Brillis v. Chandris (USA) Inc.

• Decision Date: 22 March 1963
• Citation: 215 F. Supp. 520
• Parties: Emanuel BRILLIS, Plaintiff, v. CHANDRIS (U.S.A.) INC., Greenville, S.A., Marifortuna Navegacion, S.A., and Chandris (London) Ltd., Defendants.
• Court: U.S. District Court — Southern District of New York

215 F. Supp. 520

Emanuel BRILLIS, Plaintiff, v. CHANDRIS (U.S.A.) INC., Greenville, S.A., Marifortuna Navegacion, S.A., and Chandris (London) Ltd., Defendants.

United States District Court S. D. New York.

March 22, 1963.

Harry R. Schwartz, Brooklyn, N. Y., for plaintiff, Standard, Weisberg & Harolds, New York City, of counsel, Alan H. Buchsbaum, New York City, on the brief.

Poles, Tublin & Patestides, New York City, for defendants, Christ Stratakis, New York City, of counsel.

DAWSON, District Judge.

This is a civil action brought by a Greek seaman against four corporate defendants. Four causes of action are asserted under the General Maritime Laws of the United States, as amended by the Jones Act, 46 U.S.C.A. § 688, seeking recovery for: (1) an injury sustained by plaintiff; (2) aggravation thereof through improper medical attention; (3) maintenance and cure payments, and (4) penalty wages pursuant to 46 U.S.C.A. §§ 596 and 597. Two additional causes of action are asserted alternatively under the laws of Panama and Liberia.

Defendants have moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for an order declaring the Jones Act inapplicable, declining jurisdiction because the parties have agreed to litigate all claims in Greece and a finding of forum non conveniens. The three foreign defendants have also moved to set aside service of process upon them as being invalid.

It becomes unnecessary to determine the validity of process over the foreign defendants because, under the decisions hereinafter referred to, this Court, in its discretion, should decline jurisdiction.

The pleadings, depositions and affidavits submitted to the Court show the following facts to exist without substantial controversy:

The plaintiff is a subject and resident of the Kingdom of Greece. On or about December 19, 1960, he was engaged at the port of Piraeus, Greece, to serve as Chief Steward on board the Liberian vessel, S.S. ANGELIKI II. Plaintiff signed an employment contract with a Greek corporation not a party to this suit which was acting as agent for Chandris (London) Ltd., a defendant herein. The agreement, written in Greek, contained the following:

"The party who is being employed with these presents declares that, in the event of illness or accident or in case of the vessel's loss by shipwreck or otherwise, as a consequence of which, he would be entitled to compensation under the Greek Act 3816/1958 and the prevailing Greek Bargaining Agreement, the said compensation shall be made on the basis of the provisions of the present Greek Act 3816/1958 and the Greek Collective Bargaining Agreement of April 29, 1959 or any other Greek statutes or regulations amending or substituting the aforesaid provisions * * *. Any dispute, claim or objection that may arise with regard to this Agreement or the Articles, shall be governed exclusively by the Greek law and the current Greek Collective Agreement and the Greek courts and specifically, those of the City of Piraeus, shall have exclusive jurisdiction in this regard, expressly precluding the application of any foreign law or regulation and the assumption of jurisdiction by any foreign courts of any other country except those of Greece."

Plaintiff was transported to Marseilles, France, where he joined the vessel and signed Ship's Articles on December 24, 1960. The ANGELIKI II sailed from Marseilles on January 27, 1961. While the vessel was proceeding from Yokohama, Japan, to San Pedro, California, the plaintiff slipped and fell, sustaining a fracture of the right femur. The accident occurred on June 9, 1961, when the ANGELIKI II was outside the territorial waters of the United States.

Thereafter, on June 28, 1961, when the vessel arrived at San Pedro, California, plaintiff was taken ashore and admitted to the Wilmington Community Hospital. He remained there until September 28, 1961, when he was discharged and repatriated to Greece.

Upon his arrival at Piraeus, Greece, on October 3, 1961, the plaintiff was given additional medical attention and maintenance payments in drachmas equivalent to $560.00. These treatments terminated in February 1962, when the plaintiff, dissatisfied with the treatment he was receiving, failed to appear for further examination. On May 7, 1962, plaintiff arranged passage to New York where he now resides on a temporary basis. While in New York the plaintiff has received additional medical attention.

The defendants in this action are (1) Greenville, S.A., a Panamanian corporation which owns the ANGELIKI II, (2) Marifortuna Navegacion, S.A., another Panamanian corporation, which was the bareboat charterer, (3) Chandris (London) Ltd., an English corporation which was the manager of the ANGELIKI II responsible for general operations of the vessel, and (4) Chandris (U.S.A.) Inc., a Delaware corporation, agents of Chandris (London) Ltd. and responsible for the servicing of the vessel when it called at American ports.

As stated above, defendants urge three grounds for dismissal: (1) inapplicability of the Jones Act, (2) an agreement to look to the courts of Greece, and (3) forum non conveniens. While each ground raises a separate issue of law, all must be resolved by weighing or valuing the various facts which constitute points of contact between the transaction and the United States. Despite the similarity of required proof, the three defenses are best treated separately.

The Supreme Court considered the applicability of the Jones Act in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). Mr. Justice Jackson, writing for the majority, discussed the significance of (1) place of the wrongful act; (2) law of the flag; (3) allegiance of the domicile of the injured; (4) allegiance of the defendant shipowner; (5) place of contract; (6) inaccessibility of the foreign forum, and (7) law of the forum. The Court of Appeals for the Second Circuit in Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443 (1959) interpreted Lauritzen to mean that something between minimal and preponderant contacts is necessary if the Jones Act is to be applied. The court went on to point out that if the contacts are sufficient to apply the Jones Act a court may not in its discretion decline jurisdiction.

"Moreover, this is not a matter resting in the discretion of the trial judge, as seems to have been thought to be the case here. The facts either warrant the application of the Jones Act or they do not. Under 28 U.S.C. § 1331, once federal law is found applicable the court's power to adjudicate must be exercised."

Before attempting to apply the standards laid down in Lauritzen and Bartholomew to the facts of the instant suit, it is necessary to avert to an issue of fact raised by the motion papers.

The pleadings and affidavits indicate that there is no dispute as to the ownership and registry of the ship, but the complaint alleges that the ship's registry in Liberia is a "flag of convenience" and that Greenville, S.A. and Marifortuna Navegacion, S.A. are dummy corporations created by Chandris, London and Chandris, U.S.A. to circumvent the obligations imposed by American law. The defendants deny these allegations and assert by affidavit that all of the stockholders, officers and directors of Chandris, U.S.A. are Greek citizens residing in London or Greece, all of the stockholders and most of the directors of Chandris, London are likewise Greek citizens residing in London or Greece, none of the stock of Chandris, London is owned by Chandris, U.S.A. and that the stockholders, directors and officers of Greenville, S.A. are Greek citizens residing either in Greece or London.

Therefore, assuming arguendo, that the flag is one of convenience and that the two Panamanian corporations are merely dummies created for Chandris, London and Chandris, U.S.A., there is still no American beneficially interested in the activities of the ANGELIKI II.

An application of the criteria laid down in Lauritzen to the facts of this case establishes: the wrongful act was committed on the high seas; the ship flies the flag of Liberia; the injured owes...