Tjonaman v. A/S Glittre

• Decision Date: 11 January 1965
• Docket Number: No. 103,Docket 28337.,103
• Citation: 340 F.2d 290
• Parties: Emilius August TJONAMAN, Libelant-Appellant, v. A/S GLITTRE and Fearnley & Eger, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

340 F.2d 290 (1965)

Emilius August TJONAMAN, Libelant-Appellant, v. A/S GLITTRE and Fearnley & Eger, Respondents-Appellees.

No. 103, Docket 28337.

United States Court of Appeals Second Circuit.

Argued October 22, 1964.

Decided January 11, 1965.

Allan C. Rassner, New York City (Jacob Rassner, New York City, on the brief), for libelant-appellant.

David P. H. Watson, New York City (Haight, Gardner, Poor & Havens, and Robert K. Marzik, New York City, of counsel, on the brief), for respondents-appellees.

Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

On February 14, 1958 the libelant, Emilius August Tjonaman, a Dutch national, who had become a legal resident-alien in the United States twenty-nine days before, signed on as a member of the crew of M/S Ferngrove, a Norwegian owned and registered vessel. He was, and had been for about two years, a member of the Norwegian Seamen's Union, and it was through that organization and Scandinavian Shipping Office, Inc. that he obtained his berth on the ship. He signed the standard form of Norwegian shipping articles in the office of the Norwegian Consulate General in New York. The articles provided, among other things, that Tjonaman's rights and duties were those "stipulated in Norwegian legislation."

One month later, the libelant was injured aboard the vessel while it was in Ghanian waters. He sued in the United States District Court under the provisions of the Jones Act, 41 Stat. 1007 (1920), 46 U.S.C. § 688 (1952), and the general maritime law of the United States. During the course of the trial, he withdrew his Jones Act suit, but adhered to his claims under the general maritime law. The respondents countered with the assertion that it was not the law of this country, but the substantive law of Norway which applied to the case. The parties stipulated that at the trial there would first be heard and determined, on an agreed set of facts, the issue of whether United States or Norwegian law governed, and that thereafter they would be heard on the merits. On the first issue the district court ruled that Norwegian law applied. Whereupon the libelant conceded that he had no cause of action under Norwegian law, and the court ordered the libel dismissed on the merits. No testimony was offered as to the circumstances of the injury or as to the substantive provisions of Norwegian law. The sole question presented on this appeal is whether or not the court below was correct in deciding that Tjonaman could not invoke the general maritime law of the United States. We decide that the district court was correct and affirm the decision.

In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the Supreme Court listed seven factors which, it said, were generally conceded to influence the choice of law to govern maritime tort claims. They were: the place of the wrongful act; the law of the flag; the national allegiance or domicile of the injured seaman; the national allegiance of the shipowner; the place of contract; the inaccessibility of a foreign forum; and the law of the forum. The Court discussed the weight to be accorded each of them and concluded that three were of particular significance: the law of the flag, the national allegiance of the shipowner, and the allegiance or domicile of the injured seaman. The Court said that "cardinal importance" was to be attached to the law of the flag. In discussing the facts of the case before it, the Court commented that "* * * the weight given to the ensign overbears most other connecting events in determining applicable law" and that it "must prevail unless some heavy counterweight appears." Lauritzen v. Larsen, supra, 345 U.S. at 585-586, 73 S.Ct. at 930. This was a restatement of the settled American principle that the law of the flag controls matters relating to the internal economy or discipline of the ship. Cunard Steamship Co. v. Mellon, 262 U.S. 100, 123, 43 S.Ct. 504, 67 L.Ed. 894 (1923); Restatement, Conflict of Laws, § 405 (1954 Supp.).

Although Lauritzen v. Larsen, supra, involved a claim under the Jones Act, the Supreme Court expressly adopted its reasoning for adjudicating claims under the general maritime law in Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). See generally, Currie, "The Silver Oar and All That: A Study of the Romero Case," 27 U.Chi.L.Rev. 1, 72 (1959); Note, "Admiralty and Choice of Law: Lauritzen v. Larsen Applied," 47 Va.L.Rev. 1400 (1961); Note, 36 Tul.L. Rev. 319 (1962).

The present case is readily distinguishable from the "flag of convenience" cases where the foreign registration is only nominal and the vessel belongs to the nation of the flag it flies only for the purpose of avoiding the shipping laws of the United States. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.), cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 13 L.Ed.2d 1030 (1959); Southern Cross Steamship Co. v. Firipis, 285 F.2d 651, 84 A.L.R.2d 895 (4th Cir. 1960), cert. denied 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961); Carroll v. United States, 133 F.2d 690 (2d Cir. 1943); Gerradin v. United Fruit Co., 60 F.2d 927 (2d Cir. 1932), cert. denied 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed. 556 (1933).

In Bartholomew this court, however, not...