Karakatsanis v. Conquestador Cia. Nav., SA

• Decision Date: 15 February 1965
• Parties: Nicolaos KARAKATSANIS, Plaintiff, v. CONQUESTADOR CIA. NAV., S.A., A. Lusi Ltd., Argonaut Trading Agency, Inc., and Ocean Freight & Brokerage, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

247 F. Supp. 423

Nicolaos KARAKATSANIS, Plaintiff, v. CONQUESTADOR CIA. NAV., S.A., A. Lusi Ltd., Argonaut Trading Agency, Inc., and Ocean Freight & Brokerage, Inc., Defendants.

United States District Court S. D. New York.

February 15, 1965.

George Spiros, New York City, for plaintiff.

Poles, Tublin & Patestides, New York City, for defendants.

McLEAN, District Judge.

This is an action at law by a Greek seaman to recover damages for personal injuries which he allegedly sustained on September 26, 1963 while he was employed aboard the S. S. Constantinos, a vessel of Greek flag and registry, owned by a Panamanian corporation. The vessel was in navigable waters off Tampa, Florida, at the time of the accident.

The complaint alleges that plaintiff is a Greek national, that defendant Conquestador Cia. Nav., S.A. ("Conquestador") is a Panamanian corporation, that defendant A. Lusi Ltd. ("Lusi") is a British corporation, and that defendants Argonaut Trading Agency, Inc. ("Argonaut"), and Ocean Freight & Brokerage, Inc. ("Ocean") are New York corporations. It alleges further (Paragraph Fifth) that "the defendants owned, operated, managed and controlled a certain vessel known as the S. S. Constantinos." It also alleges (Paragraph Sixth) that "all of the defendants and each of them had a principal place for the regular transaction of business in the Borough of Manhattan, City and State of New York, or agents authorized to represent the defendants for the regular transaction of business."

Jurisdiction of the subject matter of this action is alleged to be founded on the Jones Act, the "General Maritime Law," and diversity of citizenship of the parties.

Defendants move to dismiss the action on the grounds of (1) lack of jurisdiction over the persons of defendants Conquestador and Lusi, (2) lack of jurisdiction over the subject matter, and (3) forum non conveniens. The motion is supported by a number of affidavits, i. e., affidavits of an officer of Conquestador, a director of Lusi, an officer of Argonaut, an officer of Ocean, a director of the Greek Shipping Agency, Ltd., an American lawyer and a Greek lawyer. In opposition to this array, we have only an affidavit signed by plaintiff, who obviously has no personal knowledge as to the relationship among the corporate defendants. His affidavit contains no facts, as distinguished from conclusions, to support the allegations of Paragraphs Fifth and Sixth of his complaint quoted above. The facts disclosed by the moving affidavits are as follows:

Conquestador is a Panamanian corporation. Its officers, directors and stockholders are Greeks, residing in Greece. Its principal place of business is in Athens. It also has an office in Panama City. It owns the S. S. Constantinos, a tramp steamer.

Lusi is a British corporation. Its directors reside in London. None of its directors or stockholders resides in the United States or is a citizen of the United States. The office of the corporation is in London. It is general agent of Conquestador and as such manages and directs the operations of the Constantinos.

From September 22, 1963 to September 29, 1964, the Constantinos traded about the world. During the course of that year it touched twice at American ports, at Tampa, Florida, in September 1963, when plaintiff's accident allegedly occurred, and at Houston, Texas, in September 1964.

Argonaut is a New York corporation. Its office is in New York. Its business is that of a "shipping agent." When vessels managed by Lusi call at American ports, Argonaut, at the request of Lusi, acts "as local agent" for the vessel. When the Constantinos called at Tampa in September 1963, Argonaut arranged for a "subagent" in Tampa to attend to "the customary formalities and matters dealing with the normal business of the vessel" in that port. It does not appear what, if anything, Argonaut did when the Constantinos called at Houston in September 1964. Argonaut is not authorized to accept service of process on behalf of Conquestador or Lusi.

Ocean is a New York corporation. Its office is in New York. It is in the business of "chartering brokers." It arranges for chartering American and foreign vessels. "On occasion," just when does not appear, it has arranged for chartering the Constantinos. It has never operated or managed that vessel. It is not authorized to accept service of process on behalf of Conquestador or Lusi.

Plaintiff is a Greek national. On November 17, 1962, at Pylos, Greece, he signed a contract of employment, under which he undertook to serve as a seaman on the Constantinos. On November 18, 1962, at Pylos, he signed the ship's articles. Both the contract and the articles provide that his employment was upon the terms of the Greek collective bargaining agreement applicable to Greek seamen. That agreement provides:

"1. Individual contracts of employment, on which the present Collective Agreement applies, will be governed exclusively as to any claim or right arising out of the seafarer's employment, including claims on account of illness or accident, by the provisions of the present Collective Agreement and Greek Law, being judged exclusively by the competent Greek Authorities and Greek Law Courts, resort to any foreign Courts and to any foreign law being prohibited and expressly ruled out."

Greek law provides some remedy for Greek seamen who are injured in the course of their employment. From the affidavit of the Greek lawyer submitted by defendants, it would appear that this remedy in essence is similar to workmen's compensation, with some right of election, under certain circumstances, to sue for a larger sum.

Plaintiff left the Constantinos on October 3, 1963, at Tampa, Florida, and was admitted to a hospital there. A Tampa doctor recommended that he be returned to Greece for appropriate medical care. Argonaut undertook to arrange this. Plaintiff was sent to New York so that he could be shipped from New York to Greece. Such a course was manifestly unacceptable to plaintiff. A series of incidents took place involving a stay in a New York hospital and alleged restraint of plaintiff in a straitjacket. The net upshot is that plaintiff has not gone back to Greece and is still in New York. Plaintiff claims that he is now a New York resident. Defendants say that, on the contrary, he is merely sojourning in this country as an alien seaman at the sufferance of the immigration authorities, subject to deportation whenever they so require.

The purported service of process upon defendants Conquestador and Lusi was made by delivering copies of the summons and complaint, on October 20, 1964, to the president of Argonaut. Defendants Conquestador and Lusi assert, as the first ground of their motion, that this was not a valid service as to them because they were not doing business in New York so as to be subject to the jurisdiction of this court.

In Frank v. N. V. Stoomv. Maatz. "Ootzee", 63 Civ. 2743, decided March 16, 1964 (unreported), I had occasion to write briefly on the subject of the doing of business in this country by foreign steamship companies whose vessels call at American ports. As I there pointed out, the question turns upon the regularity and frequency with which the vessels call here, and the nature and extent of the activities of the "local agent" here on their part. I consider the moving affidavits in the present case insufficient to disclose all the facts which are relevant to this issue. Nothing is said, for example, as to how often the Constantinos has called at New York, or what Argonaut has or has not done when she called here. Argonaut's affidavit is silent as to what, if anything, it did on defendant's behalf when the vessel called...