Ioannides v. Marika Maritime Corp.

• Decision Date: 12 June 1996
• Docket Number: 95 Civ. 1795 (LAK).
• Citation: Ioannides v. Marika Maritime Corp., 928 F.Supp. 374 (S.D. N.Y. 1996)
• Parties: Ekaterini IOANNIDES, Individually, and as Personal Representative of the Estate of Dimitrios Ioannides, Deceased, et al., Plaintiffs, v. MARIKA MARITIME CORP., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

928 F. Supp. 374

Ekaterini IOANNIDES, Individually, and as Personal Representative of the Estate of Dimitrios Ioannides, Deceased, et al., Plaintiffs, v.MARIKA MARITIME CORP., et al., Defendants.

95 Civ. 1795 (LAK).

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

June 12, 1996.

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

Patrick J. Bonner, Freehill, Hogan & Mahar, New York City, for DefendantsMarika Maritime Corp., Astron Management Corp., Atlantic Maritime Enterprises, S.A. and Thomas Peter Pappas.

Michael D. Wilson, Michael J. Walsh, Pamela L. Milgrim, Kirlin, Campbell & Keating, New York City, for Defendant American Bureau of Shipping.

MEMORANDUM OPINION

KAPLAN, District Judge.

On New Year's Day 1994, the M/V MARIKA foundered and sank in international waters some 700 miles east of Newfoundland with the loss of all hands.Plaintiffs — relatives and the personal representatives of five deceased crew members, all of whom were Greek nationals — here seek to recover under the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761 et seq., the Jones Act, 46 U.S.C. § 688, and the general maritime law against the vessel's owner, others affiliated with it, and the American Bureau of Shipping ("ABS") on various theories.The defendants move to dismiss the action under the doctrine of forum non conveniens and, in some instances, on other bases.

Facts

Parties

The plaintiffs, as noted, all are Greek nationals and family members of seamen who died in the sinking.They sue both individually and as personal representatives of the decedents.

DefendantMarika Maritime Corp.("Marika") is a Liberian corporation which is alleged to have owned and operated the M/V MARIKA at all relevant times.(Cpt¶¶ 2, 6-7)It employed the crew, including plaintiffs' decedents.(De LucaAff. ¶ 8)It is important to note that the MARIKA did not carry cargo to or from, or engage in trade in, the United States while owned by Marika.(Id.¶ 7)DefendantsAtlantic Maritime Enterprises, S.A.("Atlantic") and Astron Management Corp.("Astron"), which are Greek and Connecticut corporations respectively, both performed various tasks and functions for Marika including assisting with financing, chartering, crewing, engineering and day-today operations.(BonnerAff. ¶ 4)Atlantic, which has an office in the Greek port of Piraeus, handled crewing matters, maintenance, repairs, surveys and insurance matters.Astron was involved in financing and chartering.(De LucaAff. ¶¶ 3-4)Thomas Peter Pappas is a Greenwich, Connecticut, resident who is alleged to control, and to be the alter ego of, Atlantic, Astron and Marika.(Cpt¶ 13)

ABS is a not-for-profit classification society created in 1862 by act of the New York Legislature for the purpose of promoting the security of life and property at sea.¹(BourneufAff. ¶ 2)It has offices in more than eighty countries around the world, including an office in Piraeus, Greece.(Id.)It establishes and administers standards for plan review, construction survey and periodic survey of merchant ships and other marine vessels and structures.(Id.)

The Events Here At Issue

The last major repairs to the MARIKA were made during the period March 12 through April 16, 1993 in Piraeus (KopsinisAff. ¶ 9) at which time Dimitrios Lambros and Christos Nomikos, surveyors in ABS's Piraeus office, conducted several classification and statutory surveys² aboard the MARIKA.(BessisDecl. ¶¶ 3, 19)Vasilios Spyridonos of Atlantic was present on behalf of Atlantic.(Id.¶ 5)Assodivers, I & T Kalogeridis, Ultratest Marine Technical Bureau, and Electromarine Co. of Piraeus — all based in Piraeus, Greece — performed repairs on the vessel or assisted ABS.(Id.¶¶ 6-20;KopsinisAff. ¶¶ 9-14)

The plaintiffs, to the extent revealed by the record, all signed on to the MARIKA in Piraeus at various dates on or after December 7, 1992.All entered into contracts of employment with Marika which were expressly subject in certain respects to the Greek Collective Agreement, a collective bargaining agreement,³ and which provided that Greek law governed and "absolutely prohibited" recourse to courts of countries other than Greece.(KopsinisAff. ¶ 6 & Exs. B1, B2)

On December 24, 1993, the MARIKA loaded 140,000 metric tons of iron ore at Seven Islands, Canada, and sailed for Ijmuiden, the Netherlands, on December 27, 1993.(Cpt¶ 25)As noted, the ship was lost with all hands on January 1, 1994.(Id.¶ 26)

Shortly after the sinking, the vessel's owners, operators, agents and insurers engaged Spyridon Karakitsos, an attorney and partner in the Greek law firm Deucalion Rediadis and Sons.Karakitsos promptly negotiated settlements and obtained releases from three of the five plaintiffs in this case.As a portion of each settlement was allocated to claims under Greek Workers Compensation Law, each was approved by the Greek court.The settlements ranged from the U.S. dollar equivalents of $113,300 to $255,000.(KarakitsosDecl. ¶¶ 1-20)Plaintiffs now dispute the enforceability of the releases they gave.

This Action

Plaintiffs commenced this action in this Court in 1995.They seek recovery on the theory that the defendants were negligent in sailing the MARIKA into the North Atlantic in January and in failing to keep her in good repair (am cpt ¶ 28), that she was unseaworthy (id.¶ 29), and that ABS was negligent in surveying the vessel and in allowing it to sail into the North Atlantic in January (id.¶ 30).⁴

Discussion

Defendants' forum non conveniens motion proceeds in significant part from the premise that the crux of this action is the events that occurred, or did not occur, when the MARIKA was in Piraeus in March and April 1993 for survey and repair.All of the witnesses to those events, many of whom are not parties, as well as the plaintiffs, are in Greece.The Court, they point out, cannot compel any of the non-parties to come to New York for trial, and the cost of bringing any witnesses willing to appear would be exorbitant.They rely on the forum selection and choice of law clauses in the decedents' employment contracts.They argue also that Greece has a far stronger interest in this matter than the United States, that the action is governed by Greek law, and that the Court should not needlessly undertake difficult choice of law issues that could be avoided by a forum non conveniens dismissal.

Plaintiffs perspective, not surprisingly, is entirely different.Although tacitly conceding the centrality of the events in Piraeus and the fact that the witnesses to those events all are in Greece, they contend that the MARIKA was owned and operated by the Pappas interests — Pappas, Astron, Atlantic and Marika — from a base in the New York area and flew the Liberian flag merely as a matter of convenience.They seek also to portray Pappas as an unscrupulous operator whose ships have had a dismal safety record and who seeks to hide behind a shield of foreign law.They therefore emphasize their contention that needed repairs were not made, presumably at the direction of Pappas or his New York area colleagues.They contend that U.S. law governs the matter, placing heavy reliance on Hellenic Lines Ltd. v. Rhoditis,398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252(1970).And they contend that the forum selection clause in the employment contracts is void under European law.

The principles articulated in Gulf Oil Co. v. Gilbert,330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055(1947), govern defendants' forum non conveniens motion notwithstanding that this is a maritime case in which a Jones Act claim is asserted.Cruz v. Maritime Co. of Philippines,702 F.2d 47, 48(2d Cir.1983);⁵Alcoa S.S. Co. v. M/V Nordic Regent,654 F.2d 147, 153, 159(2d Cir.), cert. denied,449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116(1980).The Court must make a threshold determination whether an alternative forum exists in which the case may be heard.E.g., Piper Aircraft Co. v. Reyno,454 U.S. 235, 254 n. 2, 102 S.Ct. 252, 265 n. 2, 70 L.Ed.2d 419(1981);seeGilbert,330 U.S. at 506-07, 67 S.Ct. at 842-43.Assuming there is such a forum, the Court then must balance a series of private and public interests in determining whether to retain the case or dismiss it in favor of an alternative forum:

"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.There may also be questions as to the enforceability of a judgment if one is obtained.The court will weigh relative advantages and obstacles to fair trial.It is often said that the plaintiff may not, by choice of an inconvenient forum, `vex', `harass', or `oppress'the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

"Factors of public interests also have a place in applying the doctrine.Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin.Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only.There is a local interest in having localized controversies decided at home.There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum

...