United States District Court, D. Massachusetts
KENNETH G. METCALF and NANCY METCALF, Plaintiffs
BAY FERRIES LIMITED, Defendant
MEMORANDUM AND ORDER
TIMOTHY S. HILLMAN, District Judge.
Kenneth Metcalf ("K.Metcalf") and Nancy Metcalf (together with K. Metcalf "Metcalfs" or "Plaintiffs") have filed suit against Bay Ferries Limited ("Bay Ferries" or "Defendant") alleging claims for negligence and loss of consortium. More specifically, the Metcalfs allege that Bay Ferries was negligent in maintaining its ferry, HSC INCAT 059 ("The CAT") and that this negligence led directly to K.Metcalf's injuries and resulting damages to them.
This Memorandum and Order addresses Defendant's Motion For Application Of Canadian Law (Docket No. 38). For the following reasons, that motion is denied.
The Metcalfs are a married couple who at during the relevant time period, resided in Oxford, Massachusetts. Bay Ferries is a Canadian corporation with a principle place of business in Charlottetown, Prince Edward Island ("PEI"), Canada.
Bay Ferries owned and operated The CAT as a commercial passenger and vehicle ferry between Maine and Nova Scotia at all times relevant to this dispute. The CAT is a 319-footlong catamaran vessel capable of carrying more than eight hundred passengers and two hundred automobiles. Bay Ferries took delivery of The CAT in 2002 and operated it as a passenger ferry in the Gulf of Maine, between from 2002-2009. The CAT was registered in the Bahamas and operated entirely in Canadian and American territorial waters. At the times relevant to this action. Bay Ferries employed The CAT in ferry service between Portland, Maine and Yarmouth, Nova Scotia, as well as between Bar Harbor Maine and Yarmouth, Nova Scotia. The CAT made multiple trips per week between the two Maine locations and Yarmouth, Nova Scotia.
In 2009, Bay Ferries maintained an office in Bar Harbor, Maine and maintained phone and fax numbers at that location. Additionally, Bay Ferries maintained phone and fax numbers at the Portland Maine Terminal and had a post office box in Portland, Maine. All vessel repair and maintenance of The CAT was performed in Canada.
On February 19, 2009, the Metcalfs's daughter, Nicole Green ("Green") made a telephone reservation for their entire family to travel on The CAT from Portland, Maine to Yarmouth, Nova Scotia, leaving on August 14, 2009 and returning on August 19, 2009. The occasion for this journey was K.Metcalf's sixtieth birthday. Bay Ferries confirmed the reservation via an email sent to Green. Green resided in Northborough, Massachusetts at the time she made the reservation.
On August 14, 2009, the Metcalf family drove to Portland, Maine from Oxford, Massachusetts, an approximately three hour trip. They boarded The CAT at the Portland ferry terminal. The CAT then made an approximately six-hour voyage to Yarmouth, Nova Scotia. The Metcalfs and their family prepared to disembark at the terminal dock inYarmouth, Nova Scotia. As they began descending the stairs from The CAT's passenger deck to the lower vehicle deck, K.Metcalf fell, injuring his cervical spine. Members of the crew and other ferry passengers came to K.Metcalf's aid. Shortly thereafter, Canadian emergency medical technicians came onboard The CAT and took K.Metcalf via ambulance to Yarmouth Regional Hospital. K. Metcalf was later moved to Queen Elizabeth Hospital in Halifax, Nova Scotia for stabilization and intensive care. After six days of treatment in Canada, K.Metcalf was airlifted to Massachusetts for continuing medical care, and has not traveled any further afield than Boston, Massachusetts, since sustaining the injury. As a result of this fall, K.Metcalf fractured several of his cervical vertebrae and is now an incomplete C5-C7 tetraplegic, largely confined to a wheelchair. He requires some sixty hours of personal care attendance per week. This personal care is currently paid for by Cerebral Palsy of Massachusetts, located in Quincy, Massachusetts. Plaintiffs aver that they are unable to pay for a personal care attendant to travel with them to Canada should it become necessary for them to attend a trial in Nova Scotia.
There is no dispute that maritime law governs this dispute; the only question is whether United States or Canadian maritime law governs. In order to determine which country's maritime law applies, admiralty choice of law principles apply. Choice of Law analysis for a Federal Court applying admiralty law is controlled by the following eight-factor test: "(1) the place of the wrongful act, (2) the flag under which the ship sails, (3) the domicile of the injured party, (4) the allegiance or domicile of the vessel owner, (5) the place where the contract was formed, (6) the inaccessability of the foreign forum, (7) the law of the forum and, (8) the vessel owner's base of operations." Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731 (1970); see also Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468 (1959); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921 (1953); Kukias v. Chandris Lines, Inc., 839 F.2d 860, 862 (1st Cir. 1988). The Court must weigh these factors and "apply the law of the state with the most substantial contacts giving rise to the claim...." Carbotrade S.p.A. v. Bureau Veritas, 99 F.3d 86, 90-91 (2d Cir.1996).
Analysis of the Factors