Pavlou v. Ocean Traders Marine Corporation

• Decision Date: 27 March 1962
• Citation: 211 F. Supp. 320
• Parties: Panagiotis PAVLOU, Plaintiff, v. OCEAN TRADERS MARINE CORPORATION and Orion Shipping and Trading Co., Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

211 F. Supp. 320

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.

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. 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. § 55, which has been incorporated 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 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 applicable.

In approaching this question, this court is mindful of the fact that most criteria enumerated in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) do not appear to favor the application of United States law in this case. The plaintiff is Greek; the ship flies a Greek flag and is owned by a Liberian corporation; the accident occurred outside the territorial waters of the United States; and it is uncontested that as a practical matter plaintiff is a Greek seaman, although there is some dispute as to whether plaintiff signed any agreement for the application of Greek law. However, the Lauritzen decision also recognized that the allegiance of the defendant shipowners is an important consideration, and it was further recognized that under some circumstances the registry of the ship cannot be accepted as determinative of the allegiance of the owner. Plaintiff's opposition to this motion for dismissal is addressed specifically to the importance of this factor for, while plaintiff concedes the factual circumstances relating to the ship's registry, ownership and other factors, he urges that these circumstances do not indicate the true situation as to this ship's operation. Plaintiff contends that this ship is substantially owned by business interests in the United States and that the business of Ocean Traders, as managed by Orion, is based in New York, and that the S/S CORINTHIAKOS operated primarily from ports of the United States.

In addition to his opposing affidavits and memorandum of law, plaintiff has submitted the deposition of Henry P. Le Ber, Secretary-Treasurer of Orion, presumably for the purpose of demonstrating facts which support contentions as to the relationship between the two defendants and the operation of the vessel. It is clear that in motions of this kind depositions of the parties may be submitted and considered by the court. See 2 Moore's Federal Practice 2247-2257 (2d Ed.1961). It is also clear that since Le Ber is an officer of the defendant Orion, his deposition may be treated as binding upon Orion. The court also is of the opinion that the Le Ber deposition is binding upon Ocean Traders. As will be shown later, Le Ber testified that Orion manages...