211 F.Supp. 320 (S.D.N.Y. 1962), Pavlou v. Ocean Traders Marine Corp.

Citation:211 F.Supp. 320
Party Name:Panagiotis PAVLOU, Plaintiff, v. OCEAN TRADERS MARINE CORPORATION and Orion Shipping and Trading Co., Inc., Defendants.
Case Date:March 27, 1962
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 320

211 F.Supp. 320 (S.D.N.Y. 1962)

Panagiotis PAVLOU, Plaintiff,

v.

OCEAN TRADERS MARINE CORPORATION and Orion Shipping and Trading Co., Inc., Defendants.

United States District Court, S.D. New York

March 27, 1962

Page 321

Standard, Weisberg & Harolds, New York City, for plaintiff (Louis R. Harolds, New York City, of counsel).

Healy, Baillie & Burke, New York City, for defendants (Thomas L. Rohrer, New York City, of counsel).

CROAKE, District Judge.

Defendants Ocean Traders Marine Corporation, hereinafter referred to as 'Ocean Traders,' and Orion Shipping and Trading Co., Inc., hereinafter referred to as 'Orion,' move to dismiss the complaint pursuant to Rule 12(b) on the grounds of forum non conveniens. Ocean Traders also moves to vacate the plaintiff's notice of examination before trial of one Basil Goulandris as an adverse party on behalf of Ocean Traders.

In this civil action against the two corporate defendants, the plaintiff asks to recover damages for injuries sustained while he was employed as a seaman aboard the S/S CORINTHIAKOS, a merchant vessel flying the Greek flag and owned by Ocean Traders, a corporation organized under the laws of Liberia. Plaintiff alleges that jurisdiction is based upon:

'The laws of the United States, common and statutory, for the protection of and for the health and safety of seamen at sea.'

A substantial portion of the financial benefits resulting from its operation accrue to citizens and residents of the United States. Plaintiff alleges that in furtherance of the business of owning and operating the S/S CORINTHIAKOS, one or both defendants employed him as a member of the crew of the vessel.

The court will consider the motion to dismiss first, since this motion ultimately controls the disposition of both motions.

Defendants contend that this suit should be dismissed on the basis of the doctrine of forum non conveniens. Defendants argue that plaintiff is a Greek citizen; that the ship is registered in Greece and owned by a corporation organized under the laws of Liberia; and that the accident occurred in Canada.

Page 322

Defendants also assert that plaintiff signed Greek shipping articles under which he agreed to be bound by Greek law.

In the light of these circumstances and the problems of proof and convenience of the parties, defendants urge that this is not the proper forum for the adjudication of this action.

The pleadings indicate that there is no dispute as to the ownership and registry of the ship, but the complaint alleges and affidavits submitted by plaintiff urge that the ship's registry in Greece is what is commonly referred to as a 'flag of convenience'; that the Liberian corporation is in reality based in New York; and that a large segment of the common stock is owned by American interests. Plaintiff therefore argues that the common and statutory maritime law of the United States is applicable. Plaintiff denies that he signed any document pertaining to his service aboard the S/S CORINTHIAKOS by which he contracted to have Greek law govern his employment. In any event, this issue would not be determinative of this case for if other circumstances make the law of the United States applicable, defendants cannot avoid their duties under the law of the United States by contracting for the application of Greek law, at least with respect to any right of plaintiff under the Jones Act. An advance waiver of this type is contrary to the provisions of 45 U.S.C.A. § 688. See also Bay State corporated by reference in the Jones Act, 46 U.S.C.A. § 688. See also Bay State Dredging and Contracting Co. v. Porter, 153 F.2d 827, 829 (1st Cir. 1946). Thus this contractual provision, if it does exist, is only important as one of the circumstances to be taken into account in determining whether the law of the United States is applicable rather than forming the basis of a complete defense to this action. For the purpose of this motion, this court will assume that such a provision does exist.

As indicated, the defendants move for dismissal under the doctrine of forum non conveniens, urging that this court has the discretion to dismiss this case. Defendants' assumption as to the discretion of this court to decline or accept jurisdiction is incorrect. The claims asserted by plaintiff are alleged to be based upon:

'The laws of the United States, common and statutory, for the protection of and for the health and safety of seamen at sea.'

In view of these allegations, the question presented to this court is not one of discretion; it simply is whether the laws of the United States described in the complaint are applicable to the circumstances of this case. In Bartholomew v. Universe Tankships, Inc., 2 Cir., 263 F.2d 437, 443 (2d Cir. 1959), the Court of Appeals stated:

'Moreover, this is not a matter resting in the discretion of the trial judge, as seems to have been thought to be the case here. The facts either warrant the application of the Jones Act or they do not. Under 28 U.S.C. § 1331, once federal law is found applicable the court's power to adjudicate must be exercised.'

The force of this opinion appears to be that given a case where the Jones Act or other laws of the United States apply, this court has no power to dismiss on the grounds of forum non conveniens, no matter how inconvenient the forum may be to the parties or witnesses. Defendants rely on Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Mattolese v. Kaufman, 176 F.2d 301 (2d Cir. 1949). These cases involved the dismissal of action on the grounds that there were other forums within the United States, either federal or state, which were more appropriate for the adjudication of the controversy involving the application of the laws of the United States. It is quite another matter to contend that a litigant who has a right created under the laws of the United States may, because of facts and circumstances related to convenience and problems of proof, be relegated to a forum outside

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of this country. Defendants also assert that this court recently exercised such discretionary powers in Montzouris v. National Shipping & Trading Co., 196 F.Supp. 482 (D.C.S.D.N.Y.1961). However, a careful reading of that opinion indicates that the court only exercised its discretionary powers after first determining that the Jones Act was inapplicable.

It is therefore apparent that before this court may enter upon any determination of dismissal pursuant to the doctrine of forum non conveniens, it is first necessary to decide whether the laws of the United States, and specifically the Jones Act, 46 U.S.C.A. § 688, are...

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