              Case: 12-16395    Date Filed: 03/14/2014   Page: 1 of 9


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16395
                              Argument Calendar
                          ________________________

                      D.C. Docket No. 0:11-cv-60248-CMA

FRANKLIN VASQUEZ,

                                                                Plaintiff-Appellant,

                                      versus

YII SHIPPING COMPANY, LTD.,

                                                               Defendant-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (March 14, 2014)

Before PRYOR, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      This appeal requires us to decide whether the district court erred when it

dismissed a seaman’s complaint against his Bahamian employer because the

employer lacked a base of operations in the United States. Franklin Vasquez sued
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YII Shipping Company, Ltd., for negligence under the Jones Act, 46 U.S.C.

§ 30104, unseaworthiness, maintenance and cure, and failure to treat after he

suffered an injury on a vessel in Bahamian waters. YII Shipping moved to dismiss

the complaint for forum non conveniens. YII Shipping argued that federal

maritime law did not apply to Vasquez’s complaint. In support of that argument,

YII Shipping alleged that it did not have a base of operations in the United States

because it derived only 15 percent of its income from shipping cargo between

Florida and the Bahamas, Bahamian citizens owned 60 percent of the company, a

Bahamian citizen and resident ran the daily operations of the company, and the

company was incorporated and had its principal place of business in the Bahamas.

The district court dismissed Vasquez’s complaint based on forum non conveniens.

We affirm.

                                I. BACKGROUND

      Vasquez, a resident of the Dominican Republic, worked for YII Shipping as

a member of the crew aboard the merchant vessel Yeocomico, a cargo ship

registered in Honduras and owned by YII Shipping. In 1999, YII Shipping

interviewed and hired Vasquez in Port Dania, Florida, where he signed his initial

employment contract. Vasquez signed his later employment contracts, including



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the contract that governed his employment when his injury at work occurred, in the

Bahamas.

      YII Shipping is incorporated in the Bahamas, and its principal place of

business is Nassau, Bahamas. Between 2005 and 2009, dozens of companies based

in the United States hired YII Shipping to ship merchandise from Florida to the

Bahamas. YII Shipping rents warehouse space in Port Everglades, Florida, where it

directs customers to send their cargo. From June 24, 2004, through December 13,

2009, vessels owned or chartered by YII Shipping made 241 visits to ports of the

United States. YII Shipping derives approximately 15 percent of its total income

from shipping between the United States and the Bahamas.

      Four shareholders own YII Shipping. Lisbon Higgs owns two of the five

shares of YII Shipping, which amounts to a 40 percent interest in the company.

Libson is a dual citizen of the United States and the Bahamas and resides in

Hollywood, Florida. Libson retired from YII Shipping in 2002 and plays no role in

the daily operations of the company. Vaughn Higgs, Libson’s son, manages YII

Shipping and owns a single share of the company. Vaughn is a Bahamian citizen

and resides in the Bahamas, although he maintains a phone number and mailing

address in Florida for personal use. Two other Bahamians own the remaining two

shares.

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      YII Agency, Inc., a Florida corporation, exclusively manages YII Shipping

as its sole client, and YII Shipping pays YII Agency for its management services.

YII Agency maintains its offices and agents in Fort Lauderdale, Florida, and YII

Shipping has, at times, listed the Fort Lauderdale address of YII Agency as its own

address. Lisbon owns YII Agency and signed the office lease for YII Agency, and

Vaughn oversees the bank accounts for YII Agency. But YII Shipping does not

direct the rate calculations charged by YII Agency.

      In June 2007, Vasquez suffered severe burns to the left side of his body from

an explosion on the Yeocomico while it was docked in Freeport, Bahamas.

Vasquez first received treatment in the Bahamas, then in the Dominican Republic,

and finally in Florida, two months after the accident and on his own initiative. The

Yeocomico had sailed exclusively inter-island routes in the Bahamas when

Vasquez’s accident occurred and had done so for the previous two years.

      Vasquez first filed his suit in a Florida court, but that court dismissed his

complaint based on the doctrine of forum non conveniens under Florida law. A

Florida court of appeals affirmed the dismissal.

      Vasquez then filed a complaint against YII Shipping in the district court,

which dismissed the complaint based on the federal doctrine of forum non

conveniens and the Rooker-Feldman doctrine. Vasquez v. YII Shipping Co., Ltd.,

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692 F.3d 1192, 1195 (11th Cir. 2012); see D.C. Court of Appeals v. Feldman, 460

U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.

Ct. 149 (1923). We vacated that dismissal. Vasquez, 692 F.3d at 1195. We

concluded that the Rooker-Feldman doctrine was inapplicable because of

differences between the Florida doctrine of forum non conveniens and the

corresponding federal doctrine. Id. at 1195–96. And we concluded that the analysis

by the district court of forum non conveniens was incomplete. Id. at 1199. We

remanded for the district court to “consider all of YII’s business contacts with

Florida and with the rest of the United States in determining whether the base of

operations requirement as well as all other factors have been fulfilled pursuant to

[Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970)].” Id. at 1200.

      On remand, the district court correctly identified the following seven factors

to determine whether federal maritime law applied: the place of the wrongful act,

the flag under which the ship sails, the allegiance of domicile of the injured party,

the allegiance of the defendant shipowner, the place of the contract between the

injured party and the shipowner, the accessibility of a foreign forum, and the law

of the forum. Lauritzen v. Larsen, 345 U.S. 571, 583–92, 73 S. Ct. 921, 928–33

(1953). As we required in our mandate, the district court also considered the eighth

factor identified by the Supreme Court in Rhoditis and found that YII Shipping did

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not have a “substantial base of operations” in the United States. The district court

also alluded to its earlier ruling that the other seven factors “weigh heavily against

applying the maritime law of the United States, including the Jones Act.” The

district court ruled that federal maritime law did not apply to Vasquez’s complaint

and dismissed based on forum non conveniens.

                          II. STANDARDS OF REVIEW

      Three standards of review apply to this appeal. First, we review for clear

error the finding of the district court that YII Shipping did not have a substantial

base of operations in the United States. Membreño v. Costa Crociere S.P.A., 425

F.3d 932, 935 (11th Cir. 2005). Second, we review de novo whether the maritime

law of the United States applies to a controversy. Id. Third, we review for abuse of

discretion whether the district court erred when it dismissed the complaint based

on the federal doctrine of forum non conveniens. Id. at 935–36.

                                 III. DISCUSSION

      If a plaintiff files a complaint that invokes admiralty jurisdiction, a district

court may not dismiss the complaint based on forum non conveniens if federal

maritime law applies. Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195

(11th Cir. 1983). If federal maritime law does not apply, then the district court

considers the traditional criteria of forum non conveniens to determine whether it

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should exercise jurisdiction over the case. Id. at 1195. Vasquez argues that federal

maritime law governs his complaint because YII Shipping has a base of operations

in the United States, but we disagree.

       The district court did not clearly err when it found that YII Shipping did not

have a substantial base of operations in the United States. YII Shipping is a

Bahamian company that derives an insubstantial percentage of its income from

business transacted through use of ports in the United States. And Vasquez’s

arguments that the district court failed to consider material evidence about this

issue fail.

       Vasquez argues that the district court should have found a base of operations

in the United States because Libson and Vaughn owned 60 percent of YII

Shipping, but that argument misconstrues the relevant ownership interests for a

finding of a base of operations. Libson, the only owner who is a citizen or resident

of the United States, owns only 40 percent of YII Shipping and retired in 2002 and

is the president of YII Shipping in name only. But Vaughn, who manages the day-

to-day operations of YII Shipping, is not a citizen of, and does not reside in, the

United States. He maintains a mailing address and telephone number in Fort

Lauderdale, but those contacts do not transform him into a resident of Florida.



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      Vasquez also argues that YII Shipping initially hired him in Fort Dania,

Florida, but the location of his initial employment contract does not determine the

base of operations of a shipowner. And Vasquez signed the operative contract for

the date of his injury in the Bahamas, not Florida.

      Vasquez also argues that the district court should have pierced the corporate

veil between YII Shipping and YII Agency because YII Shipping exerts an

inordinate amount of control and “domination” over YII Agency, but he fails to

explain how either company fraudulently used the corporate form to cause his

injury. Under Florida law, courts may not pierce the corporate veil absent proof of

misconduct. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120–21 (Fla.

1984); see also Membreño, 425 F.3d at 936 (“Corporate distinctions generally may

not be disregarded absent fraud, improper conduct, illegality, or bad faith.”). A

plaintiff must prove that “the shareholder dominated and controlled the corporation

to such an extent that the corporation’s independent existence was in fact non-

existent and the shareholders were in fact alter egos of the corporation,” the

corporate form was “used fraudulently or for an improper purpose,” and “the

fraudulent or improper use of the corporate form caused injury to the claimant.”

Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. Dist. Ct. App. 2008)

(quoting Seminole Boatyard, Inc. v. Christoph, 715 So. 2d 987, 990 (Fla. Dist. Ct.

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App. 1998)). Vasquez offered no proof of fraudulent use of the corporate form or a

related cause of his injury.

      Vasquez does not dispute that several factors weigh against the application

of the maritime law of the United States: Vasquez suffered his alleged injury in the

Bahamas; the Yeocomico flies under the Honduran flag; Vasquez is domiciled in

the Dominican Republic; YII Shipping is incorporated in the Bahamas and has its

principal place of business in Nassau; Vasquez signed the operative shipping

articles in the Bahamas; the Bahamas provides an accessible forum; and YII

Shipping has resisted defending this suit in the United States. Vasquez instead

urges us to hold that a shipowner’s base of operations trumps all other choice of

law considerations, but, as we have already explained, the district court did not

clearly err when it found that YII Shipping did not have a substantial base of

operations in the United States. The district court did not abuse its discretion when

it dismissed Vasquez’s complaint for forum non conveniens.

                                IV. CONCLUSION

      We AFFIRM the dismissal of Vasquez’s complaint for forum non

conveniens.




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