Karvelis v. Constellation Lines S.A.

• Decision Date: 21 November 1986
• Docket Number: D,No. 99,99
• Citation: Karvelis v. Constellation Lines S.A., 806 F.2d 49 (2nd Cir. 1986)
• Parties: George KARVELIS, Plaintiff-Appellee, v. CONSTELLATION LINES S.A., Entemar Shipping Co., S.A., Constellation Lines, Inc., and Constellation Navigation, Inc., as agent for Constellation Lines S.A., Entemar Shipping Co., S.A., and Constellation Navigation, Inc., Defendants. Appeal of CONSTELLATION LINES S.A. and Entemar Shipping Co., S.A., Defendants- Appellants. ocket 86-7418.
• Court: U.S. Court of Appeals — Second Circuit

Page 49

806 F.2d 49

1987 A.M.C. 616

George KARVELIS, Plaintiff-Appellee, v.CONSTELLATION LINES S.A., Entemar Shipping Co., S.A.Constellation Lines, Inc., and Constellation Navigation Inc., as agent for Constellation Lines S.A., Entemar Shipping Co., S.A., and Constellation Navigation, Inc., DefendantsAppeal of CONSTELLATION LINES S.A. and Entemar Shipping Co S.A., Defendants- Appellants.

No. 99, Docket 86-7418.

United States Court of Appeals, Second Circuit.

Argued Sept. 17, 1986.

Decided Nov. 21, 1986.

William M. Kimball, New York City(John J. Walsh, Freehill, Hogan & Mahar, New York City, of counsel), for defendants-appellants.

Jethro M. Eisenstein, New York City(Harvey J. Kaufman, Paul K. Feldman, Meyers, Tersigni, Kaufman, Lurie, Feldman & Gray, Friedman & Eisenstein, New York City, of counsel), for plaintiff-appellee.

Before OAKES, MINER and MAHONEY, Circuit Judges.

OAKES, Circuit Judge:

The operator and owner of a Greek-flag vessel, Constellation Lines S.A.("Constellation") and Entemar Shipping Co., S.A.("Entemar") respectively, appeal a judgment after a jury verdict in favor of a Greek seaman, George Karvelis, who was injured while working aboard the vessel Constellation Enterprise.The United States District Court for the Southern District of New York, Robert L. Carter, Judge, entered judgment for $300,000 on Karvelis's claims of negligence under the Jones Act, 46 U.S.C. Sec. 688(1982), and unseaworthiness under general maritime law.The jury expressly found Karvelis not contributorily negligent.Entemar and Constellation argue on appeal that the district court lacked subject matter jurisdiction, that the identity of any Jones Act employer of Karvelis was a jury question, that only the shipowner, Entemar, could be liable under general maritime law for unseaworthiness, that Judge Carter erroneously charged and failed to charge the jury in connection with contributory negligence, and that there must be a new trial if any of the defendants' directed verdict motions to dismiss the unseaworthiness and negligence claims for insufficient proof should have been granted.We affirm.

Applying the tests laid down by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254(1953), andHellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252(1970), the district court looked behind "the facade of the operation,"Hellenic Lines, 398 U.S. at 310, 90 S.Ct. at 1734, toward "the actual operational contacts that this ship and this owner have with the United States,"id., to hold that there was Jones Act jurisdiction.Karvelis v. Constellation Lines S.A., 608 F.Supp. 966, 971(S.D.N.Y.1985).For the reasons stated in Judge Carter's opinion, id. at 968-71, and on the facts set forth therein, we agree that there was subject matter jurisdiction under the Jones Act.While the appellants' brief does not make the suggestion, their oral argument was to the effect that with the changing composition of the United States Supreme Court since the decision in Hellenic Lines, that case and the "operational gloss" it put on the Lauritzen test, 398 U.S. at 308-10, 90 S.Ct. at 1733-34, would not now be credited by the Supreme Court.We decline the exercise.Appellants have pointed to no case, no commentaries, no statutes, and no authorities that would lead us to believe that the Supreme Court has overruled Hellenic Lines sub silentio or would do so were it given the opportunity.Cf.Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347(2d Cir.1985)(rejecting the argument that Keogh v. Chicago & Northwestern Railway, 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183(1922), had been overruled), aff'd, --- U.S. ----, 106 S.Ct. 1922, 90 L.Ed.2d 413(1986).

Constellation was found liable for negligence under the Jones Act and both Constellation and Entemar were found liable under the general maritime law.Appellants argue that the identity of Karvelis's employer for Jones Act purposes is a jury question and that it was error to charge that Constellation was the employer as a matter of law.Then appellants argue that only a ship's owner may be liable under general maritime law for unseaworthiness, that Entemar is the owner, and that Constellation should not have been held liable because it was merely the ship's nonowning operator.These arguments, side by side, plunge us into the Serbonian Bog, see J. Milton, Paradise Lost, Book II, line 592 (1667);Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 499, 54 S.Ct. 461, 463, 78 L.Ed. 934(1934), (Cardozo, J., dissenting);Diematic Manufacturing Corp. v. Packaging Industries, Inc., 516 F.2d 975, 978(2d Cir.)(Mulligan, J.), cert. denied, 423 U.S. 913, 96 S.Ct. 217, 46 L.Ed.2d 141(1975), that is the law relating to a seaman's recovery for death and injury.We use this term advisedly, for the leading commentators refer in their treatise to the fact that "[t]he perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review."G. Gilmore & C. Black, The Law of AdmiraltySec. 6-1, at 272 (2d ed. 1975).The title of another commentator's article bears this out.See Currie, Federalism and the Admiralty: "The Devil's Own Mess,"1960 Sup.Ct.Rev. 158.As Gilmore and Black point out,

The Jones Act count and the unseaworthiness count overlap completely: they derive from the same accident and look toward the same recovery.As a matter of jurisprudential elegance or even of common sense it would have been desirable (and would still be desirable) to abandon the cumbersome fiction that two causes of action are involved and to restate the seaman's cause of action for death or injury as being what it is.That has not been done and, in all probability, will never be done.After ten or fifteen years of confusion the admiralty lawyers and the admiralty judges came to understand that the Jones Act count and the unseaworthiness count are Siamese twins.The only danger here is the possibility that a non-admiralty lawyer will be retained to handle such a case or that a non-admiralty judge will be called on to decide one.

G. Gilmore & C. Black, supra, Sec. 6-38, at 383.

Presented with the "Siamese twins,"we do nevertheless have to examine each one, for no election between the counts is required and the Supreme Court, at least in its last five-to-four vote on the issue, maintains that "the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence."Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562(1971);see alsoMitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941(1960).

Considering first the Jones Act count, our court has held that only an employer can be liable under the Jones Act.Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473(2d Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667(1974);see alsoMahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 170(2d Cir.1973).But seeG. Gilmore & C. Black, supra, Sec. 6-21(a), at 338-39(recommending reconsideration of the assumption that the only possible Jones Actdefendant is a single employer).We believe that Judge Carter did not err when he decided that Constellation was Karvelis's employer rather than put the question as to who was the employer to the jury.The facts that defendant's answer to plaintiff's Interrogatory 50 stated that Entemar was the employer and that the employment contract on Constellation's form identified Entemar as the shipowner (from which it might be implied that Entemar was the employer, seeFitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 674 n. 2(2d Cir.1971)) are irrelevant.Exhibit 1, Karvelis's employment contract, was on Constellation's form, as were his wage receipts.Constellation managed the ship and operated it, chartering the vessel.It paid for Karvelis's transportation from Greece to the United States to join the ship.In the circumstances, there was no sufficient evidence to go to the jury that Entemar, rather than Constellation, was the employer.

We turn next to appellants' argument that Constellation was not the owner and so could not be liable on the unseaworthiness count.There is language in the opinions that the obligation of seaworthiness is "peculiarly and exclusively the obligation of the owner [and] one he cannot delegate."Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100, 66 S.Ct. 872, 880, 90 L.Ed. 1099(1946).But in Reed v. The Yaka, 373 U.S. 410, 412-13, 83 S.Ct. 1349, 1351-52, 10 L.Ed.2d 448(1963), the Court held that a bareboat charterer, being in "full possession and control" of a vessel, may be treated as an owner, "generally called owner pro hac vice," and may be personally liable for the unseaworthiness of a chartered vessel.In this case, though Entemar was the record owner with title to the vessel, Constellation was much more than a mere time or voyage charterer.The district court held that Constellation also operated and managed the vessel at the time Karvelis sustained his injury.As operator, manager, and charterer, Constellation had such control and possession of the vessel as to be its owner pro hac vice.Seeid.;Eskine v. United Barge Co., 484 F.2d 1194, 1196(5th Cir.1973).Hence, Constellation could properly be held liable on the unseaworthiness count.

The district court indicated in accordance with Fed.R.Civ.P. 51 that it would charge at least the substance of the defendant's contributory negligence requests 19, 20, 22, and 23, which read as set forth in the margin.¹Appellants claim that it did not do so.We disagree.The court's charge, also set forth in the margin, ² does so in substance.

Entemar and Constellation were represented at trial by the same counsel, William M. Kimball, Esquire.He moved on behalf of Entemar to dismiss any...