Hugo Rodriguez v. Flota Mercante Grancolombiana, S.A., Grancolombiana (New York), Inc.

703 F.2d 1069 1984 A.M.C. 2315 Hugo RODRIGUEZ, Plaintiff-Appellant, v. FLOTA MERCANTE GRANCOLOMBIANA, S.A., Grancolombiana (New York), Inc., Defendants-Appellees. No. 81-4455. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 14, 1982. Decided March 15, 1983. Opinion on Denial of Rehearing March 15, 1983. Allan I. Shatkin, San Francisco, Cal., for plaintiff-appellant. James J. Tamulski, Graham & James, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before KENNEDY, ALARCON and NELSON, Circuit Judges. ALARCON, Circuit Judge: 1 Hugo Rodriguez, (Rodriguez) a seaman, appeals from the district court's order dismissing his complaint brought under the Jones Act, 1 and the general maritime law, to recover damages for injuries caused by his employer's negligence. We must decide whether the facts establish that the court had subject matter jurisdiction. 2 We conclude that the district court was correct in determining that it lacked subject matter jurisdiction under the Jones Act. Flota Mercante Grancolombiana, S.A., (Flota) is not an employer within the scope of the Jones Act. We…

concurring:

I concur in the judgment, but write separately to call attention to a conceptual problem in these cases, namely, whether to characterize an unsuccessful Jones Act claim as lacking in subject matter jurisdiction or as failing to state a cause of action. The majority opts for the first category, and has precedent for it, since the Supreme Court in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. *1076 306, 308 , 90 S.Ct. 1731, 1733 , 26 L.Ed.2d 252 (1970), stated, “[o]f the seven factors (relating to Jones Act coverage) ... four are in favor of the shipowner and against jurisdiction.” (Emphasis added.) I suggest, however, that this was only a passing and unguarded remark.

The real question in these cases is not one of subject matter jurisdiction but simply whether or not there has been a failure to state a claim for relief under the Jones Act. The Supreme Court expressly recognized this analysis in Lauritzen v. Larsen, 345 U.S. 571 , 73 S.Ct. 921 , 97 L.Ed. 1254 (1953), the leading case on the multi-factor test for determining what law should apply to an accident containing both foreign and domestic elements. There the court dismissed the case for failure to state a claim…

Hugo Rodriguez, (Rodriguez) a seaman, appeals from the district court’s order dismissing his complaint brought under the Jones Act, 1 and the general maritime law, to recover damages for injuries caused by his employer’s negligence. We must decide whether the facts establish that the court had subject matter jurisdiction. 2 We conclude that the district court was correct in determining that it lacked subject matter jurisdiction under the Jones Act. Flota Mercante Grancolombiana, S.A., (Flota) is not an employer within the scope of the Jones Act. We reverse and remand for a determination of the sufficiency of the claim brought pursuant to the general maritime law, and, if so, whether in the exercise of the district court’s discretion, jurisdiction should be retained.

I. DISPOSITIVE ISSUES

Rodriguez contends that the facts presented to the district court established its jurisdiction to hear his Jones Act claim against Flota.

We are told that presence of the following factors satisfied all jurisdictional requirements.

One. Rodriguez was injured while working as a seaman on Flota’s vessel in the port of San Francisco, within the territorial waters of the United States.

Two. Flota…