Gazis v. John S. Latsis (USA) Inc.
| Decision Date | 30 January 1990 |
| Docket Number | No. 87 Civ. 5310 (CHT).,87 Civ. 5310 (CHT). |
| Citation | 729 F. Supp. 979 |
| Parties | Maria GAZIS, Individually, and on behalf of her Minor Children, Gerasimos Gazis and Theodoros Gazis, and as Personal Representative of the Estate of Nikolaos Gazis, Plaintiff, v. JOHN S. LATSIS (USA) INC., John Latsis, Hermes Shipping & Trading Corp., S.A. Panama, and the M/T LADY EMA, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Kreindler & Kreindler, New York City (Paul S. Edelman, of counsel), for plaintiff.
Cardillo & Corbett, New York City (Christophil B. Costas, of counsel), for defendant John S. Latsis (USA) Inc.
Freehill, Hogan & Mahar, New York City (John J. Walsh and Kevin J. Keelan, of counsel), for defendants John Latsis and Hermes Shipping & Trading Corp., S.A. Panama.
This case is brought pursuant to the Jones Act, 46 U.S.C. § 688 (1982), and the general maritime law of the United States. Defendants John Latsis ("John Latsis") and Hermes Shipping & Trading Corp., S.A. Panama ("Hermes"), have moved to dismiss for lack of personal jurisdiction and forum non conveniens. John Latsis and John S. Latsis (USA), Inc. ("Latsis (USA)"), have also moved to dismiss for failure to state a claim upon which relief may be granted. In addition, defendants have requested a stay of this action pending the outcome of a declaratory proceeding commenced by Hermes in Greece. For the reasons set forth below, all of defendants' motions are denied.
In 1984, Nikolaos Gazis, a Greek citizen, was serving as an apprentice master aboard the Greek flag vessel, LADY EMA. On December 27, 1984, the LADY EMA was docked at the port of Amsterdam, Holland. Gazis fell on the deck of the ship while making the gangway fast and sustained various injuries. He was taken to a hospital in Amsterdam and died approximately four days later. His estate has asserted several tort claims against defendants based on the Jones Act and general maritime law.
The LADY EMA is owned by Hermes, a Panamanian corporation, and managed on a day-to-day basis by Bilander Marine Corporation ("Bilander"), a Greek company. Most of the crew of the LADY EMA are Greek. Plaintiff contends that Hermes is the owner of the LADY EMA, but that it jointly operates the ship with Latsis (USA), a United States corporation. Plaintiff also contends that John Latsis is the owner of Hermes and Latsis (USA), and is therefore the ship's "beneficial owner." Defendants have admitted that Hermes is the owner of the LADY EMA but have denied that John Latsis or Latsis (USA) have any association with Hermes or the ship.
The resolution of many of defendants' motions turns on whether Latsis (USA) or John Latsis are in some way connected to the LADY EMA and whether this connection stems from dealings in the United States. These determinations control whether this court has personal jurisdiction over John Latsis, whether it has subject matter jurisdiction over John Latsis and Latsis (USA), and whether this is an inconvenient forum. The evidence on record relating to John Latsis and Latsis (USA) is a mixture of pleaded allegations and facts contained in sworn affidavits. The contentions and denials are set forth in the following chart. Contentions sworn to in affidavits or affirmations, see Affidavit of Vassiliki Armogeni, sworn to March 16, 1988 ("Armogeni Aff."); Affidavit of Basil Gregory, sworn to March 18, 1988 ("Gregory Aff."); Affirmation of Paul S. Edelman, Esq., dated March 29, 1988 ("Edelman Aff. I"); Affirmation of Paul S. Edelman, Esq., dated March 31, 1988 ("Edelman Aff. II"), or provided pursuant to Local Rule 3(g) of this District, see Statement of John J. Walsh, Esq., dated March 31, 1988 ("3(g) Statement"), are indicated in bold face.
PLAINTIFF DEFENDANT
Latsis (USA)
1. Latsis (USA) is the operator of the 1. Latsis (USA) never operated the
LADY EMA (Complaint ¶ 6). LADY EMA (Gregory Aff. ¶ 3)
2. Latsis (USA) is the agent of Hermes 2. Hermes never used Latsis (USA) as
in the US (Complaint ¶ 6). an agent (Armogeni Aff. ¶ 6)
3. Latsis (USA) is the employer of Gazis 3. Latsis (USA) never employed Gazis
(Complaint ¶ 7). (Gregory Aff. ¶ 3)
4. Latsis (USA) is the agent of John Latsis 4. Denied (Latsis (USA) Answer ¶ 2
in the US (Complaint ¶ 6). John Latsis/Hermes Answer ¶ 1)
5. Latsis (USA) is located in Petrola 5. Unsworn hearsay described in affidavit
House; the shipping community understands stating "Latsis (USA) is not involved
Petrola to be a contraction with shipping in general"
of Petroleum and Latsis (Edelman (Gregory Aff. ¶ 3).
Aff. II).
John Latsis
6. John Latsis is the beneficial owner of 6. No denial.
Hermes (Complaint ¶ 14).
7. John Latsis is the beneficial owner of 7. John Latsis "neither owns, operates,
the LADY EMA (Complaint ¶ 14). or charters the LADY EMA" (3(g)
Statement ¶ 9).
8. John Latsis controls a large shipping 8. John Latsis "neither owns, operates,
operation from Petrola House, believed or charters the LADY EMA" (3(g)
to include the LADY EMA Statement ¶ 9).
(Edelman Aff. I).
9. John Latsis owns 100% of the stock 9. No denial.
in Latsis (USA) (Edelman Aff. II).
10. John Latsis resides in the United 10. "John Latsis is a citizen and resident
States (Complaint ¶ 11). of Greece" (3(g) Statement ¶ 9).
The Jones Act confers jurisdiction over a "defendant employer" on whose boat a seaman has been injured. 46 U.S.C. § 688(a). For a defendant to be held liable under the Jones Act, the plaintiff must show that defendant is the plaintiff's employer. See, e.g., Spinks v. Chevron, 507 F.2d 216, 224 (5th Cir.1975); Tsakonites v. Transpacific Carriers Corp., 246 F.Supp. 634, 641 (S.D.N.Y.1965), aff'd 368 F.2d 426 (2d Cir.1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 434 (1967). Latsis (USA) claims that plaintiff has failed to show any connection between Latsis (USA) and the LADY EMA, and therefore it cannot be the employer of Gazis.1 Plaintiff has pleaded in its complaint that: (1) Latsis (USA) is the operator of the LADY EMA; (2) Latsis (USA) is the U.S. agent of Hermes; and (3) Latsis (USA) is the employer of Gazis. Each of these assertions has been directly refuted by the sworn statements of Mrs. Armogeni, an employee of Hermes, and by Basil Gregory, the president of Latsis (USA).
On the other hand, Latsis (USA) did not directly refute an assertion by plaintiff's attorney that it is located in the "Petrola House" in New York City, which the shipping community understands to be a contraction of Petroleum and Latsis. In his affidavit, Mr. Gregory stated only that he heard another employee of Latsis (USA) inform plaintiff's counsel that Latsis (USA) is "not involved in shipping in general." As this is clearly hearsay, it is given very little weight by the court. Further, this vague denial does not shed much light on what Latsis (USA) does and why the shipping community might have knowledge about it. Plaintiff's attorney also submitted an affidavit in which he states that John Latsis operates a large shipping operation out of Petrola House "believed to include" the LADY EMA, and that John Latsis owns 100% of Latsis (USA). John Latsis' statement that he "neither owns, operates, nor charters the LADY EMA" does not address plaintiff's assertions about other shipping activities in Petrola House. Therefore, they are deemed to be denied, leaving them issues of fact. See Fed.R.Civ.P. 8(d). Moreover, John Latsis has not denied plaintiff's contention that he is the beneficial owner of Hermes, the admitted owner of the ship. In a summary judgment motion, the court is required to resolve all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). On this combination of facts, it is reasonable to infer that John Latsis and Latsis (USA) are generally involved in shipping in the United States, although the issue remains to be resolved.
Normally, when a motion for summary judgment is supported by affidavits, the adverse party may not rest upon the "mere allegations or denials of his pleading" but must provide affidavits setting forth specific facts showing that there are triable issues in the case. Fed.R.Civ.P. 56(e). The purpose of the summary judgment procedure is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Id. Advisory Committee's Note. However, before summary judgment will be granted, it must be "quite clear what the truth is." Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). In this case, although Latsis (USA) responded directly to plaintiff's major contentions, it has not sufficiently refuted others, leaving the record unclear as to the relationship between the various defendants. Therefore, summary judgment is inappropriate.
Further, summary judgment is generally improper where the party opposing the motion has not had the opportunity to discover potentially controlling evidence. Ryder Energy Distrib. v. Merrill Lynch Commod. Inc., 748 F.2d 774, 779 (2d Cir. 1984); Schering Corp. v. Homes Ins. Co., 712 F.2d 4, 9-10 (2d Cir.1983); See Nunez-Lozano v. Rederi, 634 F.2d 135, 137 (5th Cir.1980) (...
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