Tsakonites v. Transpacific Carriers Corp.

• Decision Date: 04 March 1965
• Citation: 246 F. Supp. 634
• Parties: Elias TSAKONITES, Plaintiff, v. TRANSPACIFIC CARRIERS CORP. and Hellenic Lines, Ltd., Defendants.
• Court: U.S. District Court — Southern District of New York

246 F. Supp. 634

Elias TSAKONITES, Plaintiff, v. TRANSPACIFIC CARRIERS CORP. and Hellenic Lines, Ltd., Defendants.

United States District Court S. D. New York.

March 4, 1965.

Lebovici & Safir, New York City, for plaintiff. Herbert Lebovici, New York City, of counsel.

Zock, Petrie, Sheneman & Reid, New York City, for defendants. Edwin K. Reid, New York City, of counsel.

COOPER, District Judge.

This suit arises out of personal injuries allegedly sustained by plaintiff.

Trial began on February 1, 1965. The parties then agreed in open court to divide the trial into two stages: (1) a determination by the Court whether the Jones Act (46 U.S.C. ? 688) and the general maritime law (hereafter American law) are applicable, and (2) a resolution (if necessary) by the Court and jury of liability and damages.

Accordingly, the parties stipulated to facts relating to the issue of applicable law. These, relied upon by plaintiff to "make out a prima facie case" see Transcript of Trial Proceedings (hereafter Transcript), February 1, 1965, p. 4, or more accurately, to be the basis of the Court's determination whether American law applies, were made part of the record as Court's Exhibit 1.

After oral argument, the parties submitted supplementary trial memoranda (in accord with leave of Court to do so until the close of the Court's day on February 3). Subsequently, a retyped copy of Court's Exhibit 1 was marked Court's Exhibit 2 and supporting exhibits were jointly marked Court's Exhibit 3.

On February 4, defendants belatedly attempted to submit proof of Greek law in order to show that a foreign forum was accessible and foreign law would accord plaintiff relief. See Evangelinos v. Andreavapor Cia. Nav., S.A. and the S.S. National Hope, 2 Cir., 1961, 291 F.2d 624. This offer was rejected by the Court in view of its untimeliness. (See Transcript pp. 1-11). Moreover, without regard to enforceability or applicability, stipulation 45 states that Greek law provides rights and remedies to Greek seamen injured aboard a Greek vessel. See Kontos v. S.S. Sophie C., E.D.Pa., 1964, 236 F.Supp. 664.

Plaintiff did not plead or request, either on oral argument or in his memoranda, that the Court take judicial notice or accept proof on foreign law so that any rights thus accorded plaintiff could be remedied in this forum should American law be found inapplicable. Plaintiff has not requested that the general maritime claims be transferred to the Admiralty Docket.

Plaintiff has chosen to stand on American law. We thus direct out attention to the basic issue of whether there are sufficient facts before this Court to justify the application of American law.

APPLICABILITY OF AMERICAN LAW

The Court has carefully reviewed Court's Exhibits 1-3, the parties' memoranda and the applicable law. There is no need to fully reiterate the detailed stipulations of fact.

Briefly, plaintiff is a Greek citizen and domiciliary who served as a seaman aboard the S.S. Hellenic Spirit. He claims damages for personal injuries allegedly sustained aboard the vessel on September 26, 1959, in New York harbor, as a result of defendants' negligence and the unseaworthiness of the ship. He also seeks wages until the end of the voyage, maintenance and cure, and recovery for wilful failure to treat and provide maintenance. These latter claims cover, in part, a period after plaintiff returned to Greece.

The S.S. Hellenic Spirit, owned by defendant Transpacific Carriers Corp. (hereafter Transpacific), a Panamanian corporation, was operated and controlled by defendant Hellenic Lines, Ltd., (hereafter Hellenic), a shipping concern incorporated under the laws of Greece. She flew the Greek flag.

Despite admitting by paragraph 4 of its amended answer that it employed plaintiff, Transpacific contends that plaintiff was in fact employed by Hellenic (see stipulations 41-2, and supporting exhibit 8 in Court's Exhibit 3). We agree. Neither Hellenic nor plaintiff now appear to contend otherwise.¹

We cannot find, as plaintiff contends, that the S.S. Hellenic Spirit was a "runaway vessel" ?€” one operated under a flag of convenience. In Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, the Supreme Court noted that some American shipowners sought foreign registration of their vessels for the purpose of avoiding American law. Courts have had no difficulty disregarding papier mach? formalities of nominal foreign registration to enforce against American shipowners or operating companies the obligations created by American law. Thus, the Jones Act was applied in Bartholomew v. Universe Tankships, Inc., 2 Cir., 1958, 263 F.2d 437, cert. denied, 1959, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030, where American citizens were the shareholders of a Panamanian corporation which in turn held the stock of defendant shipowner, a Liberian corporation; in Carroll v. United States, 2 Cir., 1943, 133 F.2d 690, where the vessel was owned by the United States whose agent operated it under a Panamanian flag; and in Gerradin v. United Fruit Co., 2 Cir., 1932, 60 F.2d 927, where the vessel, owned by a New York company, was operated by a New Jersey corporation as demise charterer under a Honduran flag.

While each case must be decided on its own facts, these cases teach that beneficial ownership and control of the vessel by American citizens or corporations will be given legal significance despite schemes, however complex or imaginative, to avoid American laws through the formalities of foreign registration and operation. See also: Southern Cross S.S. Co. v. Firipis, 4 Cir., 1960, 285 F.2d 651, 84 A.L.R.2d 895, cert. denied, 1961, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859; Bobolakis v. Compania Panamena Maritima San Gerassimo, S. A., S.D.N.Y., 1958, 168 F.Supp. 236; and Zielinski v. Empress Hondurena De Vapores, S.D.N.Y., 1953, 113 F.Supp. 93.

At the outset, we cannot find that Hellenic's Greek incorporation or the vessel's flying of the Greek flag are mere formalities.

We reject the implication made by plaintiff on oral argument and in his supplementary memorandum that contacts with the United States sufficient to treat a foreign corporation as American for jurisdictional purposes under 28 U.S.C. ? 1332(a) (2) would also require a finding of contacts substantial enough to treat a foreign corporation as American for Jones Act purposes. See Batholomew v. Universe Tankships, Inc., supra, 263 F.2d at 442.

Hellenic had significantly more than formal business activities in Greece and other foreign countries. See stipulations 12, 13, 14, 18, 19, 34, 36, 37.

The S.S. Hellenic Spirit was operated in the Red Sea Service. (Stipulation 17.) Red Sea Service vessels call at Greek ports to crew the vessels (as in this case) and to load or discharge available cargo (Stipulation 18.) It is true that the ship's itinerary during the voyage in question does not show that it carried cargo to or from a Greek port, but in view of the total circumstances in this case, that is insufficient to regard its Greek flag as illusory. Cf. Stipulation 40.

Even had plaintiff shown the registration of the vessel under Greek law to be but a formality, nothing in the stipulations supports plaintiff's contention that each of the defendants was "entirely controlled and operated by citizens of a state of the United States." (Complaint ? 5).

This is not a case such as Voyiatzis v. National Shipping & Trading Corp., S.D. N.Y., 1961, 199 F.Supp. 920, wherein a Greek seaman was entitled to Jones Act remedies in a suit against a Panamanian corporation, which was the shipowner and all of whose stock was owned by a United States citizen, and against a Delaware corporation, its general agent.

Nor does this case require the Court to state that either stock ownership of the corporation owning the vessel by United States citizens, or control of the vessel by United States citizens, standing alone, requires application of American law. See Plaintiff's Supplementary Trial Memoranda, Point III, pp. 11-12; Bartholomew v. Universe Tankships, Inc., supra, 263 F.2d at 440, 443 n. 4; Mpanpouros v. Steamship Auromar, D.C.Md., 1962, 203 F.Supp. 944.

While Mr. Pericles Callimanopulos, Hellenic's general manager and owner of 95% of its stock, was a legal resident of the United States at the time of the accident in suit, he was ineligible for American citizenship and had not declared an intention to apply when and if eligible.

He was a Greek citizen, as were all of the officers and directors of Hellenic. Except for Mr. Callimanopulos and his son, those officers and directors all resided in Greece.

By analogy, plaintiff cites Gambera v. Bergoty, 2 Cir., 1942, 132 F.2d 414, where the seaman's legal residence in the United States, without actual American citizenship, was apparently accorded significance in determining to apply the Jones Act. Like other pre-Lauritzen cases, the controlling considerations in the decision were unclear. Indeed, in O'Neill v. Cunard White Star, Ltd., 2 Cir., 1947, 160 F.2d 446, the Jones Act was held inapplicable despite seaman's long residence in the United States. In Taylor v. Atlantic Maritime Co., 2 Cir., 1950, 179 F.2d 597, at 600. Judge Learned Hand suggests that Gambera and other cases can be explained by looking to the situs where the seaman signed onto the vessel, a factor given little weight in post-Lauritzen cases and a contact absent here. See Berendson v. Rederiaktiebolaget Volo, 2 Cir., 1958, 257 F.2d 136; Smith v. Furness Withy & Co., S.D.N.Y., 1953, 119 F.Supp. 369; Boczek, Flags of Convenience 180-182 (1962); Note, "Admiralty and Choice of Law: Lauritzen v. Larsen Applied," 47 Va.L.Rev. 1400 (1961).

Whatever may be the vitality of cases giving weight to a seaman's legal residence in the United States, despite foreign citizenship, none has been found piercing the citizenship of foreign nationals who reside here and own controlling stock in a shipping concern incorporated under the laws of...