Mihalopoulos v. Westwind Africa Line, Ltd.
| Decision Date | 01 June 1987 |
| Docket Number | No. 87-CA-103,87-CA-103 |
| Citation | 511 So.2d 771 |
| Parties | Dimitrios Theodoros MIHALOPOULOS v. WESTWIND AFRICA LINE, LTD. and Southern Star Shipping Co., Inc. |
| Court | Court of Appeal of Louisiana — District of US |
Robert H. Murphy, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, Risley C. Triche, Triche, Sternfels & Nail, Napoleonville, for Westwind Africa Line, Ltd., defendant and appellant.
C. John Caskey, Baton Rouge, Gordon Crawford, Gonzales, for Dimitrios Theodoros Mihalopoulos, plaintiff and appellee.
Before BOWES, GAUDIN and WICKER, JJ.
Plaintiff Dimitrios Theodoros Mihalopoulos (hereinafter called Jimmy) obtained a judgment in the Twenty-Third Judicial District Court, Parish of St. James, in his maritime action against the defendant, Westwind Africa Line, Ltd. (hereinafter Westwind) in the amount of one million one hundred twenty-five thousand dollars ($1,125,000.00). Jimmy was seriously injured while employed as a seaman aboard the M/V DESERT PRINCE, owned by Westwind. Westwind has appealed the jury verdict and judgments, averring (among other issues) that the trial court erred in its resolution of the maritime question of choice of the correct applicable law and that the jury verdict awarding damages was excessive. Liability of Westwind was not contested on appeal. Jimmy answered the appeal, alleging several errors, which will be addressed hereinafter.
Jimmy originally obtained jurisdiction in St. James Parish by obtaining a writ of attachment against the vessel M/V DESERT PRINCE while the ship was within the parish. Various procedural actions later took place concerning the attachment which do not concern us here. The case reached this court twice on writ applications, one of which is pertinent and will be addressed in due course. The problem of "choice of law" arises under the following circumstances.
Jimmy was a Greek citizen at the time he signed to serve aboard the M/V DESERT PRINCE, as well as at the time of his injury. Westwind is a Liberian corporation; however, the M/V DESERT PRINCE, like most of the other ships of the line, flies a Greek flag.
At this point, it should be noted that Southern Star Shipping Company is a New York corporation which acts as the general agent for Westwind in the United States; Southern Star was originally a defendant but was dismissed as a party prior to trial.
The accident took place in Boulogne, France, when a scaffolding in which Jimmy was being lowered to the dock became unhooked from its crane and fell. Jimmy, now a resident of Canada, had signed an employment contract in Greece, in which it was agreed that "any differences arising from this contract are exclusively under the jurisdiction of the Greek Courts of Piraeus, excluding under any circumstances the competency of any Foreign Court." Despite the multiplicity of foreign connections, Jimmy successfully sued for damages under the United States maritime law, specifically under the Jones Act, and the maritime doctrine of unseaworthiness. Westwind has consistently maintained throughout the action that Greek law is applicable in the present case, and continues to so urge on appeal. At first blush, this argument sounds plausible but, as we shall see, the well is much deeper than it appears to be.
The primary defense of Westwind has been that plaintiff, under the above facts and circumstances, should not be entitled to recover full tort damages under the Jones Act, 46 U.S.C. Sec. 688 and United States General Maritime Law.
In this regard, Westwind has alleged that the district court's application of United States law to this case is manifestly erroneous, an abuse of discretion, and that the court erred in failing to give effect to the choice of law clause in the contract between plaintiff and defendant.
In his answer, plaintiff has urged that it was error "for the civil jury below to have been submitted interrogatories on choice of law." Plaintiff refers to the determination made by this court on a writ application filed by defendant just prior to the original trial date. The trial court had ordered that all issues regarding choice of law, including all factual issues implicit therein, be tried by the court without a jury. In granting the writ, a panel of this court stated:
The right to trial by jury has been held to be a procedural matter. Carter v. City of New Orleans, 327 So.2d 488 (La.App. 4 Cir.1976); Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609 (1963). Therefore, the laws of Louisiana relating to jury procedures are applicable herein. Accordingly, under La. C.C.P. art. 1735, the defendant shall be afforded a jury to determine the facts upon which the choice of law decision is to be made by the trial judge.
We find nothing in plaintiff's argument on appeal to convince us that our prior ruling is incorrect and we hold it is now the "law of the case" and should be so applied. This principle applies to all decisions of an appellate court, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21 (La.App. 1 Cir.1982). The application of this doctrine should not be applied where to do so would accomplish an obvious injustice, or where the former appellate decision was clearly, palpably, or manifestly erroneous. Brumfield, at p. 22. We find no such situation or error here and decline to reconsider the question any further.
Turning to the defendant's assignment of error, we are directed to the Lauritzen-Rhoditis-Romero trilogy of cases, which deal with the choice of law issue as decided by our United States Supreme Court.
In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the court considered seven factors in determining that a Danish seaman injured in Havana harbor on a Danish vessel was not entitled to the benefit of the Jones Act protection.
Those factors, briefly, are:
1. Place of the wrongful act
2. Law of the flag (of the ship)
3. Allegiance or domicile of the injured person
4. Allegiance of the defendant shipowner
5. Place of the contract
6. Inaccessibility of a foreign forum
7. Law of the forum
Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), extended the consideration of these factors to claims under general maritime law such as an action for unseaworthiness.
Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) added an eighth factor--the shipowner's base of operations. The federal courts have varyingly interpreted and weighed these eight points. Indeed, the court in Rhoditis emphasized that the Lauritzen test was not a mechanical one: "The significance of one or more factors must be considered in light of the national interest served by the assertion of Jones Act jurisdiction."
Of the various factors, the one most widely open to interpretation, and consequently the most difficult to determine, is the eighth "base of operations" issue. It is that particular factor which is primarily contested in the present case.
After all witnesses, except one, had finished testifying in the trial, counsel for plaintiff and defendant entered into a stipulation which was read into the record. The following facts were characterized as uncontested:
"The place of the wrongful act was France;
The law of the flag was Greece;
The allegiance or domicile of the injured party at the time of the accident was Greece;
The allegiance or domicile of the injured party following the accident is Canada;
The allegiance of the ship owner is Liberian;
The place where the contract of employment was executed is Greece;
The foreign forum is accessible.
The law of the forum is the United States;
There is a general agent in the United States;
Ship financing in the United States, banking line of credit in the United States, ship mortgage in the United States;
Agent for service of process in the United States;
The president chairman of the board of directors is a U.S. citizen;
The president chairman of the board of directors lives and works in the United States;
There's line cargo service to the United States;
The seaman Plaintiff signed aboard the vessel in the United States;
The board of director ... there are board of director meetings in New York;
The ship owner has been Plaintiff in lawsuits brought in the United States;
The president chairman of the board of the ship owner is president of Southern Star Shipping, Inc.;
The Liberian Articles of Incorporation of the ship owner were written in English and originally executed in Monrovia, and amended subsequently in New York;
The president chairman of the board of the ship owner personally guarantee debts of the ship owner;
Most voyage files of West Wind Africa Line, Limited are kept in the United States."
The case was submitted to the jury with six interrogatories concerning issues of fact which apparently were considered by the parties as contested. The interrogatories, and the jury's answers, were:
1. Did Westwind Africa Lines, Ltd., have a base of
operations in the United States at the time of
plaintiff's injury?
Answer, Yes or No Yes
---
3. Was the ultimate control or ownership of Westwind
Africa Lines, Ltd. by United States citizens?
Answer, Yes or No No
--
4. Were the crews of the ships of Westwind Africa
Lines, Ltd. paid from funds transferred from the
Answer, Yes or No Yes
---
5. Were there any business reasons for Westwind
Africa Lines, Ltd. flying Greek flags on their ship?
Answer, Yes or No No
--
6. What nation do you find to be the principal base of
operations of Westwind Africa Lines, Ltd. in its
operation of the M/V DESERT PRINCE?
Answer: Greece
------
The jury did not have the benefit of the stipulated facts to assist them in their deliberations. In our opinion, the stipulations greatly clarified...
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