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MARKAKIS v. LIBERIAN

March 27, 1958

Philipos MARKAKIS, Libelant,
v.
LIBERIAN S/S THE MPARMPA CHRISTOS her engines, etc., G. Lemos, a non-resident, individually and as Master, and C. Pateras, a non-resident, individually and as Master, and G. C. Lemos, Joseph Scovell, Ernest A. Peters, and Nicholas Lyras, all non-residents, and Seguridad Compania Naviera, S.A., Boyd, Weir and Sewell, Inc., Eagle Ocean Transport, Inc., and G. Lemos Bros. Co., Limited, all foreign corporations or associations, as owners and/or operators of the Liberian S/S Mparmpa Christos, Respondent-Claimant



The opinion of the court was delivered by: HERLANDS

The Court of Appeals for this circuit has urged trial judges in non-jury cases to render a decision as soon as practicable after the conclusion of the trial. Hecht, Levis & Kahn, Inc. v. The President Buchanan, 2 Cir., 1956, 236 F.2d 627, 629; Mazella Blasting Mat Co. v. Vitiello, 2 Cir., 1957, 250 F.2d 935. See dissenting opinions of Chief Judge Clark in Hellenic Lines, Ltd. v. S. S. Exmouth, 2 Cir., 253 F.2d 473, and Quintin v. Sprague Steamship Company, 2 Cir., 252 F.2d 812, note 2. The rationale of this view is practical; a prompt decision -- while memory retains its vividness and clarity -- more precisely reflects the trial judge's evaluation of the witnesses' relative credibility and his appraisal of evidentiary details.

In this 20-day trial of a personal injury action in admiralty, the record consists of 2,997 pages of testimony, 41 libelant's exhibits in evidence and 34 respondents' exhibits in evidence. In order to render a decision as soon after the conclusion of the trial as is possible, the Court will, of necessity, combine separately numbered findings of fact and conclusions of law with its opinion. All essential findings and conclusions, most of which are numbered, are encompassed within this opinion. The propriety of that procedure in an admiralty action has been adjudicated. Hecht, Levis & Kahn, Inc., v. The President Buchanan, 2 Cir., 1956, 236 F.2d 627, 629.

The libelant, Philipos Markakis, is a 33-year old Greek seaman. There is no dispute about the fact that he was hurt in an accident that occurred on February 19, 1956, aboard a motor vessel, the S/S Mparmpa Christos. That vessel is the respondent in rem. It was and is owned, operated, managed and controlled by Seguridad Compania Naviera, S.A., the respondent-claimant. The latter has appeared in personam.

 The respondent-vessel is documented and registered under the laws of the Republic of Liberia, whose flag she flies. The respondent-owner of the vessel, Seguridad Compania Naviera, S.A., is a Panamanian corporation.

 The libelant was engaged by the respondents at Piraeus, Greece, on January 12, 1956 (s.m. pp. 963, 965, 1797; Exhs. F and G) to serve as an able-bodied seaman. Pursuant to that engagement (s.m. pp. 91, 962) libelant proceeded from Piraeus to Kiel, Germany, where (on January 20, 1956) he signed articles of agreement (s.m. pp. 92, 963, 966, 973, 985, 987, 988, 996, 1797) and entered into the performance of his duties.

 The accident took place within the navigable waters of the United States and the State of Virginia while the vessel was lying at Hampton Roads, Virginia. The vessel had loaded a cargo at Norfolk, Virginia (s.m. p. 93), to be shipped to Germany. She was engaged in securing herself for sea.

 No question of jurisdiction has been raised. The Court has not been called upon to exercise its discretion in assuming or rejecting jurisdiction.

 The parties are in fundamental disagreement as to which nation's or state's law is applicable -- Liberian, Panamanian, non-statutory general maritime American, statutory American or Virginia state law. With respect to the Liberian law itself, the parties differ with respect to its interpretation.

 This question of the choice of applicable law has been complicated by what libelant suggests is 'a riddle wrapped in a mystery inside an enigma.' An element of libelant's argument is that the the Court may properly choose statutory American law (specifically, the Jones Act) because confusion has been contrived by the principals behind the respondents in order to mask their identity and citizenship; and that the Court should pierce the corporate veil, disregard the corporate entities, and find that the beneficial interest in the respondents has been in citizens and corporations of the United States or of some of the state of the United States. The confusion arises out of a network of circumstances alleged by libelant: the respondent-vessel, registered in Liberia, flies the Liberian flag only as a 'flag of convenience'; the respondent-owner is only a paper Panamanian corporation and it owns the vessel only nominally; certain persons interested in this Panamanian corporation are Greek nationals; these Greek persons operate the vessel by means of instructions issued from London through the medium of an English corporation, this English corporation, in turn, utilizes various American corporations as its agents to obtain charters for the vessel, husband it, handle its crew's wages and claims, and generally to execute the orders emanating from London; and that the vessel's major contacts are American.

 In addition to the question of the applicable substantive law, the evidence has raised other basis issues: what was the actual cause of the accident and how did it happen; was the accident the competent producing and proximate cause of the libelant's injuries; and what was and is the nature and extent of libelant's injuries and damages considered from the points of view of medicine and law?

 In resolving all of the foregoing and related issues, the Court has made the factual findings and reached the legal conclusions set forth in this opinion.

 The libelant has firmly established the findings in his favor by the clear preponderance of the credible evidence. In so finding, the Court is acting upon 'the definite and firm conviction' that such are the facts, and not merely because 'there is evidence to support' such findings. 'Cf. United States v. United States Gypsum Co., 1948, 333 U.S. 364, 869, 68 S. Ct. 525, 788, 92 L. Ed. 746, 1147.

 Aside from the question of the choice of law the crux of the case is the relative credibility of the witnesses. The Court has been required to decide which of divergent inferences the Court will draw from the testimony and documentary proof. The controlling evidence, for the most part presented in open court, is sharply conflicting.

 Mindful of its fact-finding responsibility in this non-jury case, the Court has evaluated the reliability of the witnesses in terms of the inherent persuasiveness of their testimony and their relative credibility. In making such appraisal, the Court has closely considered the demeanor of the witnesses on the stand, their manner of testifying, their frankness or lack of candor, their partisanship or impartiality, and the testimonial effect of any motive or bias.

 The Court has critically evaluated the credibility of libelant himself, who testified at great length during parts of nine days of the trial (January 6, 7, 9, 10, 13, 14, 16, 17; February 25). In appraising his credibility, the Court has studied those portions of his pretrial depositions that have been put into the record by respondents and supplemented by contextual excerpts introduced by libelant. The Court finds no substantial or material prior inconsistent or contradictory statements. The essence of libelant's story from the very beginning has been the same.

 On all occasions libelant testified through a Greek interpreter. Translation is an inexact art and science. Nomad, The Way of the Translator, The American Mercury (1945) vol. 60, p. 330. When questions are put and answered through an interpreter, some imprecision in paraphrase and idiom is unavoidable. This observation also applies in part to the various medical reports and hospital records because unidentified interpreters of undefined skill were used on occasions to interview and communicate with the libelant.

 The structural facts and the architecture of libelant's pretrial and trial testimony reveal his basic veracity. The Court does not imply that libelant's testimony and conduct have been entirely free from a degree of exaggeration about his past and present physical and mental condition. Respondents' psychiatric expert was of the opinion (s.m. pp. 2266, 2307, 2390-2391) that the libelant has now substantially recovered and that, consciously or unconsciously, he is playacting the role of a mental and physical cripple. The Court rejects that opinion. Libelant's larmoyant tale is based on hard fact, not malingery (s.m. pp. 1323-1324, 1621-1629, 1669-1670, 1697-1698, 2335-2336, 2381-2383, 2387-2389, 2417).

 In the case of libelant's testimony, as in the case of all of the other witnesses' testimony, the Court has selected and accepted those portions of the testimony that have impressed the Court as truthful, and has rejected those portions that have impressed the Court as being intentionally or unintentionally incorrect or false. There has been neither wholesale acceptance nor wholesale rejection of any one witness's testimony. The real facts have been sifted out of a welter of conflicting and sometimes unclear evidence.

 As fact-finder, the Court has selected from the entire record those logical inferences which accord with common sense and experience and which fall within the normal range of probabilities in the context of the totality of the evidence.

 The standard of libelant's burden of proof in this case -- "by a preponderance' -- means that the inferences from the testimony are such as to persuade that the occurrence of an essential fact was more likely or probable than its non-occurrence.' Judge Frank, concurring, in United States v. Masiello, 2 Cir., 1956, 235 F.2d 279, 286. (Emphasis in original.)

 Findings of Fact

 1. At all pertinent times, respondent S/S Mparmpa Christos was a merchant vessel registered under the laws of the Republic of Liberia and flying the Liberian flag.

 2. At all pertinent times, respondent Seguridad Compania Naviera, S.A., was a corporation organized and existing under the laws of the Republic of Panama.

 3. At all pertinent times, respondent Seguridad Compania Naviera, S.A., was the owner of record of respondent S/S Mparmpa Christos, and directly or through others, operated and controlled the said vessel.

 4. At all pertinent times, the respondents were engaged in foreign commerce between the United States and other countries, through charter arrangements.

 5. Respondent corporation (up to February 19, 1956, the date of the accident) did not directly issue orders or instructions with reference to the operation and control of the vessel. Said corporation did not maintain (up to and at the time of the accident) an office in the Republic of Liberia. Operating instructions did not come from the Republic of Liberia or the Republic of Panama. Up to and at the time of the accident, the vessel had not traveled between Liberia and other ports nor between Panama and other ports.

 At the time of the accident, the vessel was making her maiden voyage (s.m. pp. 1964, 2111). She had been built in Japan and delivered to the respondent-owner in November 1955. She took on her crew in Germany, traveled light to Norfolk, Virginia, where she loaded a cargo of coal destined to Germany.

 6. (a) Eagle Ocean Transport, Inc., a Delaware corporation with offices at 24 State Street, Manhattan, New York, shared offices with G. Lemos Brothers Corp., a New York corporation, whose name was on the door with Eagle Ocean Transport, Inc.

 (b) Eagle Ocean Transport, Inc., acted on behalf of the respondents, pursuant to instructions from G. Lemos Bros. Ltd. of London.

 (c) G. Lemos Bros. Ltd. of London was controlled by the same Greek family which controlled G. Lemos Brothers Corp. of New York.

 (d) Joseph Scovall, an American citizen residing in New York, became secretary of Seguridad Compania Naviera, S.A., by instructions received from G. Lemos Bros. Ltd. of London. He also was secretary of Eagle Ocean Transport, Inc., which handled local matters for various foreign flag vessels of G. Lemos Bros. Ltd. of London when in the New York area.

 (e) Said G. Lemos Bros. Ltd. of London operated various foreign flag vessels under Honduran, Panamanian and Liberian flags, and through various foreign corporations.

 (f) The Lemos family referred to herein were Greek citizens.

 (g) Boyd, Weir & Sewell, Inc., an American corporation with offices at 24 State Street, Manhattan, New York, handled wage accounts for the crew of the vessel and undertook to obtain charters for it and to collect the freight hire on behalf of the shipowner.

 (h) At the time of the accident herein an American firm, Hasler & Co., was the vessel's husbanding agent in Norfolk, and the bill of lading (Exhibit JJ) shows that C. H. Sprague & Son Co. of Boston was shipping a cargo of coal on the vessel from Norfolk to Germany.

 (i) The beneficial interests in the respondents have been in citizens and corporations other than citizens and corporations of the United States or of any of the forty-eight states of the United States.

 7. At the time of libelant's accident, as well as when process was served herein, respondent-vessel was located in navigable waters in Hampton Roads, Virginia; and within the territorial waters of the United States of America.

 8. At all pertinent times, libelant was in respondents' employ as an able-bodied seaman on said vessel.

 9. Libelant is a citizen of Greece. He has resided in the United States since February 19, 1956, the date of the accident. At the time of the filing of the libel herein and during the time of all the medical treatment which libelant has received he has been and still continues to be in the United States,

 10. This suit was commenced on September 28, 1956, in the United States District Court, District of Virginia, Newport News Division, by process in rem and in personam, in admiralty, while the vessel was at that port.

 11. On October 2, 1956, process of the United States District Court for the District of Virginia, dated October 2, 1956, was returned to the Court, with the following notation and admission on the reverse side thereof:

 'Seguridad Compania Naviera S.A., acting by and through its proctor, hereby makes a general appearance and accepts service with the same force and effect as if actually served by the U.S. Marshal. This 5th day of October 1956.

 '(S) Seguridad Compania Naviera S.A. By Charles R. Dalton, Jr. of Proctors'

 12. Jurisdiction was obtained over the respondent-vessel and the respondent-owner in rem and in personam. Upon the trial herein, counsel for the respondents stated, formerly, that such jurisdiction of the Court was admitted (s.m. p. 3).

 13. On February 19, 1956, at about 3 P.M., while the libelant was assisting in securing the vessel for sea, after the vessel had loaded a cargo of coal, the operating reel wire was cut and severed. This caused the No. 2 port boom to fall and to give the libelant a glancing blow on the head, neck, left shoulder and back. This boom is a hollow steel tube, about 40 feet long, weighing 2,000 pounds, and capable of lifting five tons of cargo. In securing for sea it was customary to lower the cargo boom from the vertical to the horizontal position in order to secure the boom head on a boom cradle.

 14. At the time of the accident, libelant was working in the vicinity of the No. 2 hatch. The reel operating wire led from the port reel to a gypsyhead on the port winch, and was part of the equipment located on the deck used for raising and lowering the boom. This reel operating wire became caught or entangled in the brake gear teeth of the reel, when the winch (powered by electricity) was suddenly put into operation by other seamen. The reel operating wire was cut and severed, thereby causing the No. 2 port boom to fall and the boom's gooseneck to jump out of the boom step bracket. The lower portion of the falling boom struck the libelant and rendered him unconscious. He was unconscious for ten to thirty minutes (Exhibit U; § .m. pp. 147, 238; 11, 13, 14, 19-21).

 15. The exhibits, as amplified by the testimony, establish the following facts:

 (a) Exhibit 1 shows the reel, which has been referred to synonymously as the 'wire drum' or 'the topping lift drum.' This is the unit behind the metal surface designated as 'R' on Exhibit 1. The wire on the reel actually consists of two separate wires of two different thicknesses, separated on the drum of the reel by a solid disk-like metal structure called a separator (marked 'WW' on Exh. 2).

 The thicker wire on the reel (which wire is to the right of the separator, indicated on Exhibit 2) is known as the topping lift wire or the topping wire; and it leads vertically (see 'D' on Exhibit 1) to a block at the top or head of the mast (King or Samson post), thence to the head of the No. 2 port cargo boom. As the topping lift wire is paid off the reel, the boom is lowered to the deck through the principle of gravity.

 The thinner wire on the reel (which wire is to the left of the separator, indicated on Exhibit 2) is known as the reel operating wire. It is five-eighths of an inch in diameter. It is illustrated, in coiled form, on Exhibit 1 by the wire from the loop 'E,' running through points 'W' and 'E' and thence onto the reel-drum. It is also illustrated by the wire on the extreme left side of Exhibit 2.

 The function of the reel operating wire is to operate the reel by means of power transmitted from the gypsyhead of the winch to the reel by means of the reel operating wire.

 (b) The winch is outlined in red on Exhibit LL; the reel is outlined in blue on Exhibit LL. These two pieces of equipment are on the port side of the vessel; and hence have been referred to respectively as the port winch and port reel. They are in the vicinity of the No. 2 cargo hatch (see Exhibit LL), which is in the general area designated as 'A' on Exhibit 1. The winch above referred to has been identified in this case as 'the forward port electric winch at the No. 2 hold.'

 This winch is photographed in Exhibit 1. At its extreme left (outboard side) is a structure known as the gypsyhead, parts of which have been designated on Exhibit 1 by the letters 'G', and. 'G' is an opening, through which a loop or ring ('E') of the reel operating wire is placed. is the outer rim of the lip of the gypsyhead. To the right of the lip is the drum of the gypsyhead.

 To the right of the gypsyhead itself is a metal structure housing part of the winch operating mechanism. To the right of this mechanism is the drum of the winch, on which is would a wire that runs to the boom heel block (see Exhibit 21); this latter wire is the cargo hoist leading or hauling part, and is also called the cargo runner (see Exhibit 21).

 (c) The boom involved in this case has been described and identified as 'the forward port cargo boom at the No. 2 hatch.'

 The boom is attached at its lower end or heel to the mast (a Samson or King post) by a bracket or device known as a boom step or boom step bracket (see Exhibit 21), indicated on Exhibit 1 by the letter 'B' and by the red oval on Exhibit 3. The extreme end or tapered portion of the boom heel is indicated by the letter 'C' on Exhibit 1 and by the letter 'G' on Exhibit 3. This extreme end of the boom heel is called the gooseneck.

 (d) The gooseneck is held or positioned inside the boom step (boom step bracket) by a pin called the gooseneck pin, also called the boom heel pin (see Exhibit 21), and indicated by the parallel broken red lines on Exhibit 3. The function of a gooseneck pin (boom heel pin), properly and suitably designed and constructed in accordance with customary, approved maritime practices, is to hold the gooseneck inside the boom step bracket in order to prevent the gooseneck and gooseneck pin from jumping up and down and from jumping out of the boom step bracket and, at the same time, to permit the gooseneck and the gooseneck pin to turn or pivot laterally inside the boom step bracket.

 (e) While there are permissible variations in the construction of a gooseneck pin (e.g., Exhibits 5 and 20) and, as a matter of law, a vessel need not be equipped with the latest or the best equipment, nevertheless, a gooseneck pin that is suitably designed and constructed to serve its intended use and purpose should be so designed and constructed as to firmly secure the gooseneck pin (and thereby the gooseneck) in the boom step bracket.

 (f) (I) In the present case, the gooseneck pin was not so designed and constructed. The gooseneck pin and its appurtenances were, at the time of the accident herein, unseaworthy pieces of equipment. They were not designed and constructed in accordance with accepted principles and practices of naval architecture, shipbuilding and the maritime industry.

 (II) The gooseneck pin and its appurtenances also failed to meet the standard of due care, in that a reasonably prudent shipowner and ship, under the same and similar circumstances, would have and should have seen to it that the gooseneck pin and appurtenances were adequately and reasonably secure, which they were not.

 (III) The immediately preceding findings are based upon a careful analysis of the total record of testimony and exhibits. In particular, the Court accepts as reliable the expert opinion testimony given in behalf of libelant by Robert B. Zubaly (s.m. pp. 172-180, 203, 217-218, 234) and Antonio G. Pista (s.m. pp. 721-732, 757). The Court substantially discounts the expert opinion testimony given in behalf of respondents on this point (s.m. pp. 797, 820-821).

 (g) Exhibit LL shows the relative positions of the winch and the reel. But that exhibit, for purposes of this case and for the critically precise detail involved herein, does not show clearly the fact (found by the Court) that the gypsyhead of the winch and the reel were not suitably and properly aligned with respect to each other. There was an absence of a fair or straight lead for the wire leading to the gypsyhead. To understand the practical and unfortunate consequences of this improper off-center alignment, it is now necessary to consider the construction of the reel.

 (h) The reel has an indented or toothed brake gear, pictured on Exhibit 2, one of the teeth being identified thereon by the letter 'T.' There are a number of such teeth. This contrivance functions together with a horizontal movable bar ('Z' on Exhibit 2) on the principle of a ratchet and pawl. Since these metallic teeth are firmly affixed to the drum of the reel, they revolve simultaneously when the reel revolves.

 (i) As the reel revolves, the reel operating wire either reels on or pays out, depending on the direction in which the reel is turning. At the time of the accident there was no safety appliance, guard, flange or structure on the casing of the reel (or elsewhere) that would serve or served to prevent the reel operating wire from becoming caught, entangled or ensnarled in the moving gear teeth of the reel. The reasonably forseeable danger of such a happening was made all the more imminent by virtue of the fact here existing that due to the improper off-center alignment of the reel and the winch, the reel operating wire would not reel on or pay out from the reel on a straight line that was perpendicular to the axis of the drum of the reel; i.e., there was absent a fair or straight lead. The reel operating wire came on or off the reel at an angle that (measured from the axis of the reel drum) ran outboard; and, moreover, the wire itself would not be and was not taut at the very beginning when the winch and reel were put into motion. Furthermore, as the reel operating wire reeled on or paid out from the moving reel and gypsyhead of the winch, the wire would move sidewise or transversely from right to left and from left to right. This side motion was also a causal factor in the entangling of the wire on the rotating gear teeth. Hence, it was reasonably foreseeable that -- and as here happened -- the reel operating wire would be caught in the moving brake gear teeth and would be cut and completely severed.

 (j) (I) The evidence patently establishes that the winch, reel and related appurtenances were not fit and suitable for the purposes for which they were intended to be used. They were not designed, constructed, positioned and maintained in accordance with customary, approved maritime practices. They were unseaworthy equipment; and the vessel was unseaworthy in that respect.

 (II) In designing, constructing, positioning and maintaining or retaining such equipment, the shipowner was guilty of negligence, in that a reasonably prudent shipowner under the same or similar conditions would not have had designed, constructed, positioned and maintained or retained such equipment.

 (III) The immediately preceding findings are based upon a careful analysis of the total record of testimony and exhibits. In particular, the Court accepts as reliable the expert opinion testimony given in behalf of libelant (s.m. pp. 167, 199-200, 732-756). The Court substantially discounts the expert opinion testimony given in behalf of respondents on this point (s.m. pp. 803ff, 820-821).

 Thus, both unseaworthiness and negligence have been amply established by the clearly preponderant weight of the credible evidence.

 16. Libelant's injuries were proximately caused by the negligence and the unseaworthiness of the respondent-vessel and the respondent-owner's fault in respect to such negligence and unseaworthiness.

 17. According to the vessel's Chief Officer's deck log (Exh. 23), the accident occurred about 4:20 P.M., February 19, 1956. The deck log ...


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