Volyrakis v. M/V Isabelle

• Decision Date: 26 February 1982
• Docket Number: No. 81-3049,81-3049
• Citation: 668 F.2d 863
• Parties: Manolis VOLYRAKIS, Plaintiff-Appellant, v. M/V ISABELLE, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 863

668 F.2d 863

Manolis VOLYRAKIS, Plaintiff-Appellant, v. M/V ISABELLE, et al., Defendants-Appellees.

No. 81-3049

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 26, 1982.

James M. Boone, Folsom, La., for plaintiff-appellant.

Chaffe, McCall, Phillips, Toler, Sarpy, Harvey G. Gleason, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Manolis Volyrakis, a seaman, filed suit against various defendants under the Jones Act, 46 U.S.C. § 688, for injuries he sustained while working on a vessel. The trial court granted motions to dismiss and motions for summary judgment sought by the defendants. Volyrakis notices an appeal as relates to all defendants but prosecutes his appeal only as against the owner of the vessel and the vessel's agent. Finding no error in the trial court's rulings, we affirm.

Context Facts

Volyrakis, a Greek citizen, was injured while working as a member of the crew of the M/V ISABELLE, then located near New Orleans. The ISABELLE is of Greek registry and is owned by Cosmar Compania Naviera, S.A., a Panamanian corporation. The directors and officers of Cosmar are Greek citizens; no Cosmar shareholder is a citizen or resident of the United States. Cosmar has no office in the United States. Since her purchase by Cosmar, the ISABELLE had made three trips to the United States.

Celestial Maritime Corporation, a New York corporation, serves as an agent for the vessel. The function of Celestial was described by its president, Theofilos A. Vatis, as follows We are agents and brokers for oceangoing vessels; that is, we negotiate cargoes and periods of employment on behalf of shipowners from which activity we derive commission income and, in addition, we supply supervisory and agency services to vessels and other related services, be it in insurance areas or other operational areas, and from this we derive income on a retainer basis.

Celestial has no ownership interest in the ISABELLE, and is not the only company that seeks business for her. Celestial has no control over the hiring of crewmembers and makes no decisions regarding the operation of the vessel.

Volyrakis filed suit against the ISABELLE, against Cosmar, Cosmar's P & I insurer, The United Kingdom Mutual Steam Ship Assurance Association, Ltd., and against Celestial. Also named as defendants were Filia Maritime Agency, S.A., a Greek maritime agency which provided crew and other services to the ISABELLE, and Sunrise Shipping Agency, Inc., a New Orleans "protective" agent employed by Cosmar to assist the ISABELLE with its local needs. The court granted Celestial's motion for summary judgment, finding that Celestial was not a proper Jones Act defendant. The court granted Cosmar's motion to dismiss for reasons of forum non-conveniens after concluding that the Jones Act was not the proper law to apply to the case. The court also granted United Kingdom's motion to dismiss and granted summary judgment in favor of Sunrise Shipping and Filia. ¹

I. Celestial's Jones Act Employee Status

Volyrakis argues that summary judgment in favor of Celestial was improper because there were contested material facts as to whether Celestial was his "employer" for purposes of Jones Act liability.

Summary judgment is appropriate where it appears from the pleadings, depositions, admissions, and affidavits, considered in the light most favorable to the non-moving party, that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Cubbage v. Averett, 626 F.2d 1307 (5th Cir. 1980). When the moving party has properly supported his summary judgment motion, the non-moving party must come forward with "significant probative evidence" showing that there is an issue regarding material facts. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). The non-movant may not simply rely on "vague assertions that additional discovery will produce needed, but unspecified facts ...." S.E.C. v. Spence & Green, 612 F.2d 896 (5th Cir. 1980), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981).

In the present case there is no dispute about the proper legal standard to be applied. The express language of the Jones Act requires that an employer-employee relationship exist before liability may be imposed. Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975), clarified, 546 F.2d 675 (5th Cir. 1977). As we stated in Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980):

A Jones Act claim ... requires proof of an employment relationship either with the owner of the vessel or with some other employer who assigns the worker to a task creating a vessel connection ....

The employer need not be the owner of the vessel, Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972), and independent contractors may be liable under the Act. Guidry v. South Louisiana Contractors, Inc., 614 F.2d at 452; Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2d Cir. 1973). Further, a third person who borrows a worker may become the employer if the borrowing employer assumes sufficient control over the worker. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969). Control is the critical inquiry.

Factors indicating control over an employee include payment, direction, and supervision of the employee. Also relevant is the source of the power to hire and fire. The control which is exercised must be substantial; the mere possibility of some control over the actions of an employee will not suffice to find an employer-employee relationship. Guidry, 614 F.2d at 455.

In the present case, Celestial was merely an agent for the ISABELLE. The uncontroverted facts indicate that, although Celestial did perform some general duties for the vessel, it exercised no control over her master and crew. Celestial was not responsible for the hiring of crewmen; this was done by a company in Piraeus, Greece. Celestial had no power to fire and made no decisions concerning the deployment and supervision of the crew. Celestial's absence of control over the vessel is reflected in Clause 2 of the General Authority section of the agency contract between Celestial and the ISABELLE, which states:

Nothing in this Agreement is to be construed as giving the Agent (Celestial) control or possession of the Vessel or having any interest whatever in the business, profits, or liabilities resulting from the operation of the vessel.

In light of the foregoing, and considering appellant's failure to present any probative evidence indicating a conflict in material facts, we find that the trial court's grant of summary judgment in favor of Celestial was correct and affirm.

II. Cosmar's Motion to Dismiss

The trial judge granted Cosmar's motion to dismiss based on forum non-conveniens, concluding the Jones Act was inapplicable. We agree. ²

Whether the Jones Act applies to a given set of facts involves a question of choice of law. The Supreme Court directly addressed this issue in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).

In Lauritzen, the injured seaman was Danish, the ship was registered under the Danish flag, and the owner of the ship was Danish. The ship's articles were written in Danish and provided that the rights of crew members would be governed by Danish law and by the employer's contract with the Danish Seamen's Union, of which Larsen was a member. Larsen's injury occurred while the vessel was in the Havana harbor. On these facts, the Supreme Court held that the trial court erred in applying the Jones Act to the case. The Court listed the following seven factors as relevant in resolving the choice of law question: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured seaman; (4) place of the contract; (5) allegiance of the defendant shipowner; (6) inaccessibility of a foreign forum; and (7) law of the forum.

In Rhoditis, the injured seaman was a Greek citizen, the vessel was of Greek registry, the vessel's owner was a Greek corporation and the articles, which were signed in Greece, provided that Greek law and a Greek collective bargaining agreement applied and that all claims arising out of the employment contract were to be adjudicated by a Greek court. The injury occurred while the vessel was in United States waters. In affirming the trial court's application of the Jones Act to these facts, the Supreme Court first noted that the Lauritzen test was not a mechanical one, and the list of seven factors was not exhaustive. The Court held that the shipowner's "base of operations" was another important factor in determining whether the Jones Act was applicable. The Court found that Hellenic Lines, although a Greek corporation, actually based its operations in the United States. The Court predicated its conclusions on several facts: (1) Hellenic had its largest office in New York; (2) it had another office in New Orleans; (3) 95% of Hellenic Lines' stock was owned by a Greek citizen who had resided in the United States for 25 years; and (4) this United States resident managed the corporation out of the New York office. The Court also found relevant the fact that the vessel on which the seaman was injured engaged in regularly scheduled runs between various ports in the United States and the Middle East, Pakistan, and India, and that the entire income earned by the vessel was from cargo either originating or terminating in the United States.

In balancing the Lauritzen factors with these additional considerations the Supreme Court concluded:

We see no reason whatsoever to give the Jones Act a strained construction so that this alien owner, engaged in...