Akofin v. Jumbo Navigation, N.V.

• Decision Date: 30 March 2007
• Docket Number: No. 05 CV 2291(CSH).,05 CV 2291(CSH).
• Citation: Akofin v. Jumbo Navigation, N.V., 481 F.Supp.2d 310 (S.D. N.Y. 2007)
• Parties: Olga AKOFIN as Personal Representative of Yuriy Akofin, deceased and personally and Natalya Avtaeva Khasenevich as Personal Representative of Suleiman Khasenevich and individually, Plaintiffs, v. JUMBO NAVIGATION, N.V., Defendant.
• Court: U.S. District Court — Southern District of New York

Page 310

481 F.Supp.2d 310

Olga AKOFIN as Personal Representative of Yuriy Akofin, deceased and personally and Natalya Avtaeva Khasenevich as Personal Representative of Suleiman Khasenevich and individually, Plaintiffs, v. JUMBO NAVIGATION, N.V., Defendant.

No. 05 CV 2291(CSH).

United States District Court, S.D. New York.

March 30, 2007.

Paul S. Edelman, Kreindler & Kreindler, New York City, for Plaintiff.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

Plaintiffs in this action are foreign personal representatives of two foreign seamen who lost their lives as the result of an accident on board a foreign-flag vessel which occurred in American Territorial waters. Plaintiffs sue the foreign owner of the vessel to recover damages, invoking the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States.

Defendant moves to dismiss the complaint on the ground of forum non conveniens. For the reasons that follow, the motion is granted and the complaint will be conditionally dismissed.

BACKGROUND

On December 9, 2003 the M/V STELLAMARE lay at the port of Albany, New York for the purpose of loading a large, heavy generator for ocean carriage. The STELLAMARE flew the flag of the Netherlands and was registered in the Netherlands Antilles. She was owned by defendant Jumbo Navigation, NV ("Jumbo"), a Netherlands Antilles corporation.

During the loading operation, the STELLAMARE capsized, causing the death of two members of the vessel's crew, Yuri Akofin and Suleiman Khasenevich ("the decedents"). Plaintiffs Olga Akofin and Natalya Avtaeva Khasenevich, respectively the personal representatives of the decedents, bring this action to recover damages resulting from their deaths. The plaintiffs are citizens of the Russian Federation and reside in Russia. The decedents were citizens and residents of Russia. They were employed on board the crew of the STELLAMARE pursuant to an agreement entered into by Jumbo and the Maritime Transport Workers Union of Russia. Both decedents executed their personal contracts of employment with Jumbo in St. Petersburg.

The plaintiffs accepted U.S. $ 60,000 and $75,000 respectively from Jumbo and executed in St. Petersburg, Russia releases with respect to the decedents' employment and deaths. The releases are dated January 19 and January 23, 2004.¹

Plaintiffs filed their complaint in this Court on February 22, 2005. The complaint alleges that the action is brought under the Jones Act and the general maritime law of the United States. Complaint ¶ 1. Plaintiffs' claims are presently asserted against Jumbo, the owner of the STELAMARE. The complaint originally listed three other companies as parties defendant, but the plaintiffs dismissed their claims against those entities by a stipulation endorsed by the Court on June 17, 2005, and the caption of the case has been amended accordingly.

Plaintiffs' theory of the case is spelled out in ¶¶ 121-24 of the complaint:

21. Upon loading a generator, the vessel listed and/or capsized, causing the death of the above-mentioned deceased crew members.

22. The disaster was due to the negligence of the master of the STELAMARE and other employees of defendants of either defendant in failing to properly shift the ballasting of the vessel and for other acts of negligence and fault, including violation of safety regulations.

23. The improper loading and ballasting made the vessel unseaworthy causing the list and/or capsizing of the vessel and the vessel was otherwise unseaworthy.

24. Decedents drowned as a result of the capsizing of the vessel and prior to death had a period of severe and intense suffering.

The complaint contains a demand for trial by jury.

Jumbo now moves to dismiss the complaint. It asserts that the casualty and the resulting deaths are not covered by the Jones Act and do not fall within the general maritime law of the United States. While Jumbo acknowledges that the action falls within this Court's admiralty and maritime jurisdiction, it moves for dismissal on the ground of forum non conveniens.

DISCUSSION

I. Applicability of the Jones Act and the General Maritime Law of the United States

Defendant contends that in the circumstances of the case plaintiffs are not entitled to invoke the Jones Act and American general maritime law. I agree.

In the Jones Act, Congress made available to seamen certain rights and remedies against the owners of vessels upon which they serve. In the case at bar, the personal representatives of two deceased foreign seamen seek to invoke the Jones Act against a foreign employer.

"Although the Act, by its terms, may be invoked by alien seamen against alien employers the Supreme Court has limited its application to suits in which the defendant has some substantial contact with the United States." Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392, 1396 (2d Cir. 1976). In determining whether the contacts in a given case are "substantial," the Supreme Court has identified the following contacts as worth of consideration: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance of the 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. Koupetoris, 535 F.2d at 1396 (citing Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)). This is not an exclusive list; the Supreme Court subsequently held that the shipowner's base of operations is also an important contact and "there may well be others." Hellenic Lines. Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).

The applicability of the general maritime law of the United States is "subject to the same choice of law criteria as is the Jones Act." Koupetoris v. Konkar Intrepid Corp., 402 F.Supp. 951, 954 (S.D.N.Y. 1975), affd, 535 F.2d 1392 (2d Cir.1976). Thus, when the circumstances of a case reveal no substantial connection between the action and the United States, the plaintiff may invoke neither the Jones Act nor American general maritime law. Flores v. Central Am. S.S. Agency, Inc., 594 F.Supp. 735, 737 (S.D.N.Y.1984) (situation relied upon by plaintiff "clearly is not sufficient to render the Jones Act or general American maritime law applicable to this case."). In Flores, Judge Sprizzo also observed that "[t]he factors which have been considered most important by the courts are the law of the flag, provided it is not a flag of convenience, and the allegiance or base of operations of the shipowners." 594 F.Supp. at 737 (citing cases).

In the case at bar, the relevant factors clearly militate against the applicability of Jones Act or American general maritime law.

Although, as the plaintiffs stress in opposing defendant's motion, the accident occurred within American territorial waters, that is the only connection between this action and the United States and its laws. The location of the accident, standing alone, is not sufficient to establish that substantial connection between the action and the United States which is required by the cases interpreting the Jones Act and American general maritime law. That is particularly so where, as here, all the other relevant factors militate against the applicability of the statute or general maritime law to this particular casualty.

In Koupetoris, the Second Circuit said: "That the Plaintiffs injuries occurred off the coast of the United States is purely fortuitous, and a factor of minimal importance in supporting application of the [Jones] Act." 535 F.2d at 1396 (emphasis added). The Second Circuit's use of the phrase "occurred off the coast of the United States" and its earlier statement that the accident "occurred in waters off the coast of Maryland," id. at 1394, are curious, since District Judge Milton Pollack, whose order dismissing the complaint was affirmed by the Court of Appeals, said that in his opinion the plaintiff seaman brought his action to recover for injuries he allegedly sustained "while the ship was in Baltimore harbor." 402 F.Supp. at 953. It appears that the vessel involved in Koupetoris was operating under charter and called frequently at United States ports. See 535 F.2d at 1394.

For the purpose of evaluating the applicability of the Jones Act and American general maritime law to the case a bar, the presence of the STELLAMARE in Albany harbor at the time of the accident is equally fortuitous, indeed even more so. There is no evidence that the vessel called regularly or frequently at United States ports. A Coast Guard document submitted by plaintiffs shows that the STELLAMARE was a heavy lift vessel, specially constructed and equipped to lift, transport and discharge large and heavy pieces of equipment, such as the generator being loaded at the time the vessel capsized. Such vessels ply the waters of the world, transporting heavy objects when and where the need arises.

This case thus falls squarely within the Second Circuit's minimization of the importance of the place of injury in the Jones Act and general maritime law calculus. Equally instructive is the decision of the Supreme Court in Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). A Spanish seaman, injured in New York while aboard a Spanish vessel, sued the Spanish vessel owner under the Jones Act and the general maritime law of the United States. The Supreme Court affirmed the lower courts' dismissal of the plaintiff's claims against his employer. The Court noted that "Romero was injured while temporarily in American territorial waters," and followed its prior opinion in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), which held that "the test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may...