The opinion of the court was delivered by: MCLEAN
This is a suit in admiralty by a Greek seaman for damages for personal injuries which he sustained on September 15, 1965 on board the S.S. Eurytan, a vessel owned by respondent, which is of Greek registry and flies the Greek flag.
When the accident occurred, the Eurytan was on the high seas, en route to Australia. Respondent asks this court to decline to exercise jurisdiction over the suit.
The affidavits, which have been supplemented by interrogatories and a deposition, developed the following additional facts. On May 26, 1965, at Piraeus, Greece, libellant, a Greek citizen and resident, signed a "work contract" to serve as a fireman aboard the Eurytan. This document contained the following "Special Terms":
"a) Injuries and sickness will be governed according to the Greek Law and the Greek Collective Agreement.
b) Every claim or dispute because of injury or sickness will be under the exclusive jurisdiction of the Greek Courts."
Libellant joined the vessel at Rotterdam on May 27, 1965 and signed the ship's articles there. The articles were "renewed," which apparently means "rewritten," when the ship reached New York on June 10, 1965. They provide that the terms of the Greek collective bargaining agreement shall apply to libellant's employment. Chapter XVII of this agreement states that claims arising out of accidents are to be "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."
After the accident, libellant was transferred at sea to a vessel bound for California so that he might receive better medical care. He was hospitalized for a time at San Pedro, California. On February 3, 1966, he was sent back to Greece, where he still is undergoing treatment.
Respondent is a Panamanian corporation with its principal office in Greece. All its officers, directors and stockholders are citizens and residents of Greece. It owns seven ships, all of Greek registry, which it operates as tramps all over the world. They touch at American ports frequently, but, according to respondent, not on any regular schedule. Libellant claims, without express contradiction from respondent, that during the past three years, none of these vessels has been to Greece. However, the testimony is that the crews are hired in Greece. The crew list of the Eurytan shows that with very few exceptions, the members of the crew are Greeks.
Respondent calls its vessels the Marchessini Line. A company named P. D. Marchessini & Co. Ltd., whose office is in London, has a contract with respondent by which P. D. Marchessini & Co. Ltd. is designated respondent's agent. The contract, after reciting that respondent "desires to give the exclusive management and operation of its vessels to the Agent," provides that "the Agent shall have the exclusive representation throughout the world for all vessels of the Owner * * *" and shall have power to appoint subagents in various countries. In the exercise of this power, P. D. Marchessini & Co. Ltd., by contract dated June 30, 1960, appointed P. D. Marchessini & Co. (New York) Inc. agent for respondent's vessels in the United States. P. D. Marchessini & Co. (New York) Inc. is a New York corporation. Its stock is owned by two sons of P. D. Marchessini, the founder of the British company.
P. D. Marchessini does not reside in the United States, although he visits this country "occasionally." His son, Alexander Marchessini, president of the New York corporation, was born in Greece but is a naturalized American citizen and resides in New York. It does not appear whether the same is true of the other son.
Alexander Marchessini testified that P. D. Marchessini & Co. (New York) Inc. acts as agents for respondent's vessels in New York and occasionally, through subagents, in other American ports. Its duties include arranging for pilots, tugs and stevedores. On the instructions of P. D. Marchessini & Co. Ltd., it books cargo and places advertisements for the vessels in New York newspapers.
Mr. Marchessini testified that "wherever we are instructed by our principals to do something in connection with their vessels in the United States, and it is within our power to do so, we do so." It keeps copies of the crew lists of respondent's vessels which are required by the immigration authorities. Occasionally, it handles repairs to the vessels, but it is not generally responsible for maintenance of the vessels and it does not on its own initiative determine the vessels' cargoes or their routes.
P. D. Marchessini (New York) Inc. owns no stock of P. D. Marchessini & Co. Ltd. or of respondent. Neither does Alexander Marchessini, and apparently his brother owns none either. Neither Alexander nor his brother are officers or directors of P. D. Marchessini & Co. Ltd. or of respondent.
Although respondent borrowed money from Chase Manhattan Bank, secured by a first fleet mortgage on all its vessels, respondent states, in answer to libellant's interrogatories, that "there is no American financial interest in the SS 'EURYTAN', and no United States individuals or corporations or partnerships have in any way ...