Damigos v. Flanders Compania Naviera, SA-Panama

• Decision Date: 03 July 1989
• Docket Number: No. 88 Civ. 1121(PNL),87 Civ. 8988(PNL).,88 Civ. 1121(PNL)
• Citation: 716 F. Supp. 104
• Parties: Savas DAMIGOS, Efstathios Fatouros, Andreas Galatis, Dimitrios Gididis, Argyrios Grontis, Marinos Ioannou, Nikolaos Kardasis, Ch. Klaoudatos, D. Kosmatos, Konstantinos Kostopoulos, Efthimios Kouloumbis, Stavros Lefkopoulos, Stylianos Manousis, I. Mavrikos, Impi Memet, S. Mouzakitis, Nikodimos Oikonomou, Omer, Evangelos Palavakis, Ioannis Papaspyrou, A. Poulos, Constantine Rossidis, Sampri Serifoglou, P. Sgouros, Achilleas Skoutas, Lazaros Stamos, Koninos Stamou, Christos Spyros Stefanatos, Ali Tsaoussoglou, G. Tsouras, George Tzemopoulos, Stylianos Zacharioudakis, Georgios Zachos, I. Zoulfos, and the wives of the officers and seamen, including Irene Poulos, Plaintiffs, v. FLANDERS COMPANIA NAVIERA, S.A. — PANAMA, Atlantic Maritime Enterprises Corp., and T. Peter Pappas, Defendants. Vasilios VAVASSIS, et al., Plaintiffs, v. FLANDERS COMPANIA NAVIERA, S.A. — PANAMA, Atlantic Maritime Enterprises Corp., and T. Peter Pappas, Defendants.
• Court: U.S. District Court — Southern District of New York

716 F. Supp. 104

Savas DAMIGOS, Efstathios Fatouros, Andreas Galatis, Dimitrios Gididis, Argyrios Grontis, Marinos Ioannou, Nikolaos Kardasis, Ch. Klaoudatos, D. Kosmatos, Konstantinos Kostopoulos, Efthimios Kouloumbis, Stavros Lefkopoulos, Stylianos Manousis, I. Mavrikos, Impi Memet, S. Mouzakitis, Nikodimos Oikonomou, Omer, Evangelos Palavakis, Ioannis Papaspyrou, A. Poulos, Constantine Rossidis, Sampri Serifoglou, P. Sgouros, Achilleas Skoutas, Lazaros Stamos, Koninos Stamou, Christos Spyros Stefanatos, Ali Tsaoussoglou, G. Tsouras, George Tzemopoulos, Stylianos Zacharioudakis, Georgios Zachos, I. Zoulfos, and the wives of the officers and seamen, including Irene Poulos, Plaintiffs, v. FLANDERS COMPANIA NAVIERA, S.A. — PANAMA, Atlantic Maritime Enterprises Corp., and T. Peter Pappas, Defendants.

Vasilios VAVASSIS, et al., Plaintiffs, v. FLANDERS COMPANIA NAVIERA, S.A. — PANAMA, Atlantic Maritime Enterprises Corp., and T. Peter Pappas, Defendants.

Nos. 88 Civ. 1121(PNL), 87 Civ. 8988(PNL).

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

July 3, 1989.

Kreindler & Kreindler, New York City (Paul Edelman, of counsel), C. John Caskey, Baton Rouge, La., for plaintiffs.

Freehill, Hogan & Mahar, Patrick J. Bonner, New York City, for defendants.

OPINION AND ORDER

LEVAL, District Judge.

This consolidated action involves the claims of Greek seamen and their wives against Flanders Compania Naviera S.A. — Panama ("Flanders"), the owner of the M/T Tassia, Atlantic Maritime Enterprises Corp. S.A. ("Atlantic-Piraeus"), the vessel's operating agent located in Piraeus, Greece, Atlantic Maritime Enterprises Corp. ("Atlantic-US"), the United States agent for the vessel, and T. Peter Pappas, a shareholder and director of defendant corporations. The action arises out of the seizure of the Tassia and detention of its crew by Nigerian officials on February 25, 1985. Plaintiffs allege that defendants are liable under the Jones Act, 46 U.S.C. App. § 688, and general maritime law for failing to assure proper documentation, for dealing with an unreliable charterer, and for failing to come to the aid of plaintiffs when they were detained in Nigeria.

Defendants move (1) to dismiss for lack of jurisdiction based on a forum selection clause designating Greece as the exclusive forum for this action; (2) to dismiss as against Atlantic-US and Pappas for failure to state a claim; (3) for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to the twenty-five plaintiffs who executed general releases in favor of defendants; and (4) to transfer the action to Greece pursuant to the doctrine of forum non conveniens.¹

Background

The M/T Tassia is a Greek flag vessel registered in Piraeus, Greece. In 1985, the Tassia was owned by defendant Flanders, a Panamanian corporation, and was operated and managed by defendant Atlantic-Piraeus. Defendant Atlantic-US served as United States agent for the vessel. Sometime prior to February 16, 1985, a charter agreement was negotiated between the Tassia's broker, Rigos Chartering, which is located in New York, and Balkan-Orient-Handels GmbH, a German corporation. Pursuant to the charter agreement, the vessel sailed to Bonny, Nigeria to take on a cargo of crude oil to be delivered to the United Kingdom. The Tassia anchored in the Port of Bonny on February 16, 1985, where it awaited further orders. On or about February 25, 1985, before the vessel took on the oil cargo, Nigerian officials took control of the vessel and arrested the crew. The Government of Nigeria alleged that the vessel was attempting to illegally export crude oil from Nigeria.

According to plaintiffs, the vessel's officers were detained in Nigerian jails for nearly two years, threatened with the death penalty, ill fed, and exposed to malaria, dysentery, and profound mental stress; the crew was incarcerated for approximately eight months under similar conditions. Throughout this time, government officials of Nigeria and Greece and representatives of Atlantic-Piraeus met repeatedly to negotiate the release of the vessel and crew. Eventually, the crew, owners and charterers were exonerated from any charges against them relating to the export of oil. Plaintiffs were released and returned to Greece, where they were examined and treated by doctors for injuries and illnesses sustained while in prison.

On October 23, 1985, six of the plaintiffs filed suit in the Court of First Instance in Piraeus, and arrested the Tassia. On November 12, 1985, nineteen other plaintiffs filed suit, requesting the arrest of the vessel. As a result of settlement negotiations, plaintiffs signed general releases and received payment from Atlantic-Piraeus in settlement of their claims. Execution of the releases was witnessed by police officers at a local police precinct in Greece.

Discussion

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the United States Supreme Court held that dismissal of an action may be appropriate where trial in plaintiff's chosen forum will impose a great burden on the other parties or the court. The Court listed private and public interests as factors that district courts should balance in deciding whether to dismiss a case under the doctrine of forum non conveniens, including: plaintiffs' choice of forum; availability of compulsory process for attendance of unwilling witnesses; cost of obtaining attendance of willing witnesses; all other practical matters that make trial of a case easy, expeditious, and inexpensive; choice of law considerations; and the relationship of plaintiffs' chosen forum to the occurrences that give rise to the litigation. Id. at 508-09, 67 S.Ct. at 843; see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6, 102 S.Ct. 252, 258 n. 6, 70 L.Ed.2d 419 (1981). Consideration of these factors in this instance favors dismissal.

1. Plaintiffs' Choice of Forum

Generally, plaintiff's choice of forum is afforded great weight. Here, however, plaintiffs' choice is of less import. First, where plaintiff is foreign to the United States, plaintiff's choice of forum is entitled to less weight. Piper Aircraft Co. v. Reyno, 454 U.S. at 255, 102 S.Ct. at 265; Cruz v. Maritime Co., 549 F.Supp. 285, 289 (S.D.N.Y.1982), aff'd, 702 F.2d 47 (2d Cir. 1983). All plaintiff seamen and their wives are citizens and residents of Greece (with the exception of one plaintiff who resides in Cyprus), and have no connection to New York. They do not contend that the United States is a convenient forum for them.

Second, plaintiffs were parties to an agreement which contains a forum selection clause providing that any claims arising from their employment on board a Greek vessel are governed by Greek law and must be brought in a Greek court. The Greek Collective Bargaining Agreement (the "Agreement") is a collective bargaining agreement freely negotiated between the Greek Seaman's Union and the Pan Hellenic Seaman's Federation, a federation of owners of Greek flag vessels. The Agreement provides:

Individual contracts of employment, to which the present Collective Agreement applies, will be governed exclusively as to any claim or right, arising out of the seamen's employment and including claims on account of illness or accident, by the provisions of the present Collective Agreement and Greek Law ... and will be for decision by the Greek Authorities and the Greek Law.

Chapt. XX, ¶ 1 (citations to Greek law omitted).²

Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). Enforcement may be unreasonable where the opposing party establishes fraud or overreaching bargaining power, where enforcement would violate strong public policy of the forum in which the action is brought, or where serious inconvenience or unfairness would result. See The Bremen v. Zapata Off-Shore Co., 407 U.S. at 12-16, 92 S.Ct. at 1914-17. None of these factors exist here.³

Plaintiffs contend that the exclusive jurisdiction of the Greek courts does not apply and Greek law does not govern where the lawsuit arises out of facts occurring outside of Greece. The language of the Agreement does not make any distinction with respect to occurrences outside of Greece, and there is little support for plaintiffs' proposition. Because the contract governs the employment of seamen, it was undoubtedly foreseen that disputes might well involve occurrences outside of Greece. The failure of the contract to distinguish them rather suggests they were intended to be covered by its terms. Regardless of whether the forum selection clause applies in this case, the fact that plaintiffs agreed to bring all suits in Greece further reduces the weight that should be given plaintiffs' choice of forum and further supports dismissal of this action.

2. Non-Party Witnesses

The parties agree that this will be a lengthy trial and will involve many non-party witnesses. Nearly all of the non-party witnesses are Greek citizens and reside in Greece. Of the six crew members who have chosen not to sue, but are likely witnesses, five are residents of Greece, and one resides in England. The attorneys who negotiated the releases in the Greek action reside and work in Greece. The seven police officers who witnessed the signing of the releases are all in Greece. A number of high ranking Greek diplomats and officials from the Ministry of Merchant Marine carried on extensive negotiations with the Nigerian government. The representatives of Atlantic-Piraeus who attended the negotiations in Piraeus are citizens of Greece. Two Greek citizens and residents traveled to Nigeria on behalf of Atlantic-Piraeus. A number of Greek relatives of crew members went to Nigeria at Atlantic-Piraeus' expense to visit their imprisoned relatives. Ten doctors, all located in Greece, examined or treated ...