Voyiatzis v. National Shipping & Trading Corporation

• Decision Date: 16 December 1961
• Citation: 199 F. Supp. 920
• Court: U.S. District Court — Southern District of New York
• Parties: Ioannis VOYIATZIS, Plaintiff, v. NATIONAL SHIPPING & TRADING CORPORATION and Noya Compania Naviera, S. A., Defendants.

199 F. Supp. 920

Ioannis VOYIATZIS, Plaintiff, v. NATIONAL SHIPPING & TRADING CORPORATION and Noya Compania Naviera, S. A., Defendants.

United States District Court S. D. New York.

December 16, 1961.

George J. Engelman, New York City, for plaintiff.

Poles, Tublin & Patestides, New York City, for defendants. Christ Stratakis, John G. Poles, New York City, of counsel.

THOMAS F. MURPHY, District Judge.

In this action under the Jones Act, 46 U.S.C.A. § 688, and General Maritime Law for personal injuries by an alien seaman against a foreign shipowner, defendants raise by motion, before answer, the recurring troublesome problem of the applicability of United States laws in foreign-seamen and foreign-owner cases.

Plaintiff, a Greek subject, on March 9, 1960, at Piraeus, Greece, signed an employment agreement to proceed to the Liberian flag, S.S. National Unity, then at West Hartlepool, England, and owned by defendant Noya Compania Naviera, S. A., (a Panamanian corporation, all of whose stock is owned by a United States citizen) and there be engaged on board said ship as an oiler.

Defendant National Shipping & Trading Corporation is alleged in the plaintiff's complaint to be a Delaware corporation and as United States agent of defendant Noya, operated, managed, controlled, provisioned, manned and supplied the S.S. National Unity.

In the above agreement he is alleged to have contracted as follows:

"In the event of illness, accident or death during my employment, the Shipowner's obligations with regard to my maintenance, cure and compensation for damages shall be determined by the present Greek Collective Agreement for Employment on board Ocean going Vessels, dated March 15, 1954, as well as the Greek statutes and common law.

"For any and all disputes arising under the foregoing, as well as for any other disputes dealing with my wages and lodging, absolute and exclusive jurisdiction will lie with the Greek courts."

In the articles he signed aboard the S.S. National Unity are the following two paragraphs, translated from the Greek text:

"Illnesses, Accidents, Disputes.

"In the event of illness, accident or death during my employment, the shipowner's obligations with regard to my maintenance, cure and compensation for damages shall be determined by the present Greek Colelctive Agreement for Employment on board Ocean going Vessels, dated March 15, 1954, as well as the Greek statutes and common law.

"For any and all disputes arising under the foregoing, as well as for any other disputes dealing with my wages and lodging, absolute and exclusive jurisdiction will lie with the Greek Courts."

"Arbitration.

"Any difference of opinion existing between the Master and the crew with regard to the present Articles and Work Agreement, wages or working conditions on board the vessel shall be determined by the competent representative of Greece."

The particular page of the articles he signed was in English and noted the names of the crew, their ratings, salaries, place of sign-on, discharge and comments by the master. It should be observed that all but two of the crew were Greek (the other two were Irish).

The S.S. National Unity proceeded with plaintiff on board from England to Venezuela and returned to England; thence to Brazil; Baltimore, Maryland; the Barbados; Montreal, Canada; Detroit, Michigan; Genoa, Italy; Spain, and to Boston, Massachusetts. In Boston on January 29, 1961, while plaintiff was applying a torch to a frozen steam line pursuant to orders, the line burst causing the injuries of which he complains. He was hospitalized at the United States Public Health Hospital in Boston and after discharge was repatriated to Greece where he is at present.

Defendants' motion is threefold: (1) to dismiss on the ground that the parties have contracted to resolve their disputes in Greece; (2) in the exercise of the court's discretion to dismiss on the ground of forum non conveniens, and (3) that so much of the action as relies on the Jones Act should be dismissed because such statute is inapplicable.

Plaintiff states that the questions raised by the motion are much broader. He characterizes them as: "The question present is this: Can an American citizen acquire a merchant vessel built in the United States, place ownership in a Panamanian Corporation (Noya) in which he is the sole stockholder, register the said vessel under the laws of the Republic of Liberia, operate the said vessel by a Delaware Corporation (National), in which he is the sole stockholder, have both the owning and operating corporation engage in business within the jurisdiction of this Court, operate his vessel in international trade to and from ports in the United States and outside the Republic of Greece and through the devise of having an agent execute a questionable employment contract in Greece with the plaintiff, where the actual shipping articles are executed in England, where the ship lies, deprive this Court of jurisdiction where the tort was committed in American territorial waters and thus relegate the plaintiff to both Greek Law and a Greek forum? Stated differently, can the defendants have the tax advantages of Liberian documentation of their vessel, Panamanian ownership, operation by an American corporation, and discard the law of the flag (Liberian law), the law of the owning corporation (Panamanian law), the law of the domicile of the real party in interest, the United States citizen, owning both corporations, (the law of the United States) and solely by the contractual device already referred to, obtain the additional advantages of Greek law and a Greek forum?"

Undoubtedly the court does have jurisdiction of this action in personam. Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 3 L.Ed.2d 368; Lauritzen v. Larsen, 345 U.S. 571, 574-575, 73 S.Ct. 921, 97 L.Ed. 1254; The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152. The underlying question is not whether we should decline jurisdiction but rather—Is the Jones Act applicable? For, if the Act is controlling, we have no discretion to decline jurisdiction. Secondly, if the Jones Act is the governing statute, what is the effect of plaintiff's contract agreeing to be bound by Greek law in Greek courts? Is it against the public policy of the United States as defined in the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which is made applicable to actions under the Jones Act? For the reasons hereinafter stated we hold that plaintiff has stated a claim under the Jones Act and that by reason of that fact his prior agreement respecting Greek law becomes unenforceable.

The resolution of the problem of the applicability of the Jones Act involves a process of statutory construction now made crystal clear by our circuit's restatement of the general and undefined direction in Lauritzen for the "valuing" and "weighing" of the various facts or groups of facts that are said to be "points of contact" between the transaction and the states whose competing laws are involved. For in Bartholomew v. Universe Tankships, Inc., 2 Cir., 263 F.2d 437, 440-441 that court stated: "Hence it must be said that in a particular case something between minimal and preponderant contacts is necessary if the Jones Act is to be applied. Thus we conclude that the test is that `substantial' contacts are necessary. And while as indicated supra 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.

"* * * Accordingly, the decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be `weighed' and `evaluated' only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or group of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act."

The relevant factors here which we find constitute the requisite "substantial contacts" calling for the application of the Jones Act may be summarized as follows: (1) The Place of the Wrongful Act. Here plaintiff was injured in Boston aboard the S.S. National Unity, allegedly through negligence of defendants. This factor favors the application of American law. In Bartholomew the court characterized the place of the tort (there in American territorial waters) a "factor of significance." Accordingly, we do the same. (2) Allegiance of Defendants. Defendant ship-owner is a Panamanian corporation, all of whose stock is owned by a United States citizen. Its general agent in the United States the co-defendant here, is a Delaware corporation. In conformity with the liberal policies of the Jones Act the court in Bartholomew pierced the corporate veil of the defendant shipowner and treated it as an American corporation. We follow suit. (3) The Law of the Flag. This is of cardinal importance for Lauritzen teaches us that "the weight given to the ensign overbears most other connecting events in determining applicable law." (345 U.S. at 585, 73 S.Ct. at 930, 97 L.Ed. 1254). However, as that court further notes, "But it is common knowledge that in recent years a practice has grown, particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries. Confronted with such operations, our courts on occasion have pressed beyond the formalities of more or less nominal registration to...