Cooper v. Meridian Yachts, Ltd.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13830 JULY 21, 2009
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 06-61630-CV-WPD

JAMESON COOPER,

Plaintiff,

versus

MERIDIAN YACHTS, LTD., a British Virgin
Islands corporation, in personam,
The M/Y Meduse, a 198 foot Fedship registered
in the Cayman Islands with Official Number 729007,
her engines, tackle, apparel and other appurtenances, in rem,
VULCAN, INC. a Washington corporation,
VULCAN MARITIME, LTD., a foreign corporation,
in personam

Third-Party Plaintiffs-Appellants,

DE VRIES SCHEEPSBOUW, B.V.,
d.b.a. Feadship,
F. DE VOOGT, NA,
d.b.a. Feadship,
FEADSHIP AMERICA, INC.,
d.b.a. Feadship,
DE VOOGT NAVAL ARCHITECTS, B.V.,

Third-Party Defendants-Appellees.
 ________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 21, 2009)

Before BARKETT and FAY, Circuit Judges, and TRAGER,* District Judge.

TRAGER, District Judge:

This case concerns an injury to a sea captain and the subsequent settlement

of his claims by the third-party plaintiffs. The present appeal arises out of the

third-party plaintiffs' attempt to recover the sums paid to settle the maritime

personal injury action. Specifically, the third-party plaintiffs seek indemnity,

contribution and equitable subrogation from the third-party defendants, who

allegedly constructed, designed or maintained the defective foodlift that caused the

injury. The crucial question below was whether Dutch law or federal maritime

law applied to the third-party action. The district court, finding in favor of Dutch

law, dismissed the action, determining on summary judgment that the third-party

claims were barred by a ten-year statute of repose.

The first set of issues presented before this Court revolve around a

shipbuilding agreement entered into between the shipowner third-party plaintiff

*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.

2
and the shipbuilder third-party defendant. Two provisions within the shipbuilding

agreement are particularly relevant: a Dutch choice of law clause and a limitation

of liability provision. We first look at whether either of these two provisions

govern any of the third-party claims. If so, we then determine the effects the

applicable provision has on those claims.

As a signatory to the agreement, the shipowner is the only third-party

plaintiff who is potentially bound by the Dutch choice of law provision. The

broad wording of that choice of law provision indicates that it is applicable to the

shipowner's third-party claims against the shipbuilder. In any event, whether

Dutch law applies to the shipowner's third-party claims is ultimately immaterial

because the agreement's limitation of liability provision explicitly prevents the

shipowner from recovering consequential damages or other indirect damages,

effectively barring the shipowner's third-party claims against either the shipbuilder

as well as the ship-designer because of another, related clause in the agreement.

The second set of issues presented before this Court center on those third-

party claims that are wholly independent of the shipbuilding agreement. With

respect to those third-party claims, it must first be determined whether they are

governed by Dutch law, federal maritime law, or a third jurisdiction's law. The

substance of the applicable law must then be analyzed in order to find whether

3
such law would bar the action as untimely. The other third-party plaintiffs include

the ship on which the sea captain was injured, the ship's manager and the injured

sea captain's maritime employer.

The claims brought against the Dutch shipbuilder and designer by the third-

party plaintiffs who are non-signatories to the shipbuilding agreement are

governed by Dutch law because the Netherlands would have an interest in the

resolution of those disputes, whereas the United States has little or no such

interest. Moreover, the third-party plaintiffs have failed to provide relevant

information regarding other possibly interested jurisdictions.

A review of Dutch law indicates that the third-party claims that are based on

a strict liability theory are barred by the Dutch statute of repose. However, the

third-party plaintiffs also allege general tort claims. For these claims, Dutch law

provides a separate statute of limitations. That statute of limitations allows the

general tort claims to proceed.

Finally, federal maritime law applies to the claims against the Dutch

shipbuilder's and designer's American affiliate, which is incorporated in the United

States, making all third-party claims against that defendant timely.

FACTUAL BACKGROUND

(1)

4
 On the 28th or 29th of July 2005, Jameson Cooper ("Cooper"), the captain

of a 198-foot motor yacht named the M/Y Meduse (the "Meduse"), was injured

when the ship's dumbwaiter or foodlift (referred to by the parties as the "foodlift")

landed on his leg, causing severe injuries. According to Cooper, the accident

occurred while he was attempting to retrieve some of his clean laundry that had

become lodged in a space between the floor of the foodlift and the ship's deck. In

an effort to free the clothes, Cooper placed his left foot on the floor of the foodlift

and his right foot on the deck of the Meduse. At the moment that he was able to

free the articles of clothing, the foodlift fell, injuring his leg. The Meduse was

located somewhere in the Red Sea at the time of the accident.

De Vries Scheepsbow B.V. ("De Vries") is the entity that constructed the

Meduse for Meridian Yachts LTD ("Meridian"). F. De Voogt, N.A. ("De Voogt")

is the entity that De Vries subcontracted to design the ship. De Vries and

Meridian entered into a shipbuilding agreement (the "agreement") on January 31,

1994, which governed the purchase and manufacture of the vessel. The

agreement, which was written in English, was executed by Meridian as buyer and

De Vries as builder. The ship was built in the Netherlands and was delivered to

Meridian on January 24, 1997. The delivery, according to appellees, took place at

a Dutch seaport. The parties further agreed that the ship's shakedown cruise

5
would be to waters off North America and that when the Meduse arrived in

Florida waters, De Vries would send a finish crew to resolve any issues that

became apparent during that cruise. Final payment for the Meduse was to be made

in Florida after the finish crew completed its job.

The shipbuilding agreement contains four relevant clauses. Article 13 has a

choice of law provision:

This Agreement, and all disputes arising out of or in connection with
it, shall be construed in accordance with and shall be governed by the
Dutch law.

The agreement also contains a limitation of liability provision in Article 10.

Its critical language provides:

[T]he Builder shall have no liability whatsoever for any loss or
damage directly arising from the defectiveness or deficiency of parts
. . . except if resulting from intentional conduct or gross negligence of
the Builder or his servants. Liability of the Builder for loss of
business, loss of profits, consequential damages or other
(indirect) damage, however, is always excluded . . . .

Additionally, Article 11 of the agreement appears to permit third-parties to

take advantage of the limitation of liability provision. It provides:

All exonerations and limitations of liability stipulated in favor of any
party, shall also apply in favor of the servants, sub-contractors and
suppliers of such party and of those directly or indirectly contracted
by sub-contractors and suppliers.

6
 However, another clause in the agreement, Article 20(4), appears to

prevent third-parties from benefitting from any portion of the agreement by

stating:

Nothing in this Agreement, whether express or implied, is intended to
confer any benefits, rights or remedies on any person other than the
parties to this Agreement.

(2)

The Meduse was and is registered in the Cayman Islands. The ship travels

worldwide and has docked in South Florida as well as at other ports in the United

States. Meridian, which both originally purchased and currently owns the

Meduse, is a business entity organized under the laws of the British Virgin Islands.

Vulcan Maritime LTD ("Vulcan employer"), Cooper's employer at the time of his

accident, is a British Virgin Islands Corporation. Vulcan, Inc. ("Vulcan

manager"), which was alleged by Cooper to have been the manager of the Meduse

and its crew at the time of his accident, is incorporated in the state of Washington

– where the four appellants allege it has its principal place of business (Vulcan

manager and Vulcan employer are referred to as the "Vulcan appellants" and

Meridian, the Meduse, and the Vulcan appellants together are referred to as

7
"appellants" or the "four appellants").1 The four appellants state in their briefs

that, as alleged by the plaintiff Cooper in his complaint, Meridian and Vulcan

employer have their principal places of business in Florida. In their answer to

Cooper's complaint, however, the four appellants had denied these allegations.

The four appellants also claim that they are all beneficially owned by a U.S.

citizen and that a U.S. citizen is president of Meridian, Vulcan manager and

Vulcan employer. However, in their answer to Cooper's amended complaint, they

denied the existence of that U.S. beneficial owner and denied Cooper's allegation

that the owner was personally involved in hiring Cooper and "regularly gave

orders to Cooper regarding the [Meduse's] movements, itinerary and operational

budget."

The shipbuilder and ship-designer appellees, De Vries and De Voogt, are

both foreign corporations with their principal places of business in the Netherlands

1
There is nothing in the record explicitly confirming Vulcan, Inc.'s management role or
the specific responsibilities that it undertook in fulfilling that role. Indeed, in its answer to
Cooper's amended complaint, the four appellants denied that Vulcan manager was involved in
the management of the Meduse and its crew. Vulcan manager's role is further confused by the
four appellants' admission that Fraser Yachts Florida, Inc. ("Fraser Yachts"), a Florida based
company, was the entity involved in managing the Meduse for Meridian and Vulcan employer
and that it interviewed Cooper for his position as captain of the Meduse. Fraser Yachts was
originally a defendant in the lawsuit brought by Cooper, but was dismissed from the action on
March 15, 2007. In fact, Cooper himself was confused as to Vulcan, Inc.'s actual function, and
originally stated a Jones Act claim against the entity believing that it might have been his
maritime employer.

8
(De Vries and De Voogt are referred to as the "Dutch shipbuilding appellees").

The four appellants allege that the Dutch shipbuilding appellees, along with their

American affiliate, Feadship America, Inc. ("Feadship America"), conduct

business in the United States under a market consortium or a joint venture known

as Feadship, which maintains a local office in Florida (De Vries, De Voogt and

Feadship America are referred to as "appellees"). Specifically, the four appellants

allege that, as part of the Feadship venture, the Dutch shipbuilding appellees

design, manufacture, market, sell and distribute Feadship yachts, including the

Meduse.

Feadship America is a Florida corporation with its principal place of

business in Florida. The four appellants allege that the Feadship venture conducts

business in the U.S. through Feadship America, and that Feadship America takes

part in the sale and distribution of Feadship designed and manufactured yachts.

The four appellants, however, never allege that Feadship America ever

participated specifically in the sale or distribution of the Meduse. Feadship's

website, under the heading "Feadship America," advertises that over half of its

clients are based in the United States and that its Florida office serves as a base of

operations for "Feadship people" who travel to the United States from the

Netherlands. The website further states, under the heading "Feadship Holland,"

9
that Feadship was established in 1949 by De Vries, De Voogt and Royal Van Lent,

all Dutch entities, and that Feadship's head office is located in Haarlem,

Netherlands where it shares offices with De Voogt. De Vries and Royal Van Lent

each own fifty percent of Feadship America's stock. According to appellees, the

foodlift was designed, manufactured and installed in De Vries' shipyard by a

Dutch company called All-In Lifttechniek B.V., which is not a party to this action.

Appellees further claim that Feadship America had nothing to do with the sale,

manufacture or design of the Meduse.

PROCEDURAL HISTORY

On October 27, 2006, Cooper filed suit in The United States District Court

for the Southern District of Florida (the "district court") seeking damages for the

injuries he suffered onboard the Meduse. Cooper asserted a claim for general

maritime unseaworthiness against Meridian as owner of the ship and against the

Meduse in rem. Cooper further alleged a claim for Jones Act negligence2 against

Vulcan Maritime LTD as his maritime employer and a general maritime

negligence claim against Vulcan, Inc. as the manager of the Meduse and its crew.

2
The Jones Act provides seamen with a cause of action against their employers for
negligence resulting in either injury or death. Tucker v. Fearn, 333 F.3d 1216, 1219 (11th Cir.
2003).

10
 On July 5, 2007, the four appellants filed a third-party complaint against De

Vries, the shipbuilder, De Voogt, the designer of the ship, and Feadship America,

their American affiliate. The four appellants sought to hold them liable for any

damages that could potentially be awarded to Cooper. The amended third-party

complaint alleges that the foodlift that injured Cooper was "designed, installed,

constructed, manufactured and inspected by one or more of the [appellees]." The

four appellants claim that by negligently placing the defective foodlift in the

stream of commerce, appellees breached an independent duty they owed to

Cooper, making them liable to the four appellants for indemnity, contribution and

equitable subrogation under federal maritime law. The third-party complaint,

however, does not commit itself to a particular theory of liability, referencing both

negligence and strict liability.

On November 30, 2007, the four appellants settled Cooper's personal injury

action and the case remained pending only with respect to the four appellants'

claims against the Dutch shipbuilding appellees and Feadship America, their

American affiliate. Following settlement, the four appellants filed an amended

third-party complaint seeking recovery of the sums paid to Cooper. There is

nothing in the record evidencing either the total amount of the payment to Cooper

or the individual amounts paid by each of the four appellants. Thus, it is not clear

11
which, if any, of the four appellants would be entitled to a judgment in favor of

their right to indemnity, contribution and equitable subrogation.

On November 28, 2007, appellees moved for summary judgment. On June

3, 2008, the district court held that because the agreement between Meridian and

De Vries governed the construction of the Meduse, including the allegedly

defective foodlift, Meridian's claims, which arose out of or in connection with the

agreement, were subject to the agreement's Dutch choice of law provision

contained in Article 13. Therefore, claims brought by Meridian, the only one of

the four appellants who was a signatory to the agreement, were barred by the ten-

year Dutch statute of repose. The decision neither discussed whether Dutch law

actually contained a ten-year statute of repose or whether the statute of repose was

applicable to Meridian's claims because the four appellants never contested the

substance of appellees' presentation of Dutch law. In the alternative, the district

court found that Meridian's third-party claims were also barred by the limitation of

liability clause in Article 10 of the agreement.

The district court further noted that, under some circumstances, closely

related entities may be bound by the terms of an agreement even if they were non-

signatories. However, the court declined to analyze whether any of the remaining

appellants were also bound by the choice of law provision contained in Article 13,

12
finding instead that Dutch law applied to bar all of the third-party claims without

regard to the agreement. The district court, after looking at several other factors,

placed the greatest weight on where the wrongful act occurred, and found that

Dutch law applied to all four appellants' claims because that is where the ship and

the allegedly defective foodlift were built. The court, therefore, granted the

summary judgment motion, finding that the third-party claims for indemnity,

contribution and equitable subrogation were barred by the ten-year Dutch statute

of repose.

DISCUSSION

It is clear that this court's jurisdiction lies in admiralty. Tri-State Oil Tools

Indus., Inc. v. Delta Marine Drilling Co., 410 F.2d 178, 186 (5th Cir. 1969); see

also Casino Cruises Inv. Co., L.C. v. Ravens Mfg. Co., 60 F. Supp. 2d 1285, 1288

(M.D. Fla. 1999) ("It is well-established that a noncontractual indemnity or

contribution action, such as the one in this case, is within the scope of the federal

courts' admiralty jurisdiction where the action is derived from an underlying

maritime tort."). As this case lies in admiralty, federal maritime conflict of laws

control. F.W.F., Inc. v. Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1352 (S.D.

Fla. 2007) ("[A] federal court sitting in admiralty must apply federal maritime

choice-of-law rules." (quoting Aqua-Marine Constructors, Inc. v. Banks, 110 F.3d

13
663, 670 (9th Cir. 1997))). Furthermore, we review choice of law questions de

novo. AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d

995, 999 (11th Cir. 2007).

A. The Shipbuilding Agreement's Effect on the Third-Party Claims

We turn to the effect, if any, that the agreement has on the four appellants'

third-party claims. First, we discuss whether the agreement's Dutch choice of law

and limitation of liability provisions control the third-party claims brought by

Meridian, the shipowner, against De Vries, the shipbuilder, the agreement's only

two signatories. If either one of these provisions controls, we then evaluate

whether and to what extent they alter Meridian's ability to recover. Second, we

look to see whether the remaining appellants and the appellees are either bound by

or have the ability to take advantage of these provisions, which were set out in a

contract they never signed.

1. Meridian (Shipowner) v. De Vries (Shipbuilder) - The Signatories to
the Agreement

The only two parties in this action that signed the agreement were

Meridian, the shipowner, and De Vries, the shipbuilder. As a signatory,

Meridian's third-party claims against De Vries are governed by both the Dutch

choice of law provision and the limitation of liability provision.

14
 a. Dutch Choice of Law Provision

With respect to the issue of what law governs, Meridian does not argue that

the agreement's choice of law provision is invalid. Instead, the shipowner asserts

that, because its claims for indemnity, contribution and equitable subrogation are

not "disputes arising out of or in connection with" the agreement, the choice of

law provision does not apply to those causes of action. In determining whether a

choice of law clause contained in a contract between two parties also governs tort

claims between those parties, a court must first examine the scope of the

provision. See Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d

1292, 1300-01 (11th Cir. 2003). A choice of law provision that relates only to the

agreement will not encompass related tort claims. Id. at 1300. For example, a

provision providing that "[t]his release shall be governed and construed in

accordance with the laws of the State of [X]," will be construed narrowly as it only

purports to govern the agreement itself and does not refer "to any and all claims or

disputes arising out of the" agreement. Id.

The provision at issue here, however, is clearly meant to be read broadly.

The provision provides that "all disputes arising out of or in connection with" the

agreement "shall be construed in accordance with and shall be governed by the

Dutch law." Such a provision purports to govern "all disputes" having a

15
connection to the agreement and not just the agreement itself. Although pursued

as an indemnity/contribution action, Meridian's claims are based on its allegation

that the foodlift constructed by De Vries, as part of the agreement, was negligently

or defectively manufactured. Such an action is necessarily connected to the

agreement. See Int'l Underwriters AG & Liberty Re-Insurance Corp., S.A. v.

Triple I: Int'l Invs., Inc., 533 F.3d 1342, 1348-49 (11th Cir. 2008) ("[W]here the

dispute occurs as a fairly direct result of the performance of contractual duties . . . ,

then the dispute can fairly be said to arise out of or relate to the contract in

question." (quoting Telecom Italia, SPA v. Wholesale Telecom Corp., 248 F.3d

1109, 1116 (11th Cir. 2001) (alteration in original))). Accordingly, Meridian's

third-party claims against De Vries fall under the choice of law provision and are

therefore governed by Dutch law.

Before the district court, however, the parties were less than helpful in

explicating the content of Dutch law. The four appellants argue that the evidence

introduced by appellees concerning the Dutch statute of repose was insufficient to

demonstrate the untimeliness of their third-party claims.3 In support of their

3
The four appellants never made this legal argument before the district court. See
Cooper v. Meridian Yachts, Ltd., No. 06-61630-CIV, slip. op. at 5 (S.D. Fla. June 3, 2008)
("Third-Party Plaintiffs do not argue that their claims would survive the application of Dutch
law."). In the district court, appellants offered no expert affidavit on this point and on appeal
they rely solely on a contradiction in appellees' supporting papers, discussed infra at footnote 4.

16
summary judgment motion, appellees presented the affidavit of a Netherlands

attorney that stated:

[U]nder Dutch law any product liability claim would have become
timebarred by virtue of Article 6:191, Paragraph 2 providing for an
absolute extinction of such claim after the lapse of 10 years after the
day the product came into circulation. Accordingly, such claim
would have become timebarred in any case by January 24, 2007, as
M/Y Meduse was delivered on January 24, 1997.

The affidavit, however, is incomplete. Specifically, it failed to apprise the

district court of the separate statute of limitations that Dutch law creates for

negligence claims as opposed to claims on the basis of strict liability.4 Our

independent review of Dutch law confirms that, while a strict products liability

action is untimely when brought more than ten years after the defective product

was first put into circulation, there is a separate five-year limitations period from

4
This is not the only questionable representation in the affidavit. According to the
affidavit, "[t]he provisions on product liability (Title 3, Section 3, Article 6:185 CC et seq.) do
not apply as Meridian's claim is not a claim for death or personal injury (of its own) or for
(physical) damage caused by the product to an object in their ownership." Presumably, the
affidavit is seeking to draw a distinction between Cooper's claims and the third-party claims.
The affidavit cites no authority confirming that Dutch law would draw such a distinction. In fact,
Article 6:190, paragraph 1 of the Dutch Civil Code explicitly permits a claim under Article 6:185
to be brought where the plaintiff seeks to recover damages caused by personal injury. According
to Article 6:191, there is a ten year statute of repose with regard to a third-party's right of
recourse against a producer, which arises out of the third-party's direct liability to the injured
party pursuant to Article 6:185. This implies that third-parties may bring contribution and
indemnity actions against the producer pursuant to Article 6:185. Moreover, if appellees'
argument was true, it would undercut appellees' statute of repose defense, which rests on the fact
that the defense in Article 6:191 is part and parcel of the products liability provisions of Article
6:185 of the Dutch Civil Code.

17
the date of injury for negligence claims.5 This research confirms the untimeliness

of Meridian's claims against De Vries, to the extent that such claims allege strict

liability under Article 6:185 of the Dutch Civil Code. Specifically, Article 6:190,

paragraph 1 of the Dutch Civil Code provides that "[t]he liability referred to in

Article 185, paragraph 1 extends to (a) damage caused by death or personal

injuries . . . ." The Civil Code of the Netherlands 687 (Hans Warendorf, Richard

Thomas & Ian Curry-Sumner, trans., Kluwer Law International 2009). The

current action falls squarely within this definition because it seeks to recover

damages caused by Cooper's injuries resulting from the allegedly defective

foodlift. Furthermore, Article 6:191, paragraph 2 provides a statue of repose for

all strict products liability actions brought pursuant to Article 6:185, including a

third-party action for indemnity and contribution:

The right to damages of the injured person against the producer
pursuant to Article 185, paragraph 1 is extinguished on expiry [sic] of
ten years from the beginning of the day following that on which the
producer put the thing which caused the damage into circulation. The
same applies to the right of a third person who is also liable for the
damage, with respect to his right of recourse against the producer.

5
Rule 44.1 of the Federal Rules of Civil Procedure permits us to conduct independent
research on foreign law. Fed. R. Civ. P. 44.1 ("In determining foreign law, the court may
consider any relevant material or source, including testimony, whether or not submitted by a
party or admissible under the Federal Rules of Evidence."). Furthermore, the district court's
interpretation of foreign law is a question of law that we review de novo. Seguros del Estado,
S.A. v. Scientific Games, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001).

18
Id. at 688. Thus, Meridian's strict products liability claim was extinguished under

Dutch law because the third-party complaint was filed more than ten years after

the delivery of the Meduse.

Moreover, the four appellants presented no evidence on the Dutch law

statute of repose that would demonstrate the timeliness of an action for strict

products liability brought under Article 6:185.6 If they had a contrary view of

Dutch law, it was their duty to present such law to this court. Cf. Cont'l Technical

Servs., Inc. v. Rockwell Int'l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) (stating

that "having the power to take notice of state law [does not] mean that federal

courts must scour the law of a foreign state for possible arguments a

claimant-particularly a claimant with counsel-might have made."). Having failed

to do so, we rely on our research of foreign law for this point, which indicates that

Meridian is time-barred from bringing a third-party claim under a strict liability

theory.

Although appellees have established that Meridian's strict products liability

claim is time-barred, they have failed to explain why Meridian cannot take

advantage of the separate limitations period recognized under Dutch law for

6
Although the four appellants also provided an affidavit prepared by a Netherlands
attorney, that affidavit provided no information concerning the Dutch products liability statute of
repose.

19
general tort claims. Dutch law further indicates that the statute of limitations for

actions brought under the general tort provisions, pursuant to Article 6:162 of the

Dutch Civil Code, expires five years from the day after Cooper sustained his

injuries. Klaas Bisschop & Sjoerd Meijer, "Netherlands," The International

Comparative Legal Guide to: Product Liability 243 § 5.2 (Global Legal Group

2008) ("A cause of action for damages on the basis of an unlawful act cannot be

brought after a lapse of five years after the commencement of the day following

the day on which the aggrieved party became aware of both the damage and of the

person or legal entity liable. In any event an action cannot be brought after a lapse

of twenty years following the event that caused the damage."). Accordingly,

Meridian's third-party claims are not time-barred if brought as general tort claims,

i.e. negligence. Dennis Campbell & Christian Campbell, International Product

Liability I/373 (2006) ("Under [Dutch] common tort rules, the general extinction

period is twenty years after the damage causing event. Therefore, if a victim can

no longer file a claim based on strict products liability, he can submit a claim

based on the general tort provisions. However, in that event, he is not able to

benefit from the strict liability imposed on the producer and is then–in

principle–required to prove fault.").

b. Limitation of Liability Provision

20
 In any event, we conclude that the limitation of liability clause in Article 10

precludes all of Meridian's claims against the shipbuilder and, by virtue of Article

11, the ship-designer.7 As the choice of law provision provides that the agreement

is governed by Dutch law, we must also interpret Article 10 under Dutch law. See

Green Leaf Nursery, 341 F.3d at 1300. The only guidance on whether this clause

is enforceable under Dutch law was presented in an affidavit submitted by

appellees, which stated that:

Under Dutch law, the exclusions and limitations of liability set forth
in Article 10 of the Agreement, specifically and explicitly agreed
upon between two companies, are fully valid. Freedom of contract is
the basis of Dutch Civil Law and there exists no provision in the
Dutch Civil Code prohibiting such exclusions or limitations of
liability as agreed between De Vries and Meridian.

...

[T]he Agreement expressly excludes liability for consequential and
(other) indirect damage, and all the Third-Party Claims fall under this
category under Dutch law. Under Dutch Law [sic], this limitation is
as well fully acceptable. This also follows from standing

7
The district court found that the "limitation of liability clause in Article 10 of the
Agreement is enforceable" because "the Third-Party Plaintiff's [sic] claims ar[o]se out of or in
connection with the Agreement." Cooper, slip. op. at 7. Appellants interpret this to mean that
whether Article 10 applies is somehow contingent upon the applicability of Article 13.
Appellants' Initial Brief at 23 (arguing that "the issue whether Article 10 barred [their] claims
only becomes relevant if it is first determined that the third-party claims fall within the scope of
Article 13's choice-of-law clause."). It is apparent, however, that the limitation of liability
provision would apply even if there were no choice of law clause included in the agreement, and
Article 10's language is sufficiently broad to encompass Meridian's third-party claims against De
Vries.

21
 jurisprudence, also from the Dutch Supreme Court, e.g. HR 12 July
2002, NJ 2002/542, in which case the validity of exclusion of liability
for consequential and indirect damage was again confirmed.

Normally, an un-rebutted affidavit from an attorney on foreign law would be

sufficient to establish the substance of that law. While it no doubt would make

our task easier to simply accept this representation of Dutch law, we have doubts

about this source on Dutch law, considering the affidavit's incomplete, if not

inaccurate, representations concerning the Dutch statute of repose. Furthermore,

on the issue of limitation of liability, the affidavit gives no citation to any

provision of the Dutch Civil Code and relies on one Dutch Supreme Court case,

which impliedly would support its position but fails to provide a copy and

translation of that opinion. Moreover the affidavit's reference to "standing

jurisprudence" is not explained.

Although we endeavored to conduct independent research of Dutch law on

this issue, we were unsuccessful. Unlike the issue of the scope of the Dutch

statute of repose, we were unable to find any materials in English on the limitation

of liability issue. Accordingly, we follow the usual rule where the parties have not

taken steps to present the court with relevant foreign law and turn to the law of the

forum in interpreting the limitation of liability provision. See Cavic v. Grand

Bahama Dev. Co., Ltd., 701 F.2d 879, 882 (11th Cir. 1983) ("When both parties

22
have failed to prove the foreign law, the forum may say that the parties have

acquiesced in the application of the local law of the forum." (quoting Restatement

(Second) of Conflict of Laws § 136 cmt. h (1971))); see also Mutual Serv. Ins. Co.

v. Frit Indus., Inc., 358 F.3d 1312, 1321-22 (11th Cir. 2004).

In this instance, this default analysis leads to the same result. The initial

question is what is the forum for this purpose. One might presume it to be federal

maritime law. However, a contract for the sale or construction of a ship is not

within the federal courts' admiralty jurisdiction. Richard Bertram & Co. v. The

Yacht, Wanda, 447 F.2d 966, 967 (5th Cir. 1971). Thus, as a disinterested forum,

it would seem appropriate for a federal court sitting in admiralty to look to the

state law with an interest in the issue. We are left to determine which state law

that is. We conclude that Florida law provides the relevant law on this issue.

From a governmental interest point of view, no individual jurisdiction

within the United States appears to have a significant interest in this action. It

concerns foreign entities, namely companies from the British Virgin Islands and

the Netherlands. The parties have not provided this court with sufficient

information on how British Virgin Islands law or Dutch law would resolve this

dispute. Furthermore, it is reasonable to apply Florida law because it was the

original forum of this litigation, it has some factual connections to this litigation

23
and no other jurisdiction has stronger ties. See, e.g., Cavic, 701 F.2d at 882

("Because the parties did not raise any conflict of laws issue in the district court

and do not raise it on appeal, under applicable conflict of laws principles the law

of the forum ( [Florida] ) would govern the substantive issues due to the absence

of facts justifying the application of the law of some other jurisdiction." (internal

quotation marks omitted)).

Having determined that Florida law applies, we need not decide whether the

agreement is a contract for the sale of goods or for services. Though the

provisions of the Florida Uniform Commercial Code ("UCC") would apply only if

the contract were deemed a sale of goods, the limitation of liability provision

governs to bar Meridian's third-party claims regardless of whether the UCC or

general Florida contract law applies.

Turning first to the UCC, Florida's version of the UCC permits a party to

exclude liability for consequential damages. Fla. Stat. § 672.719 ("Consequential

damages may be limited or excluded unless the limitation or exclusion is

unconscionable."). Moreover, "[c]onsequential damages resulting from the seller's

breach include . . . (b) Injury to person or property proximately resulting from any

breach of warranty." Fla. Stat. § 672.715(2). Meridian's third-party claims against

De Vries are, therefore, barred by the agreement's limitation of liability provision,

24
as Cooper's injuries fall within the realm of consequential damages, which are

clearly excluded by the clause, and there is no evidence suggesting that the

provision is unconscionable.

Even if the agreement is considered a service contract, De Vries would still

be shielded from liability. In that case, general Florida contract law would apply.

Under Florida law, "[e]xculpatory provisions which attempt to relieve a party of

his or her own negligence are generally looked upon with disfavor, and Florida

law requires that such clauses be strictly construed against the party claiming to be

relieved of liability." Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920, 922

(Fla. Dist. Ct. App. 1998). "Such provisions, however, have been found to be

valid and enforceable by Florida courts where the intention is made clear and

unequivocal." Id.; see also Murphy v. Young Men's Christian Ass'n of Lake

Wales, Inc., 974 So. 2d 565, 568 (Fla. Dist. Ct. App. 2008) ("'[Exculpatory]

clauses are enforceable only where and to the extent that the intention to be

relieved was made clear and unequivocal in the contract, and the wording must be

so clear and understandable that an ordinary and knowledgeable party will know

what he is contracting away.'" (quoting Southworth & McGill, P.A. v. S. Bell Tel.

& Tel. Co., 580 So. 2d 628, 634 (Fla. Dist. Ct. App. 1991))).

25
 Florida law would give effect to the provision at issue here as the

contractual language is clear and unequivocal. The agreement provides that De

Vries "shall have no liability whatsoever for any loss or damage directly arising

from the defectiveness or deficiency of parts . . . except if resulting from

intentional conduct or gross negligence of [De Vries] or [its] servants," but that

"[l]iability . . . for loss of business, loss of profits, consequential damages or other

(indirect) damage . . . is always excluded . . . ." The four appellants allege

negligence and strict liability, but never allege gross negligence or intentional

conduct. The agreement is clear that the only possible liability is for direct

damage resulting from gross negligence or intentional conduct.8 It is irrelevant

whether Meridian's claims are classified as either direct or indirect/consequential

damages because the agreement disclaims liability under both negligence and

strict liability theories regardless of the damages sought. Thus, under the terms of

the contract Meridian cannot recover.

The limitation of liability provision is clear and unequivocal under Florida

law even though it does not use the word "negligence." Florida courts do not, as a

rule, require the "use [of] terms such as 'negligence' or 'negligent acts' in order to

8
We express no opinion on whether Florida law would enforce a contract relieving a
party for damages, either direct or indirect/consequential, based on gross negligence or
intentional conduct.

26
validly release negligence claims." Cain v. Banka, 932 So. 2d 575, 579 (Fla. Dist.

Ct. App. 2006) (finding that an exculpatory clause absolving the defendant of "any

and all liability, claims, demands, actions, and causes of action whatsoever" to be

sufficient to include the plaintiff's negligence action); see also Greater Orlando

Aviation Auth. v. Bulldog Airlines, Inc., 705 So. 2d 120, 122 (Fla. Dist. Ct. App.

1998) (stating that the "contention that Florida courts have implied that the only

method of conveying a clear and unambiguous expression of an intention to be

free from liability for one's own negligence is to use the word 'negligence,' is

erroneous").

Meridian argues that the limitation of liability provision in Article 10 of the

agreement does not govern its third-party claims because the provision contains no

specific language limiting liability based on personal injury to third-parties caused

by De Vries' negligence or grounded in strict liability. Meridian cites to a New

York case, Fendley v. Power Battery Co., 167 A.D.2d 260, 561 N.Y.S.2d 760 (1st

Dep't 1990). However, in Fendley, the court found that the limitation of liability

clause did not apply because there was no indication – of any kind – that the

provision excluded recovery for tort damages. The Fendley court reasoned that

nothing in the contract "suggest[ed] even obscurely that the parties were

contracting with respect to their liabilities grounded in tort." Id. at 262 (emphasis

27
added). Specifically, the "clause ma[d]e [no] reference to 'personal injuries',

'negligence', 'strict products liability', or employ[ed] other words, such as

'consequential damages.'" Id.

Unlike in Fendley, the provision at issue here clearly demonstrates that its

intent was to contract out of tort claims. The limitation of liability provision

explicitly states that liability for "consequential damages or other (indirect)

damage . . . is always excluded." Furthermore, the limitation of liability provision

specifically references "gross negligence," making clear that the exclusion of

consequential or other indirect damages was meant to encompass tort claims. This

differentiates the provision from the clause at issue in Fendley, which did not use

terms such as "consequential damages" or "gross negligence." Thus, Meridian's

action against De Vries is completely barred by the agreement's limitation of

liability provision.9

9
Alternatively, appellants argue that the limitation of liability provision is against public
policy. As they failed to raise this argument before the district court, we need not address it here.
See Universal Underwriters Ins. Co. v. Stokes Chevrolet, Inc., 990 F.2d 598, 605 n.14 (11th Cir.
1993) (confirming that "consideration of a[] [public policy] argument raised for the first time on
appeal is at [the court's] discretion."). Even if we were to consider the argument, it appears to be
lacking in merit. Under Florida law, "[c]ontractual provisions by which a party seeks
exculpation for his own negligence, although not favored in the law, have been upheld as not
violative of public policy where the contract is between persons of equal bargaining power and
the provisions are clear and unambiguous." Key Biscayne Divers, Inc. v. Marine Stadium
Enters., Inc., 490 So. 2d 137, 138 (Fla. App. Dist. Ct. 1986). The limitation of liability provision
is "clear and unambiguous," and there is no evidence suggesting that Meridian and De Vries did
not have equal bargaining power.

28
 2. Meridian (Shipowner) v. De Voogt (Ship-Designer) & Feadship America
(American Affiliate) - Application of the Agreement's Third-Party
Beneficiary Provision (Article 11) to Non-Signatories

Meridian has also sued two parties who did not sign the agreement, De

Voogt, the ship-designer, and Feadship America, its American affiliate. We must,

therefore, determine whether these non-signatories may take advantage of the

agreement's third-party beneficiary provision. For the reasons discussed herein,

only De Voogt, the ship-designer, may benefit from the provision.

The agreement has two seemingly conflicting provisions, Articles 11 and

20(4), that need to be reconciled before we can determine whether non-signatories

may utilize the limitation of liability provision. Article 11 of the agreement

provides that "limitations of liability stipulated in favor of any party, shall also

apply in favor of the servants, sub-contractors and suppliers of such party . . . ."

Article 20(4), on the other hand, provides: "Nothing in this Agreement, whether

express or implied, is intended to confer any benefits, rights or remedies on any

person other than the parties to this Agreement." The affidavit provided by

appellees asserts that according to Article 6:253, paragraph 1 of the Dutch Civil

Code, Article 11 of the agreement is a valid provision, that permits De Voogt and

29
Feadship America, as Meridian's sub-contractors or servants, to benefit from the

limitation of liability provision in Article 10. The affidavit, however, fails to

address Article 20(4), which seems to prevent non-signatories from enforcing the

limitation of liability provision against Meridian. Neither side submitted evidence

concerning how Dutch law would either interpret Article 20(4) or resolve this

seeming contradiction.

This apparent contradiction of terms can be resolved by either giving both

provisions effect or finding that one trumps the other. In either case, Article 11,

which permits sub-contractors and servants to take advantage of the agreement's

limitation of liability provision, governs the questions presented here. Article

20(4) could be viewed to apply only in preventing third-parties from invoking

"benefits, rights or remedies " conferred under the agreement in a suit against one

of the signatories. So viewed, it would have no application to a non-signatory

seeking to invoke a separate contractual provision as a defense. Article 11, by

contrast, provides a shield, allowing a particular class of third-parties to invoke

any agreed upon limitation of liability. Thus, the two clauses do not necessarily

contradict each other. Even if the two clauses are deemed irreconcilable, Florida

courts have held that "'[w]here two clauses of an agreement are repugnant and

cannot stand together, the first shall be received and the latter rejected.'"

30
Copacabana Records, Inc. v. WEA Latina, Inc., 791 So. 2d 1179, 1180 (Fla. Dist.

Ct. App. 2001) (quoting Boden v. Atl. Fed. Sav. and Loan Ass'n, 396 So. 2d 827,

829 (Fla. Dist. Ct. App. 1981)). Thus, we can disregard Article 20(4) of the

agreement.

It remains to be decided whether De Voogt and Feadship America can take

advantage of the limitation of liability provision pursuant to Article 11.

According to Article 6:253 of the Dutch Civil Code, third-parties can "invoke the

contract against any of [the parties], if the contract contains a stipulation to that

effect and if the third person so accepts." The Civil Code of the Netherlands at

713. Article 11 of the agreement contains a stipulation permitting sub-contractors

and servants to enforce the agreement's limitation of liability provision. Neither

party disputes that De Voogt was a subcontractor of De Vries. De Voogt also

accepted the stipulation by invoking it here. Therefore, under Dutch law, the

limitation of liability provision confers a benefit on De Voogt and Meridian's

claims against De Voogt, the ship-designer, are barred. Article 11, however, does

not apply to Feadship America. Feadship America denies having had anything to

do with the construction, design or sale of the Meduse, making it impossible for it

to have been either a subcontractor or servant of De Vries. Accordingly, Feadship

America, although it may ultimately be found to bear no liability for the allegedly

31
defective foodlift, cannot benefit from the agreement's limitation of liability

provision.

3. Vulcan Manager (Ship's Manager) and Vulcan Employer
(Cooper's Maritime Employer) v. De Vries (Shipbuilder) - Application of
the Dutch Choice of Law Provision to Non-Signatories

We next consider the claims brought by Vulcan manager, the entity who

Cooper alleged was the manager of the Meduse and its crew, and Vulcan

employer, Cooper's maritime employer, against De Vries, the Dutch shipbuilder.

The general rule is that non-signatories are not bound to the terms of a contract.

Because the Vulcan appellants never signed the agreement, the Dutch choice of

law provision does not apply to their claims. Furthermore, there is no evidence

that the Vulcan appellants fall within any exception to this general rule that would

bind them to the contractual provision.

A choice of law clause, like an arbitration clause, is a contractual right that

cannot ordinarily be invoked by or against a party who did not sign the contract in

which the provision appears. Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96

F.3d 1151, 1165 (9th Cir. 1996). Despite this general rule, this Circuit has

recognized in similar cases concerning arbitration agreements that "'common law

principles of contract and agency law'" permit a signatory to bind a non-signatory

under a limited set of circumstances, these include: "'(1) incorporation by

32
reference; (2) assumption; (3) agency; (4) veil-piercing/alter-ego; and

(5) estoppel.'" World Rentals and Sales, LLC v. Volvo Constr. Equip. Rents, Inc.,

517 F.3d 1240, 1244 (11th Cir. 2008) (quoting Employers Ins. of Wausau v.

Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir. 2001)). Neither

party alleges or provides any evidence demonstrating that any of these theories

permit De Vries to bind the Vulcan appellants to the Dutch choice of law

provision.

This Circuit has also recognized a somewhat different theory in Lipcon v.

Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998). There, the court

held that "[i]n order to bind a non-party to a forum selection clause, the party must

be 'closely related' to the dispute such that it becomes 'foreseeable' that it will be

bound." Id. at 1299 (quoting Hugel v. Corp. of Lloyd's, 999 F.2d 206, 209 (7th

Cir. 1993)) (quotations omitted). Specifically, the Lipcon court found that the

non-signing parties were bound by the choice of law and choice of forum clauses

where the parties' rights were "completely derivative of those of the [signing

parties]-and thus 'directly related to, if not predicated upon' the interests of the

[signing parties].'" Id. (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287,

1297 (3d Cir. 1996)).

33
 Here, the Vulcan appellants' third-party claims arise out of an independent

right of indemnity and contribution and do not derive from the agreement. Thus,

even in the absence of the agreement, Vulcan manager and Vulcan employer

would still have a viable third-party action against De Vries based on their

underlying liability to Cooper. Moreover, De Vries presents no other reason why

the Vulcan appellants should be bound by the agreement. In contrast to Lipcon, in

this case, there is no evidence that such a close relationship existed between

Meridian, who signed the agreement, and the Vulcan appellants, who were non-

signatories. Even assuming that Meridian and the Vulcan appellants have the

same president and beneficial owner, that alone is not sufficient to demonstrate

that the Vulcan appellants are Meridian's alter egos, permitting us to disregard

their individual corporate identities. The Vulcan appellants therefore are not

bound by the agreement's Dutch choice of law provision.

B. Non-Contractual Choice of Law Analysis - Remaining Third-Party Claims

1. The Meduse (Ship), Vulcan Employer (Cooper's Maritime Employer)
& Vulcan Manager (Ship's Manager) v. the Dutch Shipbuilding
Appellees (Shipbuilder and Ship-Designer) - Negligence Theory

We turn now to the issue of what law governs the third-party claims brought

by the Meduse, the ship, and the Vulcan appellants, the ship's manager and

Cooper's employer, against De Vries and De Voogt, the Dutch shipbuilder and

34
designer. The U.S. and the Netherlands are the only two countries with a potential

interest in the determination of this action. The British Virgin Islands, where

Vulcan employer is incorporated, and the Cayman Islands, where the Meduse is

registered, are also potentially interested jurisdictions, but the parties have

provided no information on this score, and we see no reason to burden ourselves

with further research. As already discussed, Dutch law provides a five-year statute

of limitations for actions brought under the general tort provisions of the Dutch

Civil Code and this action was filed less than two years after Cooper's injury.

Under U.S. law, "any limitations period in a cause of action for indemnity or

contribution does not begin to run until judgment against defendant has been

entered or payment of the primary liability payment has been made . . . ." ITT

Rayonier, Inc. v. Southeastern Mar. Co., 620 F.2d 512, 515 (5th Cir. 1980). The

third-party complaint was filed prior to settlement with Cooper, making this action

timely under federal maritime law regardless of which limitations period applies.

Therefore, on this issue, there is no conflict and thus there is no need to decide

whether U.S. or Dutch law controls. Accordingly, the third-party claims brought

by Meduse and the Vulcan appellants may proceed against the Dutch shipbuilding

appellees on a general tort or negligence theory.

2. The Meduse (Ship), Vulcan Employer (Cooper's Maritime Employer)

35
 & Vulcan Manager (Ship's Manager) v. the Dutch Shipbuilding
Appellees (Shipbuilder and Ship-Designer) - Strict Products
Liability Theory

As stated earlier, the non-signatory appellants also raise claims based on

strict liability. We must determine which jurisdiction's law applies to those strict

liability claims in order to decide whether they are time-barred. After conducting

a conflict of laws analysis, we find the Netherlands to be the only interested

jurisdiction. Accordingly, Dutch law applies and the third-party strict liability

claims of the non-signatory appellants are barred by the ten-year statute of repose.

In any conflict of laws analysis, the first issue that needs to be addressed is

whether a conflict actually exists. In other words, are we dealing here with a false

conflict? "Simply stated, [a false conflict occurs] . . . when the laws of the

competing states are substantially similar . . . ." Fioretti v. Massachusetts Gen.

Life Ins. Co., 53 F.3d 1228, 1234 (11th Cir. 1995). If a false conflict exists, "the

court should avoid the conflicts question and simply decide the issue under the

law of each of the interested states." Id.; see also Dresdner Bank AG v. M/V

Olympia Voyager, 446 F.3d 1377, 1381 (11th Cir. 2006).

Here, however, at least at first glance, a true conflict exists between federal

maritime law and Dutch law with regard to the timeliness of the third-party strict

products liability claims brought by the Meduse and the Vulcan appellants against

36
the Dutch shipbuilding appellees. "[A] true conflict exists when two or more

states have a legitimate interest in a particular set of facts in the litigation and the

laws of those states differ or would produce a different result." Estate of Miller ex

rel. Miller v. Thrifty Rent-A-Car System, Inc., 609 F. Supp. 2d 1235, 1244 (M.D.

Fla. 2009). There appears to be a clear difference between Dutch law and federal

maritime law. As already indicated, under federal maritime law, all of the third-

party claims are timely. Under Dutch law, on the other hand, the third-party

claims under a strict products liability theory are barred by the ten-year statute of

repose.

The Netherlands has an interest in making sure that the Dutch shipbuilding

appellees, companies incorporated and producing products within its borders, are

not subjected to claims for an open-ended length of time. On the other hand,

assuming, for purposes of argument, that the U.S. has an interest, its policy is to

ensure that companies conducting business in the U.S. can seek indemnity or

contribution from joint tortfeasors. The reason for this strong policy is partly

related to the pro-plaintiff nature of federal maritime law, which imposes strict

liability on shipowners, even where others are primarily at fault. See Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208 (1996) ("The duty imposed

was absolute; failure to supply a safe ship resulted in liability 'irrespective of fault

37
and irrespective of the intervening negligence of crew members.'" (quoting Miles

v. Apex Marine Corp., 498 U.S. 19, 25 (1990))). From a policy perspective, a true

conflict exists between Dutch and federal maritime law and we must therefore

determine which law applies.

At the outset, the parties dispute which choice of law analysis applies.

Appellees argue that the district court was correct in applying the eight-factor test

set forth in Lauritzen v. Larsen, 345 U.S. 571 (1953), and expanded upon in

Romero v. Int'l Terminal Operating Co., 358 U.S. 354 (1959), and Hellenic Lines

Ltd. v. Rhoditis, 398 U.S. 306 (1970).10 By contrast, the four appellants11 argue

that in deciding which law to apply to their indemnity/contribution action, the

district court should have applied the same law that governed Cooper's underlying

personal injury claims against them, as set out in Marathon Pipe Line Co. v.

Drilling Rig Rowan/Odessa, 761 F.2d 229, 235 (5th Cir. 1985), which held that

"the body of law establishing the indemnitee's primary liability governs his claim

for indemnity or contribution against a third party."

10
Lauritzen involved an action brought by a foreign sailor against a foreign shipowner to
recover tort damages under the Jones Act.
11
Although we refer to the "four appellants," we have already disposed of Meridian's
claims against the Dutch shipbuilding appellees on the basis of Article 10 of the agreement.

38
 Here, applying Lauritzen is proper as it permits us to take into account the

distinct interests involved at the contribution stage. The district court noted in its

decision that Marathon Pipe is not controlling precedent in this Circuit12 and that

the Lauritzen factors "more accurately weighs and balances the interests at play in

a given case . . . [and] allows for the law of the country with the greatest interest in

the dispute to govern."13 Cooper, slip. op. at 9 n.3. We agree and similarly refuse

to adopt a choice of law analysis that ignores this suit's international aspects. See

12
The First and Fourth Circuits similarly hold that the substantive law that governs the
underlying action applies to an action for indemnity or contribution. See Vaughn v. Farrell
Lines, Inc., 937 F.2d 953, 956 (4th Cir. 1991) ("We have determined that the underlying tort
claims from which the indemnity claim is derived in this action are maritime tort claims to be
adjudicated under federal admiralty jurisdiction. Therefore, '[a] noncontractual indemnity claim
arising therefrom is similarly a maritime claim.' (quoting White v. Johns-Manville Corp., 662
F.2d 243, 247 (4th Cir. 1981))); Gen. Contracting & Trading Co., LLC v. Interpole, Inc., 899
F.2d 109, 113 (1st Cir. 1990) ("Because GCT's primary complaint against Interpole must be
determined under New Hampshire law, we believe that Interpole's attempt to get noncontractual
indemnity with respect thereto must also be determined under New Hampshire law . . . .").
13
The four appellants claim that the underlying action brought by Cooper was governed
by federal maritime law. Such a finding was never made by the district court because Cooper's
claim settled before any such determination needed to be made. Cooper, slip. op. at 9 n.3
("[E]ven though Cooper stated a cause of action under the Jones Act and general maritime law,
the Court was never asked to determine in the underlying case which law would be most
appropriate."). If forced to confront the issue, the district court may very well have found that
Cooper's underlying action was governed by federal maritime law, especially considering that
Cooper is a U.S. domiciliary who is alleged to have contracted in the U.S. for his maritime
employment. It may seem anomalous that federal maritime law may have governed Cooper's
personal injury action while Dutch law governs certain third-party claims that are based on that
action, but such an outcome is explicitly recognized by the conflict of laws doctrine of depecage.
See Foster v. United States, 768 F.2d 1278, 1281 (11th Cir. 1985) ("Pursuant to the conflicts
doctrine of 'depecage,' different substantive issues in a single case may have to be resolved under
the laws of different states where the choices influencing decisions differ.").

39
Lauritzen, 345 U.S. at 578 (recognizing the duty that "one sovereign power is

bound to respect the subjects and rights of all other sovereign powers outside its

own territory"). Specifically, Marathon Pipe requires that a court automatically

apply the same body of law to a contribution action as that which applied to the

underlying action. This is the case, despite the fact that the underlying action

likely involved different parties, interests and policies than those present in the

subsequent contribution action. If we were to find in favor of applying Marathon

Pipe, we would be ignoring these important differences.

No court has ever applied Marathon Pipe to a case such as this one, which

has international aspects. The choice of law rule acknowledged in Marathon Pipe

and the Lauritzen choice of law analysis are separate rules that are to be utilized

under different circumstances. Indeed, the only time courts sitting in admiralty

have applied Marathon Pipe is where the issue is which subset of American law

applies – state law or federal admiralty law. See, e.g., Columbus-McKinnon Corp.

v. Ocean Prods. Research, Inc., 792 F. Supp. 786, 787 (M.D. Fla. 1992) (finding,

in a third-party action where the underlying maritime injury occurred in the

navigable waters of Florida, that "the substantive law of the indemnity and

contribution claims by Plaintiff will be subject to the principles of general

maritime law" (citing Marathon Pipe Line, 761 F.2d at 235)). The present action,

40
by contrast, concerns a conflict between federal maritime law and the law of a

foreign nation. If this were a wholly domestic matter, with no potential foreign

interests, Marathon Pipe might very well apply. Concerns for comity, however,

make the Lauritzen analysis better equipped at handling choice of law issues

where the law of another nation is involved. See Sigalas v. Lido Mar., Inc., 776

F.2d 1512, 1517 (11th Cir. 1985) ("Lauritzen sought to reconcile the expansive

reach of the Jones Act with the principles of comity that underlie international law

so as to 'foster amicable and workable commercial relations.'" (quoting Rhoditis,

398 U.S. 306, 318 (1970) (Harlan, J., dissenting))); see also Calhoun v. Yamaha

Motor Corp., U.S.A., 216 F.3d 338, 346 (3d Cir. 2000) ("[T]he Lauritzen factors

are most often applied to determine whether the admiralty law of the United States

or that of a foreign state should be applied to a particular dispute."). Unlike

Marathon Pipe, Lauritzen will always take into consideration both the U.S. and the

foreign interests in a given action.

Indeed, district courts in the Fifth Circuit, where Marathon Pipe is binding

precedent, utilize Lauritzen to resolve choice of law issues arising in contribution

actions that have an international element and fail to even mention the possibility

of applying Marathon Pipe. See, e.g., Galapagos Corporacion Turistica

"Galatours", S.A. v. The Panama Canal Comm'n, 190 F. Supp. 2d 900, 905-06

41
(E.D. La. 2002) (applying Lauritzen to a third-party plaintiff's claims for

indemnity and contribution where a choice of law question arose as to whether

federal maritime law or Panamanian law applied). In fact, the only case to ever

specifically suggest that there is a conflict between the two tests, chose to apply

the Lauritzen analysis. In re Complaint of Kreta Shipping, S.A., 1 F. Supp. 2d

282, 284 (S.D.N.Y. 1998) (rejecting the magistrate judge's report and

recommendation, which explicitly refused to apply Lauritzen to a non-contractual

indemnity claim).

Still, the differences between Lauritzen and Marathon Pipe are not as great

when viewed from a policy perspective, and neither prevents a third-party plaintiff

who has paid more than his fair share from recovering against a third-party

defendant. But applying the automatic rule recognized in Marathon Pipe leads to a

lack of respect for the interests of foreign jurisdictions. Therefore, a more

sophisticated analysis is required, which the Lauritzen line of cases provide.

In employing this approach, we conclude that Dutch law governs these

third-party claims because the U.S. has almost no interest in having its law applied

to this action. The Lauritzen and Rhoditis decisions established a non-exhaustive

list of eight factors to consider when confronted with making a choice between

applying federal maritime law and the law of a foreign country. That test requires

42
consideration of: (1) the place of the wrongful act; (2) the flag under which the

ship sails; (3) the allegiance or domicile of the injured party; (4) the allegiance or

domicile of the shipowner defendants; (5) the place of the contract between the

injured party and the shipowner; (6) the accessibility of the foreign forum; (7) the

law of the forum; and (8) the shipowner's base of operations. Lauritzen, 345 U.S.

at 583-91; Rhoditis, 398 U.S. at 309. The Supreme Court emphasized in Rhoditis

that these factors are neither exhaustive nor are they meant to be mechanically

applied. Rhoditis, 398 U.S. at 308-09. Additionally, "[t]he significance of one or

more factors must be considered in light of the national interest served by the

assertion of" federal maritime jurisdiction. Id. at 309. Although the claims in

Lauritzen were brought under the Jones Act, the Supreme Court has held that

"[t]he broad principles of choice of law and the applicable criteria of selection set

forth in Lauritzen were intended to guide courts in the application of maritime law

generally." Romero, 358 U.S. at 382. "The controlling considerations are the

interacting interests of the United States and of foreign countries, and in assessing

them we must move with the circumspection appropriate when this Court is

adjudicating issues inevitably entangled in the conduct of our international

relations." Id. at 383.

43
 The four appellants argue that, even if the district court was correct in

engaging in the Lauritzen choice of law analysis, it erred in its application.

Specifically, they claim that the district court treated the analysis as a balancing

test between U.S. and foreign interests, when Lauritzen is meant to focus on

whether sufficient U.S. contacts exist to render application of federal maritime law

appropriate. We do not read Lauritzen so narrowly and, indeed, to do so would

contradict the teaching of the quoted language of Romero.

The issue at stake here is whether the federal maritime policy of

contribution should prevail over the Dutch policy of repose for strict liability

claims. If Vulcan employer and the Meduse were from a jurisdiction that would

find the strict liability claims against the Dutch shipbuilding appellees to be

timely, we would be facing a true conflict with Dutch law. Here, however, the

maritime employer is a British Virgin Islands corporation and the ship itself is

registered in the Cayman Islands. No information has been provided concerning

whether the outcome of this issue under either British Virgin Islands or Cayman

Islands law would differ from the outcome under Dutch law. Thus, as discussed

more fully below, the Lauritzen analysis reveals that only the Netherlands appears

to have an interest in the remaining third-party strict liability claims, while the

U.S. has no or, at most, a tangential interest. The wrongful conduct occurred in

44
the Netherlands where the ship was designed and built, and, thus, the Netherlands

has an interest in protecting the Dutch shipbuilding appellees from a belated third-

party claim for strict liability. It would appear, on the record presented, that the

Netherlands is the jurisdiction with the only interest in this dispute and, therefore,

the appropriate law to apply is Dutch law.

Because this is not an action directly by a seaman, as was the case in

Lauritzen and Rhoditis, but rather for indemnity, contribution and equitable

subrogation, under the facts of this case, the only factors that are relevant to this

claim are: (1) the place of the wrongful act; (2) the allegiances or domiciles of the

parties; (3) the Dutch shipbuilding appellees' base of operations; and (4) the four

appellants' base of operations.14

14
Here, we briefly discuss several of the Lauritzen factors that are not relevant under the
facts of this case because they fail to point to the application of either Dutch or federal maritime
law. Alternatively, as already discussed, while a third country's law may be relevant to the issue
at hand, the parties have failed to provide us with the necessary information concerning such law.
The place where Cooper contracted for his employment with his employer, while possibly
relevant in analyzing the substantive law that would apply in Cooper's underlying personal injury
action, has no relevance to the policy of permitting an action for contribution or indemnity and
will thus not be considered. Also, no direct contractual relationship exists between the Vulcan
appellants and the Dutch shipbuilding appellees. The accessibility of the foreign forum factor is
also irrelevant, as it is more pertinent to a forum non conveniens test than to a choice of law
analysis. Lauritzen, 345 U.S. at 589-90 (finding that the inaccessibility of the foreign forum
factor "might be a persuasive argument for exercising a discretionary jurisdiction to adjudge a
controversy; but it is not persuasive as to the law by which it shall be judged"). Additionally,
there is nothing to indicate that the Netherlands is not an available and adequate forum for the
adjudication of the remaining third-party claims. Finally, "[t]he law of the forum, is entitled to
little weight because fortuitous circumstances . . . often determine the forum." Membreno v.
Costa Crociere S.P.A., 425 F.3d 932, 936 (11th Cir. 2005) (quoting Sigalas v. Lido Mar., Inc.,

45
 The wrongful act, namely the manufacture and installation of the foodlift,

took place in the Netherlands and therefore strongly favors the application of

Dutch law because the Netherlands has an interest in regulating all such activity

occurring within its borders. The four appellants argue that the wrongful act

occurred on the high seas, where the defect in the foodlift manifested itself, thus,

not pointing either to the application of federal maritime law or Dutch law. Here,

we agree with the district court that the wrongful act occurs where the construction

of the defective product took place and not in the place where the injury occurred

– a remote area in the sea where the ship happened to have been at the time the

effects of the defect came to fruition. See Rationis Enters. Inc. of Panama v.

Hyundai Mipo Dockyard Co., Ltd., 426 F.3d 580, 587 (2d Cir. 2005) (finding that

"the place of the wrongful act is not where the vessel sinks, but where the

negligence occurs."). This factor should no doubt be given more weight here

where the wrongful act occurred in a fixed location; in contrast, the place of the

injury, namely Cooper's injury, occurred in a purely fortuitous location on the high

seas. See EEOC v. Bermuda Star Line, Inc., 744 F. Supp. 1109, 1111 (M.D. Fla.

1990) (finding that in Title VII maritime cases, the place of the wrong factor

merits considerable weight because unlike "in Jones Act cases [, where] the place

776 F.2d 1512, 1517 (11th Cir. 1985)) (internal quotation marks omitted).

46
of the wrong should generally be given little weight, as the place a seaman is

injured will generally be a fortuitous matter, here it is not so").

Turning to the domicile factor, among the four appellants, Meridian and

Vulcan employer are British Virgin Islands corporations and the Meduse is

registered in the Cayman Islands. If British Virgin Islands or Cayman Islands law

is similar to federal maritime law concerning its policy of indemnity and

contribution then a true conflict with Dutch law would exist. However, again

because the parties have not provided any information concerning the law of these

countries, no conflict is evident, and this factor thus has no effect on our analysis.

Vulcan manager, the entity that is alleged by Cooper to have managed the Meduse

at the time of his accident, is a Washington corporation. However, this not a

strong factor in favor of applying federal maritime law because no specific

information has been provided about either Vulcan manager's role in managing the

ship or its U.S. activities. With regard to appellees, De Vries and De Voogt are

foreign corporations with principal places of business in the Netherlands, which

strongly favors the application of Dutch law. Although Feadship America is a

Florida corporation with a principal place of business in Florida, as discussed

already, the company does not seem to have played any role in the manufacture of

the Meduse or the allegedly defective foodlift. Here, the fact that one of the four

47
appellants and one of the three appellees involved are domiciled in the United

States is not sufficient to justify the blanket application of federal maritime law.

The choice of law analysis also requires us to look beyond corporate

formalities and examine the parties' operational contacts with the U.S. See

Williams v. Cruise Ships Catering and Serv. Int'l, N.V., 299 F. Supp. 2d 1273,

1279 (S.D. Fla. 2003). This Circuit has stated in dicta that "[i]f the defendants

have a substantial base of operations in the United States, this factor alone can

justify the application of United States law." Membreno v. Costa Crociere S.P.A.,

425 F.3d 932, 936 (11th Cir. 2005) (emphasis added). At the same time, an

earlier decision stated: "Rhoditis . . . does not command us to hold, that the

shipowner's base of operations is the sole controlling factor in a choice-of-law

decision." Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015, 1018 (5th Cir.

1981), overruled on other grounds by In re Air Crash Disaster Near New Orleans,

Louisiana on July 9, 1982, 821 F.2d 1147, 1169 (5th Cir. 1987). In deciding

whether a party has a base of operations in the U.S., "the important question is

whether the contacts, irrespective of [the party's] contacts in other countries,

amount to a substantial relation to the United States." Williams, 299 F. Supp. 2d

at 1283 (emphasis in original).

48
 Furthermore, a complete choice of law analysis requires that we examine the

base of operations of all parties. In Rhoditis, the Supreme Court added the

consideration of the shipowner's base of operations as an eighth factor to the

Lauritzen choice of law analysis. Rhoditis, 398 U.S. at 309. Rhoditis, however,

involved a very different factual scenario from that presented here. In contrast to

this action, Rhoditis concerned a direct suit by a seaman only against the

shipowner. Because no other parties were involved in that suit, in Rhoditis the

Court only took into consideration the shipowner's base of operations. Rhoditis

made clear, however, that the Lauritzen factors were not meant to be exhaustive.

Id. We find it reasonable, under the facts of this case, where the shipowner is the

third-party plaintiff, to consider the operating base of the third-party defendant

shipbuilder and designer, who are analogous to the defendant shipowner in

Rhoditis. For similar reasons, we examine the U.S. contacts of all four appellants,

and not just the appellant shipowner, to determine whether they have bases of

operations in this country. The four appellants argue that the district court erred

by failing to consider the base of operations factor. Although this may be true,

such error was harmless as the evidence presented before the district court was

insufficient to determine that any of the four appellants or appellees actually have

a U.S. base of operations.

49
 The Dutch shipbuilding appellees do not have a U.S. base of operations.

The four appellants cite to Feadship's website, which acknowledges that De Vries

and De Voogt are part of the Feadship venture. However, no information is

provided regarding either the extent or the types of activities that the two Dutch

shipbuilding appellees perform in the U.S. that could lead to a determination that

De Vries and De Voogt conduct substantial day-to-day operations in Florida.

Furthermore, the website excerpts acknowledge that "Feadship's head office is

located in Haarlem" in the Netherlands, "and shares its offices with De Voogt

Naval Architects."15 Although De Vries owns fifty percent of the stock in

Feadship America, there is nothing to indicate that De Vries exercises day-to-day

control over the American company or that corporate formalities are not properly

maintained.

The website also states that Feadship America's Florida office serves "as a

base of operations for Feadship people during their frequent trips over from The

Netherlands." This, however, merely implies that De Vries and De Voogt, entities

that are part of the Feadship venture, use Feadship America's offices in Florida if

15
This information is contained under the heading "Feadship Holland," while the
information concerning Feadship's Florida office is located under the heading "Feadship
America." This suggests that Feadship is comprised of two entities, with the principal entity,
"Feadship Holland," based out of the Netherlands.

50
and when they visit the U.S. The mere fact that the Dutch shipbuilding appellees

are part of a venture that also operates in the U.S. is not sufficient to demonstrate

that they have a U.S. base of operations. Cf. Membreno, 425 F.3d at 936 (finding

that the fact that the defendant is a fully owned subsidiary of Carnival, which

maintains its principal place of business in Florida, is insufficient, by itself, to

establish that the defendant has a substantial base of operations in the U.S. where

the evidence presented showed that Carnival did not control the defendant's

day-to-day operations). This remains true even if half of Feadship's clients are

located in the United States, especially where no information is provided

concerning how much revenue the Dutch shipbuilding appellees generate from

their American clientele. Sigalas, 776 F.2d at 1518 (finding that the fact that the

bulk of the defendant shipowner’s revenue came from American clients is not

enough, by itself, to justify application of American law).

Similarly, the four appellants fail to present sufficient evidence establishing

that they have a U.S. base of operations. The Meduse has docked in Florida and

other U.S. ports, but no information is provided concerning the frequency of the

ship's presence in the U.S. The four appellants also assert, in their brief, that

Meridian and Vulcan employer have principal places of business in Florida and

51
that Vulcan manager has a principal place of business in the state of Washington.16

However, in their answer to Cooper's amended complaint the four appellants

denied that either Meridian or Vulcan employer have a principal place of business

in Florida. "[T]he general rule [is] that a party is bound by the admissions in his

pleadings." Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713

F.2d 618, 621 (11th Cir. 1983). "Indeed, facts judicially admitted are facts

established not only beyond the need of evidence to prove them, but beyond the

power of evidence to controvert them." Hill v. Federal Trade Comm'n, 124 F.2d

104, 106 (5th Cir. 1941). We, therefore, deem the four appellants' unexplained

denials to be admissions that Meridian and Vulcan employer do not have a

principal place of business in Florida. These judicial admissions are binding, and

the four appellants cannot now claim the exact opposite to be true when they

might work to establish their U.S. contacts.17 Even without such admissions,

16
In his complaint, Cooper alleged that Vulcan manager "is a Washington corporation
with its principal place of business relating to the management of the Meduse and its crew
located at its yacht manager's offices" in Florida. In their answer, the four appellants denied that
Vulcan manager has a principal place of business in Florida.
17
An exception to this general rule has been recognized by this Circuit "to permit the
exercise of the liberal pleading and joinder provisions of the Federal Rules of Civil Procedure
lest inconsistent pleadings under Rule 8(e)(2) be used as admissions negating each other and lest
the allegations in third party complaints and cross-claims seeking recovery over in the event of
liability in the principal action be used as admissions establishing liability." Nichols v. Barwick,
792 F.2d 1520, 1523 (11th Cir.1986). However, neither of these scenarios are present here as
there are no inconsistent pleadings or joinder issues. "Normally judicial admissions are binding
for the purpose of the case in which the admissions are made, not in separate and subsequent

52
however, there is no evidence in the record that Meridian or Vulcan employer

actually have their principal places of business in Florida or that Vulcan manager

has its principal place of business in the state of Washington.

The four appellants also allege that they are beneficially owned by a U.S.

citizen and that Meridian and the Vulcan appellants have a U.S. citizen as their

president. Even assuming that the four appellants were beneficially owned by a

U.S. citizen, this, by itself, is not sufficient to establish a U.S. base of operations

where that person has used the advantages offered by a foreign jurisdiction's law

by incorporating in that jurisdiction. In Rhoditis, the Court found a U.S. base of

operations where: (1) the foreign shipowner was principally owned by a U.S.

domiciliary who managed the corporation in the U.S.; (2) the foreign shipowner

had a U.S. principal place of business; (2) the ship was regularly engaged in

scheduled runs between ports in the U.S. and ports in the Middle East, Pakistan

and India; and (4) the ship's entire income derived from cargo either originating or

terminating in U.S. ports. Rhoditis, 398 U.S. at 307-08. Unlike in Rhoditis, here

the four appellants provide no information demonstrating that the U.S. is where

cases." In re Raiford, 695 F.2d 521, 523 (11th Cir. 1983). Although the admissions were made
in an answer to Cooper's complaint, the present third-party action is part of Cooper's original
lawsuit. The four appellants' judicial admissions in their answer to Cooper's complaint are thus
binding for the purposes of this third-party action.

53
their operations occur, management decisions are made or revenues are generated.

The bare allegations of American ownership and domicile of their president fail to

demonstrate a U.S. base of operations.

Other than Cooper's allegation in his complaint that Meridian and the

Vulcan appellants were beneficially owned by a U.S. citizen who was "personally

and actively involved in hiring . . . Cooper . . . and [who] regularly gave orders to

Cooper regarding the Vessel's movements, itinerary and operational budget,'" an

allegation denied by appellants, there is no indication that the owner was actively

involved in the operations of either the ship or the appellant corporations. Rather,

the only claim is that the owner was a U.S. citizen. Although in some cases,

having a U.S. corporate president may strongly indicate that the bulk of

management decisions are made in the U.S., the four appellants never make this

allegation, let alone bring forth evidence suggesting the same.

In order to determine if the U.S. has a substantial interest, the Supreme

Court has made clear that we must do more than engage in a contact counting

exercise, as both parties have at times engaged in. Hellenic Lines Ltd. v. Rhoditis,

412 F.2d 919, 922 (5th Cir. 1969) ("Lauritzen did not create a contact counting

test."), aff'd, 398 U.S. 306 (1970). Rather, in determining whether the U.S. has an

interest in applying its law, we must review the substance of those contacts by

54
analyzing both the policies underlying the issues on which the dispute centers and

the factual contexts under which the dispute arose. Here, the only facts even

remotely suggesting a U.S. interest are that: (1) Vulcan manager, the company that

Cooper alleged to have been involved in managing the ship and its crew, is

incorporated in the U.S.; (2) Feadship America, an affiliate of the builder and

designer of the ship, is a U.S. corporation; (3) the Meduse, the ship on which the

injury occurred, sometimes navigates in U.S. waters and docks in U.S. ports;

(4) the four appellants have a U.S. beneficial owner; and (5) Meridian and the

Vulcan appellants have a U.S. president. As demonstrated above, such

connections, under the facts of this case, can hardly be considered so significant as

to demonstrate a meaningful U.S. interest. In sum, the four appellants have not

shown that the U.S. has a substantial interest in this third-party action; therefore,

this issue involves a false conflict, with Dutch law controlling.

The Netherlands clearly has a strong interest in having its law applied. The

domicile of the companies that constructed and designed the Meduse are in the

Netherlands, as was the place of construction, thus demonstrating that it has not

only a substantial, but a predominate, if not sole, interest in applying Dutch law

55
and its policy of repose.18 Accordingly, Dutch law applies to the strict liability

claims brought by the Meduse and the Vulcan appellants against the Dutch

shipbuilding appellees, effectively barring that action as untimely.

3. The Four Appellants v. Feadship America

On the other hand, federal maritime law applies to all of the third-party

claims brought by the four appellants against Feadship America, making those

actions timely. It is undisputed that Feadship America is incorporated in the U.S.

with a principal place of business in Florida. Furthermore, the four appellants

include a U.S. company, two British Virgin Islands entities and a ship registered in

the Cayman Islands. Although the Cayman Islands and the British Virgin Islands

appear to have an interest and may even provide a different answer than federal

maritime law concerning the timeliness of this third-party action, no party requests

that the court apply such law or suggests that a conflict exists. Thus, the only law

that has any relevance to an action between the four appellants and Feadship

America is federal maritime law, making such law applicable. It is undisputed that

this action is timely under federal maritime law. The four appellants are,

18
As already noted, although the Cayman Islands and the British Virgin Islands may have
an interest in this litigation such that it would be reasonable to apply their law, neither side
argues for the application of such law or informs the court as to the substance of such law, which
may have dictated a more favorable outcome for the four appellants.

56
therefore, free to proceed with their claims against Feadship America, although, as

noted above, because Feadship America does not appear to have played any role in

the sale, construction or design of the allegedly defective foodlift the success of

their action is doubtful.

CONCLUSION

The decision of the district court dismissing Meridian's claims against De

Vries and De Voogt is affirmed. The district court's decision dismissing the third-

party claims of the Meduse, Vulcan manager and Vulcan employer against the

Dutch shipbuilding appellees, De Vries and De Voogt, is affirmed in part and

reversed in part; the action may proceed, but only under Dutch law on a

negligence or general tort theory.19 The district court's decision dismissing the

four appellants' claims against Feadship America is reversed and those third-party

claims may proceed under federal maritime law on either a strict liability or

negligence basis.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

19
We are not certain that this would require a different showing than negligence under
federal maritime law, but leave it up to the parties to explore on remand.

57