Kyriakos v. Goulandris, 340.

• Decision Date: 03 August 1945
• Docket Number: No. 340.,340.
• Citation: 151 F.2d 132
• Parties: KYRIAKOS v. GOULANDRIS et al.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 132 (1945)

KYRIAKOS v. GOULANDRIS et al.

No. 340.

Circuit Court of Appeals, Second Circuit.

August 3, 1945.

COPYRIGHT MATERIAL OMITTED

Reid, Cunningham & Freehill, of New York City (Frederick H. Cunningham, of New York City, of counsel), for respondents-appellants.

Arkin, Lebovici & Kottler, of New York City (Joseph Kottler and Edward Arkin, both of New York City, of counsel), for libelant-appellee.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The libellant signed articles in New York City in March, 1941, for a voyage from Newport News to England and back to the United States. He was engaged with several others at the offices of the Greek Line pursuant to orders from the captain of the Theomitor. The Greek Line paid the expenses of his transportation to Newport News, where he joined the ship, and also some of the medical expenses incurred as a result of the assault which gave rise to this action, out of the funds of Hellas. Hellas was the agent for the ship and the respondents Basil, Nicholas and Leonidas Goulandris controlled that firm. The Greek Line was liable as agent for an undisclosed principal.

The general agent and manager of the Greek Line testified that Hellas was the Greek Line's principal for all ships, that he looked to it as such and cleared all money with it. Undoubtedly this was sufficient to establish the liability of Hellas as the general agent controlling the Theomitor for libellant's claims if otherwise well founded. But as to Basil, Nicholas and Leonidas Goulandris, doing business as Goulandris Bros., there was not sufficient evidence to hold them either individually or collectively. If it be conceded that they owned the stock of Hellas or of the Greek Line, this would not render them personally liable. There is no evidence that these corporations were sham or fraudulent. It is true that the captain of the Theomitor listed the ship with the Customs Service at Fernandina as owned by "Goulandris Bros." It appears from his testimony that he probably meant Goulandris Bros. Ltd. London, a corporation not here sued, rather than the copartnership. There was no evidence sufficient to establish liability on the part of the partnership or its individual members.

The claims asserted by the libellant arose out of injuries resulting from an assault of the libellant by one George Bouritis. The latter was hired in New York by the Greek Line, made the trip to Newport News, and joined the ship at the same time as the libellant. Before the ship sailed, libellant and others saw Bouritis smoking what he said was hasheesh; while he smoked he sang, danced and said: "Any one will talk to me I will kill him. Now I am the king." About six hours after the ship left Newport News, Bouritis struck a coal passer on the head with a pail. When asked for an explanation, he repeated: "Anyone will talk to me I will kill him." The coal passer was taken to the captain for first aid, and told the captain that Bouritis had struck him for no cause. The boatswain then told the captain that Bouritis was a "bad character" and smoked hasheesh. Bouritis continued to be quarrelsome; he attempted to strike another fireman, one Haralambides, after an altercation over the manner in which Haralambides did his work, but was prevented by the boatswain. After this incident Haralambides complained to the second engineer "that he couldn't work alongside a man who was scrapping all the time". Bouritis next threatened Almorantis, a fireman, when coal fell out of the boiler, saying: "Be careful you don't burn somebody, and if you are not careful I will burn you." When Almorantis answered that he was as careful as he could be, Bouritis slapped his face. Almorantis complained to the first engineer, the proper officer to receive complaints, telling him what had happened. He also told him that "every time he came on watch" Bouritis smoked hasheesh and was "out of his mind." After the ship arrived at Fernandina, several of the crew, including the libellant and the boatswain, went to the captain and asked him, according to libellant's testimony: "What are you going to do with this fellow, George Bouritis, who makes trouble all the time and who smokes hasheesh, and who has hit the consul at Antwerp?" The captain replied: "Leave now and I will see what I am going to do."

A few days after the arrival at Fernandina, Bouritis brought a colored woman to his bunk aboard ship. When one of the crew remonstrated with him, Bouritis said: "What business is it of yours?" When Almorantis also remonstrated, Bouritis said: "I don't have to ask you, you pimp" and began striking and slapping him. Although members of the crew tried to separate them, and Almorantis tried to escape, Bouritis brought him down to the floor, bit him in the back of the neck and continued to hit him. The libellant was watchman on that night. He and another watchman heard someone crying: "Help me, he is killing me." They ran forward, and saw "Almorantis on the floor with Bouritis' teeth in the back of Almorantis' neck, and punching him in the face." A lamp had fallen over and started a fire. While libellant put out the fire the other watchman separated Almorantis and Bouritis.

There were no officers aboard, but the libellant had orders from the captain not to allow anyone on board the ship without a pass. He therefore took the colored woman ashore, despite Bouritis' threat: "Don't take that woman off the boat, I will kill you." Bouritis also then left the ship, saying to libellant: "I will make you pay for this."

When the captain was informed of the incident, he sent for Bouritis and said to him, with a wink: "Did they take your Missus off the boat?" He apparently did nothing at any time prior to the subsequent assault upon the libellant to check Bouritis' vicious tendencies, of which he appears to have had very adequate information, or to terminate Bouritis' employment with the ship.

The next evening libellant went ashore to buy some soap and other merchandise he would need for the voyage. After making his purchases he met a number of other members of the crew who hailed him from a Greek coffee house as he passed. He said to them that he had been told by the chief engineer to hurry back, but he was prevailed upon to drink one cup of coffee before all of them went back to the ship together. Thereafter they went out of the coffee house and set out for the ship. Three or four blocks from the coffee house Bouritis was hidden behind the corner of a building; as they turned the corner he sprang upon the libellant with a knife and stabbed him repeatedly in the body, inflicting extensive wounds in the loin and groin on the right side and the axilla and heart region on the left, as well as other less serious wounds. The attack took place 150 to 200 meters from the ship, according to the testimony of Almorantis and the libellant, and about a mile, or ten minutes walk from the ship according to the testimony of the captain.

It is evident that Bouritis had shown himself prior to the attack upon the libellant to be of such savage and uncontrolled disposition, and so easily provoked, as to be a danger to men who worked on the same ship with him. This had become apparent even before the incident of the colored woman which provoked Bouritis to ambush the libellant. There was evidence that the captain of the Theomitor was fully informed that Bouritis was a quarrelsome trouble-maker, that he smoked hasheesh, and that he had assaulted more than one man at least once with little or no reason. Several members of the crew had complained of him and a delegation had called upon the captain at Fernandina to ask what he intended to do with the troublemaker. He did nothing.

If Bouritis had been discharged during the first three days of the ship's stay at Fernandina, the incident giving rise to the assault would never have occurred. Seamen have no legal power to rid themselves of dangerous shipmates. That power rests with the officers of the vessel. If the officers choose to continue to employ a man who is known or should be known by them to be a source of peril to those who sail with him, when measures which might reasonably be expected to prevent resulting injury are not or cannot be taken, a resulting injury to a member of the crew is one for which the person injured may recover under the Jones Act, 46 U.S.C.A. § 688. Koehler v. Presque-Isle Transportation Co., 2 Cir., 141 F.2d 490.

The master denied all knowledge of the vicious disposition of Bouritis and of the incident of the expulsion of the woman from the ship, but the judge found in spite of this "that the master knew or that he at least should have known * * * that Bouritis was a man of a vicious and violent character and irrational."

Appellants contend, however, that the libellant cannot sue under the Jones Act because it gives no remedy to an alien employed on a foreign ship. Both Hellas and the Greek Line are foreign corporations and so apparently was Goulandris Ltd. of London. The Goulandrises were Greeks resident abroad; so was Polemis, the registered owner of the Theomitor, who was not served. We cannot find anything in the record to support the statement of the District Court that libellant was a resident of the United States. He was a Greek citizen. He had come to this country as a seaman, for he testified that he "stopped from work" on the vessel which brought him to this country because that ship required repairs. He had been here for an unspecified period, which was certainly less than three months, when he signed on the Theomitor. His stay in this country since his injuries were sustained is not sufficient, under all the circumstances, to show that he had acquired a residence in the United States when he signed on which would give him a right of action under the Jones Act. Gambera v. Bergoty, 2 Cir., 132 F.2d 414, certiorari denied 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed....