Nicolas Eustathiou & Co. v. United States, 7751.

• Decision Date: 10 September 1957
• Docket Number: No. 7751.,7751.
• Citation: 154 F. Supp. 515
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NICOLAS EUSTATHIOU & CO., owner of THE Greek Steamship MICHALAKIS, Libellant, v. UNITED STATES of America, owner of THE U.S.S. SHADWELL (LSD 15), Respondent.

154 F. Supp. 515

NICOLAS EUSTATHIOU & CO., owner of THE Greek Steamship MICHALAKIS, Libellant, v. UNITED STATES of America, owner of THE U.S.S. SHADWELL (LSD 15), Respondent.

No. 7751.

United States District Court E. D. Virginia, Norfolk Division.

September 10, 1957.

Vandeventer, Black & Meredith and Hugh S. Meredith, Norfolk, Va., for plaintiff.

L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., Harold G. Wilson, Trial Atty., Dept. of Justice, Washington, D. C., for respondent.

WALTER E. HOFFMAN, District Judge.

On the early morning of October 18, 1955, a few miles east of Cape Henry, Virginia, the S. S. Michalakis, a merchant vessel owned by a citizen of Greece, was involved in a collision with the U. S.S. Shadwell (LSD 15), a naval vessel owned by the United States of America and manned by a crew of the United States Navy. Both vessels were damaged extensively and the libel filed herein by the owner of the Greek vessel seeks damages in the sum of $235,000. No cross-libel has as yet been filed for reasons that will become apparent by reason of the legal question raised in this stage of the proceedings.

The libel alleges and the answer denies "that a citizen of the United States owning a vessel which is in collision with a `public vessel' of the Kingdom of Greece can sue the Greek Government for any damages which he might sustain as a result of said collision". It is conceded that the Shadwell is a "public vessel" within the meaning of 46 U.S.C.A. § 781 et seq., but the respondent insists that the requirements establishing conditional waiver of immunity have not been met. Congress has seen fit to waive immunity on behalf of the United States in actions instituted by citizens of foreign countries, conditioned that an American shipowner would have the reciprocal right under the laws of the foreign country to sue the foreign State under a substantially similar set of facts.

It follows, therefore, that the first issue for this Court to decide is whether an American citizen, as the owner of a merchant vessel, would have the right under the laws of Greece to sue in the courts of Greece the Greek Government, as owner of a Greek naval or other vessel which has collided with an American ship, where it is alleged that the Rules of the Road have been violated and both vessels have sustained damage.

The question is not free from doubt and, as the matter concerns the interpretation of Greek laws and decisions, the problem is even more complex by reason of the apparent use of certain Greek terms which in this country have a plain and unambiguous meaning. Counsel concede that no case precisely in point has been decided by the courts of Greece. We are required, therefore, to examine the evidence, textbook authorities, and decisions of Greek courts to arrive at the appropriate conclusion.

Undoubtedly the defense of sovereign immunity may be successfully interposed in a proper case. Benedict on Admiralty, Vol. 1, pp. 484-502; Robinson on Admiralty, pp. 248-262. It has been raised and recognized in other cases involving Greek merchant vessels. American Tobacco Co. v. The Ioamis P. Goulandris, D.C., 40 F.Supp. 924; Irving Trust Co. v. The Maliakos, D.C., 41 F.Supp. 697; P. Dougherty v. The Tassia, D.C., 43 F.Supp. 1015. The immediate question is whether the Greek Government has consented to be sued in its courts when its naval vessel is involved in a collision with a merchant vessel owned by an American citizen and both vessels are damaged. Admittedly there is no Greek statute comparable to our 46 U.S. C.A. § 785, which provides in substance that no suit may be brought under the Public Vessels Act by a national of any foreign government unless it shall appear to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue in its courts.

It is well settled that the foreign law must be proved to the satisfaction of the court, i.e., the court must be satisfied that an American national could sue the Greek Government for damages arising under circumstances, including ownership, similar to what is the reverse of the situation presented in this case. In essence the Court is called upon to determine the answer to a hypothetical case. In Lauro v. United States, 2 Cir., 162 F.2d 32, the case was remanded for further proof of Italian law. Proof of the Norwegian law was deemed sufficient in Westfal-Larsen & Co. v. United States, D.C., 41 F.2d 550. Under the laws of the Kingdom of Netherlands the court concluded that the statutory provisions relating to collisions at sea made no distinction between the rights of ships owned by private individuals and ships owned by the Government, or between warships and commercial vessels. N. V. Stoomvaart Mattschaippij Nederland v. United States, D.C., 18 F.Supp. 567. The right to sue in the Canadian courts was upheld in The Mary F. Anderson, D.C., 35 F.2d 400, predicated on the fact that the owner of a French vessel had instituted such a suit against the Canadian Government in the courts of Canada. Lopez v. United States, D.C., 102 F.Supp. 870, is a case in which the court held that libellant had failed to introduce evidence to the effect that a United States national could institute such an action in the courts of Cuba. Another case involving the failure to prove that an American citizen serving as a longshoreman on an Italian vessel could maintain a civil action against the Italian Government is Maiorino v. United States, D.C., 111 F.Supp. 817. In Simonowycz v. United States, D.C., 125 F.Supp. 847, 1954 A.M.C. 1567, it was held that a Polish national had failed to prove that American nationals could sue on the same basis in Poland. In each of these cases the method of attempted proof of foreign law has varied but, in each instance in which the right to sue has been sustained, the court has been "satisfied" that the requirements of 46 U.S.C.A. § 785 have been met.

Extensive hearings have been conducted and numerous briefs filed. Four witnesses, three for libellant and one for respondent, have given their versions of the Greek law. Each witness differs with respect to the reasons leading to his conclusions. Such a statement illustrates the complexities of the problem. The qualifications of the witnesses are not seriously disputed, although respondent points out that two of libellant's experts on Greek law are indirectly interested in the outcome of this case, in that Karabatos is an attorney representing the Greek Consulate in New York and Savramis is an attorney occasionally representing the libellant in Greece, while libellant suggests that respondent's expert (Zuppas) has never passed the Greek bar or practiced law in Greece. The Court attaches no particular significance to these contentions in the absence of a controlling statute or decision as their testimony has been grounded, in the main, upon certain documentary exhibits. The proper analysis of their reasoning is the factor which must control the conclusion of this Court. In proving foreign law it is not essential that the witnesses be members of the bar of the foreign country and documentary evidence alone is sufficient. Murphy v. Bankers Commercial Corporation, 111 F.Supp. 608, affirmed 2 Cir., 203 F.2d 645; Wigmore on Evidence, 3rd Ed., Vol. 2, § 564.

The laws of Greece have, from time to time, been subjected to revision and as certain testimony relates to the status of the law prior to 1946, when Greece adopted its Civil Code, it is well to review these historical changes in chronological order. Shortly following the Greek liberation from the Turks, a Royal Decree provided that the Roman Law was to serve as the basis of Greek civil law. This Decree of 1835 was expressly abrogated by the Civil Code of 1946. The Commercial Code was made effective in 1910 and, under Article 226, naval vessels were eliminated from its operation but, prior thereto, the Greek law pointed out no line of distinction between commercial and naval vessels.¹

In 1939 Greece established by Legislative Decree No. 1774/39 a Council for the Investigation of Marine Accidents, known and hereafter referred to as SENA (Council of Maritime Accident Control). This body is vested under law with the final word as a fact-finding group in ascertaining the legal responsibility for certain maritime accidents. It is an administrative organization consisting of two judges, two captains of the Royal Hellenic Navy, and the Commander of the Port Guard, the latter being the equivalent of the United States Coast Guard. Irrespective of the qualifications of the members of SENA, it is not a court. Actions may be instituted to enforce the decrees of SENA with damages to be determined by the court, but the ultimate question of liability is determined by SENA and the binding effect of its decision is not affected by the fact that all interested parties have not appeared and been granted a full hearing; nor does the SENA law apparently require that its findings be supported by substantial evidence. Libellant herein urges that SENA would have no jurisdiction over the hypothetical case presented, whereas respondent insists that SENA would take cognizance of the matter since, in the hypothetical case, both the Greek naval vessel and the American merchant vessel sustained damages. If respondent is correct in its contention, it would appear that this fact alone is sufficient to justify a dismissal of the action as 46 U.S.C.A. § 785, does not specify an administrative remedy as an alternate to court action. Maiorino v. United States, supra.

As heretofore noted, the Civil Code and the Introductory Law to the Civil Code became operative in 1946 and, by its terms, the Royal Decree of 1835 and appropriate provisions of the Roman Law therein contained were repealed. The legislation of 1946 relating to the liability of the Greek State where its "agents" acted in a private or public capacity was founded, to...