Mpiliris v. Hellenic Lines, Limited

• Decision Date: 31 August 1970
• Docket Number: Civ. A. No. 67-H-29.
• Citation: 323 F. Supp. 865
• Parties: Mrs. Myrtis Ioannis MPILIRIS v. HELLENIC LINES, LIMITED, Transpacific Carrier Corp., and Universal Cargo Carriers.
• Court: U.S. District Court — Southern District of Texas

323 F. Supp. 865

Mrs. Myrtis Ioannis MPILIRIS v. HELLENIC LINES, LIMITED, Transpacific Carrier Corp., and Universal Cargo Carriers.

Civ. A. No. 67-H-29.

United States District Court, S. D. Texas, Houston Division.

May 15, 1969.

Supplemental Opinion July 16, 1969.

Findings of Fact and Conclusions of Law August 31, 1970.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arthur J. Mandell, Mandell & Wright, Houston, Tex., for plaintiff.

Carl O. Bue, Jr. and Ken Kuykendall, Royston, Rayzor & Cook, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

SEALS, District Judge.

The plaintiff, Mrs. Myrtis Ioannis Mpiliris, a citizen of the United States, instituted this suit under the Jones Act (46 U.S.C. § 688), or, alternatively, under the general maritime law of the United States, including the New York Wrongful Death and Survival Statutes, to recover any damages to which she may be entitled by reason of the fatal personal injuries suffered by her husband, Ioannis Mpiliris, a Greek citizen, on or about March 31, 1966, while he was working upon the SS HELLENIC DESTINY in the Port of New York.

The case is presently before the Court upon the motion of the defendants to dismiss and to decline jurisdiction or alternatively to strike the causes of action under American law on which the plaintiff bases her case. In support of this motion the defendants rely primarily upon the following propositions:

(1) that neither the Jones Act nor the general maritime law, including the New York Wrongful Death and Survival Statutes, are applicable; and

(2) even if one of the above jurisdictional grounds is found to exist this court should decline to exercise such jurisdiction because

(a) a Greek judgment has already been entered which adopted the settlement agreement of the defendants herein with all the proper beneficiaries under Greek law and this judgment should be accorded preclusive effect as to this plaintiff, and

(b) the undeserving nature of the plaintiff's claim presents an appropriate instance wherein the court should, in the proper exercise of its broad discretionary powers, refuse to allow the plaintiff to sue in this court.

I. SUMMARY OF FACTS

Ioannis Mpiliris was a Greek seaman living in Greece and serving as a member of the crew of the SS HELLENIC DESTINY, a Greek flag vessel operating between the middle East, Greece and the United States. His contract of employment provided that Greek law and the Greek Collective Bargaining Agreement were to apply as between the employer and the crew, and that all claims arising out of this employment contract were to be adjudicated exclusively by Greek courts.

Ioannis Mpiliris arrived at Houston on the SS HELLENIC DESTINY on or about March 12, 1966, and was married to the plaintiff before a Justice of the Peace the next day. The defendant asserts that this was an arranged marriage whereby Ioannis Mpiliris could gain entry into this country on a preferred basis. Ioannis Mpiliris then sailed to New York aboard the SS HELLENIC DESTINY and suffered fatal injuries while on said ship in the Port of New York.

The SS HELLENIC DESTINY is owned jointly by defendant Transpacific Carriers Corp. and defendant Universal Cargo Carriers, Inc., both of which are Panamanian corporations, but it is registered in and flying the flag of Greece. Transpacific Carriers Corp. and Universal Cargo Carriers are both wholly owned by the Defendant Hellenic Lines, Ltd., a Greek company, approximately 95 per cent of whose stock is held by a Greek citizen, Pericles Callimanapoulos, who is also a permanent resident alien of the United States. The ship is controlled from the principal office of the Hellenic Lines in New York.

After the death of Ioannis Mpiliris, the decedent's mother instituted suit in the Greek courts. Because Mrs. Myrtis Ioannis Mpiliris was not married to the decedent in a Greek Orthodox Church, she has no legal standing to sue in Greek courts as the decedent's widow. Accordingly, a Greek judgment was entered in favor of the decedent's mother as she was the only legal beneficiary under Greek law. But the plaintiff, Mrs. Myrtis Ioannis Mpiliris, asserts that this Greek judgment is entitled to no preclusive effect as to her suit under the law of this country against the same defendants.

II.

The applicability of the Jones Act to alien seamen serving aboard foreign vessels has never been a model of clarity. In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) the United States Supreme Court prescribed the method by which the courts should resolve the question of whether to apply the act or not. The Supreme Court held in that case that when foreign seamen are involved, whether the Jones Act or some foreign law should be applied is to be determined on a "points of contact" basis. And conflicts between competing laws are to be avoided or resolved by "ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved." Id. 345 U.S. at 582, 73 S.Ct. at 928. After the various points of contact are determined, the law of the nation which has the most interest in the transaction should be applied.

In Lauritzen the Supreme Court set forth seven factors which taken alone or in combination should be considered to determine whether United States law is applicable: (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the injured party, (4) the allegiance of the defendant shipowner, (5) the place and terms of the contract, (6) the relative inaccessibility of the foreign forum, and (7) the law of the forum.

If in a "particular case something between minimal and preponderant contacts" are found the Jones Act is applied. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 440 (2d Cir.) cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959). "The test is that substantial contacts are necessary. And while one contact such as the fact that the vessel flies the American flag may alone be sufficient, this is no more than to say that in such a case the contact is so obviously substantial as to render unnecessary a further probing into the facts." Id. at 439.

However, it is not altogether clear what contacts or combinations of contacts justify application of American law since Lauritzen did not specify which possible combinations of the seven factors would cause the Jones Act to govern the case. These are indeed mirky waters for the seven factors of Lauritzen are neither exclusive nor immutable. See, e. g., Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320, 325 (S.D.N.Y. 1962).

Normally this court would be compelled to review the growing body of adjudicated factual situations in this area to determine whether the present combination of operative factors is sufficient to support the granting of Jones Act relief. But in the present case the necessity for analyzing the cases construing and applying Lauritzen has been obviated by a very recent decision of the Court of Appeals for the Fifth Circuit. In Hellenic Lines, Ltd. v. Rhoditis (5th Cir. 1969), 412 F.2d 919, the Fifth Circuit was presented with the question whether the Jones Act applied to a case with operative facts identical to those of the present case.

In Rhoditis the plaintiff, a Greek seaman, was injured in a port of this country (New Orleans) while aboard a ship registered in and flying the flag of Greece and owned under an arrangement identical with that in the present case, involving the same defendants with the exception of the Transpacific Carrier Corp., which was not joined as a party in Rhoditis. The Fifth Circuit, finding that the vessel "was for all commercial purposes owned and operated by a United States domiciliary," held the Jones Act applicable to the facts of that case. Insofar as the applicability of the Jones Act to this case is concerned, absent compelling countervailing factors, this court is quite clearly bound by the decision of the Fifth Circuit in Rhoditis by reason of the factual identity of the two cases. And as the present case is a death action brought by the decedent's wife who is a U. S. citizen, an even stronger case exists in favor of applying American law.

As it has been determined that the laws of the United States apply to the facts of this case, the defendants cannot avoid their duties and liabilities arising under the Jones Act by contracting with Ioannis Mpiliris for the application of Greek law. Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320 (D.C.N.Y.1962); Greenberg v. Panama Transport Co., 185 F.Supp. 320 (1960), vacated on other grounds, 1 Cir., 290 F.2d 125, cert. den., 368 U.S. 891, 82 S.Ct. 143, 7 L.Ed.2d 88 (1961); Farmer v. Standard Dredging Corp., 167 F.Supp. 381 (D.C.Del.1958).

Under the general maritime law a seaman's surviving heirs and representatives have no remedy against the individual or thing which causes his death, absent applicable statutory provisions to the contrary. However, where state statutes have been enacted which provide for death actions, these statutes have been utilized and upheld as implementing the general maritime law and recovery is granted under these statutes. Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907). Thus, where death has occurred on navigable waters within the territorial jurisdiction of a state, as in the present case, the state's wrongful death statutes and survival statutes are operative and given effect in admiralty. And some states have incorporated into their laws the general maritime law concepts including unseaworthiness. (See, e. g., Vassallo v. Nederl-Amerik Stoomv Maats Holland, 162 Tex. 52, 344 S.W.2d 421 (1961)).

But the New York statutes can have no application in the present case and, additionally, the question whether New York has incorporated the concept of seaworthiness into ...