412 F.2d 919 (5th Cir. 1969), 25699, Hellenic Lines Limited v. Rhoditis

Docket Nº:25699.
Citation:412 F.2d 919
Party Name:HELLENIC LINES LIMITED and Universal Cargo Carriers, Inc., Appellants, v. Zacharias RHODITIS, Appellee.
Case Date:May 08, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 919

412 F.2d 919 (5th Cir. 1969)

HELLENIC LINES LIMITED and Universal Cargo Carriers, Inc., Appellants,

v.

Zacharias RHODITIS, Appellee.

No. 25699.

United States Court of Appeals, Fifth Circuit.

May 8, 1969

Page 920

George F. Wood, Pillans, Reams, Tappan, Wood & Roberts, Mobile, Ala., for appellants.

Joseph B. Stahl, New Orleans, La., Ross Diamond, Jr., Diamond, Lattof & Favre, Mobile, Ala., for appellee.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District judge.

GOLDBERG, Circuit Judge:

Sixteen years after Lauritzen v. Larsen 1 we must fish in somewhat turgid waters for its spawn in order to determine the applicability of the Jones Act. 2 The question presented is whether or not the Jones Act applies so as to allow recovery to a Greek seaman who was injured in a United States port on a Greek-flag vessel owned and controlled by United States domiciliaries. We hold that the Jones Act applies and affirm the judgment of the district court. 3

Zacharias Rhoditis, an illiterate Greek seaman, was injured aboard the S.S. HELLENIC HERO while the ship was docking at the Port of New Orleans. Seeking compensation for his injury, Zacharias brought suit under the Jones Act against the appellants, Universal Cargo Carriers, Inc., and Hellenic Lines, Ltd. 4

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The HELLENIC HERO, which flies the Greek ensign and is registered in the port of Piraeus, Greece, has multi-nation ties, but its ownership is essentially American. Technically, the ship is owned by a Panamanian corporation which in turn is owned by a Greek corporation. However, ninety-five per cent of the stock of the Greek corporation is owned by two residents of the United States, and the corporation has its principal office in New York. Universal Cargo Carriers, the Panamanian corporation, is solely a holding company with no operational responsibilities in connection with the HERO. The real ownership and operational responsibilities are vested in Hellenic Lines, a corporation organized and existing under the laws of Greece. Hellenic is managed from a base in New York, 5 and is owned almost entirely by Pericles Callimanopoulos and his son.

Pericles, although a Greek citizen, has resided in the United States since 1945. With a home in Greenwich, Connecticut, and an office in New York City, Pericles performed his duties as managing director of the corporation from the United States. Under Pericles' direction, the HERO engaged in regularly scheduled runs between various gulf ports of the United States and ports in the Middle East. The entire income of the HERO was from cargo either originating or terminating in United States ports.

Zacharias signed on the HERO in Heraclion, Greece. His contract of employment provides that Greek law and the Greek Collective Bargaining Agreement shall apply as between the employer and the crew, and that all claims arising out of the contract of employment shall be adjudicated exclusively by the Greek courts.

In the court below Universal and Hellenic directed their defense so that it was primarily a challenge to the court's jurisdiction over the subject matter. The district court held that it had jurisdiction and explained its result as follows:

'Following the law announced in Lauritzen vs. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, it would seem to us that the contacts in this case with this country are quite substantial. The Libelant was injured in the Port of New Orleans, Louisiana, aboard a vessel regularly engaged in a scheduled trade to and from the United States Gulf ports; the vessel and its controlling corporations are owned by a resident of the United States, having enjoyed his residence in this country in excess of twenty (20) years, and the operation was clearly managed, controlled and operated from this country. Under these facts, I hold that this Court has jurisdiction and that the Jones Act is applicable. (cases cited).' 273 F.Supp. at 249-250.

The court then found that Zacharias' injury was the proximate result of the appellants' negligence and awarded damages in the amount of $6,000.

The sole issue raised by this appeal is whether the facts at bar warrant the application of the Jones Act, which is the basis of the district court's assertion of jurisdiction. Both parties rely on the primogenial case of Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, for what it says and for what it does not say. In Lauritzen the question was whether one Larsen, a Danish seaman negligently injured on board a ship of the Danish flag in Havana harbor, had a cause of action under the Jones Act. Larsen, while temporarily in New York, had joined the crew of this ship owned by a Danish citizen. He had signed ship's articles providing that the rights of crew members would be governed by Danish law and by the employer's contract with the Danish Seamen's Union. In holding that the Jones Act did

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not apply, the Supreme Court listed seven factors to be considered in answering the question of applicability: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum.

If we were to weight the seven immortal pillars of Lauritzen by merely counting contacts, the score would be three for Jones Act coverage, four against. 6 The immortal seven, however, are not to be so mechanistically applied. Lauritzen did not create a contact counting test.

Rather the Supreme Court intended the applicability question to be answered by 'ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved,' and 'from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority.' 345 U.S. at 582, 73 S.Ct. at 928, 97 L.Ed. at 1267. 'Hence it must be said that in a particular case something between minimal and preponderant contacts is necessary if the Jones Act is to

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be applied. * * * The test is that 'substantial' contacts are necessary. And while * * * one contact such as the fact that the vessel flies the American flag may alone be sufficient, this is no more than to say that in such a case the contact is so obviously substantial as to render unnecessary a further probing into the facts.' Bartholomew v. Universe Tankships, Inc., 2 Cir. 1959, 263 F.2d 437, 440, cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030. Likewise, the seven talismen are neither exclusive nor...

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