff's Exh. B].

Concerning the seventh factor, the law of the forum, Defendant argues that United States law should not be imposed just because a United States court may have jurisdiction over the parties. Plaintiff essentially argues that Defendants' operations are based here, and thus there is a significant connection to the United States, warranting the application of United States law. Again, the Court concludes that Plaintiff's base of operations argument has merit sufficient to overcome the other factors.

II. United States Base of Operations

Even though several of the Lauritzen factors weigh in Defendants' favor, the eighth Rhoditis factor is most compelling and determinative here. This factor requires the Court to determine whether the defendant's base of operations is in the United States. As noted in Rhoditis, it is necessary to look beyond corporate formalities to examine both the ship's and shipowner's operational contacts with the United States. 398 U.S. at 310. The Court concludes that both the ship's and shipowner's operational ties are significant based upon substantial contacts with the United States.

Courts have examined various factors in determining whether or not there is sufficient evidence to support Jones Act jurisdiction based upon a defendant's base of operations in the United States. In Fantome, S.A. v. Frederick, No. 02-10890 (11th Cir. January 24, 2003) (unpublished), the Court concluded on contacts less substantial than the ones present in this case that the district court's dismissal based on forum non conveniens should be reversed. In Fantome, the vessel involved never entered a United States port. Id. at 3. The Eleventh Circuit stated that the fact that the daily operations of the vessel took place in the Carribean "do[es] not prevent a finding that the corporate base of operations was the Miami Beach headquarters." Id. at 10, citing Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 194 (3d. Cir. 1995) (en banc) ("Moreover, because we are inquiring into the substantiality of contacts with the United States, we consider both the base of daily operations of the vessel . . . and the corporate bases of the defendants."). In Fantome, all of the vessel's day-to-day operations and repairs took place outside the United States. Id. The Court nevertheless reversed the dismissal because the vessel's operating agent was headquartered in Miami, the company handling the vessel's advertising, reservations, and sales also operated out of and was located in Miami, Florida, and the company's principal shareholder and operating agent resided in Miami Beach. Id. at 2-3.

The Eleventh Circuit provides by rule that unpublished opinions are not binding precedent, but they may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within the brief, petition, or motion. Eleventh Circuit Rules, Rule 36-2, 28 U.S.C.A.

Other courts have also concluded that the base of operations factor alone is sufficient to deny dismissal based on forum non conveniens grounds. See Mattes v. Nat'l. Hellenic American Line, S.A., 427 F. Supp. 619 (S.D.N.Y. 1977). In that case, the plaintiff seamen was a Greek citizen hired in Greece under Greek articles of employment as a crewmember of a Greek-flagged vessel. Id. The court determined that these facts were minor when "compared with the substantial and continuing contacts that [the defendant] has with this country." Id. at 623 (citation omitted). The court cited to other cases, one in which the sole fact that the shipowning corporation was wholly owned by American stockholders was a sufficient contact for Jones Act jurisdiction. Id., citing Moncada v. Lemuria Shipping Corp., 491 F.2d 470 (2d Cir. 1974), cert. denied, 417 U.S. 947 (1974); see also Antypas v. CIA Maritima San Basilio, S.A., 541 F.2d 307, 310 (2d cir. 1976), cert. denied, 429 U.S. 1098 (1977) (noting that American citizenship of at least some of the stockholders of the shipowner has been held sufficient in and of itself to support jurisdiction under the Jones Act) (citation omitted).

In Mattes, the court concluded that substantial aspects of the defendant corporation's operation, management, and marketing were directed by American corporations; these corporations, though nominally separate and distinct corporate entities, all sought to derive advertising benefits in the United States through the use of a general corporate identifying name; and the defendants participated in a coordinated effort to conduct a passenger shipping business in the United States. Mattes, 427 F. Supp. at 626. Collectively, these facts led the court to conclude that the defendant's contacts with the United States were sufficient to exercise Jones Act jurisdiction. Id. The absence of American stock ownership did not deter the court from its decision. Id.

Courts considering the base of operations factor have found the following contacts persuasive in determining that a United States base of operations was present: sales and marketing activity in the United States and stock ownership by an American corporation and residents. These contacts are present in this case. Further, unlike the vessel in Fantome, the Atlantica has U.S. ports of call. Finally, decisions regarding maintenance and cure were made in the United States. The facts of this case therefore suggest substantial contacts with the United States based on the Defendants' base of operations.

1. United States Sales, Marketing, and Ownership

It is undisputed that members of the Costa group sought to derive advertising and marketing benefits in this country through the use of the general identifying corporate name of "Costa." It is also undisputed that Costa Cruise Lines, another Costa subsidiary, participated in a coordinated effort to conduct a passenger cruise business in the United States. [Plaintiff's Exh. 2 at 6, 21; Carnival's 10-K filing at Notes to Consolidated Financial Statements, Note 1]. Furthermore, Costa has been financially successful through its advertising and marketing efforts in the United States; Costa Cruise Lines handles all of the passenger tickets sales for Costa Crociere's vessels that call in the United States. [ Id.] Costa Cruise Lines collects the revenues from these tickets in Miami, Florida and then forwards them to Costa Crociere in Italy. [ Id.; Oral Argument regarding Motion to Dismiss at 00:10:37-00:10:41]. According to record evidence, Costa Cruise Lines, N.V. sells approximately 33,000 tickets annually to United States passengers. It also handles all of the sales, marketing, and advertising for Costa Crociere's ships in the United States. Costa Cruise Lines, N.V.'s revenue from its ticket sales to United States passengers last year totaled $28 million dollars. Id. In addition, Costa Crociere spent approximately $5 to 6 million dollars on marketing its ships in North America. Id. In so doing, Costa has put itself in direct competition with American companies for American passengers in the competitive Carribean cruise market.

Defendants argue that these numbers comprise a small amount of Costa's business when compared to the business it conducts in other countries. They state that although 33,000 passengers on Costa cruise ships come from the United States, 93% of the passengers aboard the vessels in the Costa fleet are from countries outside the United States. [Plaintiff's Exh. 2 at 29-36]. They also state that 96.5% of the Costa fleet's cruise revenues come from other countries. [ Id. at 35]. Further, Costa Cruise Lines is one the eight sales and marketing companies for Costa Crociere, and it is the only one of these companies located in the United States. [Costa Crociere Affidavit ¶ 22].

In recent Southern District of Florida orders dismissing actions against the same Defendants as in this case for forum non conveniens, Judge William P. Dimitrouleas concluded that Defendants' arguments had merit. See Rodriguez v. Cruise Ships Catering and Serv. Int'l., N.V., et. al., No. 03-60158 (S.D. Fla. November 18, 2003) (final judgment and order granting motion to dismiss) and Bautista v. Cruise Ships Catering and Serv. Int'l., N.V., et. al., No. 03-60160 (S.D. Fla. November 18, 2003) (final judgment and order granting motion to dismiss). Judge Dimitrouleas began with the premise that a substantial relation was necessary to justify the application of United States law in order to determine that the base of operations factor weighed in the plaintiff's favor. Rodriguez, No. 03-601158 at 3, citing Sigalas, 776 F.2d at 1518, citing Bailey v. Dolphin Int'l., Inc., 697 F.2d 1268, 1276 (5th Cir. 1983), overruled on other grounds by In re Air Crash Disaster near New Orleans, 821 F.2d 1147 (5th Cir. La. 1987); Bautista, No. 03-60160 at 3, citing Sigalas, 776 F.2d at 1518, citing Bailey v. Dolphin Int'l., Inc., 697 F.2d 1268, 1276 (5th Cir. 1983), overruled on other grounds by In re Air Crash Disaster near New Orleans, 821 F.2d 1147 (5th Cir. La. 1987). Judge Dimitrouleas' orders stated that the "mere fact that the bulk of a company's profits comes from U.S. pockets is insufficient alone to warrant the application of U.S. law." Rodriguez, No. 03-601158 at 3, citing Sigalas, 776 F.2d at 1518; Bautista, No. 03-60160 at 3, citing Sigalas, 776 F.2d at 1518. Judge Dimitrouleas distinguished Fantome by explaining that every decision not made on the actual vessel in that case was made in Miami Beach. Rodriguez, No. 03-601158 at 3, citing Fantome, No. 02-10890; Bautista, No. 03-60160 at 3, citing Fantome, No. 02-10890. Judge Dimitrouleas contrasted this fact with the facts before him, namely, that the vast majority of Costa's passengers and marketing come from other countries. Rodriguez, No. 03-601158 at 3, citing Gutierrez v. Diana Investment Corp., 946 F.2d 455, 457 (6th Cir. 1991) (ruling that 20% of a company's business deriving from the United States was insufficient to warrant United States jurisdiction in that case); Bautista, No. 03-60160 at 3, citing Gutierrez v. Diana Investment Corp., 946 F.2d 455, 457 (6th Cir. 1991) (ruling that 20% of a company's business deriving from the United States was insufficient in that case to warrant United States jurisdiction). Judge Dimitrouleas concluded, based on Sigalas but acknowledging that Szumlicz conflicts with this proposition, that the base of operations factor was insufficient to warrant the application of U.S. law. Rodriguez, No. 03-601158 at 3, citing Sigalas, 776 F.2d at 1518; but see Szumlicz, 698 F.2d 1192; Bautista, No. 03-60160 at 3; citing Sigalas, 776 F.2d at 1518; but see Szumlicz, 698 F.2d 1192.

This Fifth Circuit case was decided after Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), which held that all Fifth Circuit decisions prior to October 1, 1981 are binding precedent on the Eleventh Circuit. Id. at 1209. Thus, Bailey is not binding precedent on this Court.

The Court respectfully acknowledges Judge Dimitrouleas' orders in these cases but disagrees with the ultimate determination of the issue. First, as explained in footnote 7, supra, the Court must follow the earlier Eleventh Circuit opinion in Szumlicz in the event that it conflicts with Sigalas. In this case, however, there is no need to reach this issue. In Sigalas, 80% of the stock of the relevant corporations was held by Greek nationals and domiciliaries, as opposed to 99% ownership here. See Sigalas, 776 F.2d at 1514. Sigalas distinguishes Rhoditis partly based on this very fact — namely, that 95% of the stock of the corporation involved was held by a Greek citizen who had been an American domiciliary for twenty five years. Id. at 1518. Second, the Sixth Circuit case Judge Dimitrouleas cites for the proposition that 20% of a company's business being conducted in the United States is insufficient to exercise jurisdiction actually states, "We can conceive, however, of a situation in which 20 percent of a shipowner's business being conducted through a United States port in combination with other factors, such as were present in Rhoditis, might make for a much closer case on the jurisdictional issue." See Guiterrez, 946 F.2d at 457 n. 4 (emphasis in the original). One fact the court highlights in distinguishing Rhoditis is the 95% ownership of the relevant corporation by an American domiciliary. Id. at 456. The court also explained, "[W]e do not purport to reduce this [substantial contacts] test to a percentage formula." Id.

The Court agrees that percentages and relative comparisons of United States versus non-United States business are not primary factors in deciding the base of operations factor. Rather, the important question is whether the contacts, irrespective of the defendant's contacts in other countries, amount to a substantial relation to the United States. See Sigalas, 776 F.2d at 1518. The Court concludes that in this case, the contacts amount to a substantial relation. In particular, the Costa corporations, though nominally separate and distinct corporate entities, all function as interrelated parts of a worldwide "Costa" corporate group. The key link to the United States is that Carnival, a Florida corporation, with its principal place of business in Miami, is the principal shareholder (99%) of the parent company, Costa Crociere, who, in turn, is the principal shareholder of the remaining defendants. [Costa Crociere Affidavit ¶¶ 7, 9-24; Carnival's 10-K filing for fiscal year ending November 30, 2002 (listing a Miami, Florida address as Carnival's principle executive offices); Carnival's 10-Q filing for the quarterly period ending May 31, 2003 (listing a Miami, Florida address as Carnival's principle executive offices)].

The 99% ownership distinguishes this case from Sarkissian v. Carnival Corp., No. 99-446 (S.D. Fla. filed September 27, 2000) (order granting summary judgment). At times material to that case, Carnival had at most a fifty percent equity ownership of Costa through its subsidiaries. Id. at 11. Further, the legal issue in that opinion was not dismissal based on forum non conveniens but was whether the plaintiff had properly named Carnival as the defendant in the action instead of Costa Crociere, the actual owner of the cruise ship involved in the accident leading to the claims in the case.

Carnival's SEC filings state that a 50% ownership interest typically evidences a "significant influence over financial and operating policies." [10-K filing, Notes to at Consolidation Financial Statements, Note 1]. Carnival is a New York Stock Exchange Corporation with its headquarters in Miami, Florida. [Carnival's Notice of Annual Meetings at 34, May 12, 2003; Costa Crociere Affidavit ¶ 7; 10-K filing with the Securities and Exchange Commission ("SEC") for fiscal year ending November 30, 2002 (listing a Miami, Florida address as Carnival's principle executive offices); Carnival's 10-Q filing for the quarterly period ending May 31, 2003 (listing a Miami, Florida address as Carnival's principle executive offices)].

Plaintiff delivered a copy of this document to the Court on November 25, 2003, but did not actually file it. On the same day, Plaintiff also delivered Carnival's Notices of Annual Meetings and Carnival's 10-Q filing for quarterly period ending May 31, 2003. At the November 14, 2003 hearing, the Court requested a copy of these documents, some of which were referred to in the record but not submitted in their entirety.

It is undisputed that Carnival's principal shareholders are the Arisons, who live in Miami and conduct other business here. [Oral Argument at 00:04:33-00:04:44]. Micky Arison has been Chief Executive Officer ("CEO") since 1979, Chairman of the board of directors of Carnival since October 1990, and a director since June 1987. [Carnival's Notice of Annual Meetings at 22]. Arison is also the Chairman, CEO, and indirect sole shareholder of Florida Basketball Associates, Inc., which entered into transactions with Carnival during fiscal year 2002. [ Id. at 50]. These facts indicate that Carnival, the direct owner of Costa Crociere, has a significant influence over Costa's financial and operating policies and conducts its daily business operations in Miami, Florida. Through Carnival, the Costa corporations are substantially related to the United States.

Other factors also lead the Court to a different result from the orders in Rodriguez and Bautista. In those cases, it did not appear from the record that the plaintiffs had visited the United States, unlike the present case, where Plaintiff received treatment in Florida. [Klutz Affidavit ¶ 20]. Further, the Court in Rodriguez and Bautista did not discuss Carnival's 99% ownership of Costa Crociere, and the orders did not discuss the issuance of the maintenance and cure checks in the United States. [ Id.].

2. United States Ports of Call

In addition to contacts the Fantome court and other courts have found relevant, additional contacts are present in this case. During the period in question (October and November 2000), Costa operated the M/V Costa Atlantica, along with other ships, in the Carribean market, stopping in Ft. Lauderdale and Key West, Florida. [Costa Crociere Affidavit ¶ 6]. Costa operated other ships that did so as well. [ Id.]. The record establishes that the Atlantica made these trips on a regular basis during a four month period during the year 2000. [ Id.]. During one of its stops, the Plaintiff was treated by a doctor in Ft. Lauderdale for the injuries in question. [Klutz Affidavit ¶ 20]. This contact distinguishes this case from Baydar v. Renaissance Cruises, Inc., 35 F. Supp.2d 916 (S.D. Fla. 1999), in which the Court granted dismissal on forum non conveniens grounds. In Baydar, this Court determined that the eighth factor did not warrant Jones Act jurisdiction partly because there were no United States ports involved. Also, in Baydar, the stock ownership of the defendants was not persuasive, while it is an important contact leading to jurisdiction in this case. See id. These factors combine to suggest a substantial relationship with the United States.

3. Maintenance and Cure

In addition to marketing and sales, an essential Costa function involving crew members took place in Florida at the time of the incident. Through Costa's wholly-owned subsidiary, decisions regarding payment of maintenance and cure benefits were made in Florida, either under the auspices of CSCS Caribbean or through its authorized agent, IRSI. IRSI's president, Klutz, whose office in the United States is on the same floor as Costa Cruise Lines' offices, handles the day-to-day administration of the benefits CSCS International pays Costa employees. [Plaintiff's Exh. 4 at 54; Oral Argument regarding Motion to Dismiss at 00:29:15-00:30:07]. Checks representing medical maintenance were sent by Costa's agent, IRSI, directly from Hollywood, Florida, for the period of January 2001 through July 2002. [Maintenance and cure letters attached to Complaint]. IRSI processed the benefits on behalf of CSCS International, and the money came out of CSCS International/Carribean bank accounts in the United States. [Oral Argument regarding Motion to Dismiss at 00:21:11-00:22:48]. Further, benefits checks were issued out of Florida on the CSCS International account as late as January 2003. [Plaintiff's Exh. 4 at 56, 58; Plaintiff's Exh. 5 at 10]. While the Court has significant concerns over the credibility of the Klutz affidavit based upon Judge Friedman's order, there is no doubt that CSCS Caribbean, N.V., a Florida Corporation, with offices in Miami, was directly involved in payment of benefits to the Plaintiff by virtue of its letter of January 9, 2001.

Defendants allege that IRSI is an independent contractor that simply subleases office space from Costa Cruise Lines. Plaintiff's Exh. 6 at 5-27. They also state that a Costa employee signed maintenance and cure checks for unlicensed crew members at times material to this case in amounts calculated by IRSI because there was no one else in United States left to perform this function after dissolution of CSCS Carribean NV. Plaintiff's Exh. 4 at 6-7, 11-12, 48. The record, however, shows that Klutz's office is located in Costa Cruise Lines' offices, about three doors away from Campagna's office. Id. at 54. Further, when Costa Cruise Lines moved from Southwest 8th Street to its current location, Klutz and IRSI moved with it. Plaintiff's Exh. 5 at 9. Also, at the November 14, 2003 hearing, the parties agreed that IRSI acted as an agent for the Costa group. Oral Argument regarding Motion to Dismiss at 00:20:25-00:20:38.

Plaintiff's Exh. B. contains Judge Friedman's order, in which he concluded that the Costa Corporations and CSCS International were conducting fraud by attempting to establish the Netherlands Antilles as their principle and sole place of business, while actually conducting extensive operations in the United States. Tananta v. Cruise Ships Catering and Servs. Int'l., No. 00-31676 CA 02 (11th Judicial Circuit in Florida June 24, 2003) (order on plaintiff's motion for consideration of evidence of fraud). Similarly, Plaintiff's Exh. 5 consists of a hearing involving Costa Crociere and CSCS International where the court determined that neither of these companies have an office in the Netherlands Antilles. Abisambra v. Costa Crociere, et. al., No. 99-4923 CA 32 (11th Judicial Circuit of Florida June 17, 2002) (hearing).

4. Conclusion

While several of the first seven Lauritzen factors weigh against the application of American law, the eighth Rhoditis factor significantly weighs in Plaintiff's favor. This conclusion is based upon the facts that Defendants conducted substantial business in United States ports generating revenues for the ship's owner, Plaintiff was treated for his medical condition in the United States while serving aboard Defendant's vessel and in their employment, and important decisions relating to the Plaintiff's care and maintenance were made by a Costa subsidiary in the United States. These circumstances establish the United States as a base of operation by the ship's owner during the relevant time period. Defendant ship owner has a substantial base of operations in the United States. Accordingly, the Court concludes that the law of the United States shall be applied in this case. As such, the case should not be dismissed for forum non conveniens. Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983).

These factors distinguish this case from the orders in Bautista v. Cruise Ships Catering and Serv. Int'l., N.V., et. al., No. 03-60160 (S.D. Fla. November 18, 2003) (final judgment and order granting motion to dismiss) and Rodriguez v. Cruise Ships Catering and Serv. Int'l., N.V., et. al., No. 03-60160 (S.D. Fla. November 18, 2003) (final judgment and order granting motion to dismiss). In those cases, it did not appear from the record that the plaintiffs had visited the United States, unlike the present case, where Plaintiff received treatment in Florida. Id. Further, the Court in those orders did not discuss Carnival's 99% ownership of Costa Crociere, and the orders did not discuss the issuance of the maintenance and cure checks in the United States. Id.

It is hereby ORDERED AND ADJUDGED that:

1. Defendants' Motion to Dismiss on Forum Non Conveniens Grounds [DE #63, July 23, 2003] is DENIED.

Williams v. Cruise Ships Catering Service International

Summary

Opinion

AMENDED ORDER DENYING MOTION FOR RECONSIDERATION AND RECOMMENDING CERTIFICATION

Background

II. New Filings

A. Contractual Duties Carnival Undertakes on Behalf of Costa

B. Defendants' Practice of Providing for Florida Law in their Agreements

C. Carnival's Assistance with Costa's Debts

D. Carnival's Advertising Efforts on Behalf of Costa

E. Carnival's Control over Costa through its Officers

F. Carnival's Control over Costa's Environmental Compliance Procedures

G. Carnival's Practice of Reporting Costa's Financial Results

H. Defendants' Contacts with the United States through IRSI

Legal Standard

Analysis

I. Mistake, Inadvertence, Surprise, Excusable Neglect, or the Need to Correct Clear Error

II. Newly Discovered Evidence

III. This case is appropriate for certification.

DONE AND ORDERED.

EXHIBIT A ORDER DENYING DEFENDANT'S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS

Jurisdiction

Factual Background

II. The Defendants

III. The Accidents

IV. Fort Lauderdale Ports of Call

V. Maintenance and Cure Benefits

Legal Standard

Jones Act Factors

Analysis

II. United States Base of Operations

DONE AND ORDERED.

Williams v. Cruise Ships Catering Service International

Williams v. Cruise Ships Catering Service International

Case Details

Citations

Citing Cases

Williams v. Cruise Ships Catering Service International

Summary

Opinion

AMENDED ORDER DENYING MOTION FOR RECONSIDERATION AND RECOMMENDING CERTIFICATION

Background

II. New Filings

A. Contractual Duties Carnival Undertakes on Behalf of Costa

B. Defendants' Practice of Providing for Florida Law in their Agreements

C. Carnival's Assistance with Costa's Debts

D. Carnival's Advertising Efforts on Behalf of Costa

E. Carnival's Control over Costa through its Officers

F. Carnival's Control over Costa's Environmental Compliance Procedures

G. Carnival's Practice of Reporting Costa's Financial Results

H. Defendants' Contacts with the United States through IRSI

Legal Standard

Analysis

I. Mistake, Inadvertence, Surprise, Excusable Neglect, or the Need to Correct Clear Error

II. Newly Discovered Evidence

III. This case is appropriate for certification.

DONE AND ORDERED.

EXHIBIT A ORDER DENYING DEFENDANT'S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS

Jurisdiction

Factual Background

II. The Defendants

III. The Accidents

IV. Fort Lauderdale Ports of Call

V. Maintenance and Cure Benefits

Legal Standard

Jones Act Factors

Analysis

II. United States Base of Operations

DONE AND ORDERED.

Williams v. Cruise Ships Catering Service International

Williams v. Cruise Ships Catering Service International

Case Details

CitationsCopy Citation

Citing Cases

Citations