Markakis v. Liberian S/S The Mparmpa Christos

• Decision Date: 27 March 1958
• Citation: 161 F. Supp. 487
• Parties: Philipos MARKAKIS, Libelant, v. LIBERIAN S/S THE MPARMPA CHRISTOS her engines, etc., G. Lemos, a nonresident, individually and as Master, and C. Pateras, a non-resident, individually and as Master, and G. C. Lemos, Joseph Scovell, Ernest A. Peters, and Nicholas Lyras, all non-residents, and Seguridad Compania Naviera, S.A., Boyd, Weir and Sewell, Inc., Eagle Ocean Transport, Inc., and G. Lemos Bros. Co., Limited, all foreign corporations or associations, as owners and/or operators of the Liberian S/S Mparmpa Christos, Respondent-Claimant.
• Court: U.S. District Court — Southern District of New York

161 F. Supp. 487

Philipos MARKAKIS, Libelant, v. LIBERIAN S/S THE MPARMPA CHRISTOS her engines, etc., G. Lemos, a nonresident, individually and as Master, and C. Pateras, a non-resident, individually and as Master, and G. C. Lemos, Joseph Scovell, Ernest A. Peters, and Nicholas Lyras, all non-residents, and Seguridad Compania Naviera, S.A., Boyd, Weir and Sewell, Inc., Eagle Ocean Transport, Inc., and G. Lemos Bros. Co., Limited, all foreign corporations or associations, as owners and/or operators of the Liberian S/S Mparmpa Christos, Respondent-Claimant.

United States District Court S. D. New York.

March 27, 1958.

Standard, Weisberg, Harolds & Malament, New York City, Louis R. Harolds, New York City, of counsel, for libelant.

Zock, Petrie, Sheneman & Reid, New York City, Edwin K. Reid, New York City, of counsel, for respondent-claimant.

HERLANDS, District Judge.

The Court of Appeals for this circuit has urged trial judges in non-jury cases to render a decision as soon as practicable after the conclusion of the trial. Hecht, Levis & Kahn, Inc. v. The President Buchanan, 2 Cir., 1956, 236 F.2d 627, 629; Mazella Blasting Mat Co. v. Vitiello, 2 Cir., 1957, 250 F.2d 935. See dissenting opinions of Chief Judge Clark in Hellenic Lines, Ltd. v. S. S. Exmouth, 2 Cir., 253 F.2d 473, and Quintin v. Sprague Steamship Company, 2 Cir., 252 F.2d 812, note 2. The rationale of this view is practical; a prompt decision — while memory retains its vividness and clarity — more precisely reflects the trial judge's evaluation of the witnesses' relative credibility and his appraisal of evidentiary details.

In this 20-day trial of a personal injury action in admiralty, the record consists of 2,997 pages of testimony, 41 libelant's exhibits in evidence and 34 respondents' exhibits in evidence. In order to render a decision as soon after the conclusion of the trial as is possible, the Court will, of necessity, combine separately numbered findings of fact and conclusions of law with its opinion. All essential findings and conclusions, most of which are numbered, are encompassed within this opinion. The propriety of that procedure in an admiralty action has been adjudicated. Hecht, Levis & Kahn, Inc., v. The President Buchanan, 2 Cir., 1956, 236 F.2d 627, 629.

The libelant, Philipos Markakis, is a 33-year old Greek seaman. There is no dispute about the fact that he was hurt in an accident that occurred on February 19, 1956, aboard a motor vessel, the S/S Mparmpa Christos. That vessel is the respondent in rem. It was and is owned, operated, managed and controlled by Seguridad Compania Naviera, S.A., the respondent-claimant. The latter has appeared in personam.

The respondent-vessel is documented and registered under the laws of the Republic of Liberia, whose flag she flies. The respondent-owner of the vessel, Seguridad Compania Naviera, S.A., is a Panamanian corporation.

The libelant was engaged by the respondents at Piraeus, Greece, on January 12, 1956 (s. m. pp. 963, 965, 1797; Exhs. F and G) to serve as an ablebodied seaman. Pursuant to that engagement (s. m. pp. 91, 962) libelant proceeded from Piraeus to Kiel, Germany, where (on January 20, 1956) he signed articles of agreement (s. m. pp. 92, 963, 966, 973, 985, 987, 988, 996, 1797) and entered into the performance of his duties.

The accident took place within the navigable waters of the United States and the State of Virginia while the vessel was lying at Hampton Roads, Virginia. The vessel had loaded a cargo at Norfolk, Virginia (s. m. p. 93), to be shipped to Germany. She was engaged in securing herself for sea.

No question of jurisdiction has been raised. The Court has not been called upon to exercise its discretion in assuming or rejecting jurisdiction.

The parties are in fundamental disagreement as to which nation's or state's law is applicable — Liberian, Panamanian, non-statutory general maritime American, statutory American or Virginia state law. With respect to the Liberian law itself, the parties differ with respect to its interpretation.

This question of the choice of applicable law has been complicated by what libelant suggests is "a riddle wrapped in a mystery inside an enigma." An element of libelant's argument is that the the Court may properly choose statutory American law (specifically, the Jones Act) because confusion has been contrived by the principals behind the respondents in order to mask their identity and citizenship; and that the Court should pierce the corporate veil, disregard the corporate entities, and find that the beneficial interest in the respondents has been in citizens and corporations of the United States or of some of the states of the United States. The confusion arises out of a network of circumstances alleged by libelant: the respondent-vessel, registered in Liberia, flies the Liberian flag only as a "flag of convenience"; the respondent-owner is only a paper Panamanian corporation and it owns the vessel only nominally; certain persons interested in this Panamanian corporation are Greek nationals; these Greek persons operate the vessel by means of instructions issued from London through the medium of an English corporation, this English corporation, in turn, utilizes various American corporations as its agents to obtain charters for the vessel, husband it, handle its crew's wages and claims, and generally to execute the orders emanating from London; and that the vessel's major contacts are American.

In addition to the question of the applicable substantive law, the evidence has raised other basic issues: what was the actual cause of the accident and how did it happen; was the accident the competent producing and proximate cause of the libelant's injuries; and what was and is the nature and extent of libelant's injuries and damages considered from the points of view of medicine and law?

In resolving all of the foregoing and related issues, the Court has made the factual findings and reached the legal conclusions set forth in this opinion.

The libelant has firmly established the findings in his favor by the clear preponderance of the credible evidence. In so finding, the Court is acting upon "the definite and firm conviction" that such are the facts, and not merely because "there is evidence to support" such findings. Cf. United States v. United States Gypsum Co., 1948, 333 U.S. 364, 869, 68 S.Ct. 525, 788, 92 L.Ed. 746, 1147.

Aside from the question of the choice of law the crux of the case is the relative credibility of the witnesses. The Court has been required to decide which of divergent inferences the Court will draw from the testimony and documentary proof. The controlling evidence, for the most part presented in open court, is sharply conflicting.

Mindful of its fact-finding responsibility in this non-jury case, the Court has evaluated the reliability of the witnesses in terms of the inherent persuasiveness of their testimony and their relative credibility. In making such appraisal, the Court has closely considered the demeanor of the witnesses on the stand, their manner of testifying, their frankness or lack of candor, their partisanship or impartiality, and the testimonial effect of any motive or bias.

The Court has critically evaluated the credibility of libelant himself, who testified at great length during parts of nine days of the trial (January 6, 7, 9, 10, 13, 14, 16, 17; February 25). In appraising his credibility, the Court has studied those portions of his pretrial depositions that have been put into the record by respondents and supplemented by contextual excerpts introduced by libelant. The Court finds no substantial or material prior inconsistent or contradictory statements. The essence of libelant's story from the very beginning has been the same.

On all occasions libelant testified through a Greek interpreter. Translation is an inexact art and science. Nomad, The Way of the Translator, The American Mercury (1945) vol. 60, p. 330. When questions are put and answered through an interpreter, some imprecision in paraphrase and idiom is unavoidable. This observation also applies in part to the various medical reports and hospital records because unidentified interpreters of undefined skill were used on occasions to interview and communicate with the libelant.

The structural facts and the architecture of libelant's pretrial and trial testimony reveal his basic veracity. The Court does not imply that libelant's testimony and conduct have been entirely free from a degree of exaggeration about his past and present physical and mental condition. Respondents' psychiatric expert was of the opinion (s. m. pp. 2266, 2307, 2390-2391) that the libelant has now substantially recovered and that, consciously or unconsciously, he is playacting the role of a mental and physical cripple. The Court rejects that opinion. Libelant's larmoyant tale is based on hard fact, not malingery (s. m. pp. 1323-1324, 1621-1629, 1669-1670, 1697-1698, 2335-2336, 2381-2383, 2387-2389, 2417).

In the case of libelant's testimony, as in the case of all of the other witnesses' testimony, the Court has selected and accepted those portions of the testimony that have impressed the Court as truthful, and has rejected those portions that have impressed the Court as being intentionally or unintentionally incorrect or false. There has been neither wholesale acceptance nor wholesale rejection of any one witness's testimony. The real facts have been sifted out of a welter of conflicting and sometimes unclear evidence.

As fact-finder, the Court has selected from the entire record those logical inferences which accord with common sense and experience and which fall within the normal range of probabilities in the context of the totality of the evidence.

The standard of libelant's burden of proof in this case — "`by a preponderance' — means that the inferences from the testimony are such as to persuade that the occurrence of an essential fact was ...