368 F.2d 426 (2nd Cir. 1966), 288, Tsakonites v. Transpacific Carriers Corp.

Docket Nº:288, 29734.
Citation:368 F.2d 426
Party Name:Elias TSAKONITES, Plaintiff-Appellant, v. TRANSPACIFIC CARRIERS CORP. and Hellenic Lines, Ltd., Defendants-Appellees.
Case Date:November 16, 1966
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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368 F.2d 426 (2nd Cir. 1966)

Elias TSAKONITES, Plaintiff-Appellant,

v.

TRANSPACIFIC CARRIERS CORP. and Hellenic Lines, Ltd., Defendants-Appellees.

No. 288, 29734.

United States Court of Appeals, Second Circuit.

November 16, 1966

Argued March 23, 1966.

Herbert Lebovici, New York City (Harold D. Safir, Lebovici & Safir, New York City, on the brief), for plaintiff-appellant.

Edwin K. Reid, New York City (George D. Byrnes, Zock, Petrie, Sheneman & Reid, New York City, on the brief), for defendants-appellees.

James M. Estabrook, David P.H. New York City, for Kingdom of Greece, the Union of Greek Shipowners and the Chamber of Shipping of Greece, as amici curiae. as amici curiae.

Before LUMBARD, Chief Judge, and WATERMAN and MOORE, Circuit Judges.

MOORE, Circuit Judge:

Plaintiff, a Greek seaman, brought suit in the Southern District of New York, relying entirely upon the Jones Act and the general maritime law of the United States. The District Court dismissed the case on the merits on the grounds that plaintiff had failed to establish the applicability of American law. From this judgment plaintiff appeals.

The sole question presented on this appeal is whether the Jones Act, 46 U.S.C. 688, and the general maritime law of the United States apply to an accident in an American port to a foreign seaman on a ship owned by a foreign corporation and flying a foreign flag, where the principal shareholder of the foreign corporation,

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though a foreign citizen, resides in America, and where the operations of the ship on which the injury occurred were controlled from this country.

Elias Tsakonites, a Greek citizen and domiciliary, the plaintiff-appellant, signed on as a member of the crew of the SS Hellenic Spirit under an agreement dated Piraeus, Greece, June 4, 1959, which provided that any claim arising from his employment was to be tried exclusively by the Greek law courts. Plaintiff boarded the Hellenic Spirit on June 5, 1959, at Herakleion, Crete. The ship was then on the outward leg of a voyage from Houston, Texas, to Rangoon, Burma, with numerous stops in between. after reaching Burma, the ship sailed back through the Red Sea and the Mediterraneans, stopping at New York and Philadelphia before finishing its inward voyage in Cuba. The accident which gave rise to the present suit occurred while the Hellenic Spirit was berthed at a pier in Brooklyn. On September 26, 1959, while descending a ladder from the main deck to the interior of a hold, plaintiff fell to the deck below. He was taken to the Lutheran Medical Center in Brooklyn, where he remained until January 20, 1960.

The Hellenic Spirit at all times relevant to this suit sailed under the Greek flag and was registered under the laws of Greece. Her crew and officers were almost entirely Greek. She was owned by the defendant Transpacific Carriers Corp., a Panamanian corporation wholly owned by the defendant Hellenic Lines, Ltd., a Greek corporation, over 96% of the shares of which were owned by Pericles G. Callimanopoulos, a Greek citizen, who first came to this country in 1945. From 1945 to 1956 or 1957, he spent part of his time here, first as a visitor, then as a treaty trader. In 1956 or 1957, he was admitted to the United States as a permanent resident.

With the exception of Callimanopoulos and his son, all of the officers and directors of Hellenic Lines reside in Greece as well as being Greek citizens. However, the directors from time to time vested in Callimanopoulos a broad power of attorney to run the company as General Manager.

Hellenic Lines maintains an office in Piraeus and a slightly smaller office in New York City, in addition to smaller offices in this country and abroad. In August 1959, the New York office employed 63 people at a payroll cost of approximately $28,000 per month. The company's annual statement was prepared in New York. Hellenic Lines maintains bank accounts in New York banks and has borrowed extensively from New York banks.

Hellenic Lines at the time of the accident operated from New York 22 or 23 vessels engaged in three liner services: to the Mediterranean; to the Persian Gulf; and to the Red Sea and India and Burma. The company's agents at ports of call reported to the New York office on all matters concerning these three liner services. The Hellenic Spirit was engaged in the Red Sea liner service.

The starting point of any discussion of the applicability of American law to seaman's accidents must be Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), in which the Supreme Court listed and appraised seven factors which should be considered in balancing the need for fairness to a plaintiff and the legitimate interests of the United States against the policies underlying international comity. Those seven factors are: the place of the wrongful act-- a factor to which the Supreme Court attributed little weight, because of the disruptive effects adherence to such a standard would have upon the uniform regulation of shipboard activities; 1 the

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law of the flag, which factor, the Supreme Court said, must prevail in the absence of some 'heavy counterweight,' and which generally accords with principles of comity; the allegiance or domicile of the injured party; the allegiance of the defendant shipowner; the place and terms of the contract; the relative inaccessibility of the foreign forum, a factor which the Court found relevant not on the issue of whether law is applicable but rather on whether the court after finding its own law inapplicable should apply the law of some other jurisdiction; and finally the law of the forum, to which the Court attributed very little weight.

Lauritzen did not attempt to indicate whether or not American law should apply under all combinations of listed factors not before the Court. Cases both before and after Lauritzen, however, have established that certain combinations of factors either are or are not enough to justify application of American law. See Note, Admiralty Choice of Law: Lauritzen v. Larsen Applied, 47 Va.L.Rev. 1400 (1961).

The present case presents a combination of factors the significance of which is not conclusively established by existing...

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