The opinion of the court was delivered by: KAUFMAN
Respondents move this court for a decree dismissing the libel on the ground that the court does not have jurisdiction of the subject matter of the suit, or, in the alternative, to decline to take jurisdiction on the ground that it is not a proper forum.
The action contains three causes: First, to recover for negligence based upon the Jones Act, 46 U.S.C.A. § 688, and the general maritime law; second, to recover for unpaid wages; third, to recover penalties for the non-payment of those wages under 46 U.S.C.A. §§ 596 and 597.
Respondent corporation is a foreign corporation organized under and by virtue of the laws of Greece with offices in Greece. Libelant is a citizen of Greece who has been deported by the United States to Greece.
In fuller detail, the libel alleges in the first cause of action, that on or about the 4th day of December, 1951, at the port of Newport News, Virginia, libelant, having served aboard the respondent-owned S.S. 'Leonidas Michalos' on previous engagements was re-engaged to serve as a seaman for a voyage of the vessel thereabout to the commenced and to be paid regular monthly wages and found.
It also alleges that by reason of the negligence or respondents, and the unseaworthiness of the vessel, libelant was violently assaulted by the master of the vessel and that libelant is electing to maintain this action pursuant to the provisions of the Jones Act and the general maritime law.
The second cause of action, in addition to realleging the paragraphs of the first cause of action, asserts that on January 19, 1952. libelant was discharged from the S.S. 'Leonidas Michalos' at the port of Jacksonville, Florida, and at the time of the discharge he was paid no part of the monies due him for previous service aboard the vessel. It is alleged that he still remains unpaid for his previous services.
The third cause of action realleges the paragraphs of the first cause of action and asserts that by virtue of the provisions of 46 U.S.C.A. §§ 596 and 597 libelant is entitled to recover two days pay for each day the wages earned and due him at the port of Jacksonville continued to be withheld from him.
Upon this motion to dismiss, respondents put in question those allegations of the libel which would confer jurisdiction on this court, and assert affirmatively in an affidavit by their proctor that libelant was signed on at Rotterdam, Holland, in 1950, and has served with the vessel continuously until he was removed at Jacksonville, Florida, on or about January 12, 1952, due to a mental attack. Respondents attempt to fortify this assertion by an affidavit of the master of the vessel (whose alleged wrongful act caused the injury) who avers that libelant was not reengaged at any time while the vessel was in a port of the United States to serve as a seaman but continued in the service under and by virtue of his engagement entered into in Rotterdam, Holland, in 1950. Respondents' proctor further asserts, upon information and belief, that it is the practice on vessels of Greek registry that seamen have a continuous engagement of hire and not a voyage-to-voyage hiring as in the practice on vessels of United States registry, and that in view of the fact that libelant was not engaged in the United States, this court does not have jurisdiction.
Moreover, respondents' proctor urges that even if the court should find that it does have 'technical jurisdiction', it should decline to take jurisdiction of the case since it is between non-resident aliens. An affidavit by a Greek attorney, allegedly expert in Greek law, is offered to establish that libelant will not be prejudiced by a declination of jurisdiction since he has an adequate remedy under the laws of Greece.
On the other hand, libelant's proctor asserts in his brief that Greek law does not require articles be signed, and many Greek vessels do not use articles in connection with the employment of their seamen. He states further that the employment of the seamen is usually co-terminous with the voyage made by the vessel and on the termination of a voyage the seamen is paid. He may either leave the vessel, or he may be engaged anew for another voyage of the vessel. If he is reengaged for a new voyage, there is no signing of new articles or new registration. The seaman merely comes aboard for the voyage.
So far as it concerns the first cause of action, the determination of this motion depends upon the allegation in the libel that libelant was reengaged on December 4, 1951 at Newport News, Virginia. This allegation is incorporated by reference in the second and third causes of action as are other jurisdictional allegations in those causes.
Respondents urge that if libelant, a Greek national, signed on at Rotterdam, Holland, on a Greek owned, operated and registered ship, he cannot avail himself of the Jones Act merely because the ship may be partial to American ports. This is good law and I accept it as such. The Paula, 2 Cir., 1937, 91 F.2d 1001, certiorari denied Peters v. Lauritzen, 1937, 302 U.S. 750, 58 S.Ct 270, 82 L. Ed. 580; Jonassen v. U.S.A. and Norwegian-American Lines, D.C.E.D. N.Y., 1952, 103 F.Supp. 862; O'Neill v. Cunard White Star Line, Ltd., 2 Cir., 1947, 160 F.2d 446, certiorari denied, 1947, 332 U.S. 773, 68 S. Ct. 56, 92 L. Ed. 358; Taylor v. Atlantic Maritime Co., 2 Cir., 1950, 179 F.2d 597, certiorari denied, Atlantic Maritime Co. v. Rankin, 1951, 341 U.S. 915, 71 S. Ct. 736, 95 L. Ed. 1350; Catherall v. Cunard S.S. Co., D.C.S.D. N.Y., 1951, 101 F.Supp. 230.
While it is true that the benefits of the Jones Act have not been extended to foreign seamen signing on in foreign ports on foreign owned, operated, registered ships simply because those ships are partial to American ports, the benefits of the Act have been extended to foreign seamen signing on such ships in American ports. Kyriakos v. Goulandris, 2 Cir., 1945, 151 F.2d 132; Taylor v. Atlantic Maritime Company, supra.
Respondents urge that the allegation in the libel that libelant was signed on at an American port is not conclusive because it was not verified by libelant. To this the proctor for libelant replies in his brief that the instant notice of motion gave no indication that the verification was to be questioned in any respect. Furthermore, he says, he retained by two relatives of libelant, and in view of ...