Fitzgerald v. Westland Marine Corporation

Citation369 F.2d 499
Decision Date17 November 1966
Docket NumberNo. 163,Docket 30641.,163
PartiesThomas I. FITZGERALD, Public Administrator for the County of New York, as Administrator of the Estates of Julian Diaz Marcuartu, et al., Appellant, v. WESTLAND MARINE CORPORATION, Mitsubishi Heavy Industries, Ltd., and Pacific Grain Corp., Ltd., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Charles Sovel, New York City (Abraham E. Freedman, Harry Wallach, New York City, on the brief), for appellant.

Robert V. Corbett, Astoria, N. Y., of Cardillo & Mooney, New York City, for appellee Westland Marine Corp.

Wharton Poor, New York City (Shozo F. Tsuchida, Charles F. Schirmeister, R. Glenn Bauer, Haight, Gardner, Poor & Havens, Reid & Priest, New York City, on the brief), for appellee Mitsubishi Heavy Industries, Ltd.

Francis J. O'Brien, New York City (Philip J. Curtin, Zock, Petrie, Sheneman & Reid, New York City, on the brief), for appellee Pacific Grain Corp., Ltd.

Before LUMBARD, Chief Judge, and MEDINA and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

On or about December 18, 1964, while en route from Vancouver, British Columbia, to Yokohama, Japan, the S/S San Patrick ran aground on one of the Aleutian Islands, broke up and sank. The Public Administrator for the County of New York filed a complaint on behalf of the estates of the 31 Spanish nationals and one Yugoslav, who comprised the ship's crew and who perished in the tragedy. Claims were made against the three defendants: Westland Marine, a New York corporation, and the alleged owner of the San Patrick, was accused of negligence and providing an unseaworthy ship; Mitsubishi Heavy Industries, Ltd., a Japanese corporation, and Pacific Grain Corporation, Ltd., of Vancouver, British Columbia, were respectively accused of negligence in converting the ship from a tanker to a bulk carrier, and in loading the vessel with grain.

Westland moved, pursuant to Rule 12 (b) of the Federal Rules of Civil Procedure, to dismiss the complaint because it failed to state a claim and the court lacked jurisdiction. Construing the motion, because of the presence of affidavits, as one under Rule 56,1 Judge Murphy granted Westland the relief it sought. Mitsubishi and Pacific also moved to dismiss the suit on the ground of forum non conveniens, and their motions were likewise granted by the court. The Public Administrator appeals from Judge Murphy's order.

Considering first the dismissal of appellant's claim against Westland Marine Corporation, it is clear that the district court's action was proper. Although the original complaint alleged that diversity jurisdiction existed because Westland was a foreign corporation, it is now uncontested that Westland is in fact organized under the laws of New York. The only possible basis of jurisdiction, therefore, is under the Jones Act, 46 U.S.C. § 688, if an employer-employee relationship existed between Westland and any of the seamen.

Chief Justice Warren has observed that under the Federal Rules, "a law suit is a search for the truth and the tools are provided for finding out the facts before the curtain goes up on trial." 38 Conn.B.J. 3 (1964). The summary judgment procedure contained in Rule 56 is just such a "tool" because it enables the court to determine if the "curtain" should be raised at all.2 In this case, appellant's affidavit in opposition to the motion to dismiss asserted that "the essence of the complaint against Westland was that it owned, operated and controlled the vessel in question at the time of the disaster." But this Court has stated, "mere formal * * * allegations, while sufficient to stand as pleadings * * * are to be pierced upon Rule 56 motions and * * * may not forestall the award of summary relief." Dressler v. MV Sandpiper, 331 F. 2d 130, 132 (2d Cir. 1964). Accord, Schwartz v. Associated Musicians of Greater New York, Local 802, 340 F.2d 228 (2d Cir. 1964); Gauch v. Meleski, 346 F.2d 433 (5th Cir. 1965).

Judge Murphy properly took cognizance of the fact, as noted in Westland's affidavit on the motion, that in an earlier limitation proceeding arising out of this shipwreck, appellant had admitted that the San Patrick was in fact "owned, operated and controlled by the * * * Manor Investment Co., Inc." Moreover, while the contracts of employment of the seamen, executed in Bilbao, Spain, stated that they were made "on behalf of Westland," several of them were actually signed only on behalf of Manor Investment Co. It is clear that it was never intended that Westland would employ some seamen while Manor would employ others. In any event, the totality of all the facts (including our examination of the contracts referred to) indicate only that Westland was acting as Manor's New York agent, and was not in fact the employer of the crew as urged by the Administrator. Since the appellant had "no real support for its version of the facts," Judge Murphy's order granting summary judgment was proper. Dressler v. MV Sandpiper, 331 F.2d at 134.

The district court's dismissal of the suit against Mitsubishi and Pacific on the ground of forum non conveniens, was also proper.3 It is true that "unless the balance is strongly in favor of the defendant, plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1946). But as the Supreme Court also noted, "the doctrine leaves much to the discretion of the courts to which plaintiff resorts * * *." Id. at 508, 67 S.Ct. at 843.

Appellant raises several considerations in support of its position that the action should not have been dismissed. He says that the limitation proceeding referred to above, has been brought in the Southern District of New York, and the estates of the deceased crew members have, therefore, been compelled to litigate here. He argues that if the actions against Mitsubishi and Pacific are dismissed, the estates will be put to the extra expense and trouble of litigating their claims in another forum. This contention has surface appeal.

The Administrator, moreover, urges that New York is the only jurisdiction where all three defendants can be sued, and prosecuting the...

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