PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSEN SLAVCHEV,
Plaintiff-Appellant,
v.
No. 07-2036
ROYAL CARIBBEAN CRUISES,
LIMITED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:06-cv-02630-WDQ)
Argued: December 4, 2008
Decided: March 11, 2009
Before NIEMEYER, MICHAEL, and GREGORY,
Circuit Judges.
Vacated and remanded with instructions by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge
Michael and Judge Gregory joined.
COUNSEL
ARGUED: Philip M. Musolino, MUSOLINO & DESSEL,
Washington, D.C., for Appellant. Robert P. O’Brien, NILES,
2 SLAVCHEV v. ROYAL CARIBBEAN CRUISES
BARTON & WILMER, L.L.P., Baltimore, Maryland, for
Appellee. ON BRIEF: Sylvia J. Rolinski, ROLINSKI &
SUAREZ, L.L.C., Potomac, Maryland, for Appellant. David
T. Lampton, NILES, BARTON & WILMER, L.L.P., Balti-
more, Maryland, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Relying on diversity jurisdiction conferred by 28 U.S.C.
§ 1332(a)(2), Rosen Slavchev, a citizen of Bulgaria, com-
menced this action against his former employer, Royal Carib-
bean Cruises, Limited, a Liberian corporation with its
principal place of business in Florida. Slavchev sued Royal
Caribbean for breach of contract and related claims arising
out of an alleged oral contract to provide him compensation,
beyond the payments he received for maintenance and cure,
for his disability suffered while he was employed as a seaman
with Royal Caribbean. In his complaint, Slavchev demands
"no less than" $100,000 in damages and a jury trial.
On Royal Caribbean’s motion, the district court entered
summary judgment in favor of Royal Caribbean, concluding
that Slavchev failed to advance sufficient evidence to demon-
strate the existence of a contract.
On appeal, we invited the parties to submit supplemental
briefs on subject matter jurisdiction. Now finding no subject
matter jurisdiction, we vacate the district court’s judgment
and remand for dismissal for lack of subject matter jurisdic-
tion.
I
Slavchev is a Bulgarian citizen who worked as a cleaner on
board the Royal Caribbean cruise ship Rhapsody of the Seas.
SLAVCHEV v. ROYAL CARIBBEAN CRUISES 3
While working on the ship, he was diagnosed with ulcerative
colitis, a chronic condition that responded well to medication.
After a short convalescence, Slavchev returned to work on
board the Rhapsody in April 2003. Three months later, how-
ever, he quit because he was tired and "did not have a desire
to work." He returned to Bulgaria to work as a TV salesman
and a waiter, and later he came to the United States on a stu-
dent visa and worked as a waiter and a lifeguard.
After quitting work for Royal Caribbean and returning to
Bulgaria, Slavchev continued to experience symptoms related
to his colitis and obtained treatment for the condition in Bul-
garia. When he contacted Royal Caribbean for reimbursement
of his expenses, Royal Caribbean paid him maintenance
(wages) and cure (medical expenses) until Slavchev attained
"maximum medical improvement" in February 2004. After
Slavchev’s personal physician declared that Slavchev had
reached maximum medical improvement, Royal Caribbean
ceased making payments to Slavchev, as its responsibility for
maintenance and cure had ended. See Calmar S.S. Corp. v.
Taylor, 303 U.S. 525, 530 (1938) (finding no duty "beyond a
fair time after the voyage in which to effect such improve-
ment in the seaman’s condition as reasonably may be
expected to result from nursing, care, and medical treat-
ment"); Carleno v. Marine Transp. Lines, Inc., 317 F.2d 662,
665-66 (4th Cir. 1963) (holding the duty of maintenance and
cure "is fulfilled when subsistence and medical care are fur-
nished to the point where remedial medicine and surgery can
do no more"). At the point when Slavchev had attained maxi-
mum medical improvement, his physician found him to be
60% disabled.
Slavchev does not make any claim for maintenance and
cure. Rather, he alleges that in or about December 2003,
Royal Caribbean’s claims-handling employee, Andy Gillig,
made an oral promise to pay Slavchev compensation for his
60% disability. As Slavchev testified, "Mr. Gillig told me that
another department of Royal Caribbean in Miami or some-
4 SLAVCHEV v. ROYAL CARIBBEAN CRUISES
place would cover 60 percent of my disability, and there was
a lady Samantha or something." Slavchev could provide no
further details of the agreement, except that it was made by
telephone sometime around the end of 2003. He alleges that
Gillig’s oral promise was confirmed in an e-mail that Gillig
sent to Slavchev’s employment agency, which stated, "At this
time, I will stop all of Mr. Slavchev’s sick wages, and send
his chart to claims, to be compensated appropriately for the
60% disability rating that the doctor has given him." When
Slavchev was asked about what he gave in exchange for that
promise, he testified, "I did not agree to anything, I just
waited. I said okay, and I just waited to receive—I don’t
know what happened. I was waiting for the 60 percent com-
pensation."
Based on this evidence, Slavchev commenced this action
against Royal Caribbean for breach of contract and related
duties, seeking a permanent injunction directing Royal Carib-
bean to provide him 60% disability compensation and at least
$100,000 in damages. After discovery, the district court
granted Royal Caribbean’s motion for summary judgment,
finding that no enforceable contract had been reached.
On appeal, we requested and the parties submitted supple-
mental memoranda on the district court’s subject matter juris-
diction, as well as our own.
II
In his complaint, Slavchev invoked diversity jurisdiction as
conferred under 28 U.S.C. § 1332(a)(2) and demanded to
have his claims tried to a jury. Even though he might have
invoked admiralty and maritime jurisdiction under 28 U.S.C.
§ 1333, he would not have had the benefit of a jury trial. See
In re Lockheed Martin Corp., 503 F.3d 351, 354-55 (4th Cir.
2007). Royal Caribbean suggested explicitly in its answer and
implicitly in its motion for summary judgment that the district
court also had jurisdiction under 28 U.S.C. § 1333, arguing
SLAVCHEV v. ROYAL CARIBBEAN CRUISES 5
that any maintenance and cure claim under admiralty law had
ended with the determination made by Slavchev’s personal
physician that Slavchev had reached maximum medical
improvement. Slavchev responded that even if the right to
maintenance and cure had ended, "Plaintiff neither asserted in
his complaint, nor asserts now, that his contract claim flows
from that body of law [maintenance and cure under maritime
law]. As has been made clear throughout this case, Plaintiff
asserts an enforceable agreement between himself and [Royal
Caribbean]."
To support his invocation of diversity jurisdiction, Slav-
chev alleged that he is a citizen of Bulgaria and that Royal
Caribbean is "a corporation with its principal place of busi-
ness in Florida." Slavchev did not make any allegation about
where Royal Caribbean was incorporated. When we requested
supplemental memoranda on subject matter jurisdiction, how-
ever, both parties confirmed that Royal Caribbean is incorpo-
rated under the laws of Liberia, a foreign state.
Relying on Royal Caribbean’s Florida citizenship, Slav-
chev now argues that he satisfies 28 U.S.C. § 1332(a)(2) (con-
ferring jurisdiction on the district court in cases between a
citizen of a State and a citizen of a foreign state). His argu-
ment, however, fails to address the fact that Royal Caribbean
is incorporated in Liberia, a foreign state.
Construing 28 U.S.C. § 1332(c)(1), we conclude that a cor-
poration with its principal place of business in one of the
United States and incorporated under the laws of a foreign
state has dual citizenship for purposes of diversity jurisdic-
tion. See 28 U.S.C. § 1332(c)(1) ("a corporation shall be
deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place
of business"). It is both a citizen of a State and a citizen of a
foreign state. Thus, this case involves a claim by an alien
(Bulgarian) against a corporation with the dual citizenship of
Florida and a foreign state, Liberia.
6 SLAVCHEV v. ROYAL CARIBBEAN CRUISES
Under the long-standing requirement of complete diversity,
which is applied to the dual citizenship of corporations, we
find subject matter jurisdiction lacking. See Peninsula Asset
Mgmt. (Cayman) Ltd. v. Hankook Tire Co., 509 F.3d 271,
272-73 (6th Cir. 2007); Creaciones Con Idea, S.A. de C.V. v.
Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir. 2000); Nike, Inc.
v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d
987, 990-91 (9th Cir. 1994); Chick Kam Choo v. Exxon Corp.,
764 F.2d 1148, 1152-53 (5th Cir. 1985). See generally David
A. Greher, Note, The Application of 28 U.S.C. § 1332(c)(1) to
Alien Corporations: A Dual Citizenship Analysis, 36 Va. J.
Int’l L. 233 (1995) (arguing for this approach). Cf. Straw-
bridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806) (requir-
ing complete diversity as between persons).
Because the district court did not have subject matter juris-
diction, as invoked by Slavchev, we vacate the district court’s
judgment and remand for dismissal for lack of subject matter
jurisdiction.
III
For the first time on appeal, Slavchev seeks also to invoke
admiralty and maritime jurisdiction under 28 U.S.C. § 1333.
Despite the position he took in the district court, he now
argues that his contract claim, alleged to have arisen sepa-
rately from his maintenance and cure claim, is nonetheless
sufficiently connected to Royal Caribbean’s maintenance and
cure obligations to justify admiralty and maritime jurisdiction
over his contract claim.
This late invocation of admiralty and maritime jurisdiction
—for the first time on appeal—does not confer, nunc pro
tunc, authority on the district court, which purported to act
under the power conferred by diversity jurisdiction.
More importantly, Slavchev has not demonstrated that his
claims fall within the admiralty and maritime jurisdiction con-
SLAVCHEV v. ROYAL CARIBBEAN CRUISES 7
ferred by 28 U.S.C. § 1333. We conclude that they do not and
hence would not support the district court’s subject matter
jurisdiction.
Slavchev alleges that around the time that Royal Caribbean
discharged its maintenance and cure responsibilities, it
incurred responsibilities under an oral contract by which it
agreed to pay Slavchev compensation for his 60% disability.
If such a contract had been created, it was surely a claim at
law for breach of contract and not a claim for breach of a mar-
itime contract. The contract was made some five months after
Slavchev left his maritime employment with Royal Carib-
bean, while he was working in Bulgaria as a television sales-
man or a waiter. It was allegedly formed during a telephone
conversation between him in Bulgaria and Gillig in Florida
and thus was "a contract made on land, to be performed on
land." People’s Ferry Co. of Boston v. Beers, 61 U.S. (20
How.) 393, 402 (1857) (holding that shipbuilding contracts
were not within the admiralty and maritime jurisdiction).
Moreover, his claim depends on a contract separate from the
maritime duties of maintenance and cure, which Royal Carib-
bean undisputedly resolved by satisfactory performance. We
thus conclude that Slavchev’s claim is "so attenuated from the
business of maritime commerce that it does not implicate the
concerns underlying admiralty and maritime jurisdiction."
Atlantic Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d
196, 200 (2d Cir. 1992); see also Clinton v. Int’l Org. of Mas-
ters, Mates & Pilots of Am., Inc., 254 F.2d 370, 371-72 (9th
Cir. 1958) (action based on breaches of by-laws and constitu-
tion of an organization of seamen is not a maritime claim);
Pacific Sur. Co. v. Leatham & Smith Towing & Wrecking Co.,
151 F. 440, 441-44 (7th Cir. 1907) (surety contract insuffi-
ciently maritime even though it guaranteed performance of a
maritime contract).
In sum we hold that the land-based contract in this case,
purportedly entered into after Slavchev’s maritime service
had been completed and separate from Royal Caribbean’s tra-
8 SLAVCHEV v. ROYAL CARIBBEAN CRUISES
ditional maritime duties, which themselves had been satisfied,
was not sufficiently "salty" to support admiralty and maritime
jurisdiction. See Norfolk Southern Ry. Co. v. Kirby Pty Ltd.,
543 U.S. 14, 22 (2004).
VACATED AND REMANDED WITH INSTRUCTIONS