The opinion of the court was delivered by: MCLEAN
This is an action at law by a seaman to recover damages for personal injuries which he sustained aboard the S.S. Resolute on November 28, 1964. The amended complaint alleges that defendants Societa Navigacion Interamericana, S.A., Panama,
("Societa") and S. G. Embiricos, Ltd. ("Embiricos") were the owners of the vessel, that defendant Western Shipping Corp. ("Western") was their "managing agent and American alter ego," and that Western "managed, operated and controlled" the vessel and was its "owner pro hac vice." At another point the amended complaint alleges that "defendants" (presumably all three of them) owned the vessel and managed, operated and controlled it. The amended complaint charges that plaintiff was injured through the negligence of defendants. It also alleges that defendants were under a duty to "provide him with a seaworthy vessel * * * in accordance with the provisions of general maritime law, in addition to the provisions of the non-statutory laws of the United States." The amended complaint, however, does not allege that the vessel actually was unseaworthy. This omission apparently is due to inadvertence. Finally, the amended complaint alleges that plaintiff is a Greek national and that this court has jurisdiction under the Jones Act, the "General Maritime Law," under 28 U.S.C. § 1350, and under Article VI, Section 1 of a treaty dated August 3, 1951 between the United States and Greece.
Western moves for summary judgment dismissing the action against it. Societa and Embiricos move to dismiss the action on a variety of grounds including (1) failure to state a claim, (2) lack of jurisdiction over the subject matter, (3) forum non conveniens, and (4) the pendency in this court of a suit in admiralty brought by this same plaintiff against these same defendants for the same relief.
Defendants support their motion by eight affidavits and many exhibits. The affiants include an officer of Societa, a director of Embiricos, an officer of Western, a director of Andros Steamship Co., Ltd. ("Andros"), which "represents" the Resolute in Greece, and a Greek lawyer. Against this array plaintiff has submitted only the affidavit of his attorney. The attorney obviously has no personal knowledge of the facts, hence his affidavit clearly does not comply with Rule 56(e).
The moving affidavits establish the following facts without contradiction. Societa is a Panamanian corporation. None of its officers, directors or stockholders is an American citizen or an American resident. Presumably they are Greeks, although this fact is not stated unequivocally.
Societa owns the Resolute, which is registered in Liberia. It is a tramp steamer which trades about the world. Between January 1, 1963 and March 7, 1965 it touched at American ports on twelve occasions. It called at the Port of New York only once during that period.
Embiricos is a corporation organized under the laws of the United Kingdom with offices in London. Its directors are Greeks. None of its stockholders is an American citizen or an American resident. Embiricos is the general agent of Societa. It is responsible for the "general operation" of the Resolute, which includes arranging for its chartering, insurance, provisioning, maintenance, etc.
Andros is a Greek corporation having its office in Piraeus, Greece. It is the Greek representative of Embiricos and of vessels, including the Resolute, managed by Embiricos. In September 1964 Andros hired plaintiff to serve as a seaman aboard the Resolute. The contract of employment was signed by Andros and by plaintiff in Greece. It provided that:
"As for the rest it is mutually agreed that this contract is governed exclusively by the Greek Law in combination with the Collective Agreement, which has the force of the Law, between the Greek Shipowners' Union and the Panhellenic Seamen's Federation for the ships under Greek flag.
"In case of sickness of the seaman it is mutually agreed that the governing Law will be the Greek Private Nautical Code and it is further agreed that sickness pay during medical treatment will be that provided by the Greek Collective Agreement as applied on vessels under Greek flag. In the event of working accident the Greek Law 551 applies.
"Further more it is mutually agreed that any dispute that might arise between the contracting parties will be adjudicated by the Greek Courts of Athens only and in accordance with the Greek Law to the exclusion of any foreign Courts and Law of any other Country which for the purpose of this Agreement have no jurisdiction."
The Collective Agreement referred to in the contract of employment is an agreement between the Greek shipowners' association and various maritime unions which contains the following provision:
"1. Individual contracts of employment, on which the present Collective Agreement applies, will be governed exclusively as to any claim or right arising out of the seafarer's employment, including claims on account of illness or accident, by the provisions of the present Collective Agreement and Greek Law, being judged exclusively by the competent Greek Authorities and Greek Law Courts, resort to any foreign Courts and to any foreign Law being prohibited and expressly ruled out."
Greek Law 551 referred to in the employment contract is a statute which provides for compensation to injured employees regardless of the fault of the employer. It also provides that the employer shall pay all medical and hospital expenses of the injured workman for a period not exceeding two years. The statute is apparently in the nature of a workmen's compensation act. According to the affidavit of the Greek lawyer submitted in support of this motion, the statute ...