San Pedro Compania Armadoras, SA v. Yannacopoulos, 22024.

• Decision Date: 02 May 1966
• Docket Number: No. 22024.,22024.
• Citation: 357 F.2d 737
• Parties: SAN PEDRO COMPANIA ARMADORAS, S.A., et al., Appellants, v. George Nicholas YANNACOPOULOS, Appellee. George Nicholas YANNACOPOULOS, Appellant, v. SAN PEDRO COMPANIA ARMADORAS, S.A. et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

357 F.2d 737 (1966)

SAN PEDRO COMPANIA ARMADORAS, S.A., et al., Appellants, v. George Nicholas YANNACOPOULOS, Appellee.

George Nicholas YANNACOPOULOS, Appellant, v. SAN PEDRO COMPANIA ARMADORAS, S.A. et al., Appellees.

No. 22024.

United States Court of Appeals Fifth Circuit.

March 16, 1966.

Rehearing Denied May 2, 1966.

Bryan F. Williams, Jr., Edward J. Patterson, Jr., Galveston, Tex., Royston, Rayzor & Cook, Galveston, Tex., of counsel, for appellants San Pedro Compania Armadoras, S.A., and others.

Arthur J. Mandell, Mandell & Wright, Houston, Tex., for appellee-appellant, Yannacopoulos.

Before JONES and BROWN, Circuit Judges, and DYER, District Judge.

DYER, District Judge:

George Nicholas Yannacopoulos, a native and resident of Piraeus, Greece, instituted this action on January 8, 1959, in Beaumont, Texas, by warrant of seizure and writ of foreign attachment against the S. S. Merlin, a Liberian flag vessel owned by appellant, San Pedros Compania Armadoras, S. A., a Panamanian corporation wholly owned by foreigners. The S. S. Merlin was managed, crewed and operated by appellant's general agents in Piraeus, Greece, Goulandris Brothers Limited, who employed Yannacopoulos on December 15, 1955. He was given transportation to Brake, Germany, where he signed articles and joined the vessel, first as deck boy and later as an able bodied seaman.

Shortly after midnight on June 5, 1958, while the vessel was moored to a dock in Leningrad, Russia, he was ordered by the Master to go into the forward peak tank to obtain rat guards and place them on the lines running from the vessel to the dock. This tank was covered with a heavy steel tank top about fifty-two inches wide and fifty-six inches long, fitting on a coaming about twenty-one inches high. The tank cover was equipped with an open eye. Immediately behind the tank top there was a steel stanchion with an open hook attached to it which was designed to fit into the open eye of the tank top. The hook was worn thin, had play in it, and was not long enough to reach beyond the thickness of the eye itself. It was worn and defective.

Generally, two men accomplished this task. Yannacopoulos requested additional help but was refused. Accordingly, he proceeded to carry out the order. He picked up the tank top and put the hook through the open eye. Inside of the tank top there were two rungs or hand holds, especially placed there for those going in and out of the forepeak tank to have something to hold onto while ascending or descending. With his right hand he held onto the first rung inside the tank top, stepped on the first step leading into the tank, then as he descended into the tank, he used his right hand to hold onto the second rung, placing his left hand on the hatch coaming for support. About this time there was a slight movement in the tank top, the hook slid out of the eye in the tank top and it came down upon Yannacopoulos' left hand between the coaming and tank top, crushing it. Although the Master was not present when the injury occurred, in response to written interrogatories, he testified that there was a rope attached to the tank top which could have been used to secure it. Yannacopoulos denied this. A few days after the accident, there was a rope tied around the tank top.¹

Yannacopoulos was hospitalized in the U. S. S. R., then taken to and examined in Poland and finally hospitalized in Germany. From there he was returned to Greece where he underwent further treatment.

After the vessel was attached, a bond was set for its release and the Court, after hearing on November 25, 1959, granted appellant's motion to decline jurisdiction, but conditioned the dismissal upon (1) the appellant's appearing and posting security in the sum of $50,000 to abide a decree in any proper legal proceeding brought by Yannacopoulos within ninety days in the Kingdom of Greece; and (2) if appellant failed to appear and answer or file such security in Greece, Yannacopoulos was given leave to move to set aside the order of dismissal.

On December 7, 1959, Yannacopoulos brought suit in a court of competent jurisdiction in Greece and service was made on the State Attorney rather than on appellant's general agents, Messrs. Goulandris Brothers, Limited. Appearance day for appellant was March 7, 1960, but having received no information about the pendency of the suit, it did not appear. Yannacopoulos cancelled the setting from the trial calendar and left the suit pending until November 28, 1960, when it was dismissed.

On March 24, 1960, Yannacopoulos filed a motion to set aside the order of November 25, 1959. This was brought to the attention of appellant on May 28, 1960, who thereupon filed a motion for more definite statement, and thereafter took the position that the action instituted in Greece was a sham because service was never properly effected upon appellant, and further, that the motion for reinstatement was not filed within ninety days as required by the conditional order of dismissal.

We find no merit in the latter contention because the suit in Greece was timely filed and the subsequent proceedings to reinstate the cause could not have been instituted within the ninety day period. We find it unnecessary to determine the validity of the service made upon appellant in Greece because it is clear that appellant had actual knowledge on June 18, 1960, of the pendency of the suit, the style thereof, and the court in which it was filed in the Kingdom of Greece, yet did nothing until September 7, 1960, when it applied to the Greek Court to dismiss the action then pending upon the ground that Yannacopoulos had not strictly complied with the provisions of the Greek law for the service of process. Appellant did not at any time, however, appear to defend the case nor file security of $50,000 to abide decree.

On September 7, 1960, the Court, having before it the documents proving institution of the suit in Greece, the service on appellant and its failure to appear or post security, properly entered the order vacating the order of November 25, 1959, reinstated the cause and set it for trial to be heard in its regular order. Indeed, the record then before the Court made it manifest that the appellant had failed to comply with the terms of the order of dismissal. A second motion to dismiss filed June 13, 1962, almost two years later, based on essentially the same grounds, was carried with the case and overruled in the final decree. The Court's ruling in the first instance being correct, it was again so in the final decree, not to...