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April 18, 1969

Andreas SOBONIS et al., Plaintiffs,
STEAM TANKER NATIONAL DEFENDER, her engines, tackle, boilers and appurtenances, etc., In Rem, and National Transport Corporation, et al., Defendants. Andreas SOBONIS et al., Plaintiffs, v. GRANEKSPORT PREDUZECE ZA IZVOZ I UVOZ ZITARICA, Defendants

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

Plaintiff seamen seek a salvage award against the S/T NATIONAL DEFENDER, in rem, and against the owner and operator of the vessel, in personam. Plaintiffs also seek a salvage award against the owner of the cargo and the suits have been consolidated. Jurisdiction rests in admiralty. A full trial on the merits has been had to the Court.

 In June, 1963, plaintiffs, Greek seamen, were members of the crew of the S/S MESOLOGI, a Greek flagship owned by Hellenic Shipping and Industries Company, Limited, S.A., a Panamanian corporation. The S/T NATIONAL DEFENDER is an American flagship owned by defendant National Transport Corporation, a Delaware corporation, and operated by defendant National Shipping and Trading Corporation, a New York corporation. DEFENDER's cargo, 48,500 long tons of winter wheat, was owned by defendant Graneksport Preduzece Za Izvoz I Uvoz Zitarica, a Yugoslavian corporation.

 The facts are as follows:

 In the latter part of May, 1963, the S/T NATIONAL DEFENDER took on board a cargo of wheat at New Orleans, Louisiana. The grain had been purchased by the government of Yugoslavia through its agent, Graneksport, under U.S. Public Law 480 and was to be delivered at either Split-Sibenik or Rijeka, Yugoslavia.

 On the morning of June 3, 1963, the DEFENDER arrived at Freeport, Bahamas for bunkering. At about noon, the vessel weighed anchor and shortly thereafter dropped off the pilot. At 12:30 P.M., the DEFENDER went hard aground on a reef one mile off Grand Bahama Island with 80% of her bottom resting on a flat limestone ledge. All efforts by the vessel to free herself were to no avail. These included working her engines, transferring ballast, discharging ballast and discharging fuel.

 After being advised by the master of the DEFENDER and by marine surveyors who were brought in, the ship's owner and operator decided that the vessel could not be refloated unless part of her cargo was removed. The president of the vessel's owner (who was also president of the vessel's operator) testified that his opinion at the time was that:

[the] ship cannot be dragged off the strand and that she would, in all probability, have to be lightened. We would have to take cargo off the ship in order to get her - it would be too risky, far too risky, to try to pull her off, even if that were possible, and I thought that it would be just totally impossible for any tugboat to pull her off. This appeared to be quite obvious shortly after the ship grounded, and after we had the information from the master.

 In the days following, defendants received and refused a number of offers from professional salvage organizations to refloat the DEFENDER on a "no cure, no pay" basis. Instead, they canvassed the market for a ship available for immediate charter and capable of receiving enough cargo from the DEFENDER to lighten the stranded vessel the requisite amount.

 On June 6, 1963, the vessel's owner, defendant National Transport, concluded a charter party with Hellenic Shipping for the hire of the latter's ship, the S/S MESOLOGI, "for a minimum period of thirty days or for a voyage to Yugoslavia, at charterers' option." The contracts stipulated that the MESOLOGI was "to be employed in the lighterage of grain cargo from the American S/T NATIONAL DEFENDER now laying aground off Freeport, Bahama, and after her refloating either reload said cargo back unto the S/T NATIONAL DEFENDER or proceed to such port or ports in Yugoslavia as the Charterers or their Agents shall direct * * *." The charter hire and other expenses stipulated for in this contract have been paid by the owner of the DEFENDER to the owner of the MESOLOGI.

 The MESOLOGI left New York on June 6, with the plaintiff crewmen on board, and proceeded directly to the Bahamas. During the six day voyage, the crew cleaned the MESOLOGI's holds and prepared for the receipt of the grain by constructing feeder boxes and shifting boards.

 On June 12, 1963, the MESOLOGI came alongside the DEFENDER and the transfer of the grain commenced. The work was accomplished by means of small diesel engines known as vacuvators or grainveyors which sucked the grain out of the holds of the DEFENDER and blew it into the holds of the MESOLOGI through flexible metal piping. All of this equipment belonged to the DEFENDER; it was carried on board and was the ordinary means of loading and unloading her cargo.

 There was considerable dispute at trial as to the services of the members of the MESOLOGI crew in relation to the transfer and storing of the grain. The testimony thereof given by the then chief mate of the MESOLOGI, who is also a plaintiff herein, was disputed by a representative of defendant National Shipping and Trading who was on the scene. The latter attributed the burden of the work, particularly the disagreeable part of it, to a crew of Bahamian shore laborers which was hired to do the work aboard the MESOLOGI.

 Except as mentioned below, no member of the crew of the MESOLOGI worked on board the DEFENDER in transferring the cargo off that ship. This part of the operation was performed entirely by the DEFENDER's crew with some help from the Bahamian laborers, except for two engineers and an apprentice from the MESOLOGI who helped to tend some of the vacuvators aboard the DEFENDER. The heavy labor of trimming the cargo inside the holds of the MESOLOGI was substantially all performed by the Bahamian laborers. The deck crew of the MESOLOGI and some others assisted in the receipt of the cargo aboard their vessel by connecting the pipes and directing the grain flow from them into the proper holds and by doing part of the trimming. The work of the crew and of the shore laborers was performed around the clock and - at least down in the holds - under unpleasant conditions due to the dust from the wheat as it fell from the pipes. The weather throughout the operation was clear and fair; the sea, with one exception discussed below, was calm.

 On June 18, after having received between 11,000 and 12,000 long tons of the wheat, the MESOLOGI cast off from the DEFENDER and proceeded to anchorage some distance away. The DEFENDER then discharged about 5,000 tons of ballast that had been used to keep the ship steady on the reef during the transfer operation and, with the help of a tug and of the high tide, floated free of the reef at about 5:00 P.M.

 Both vessels returned to Freeport for bunkering and then proceeded to Yugoslavia without further incident and delivered their respective portions of the wheat in late July. On July 29, 1963, the MESOLOGI arrived at Pylos, Greece where the entire crew was discharged and paid by Hellenic Shipping, their employer, receiving in addition to their regular wages various overtime and special payments for the extra and non-routine work they performed during the voyage.

 On September 13, 1963, the plaintiffs herein, who comprise the entire crew of the MESOLOGI during the relevant period, filed this suit in the United States District Court for the Eastern District of Virginia. Three months later the case was transferred to the Southern District of New York. Neither the master of the MESOLOGI nor her owner, Hellenic Shpping, has joined the suit; nor have they made any claim for salvage against the DEFENDER. On August 14, 1968, the defendants made an offer of judgment in the sum of $3,710.00, which represented the total basic wages of all the plaintiffs for one month as of June, 1963. This was rejected and the case proceeded in due course to trial.

 Defendants have raised a number of defenses to the claim of salvage and these will be discussed in turn.

 Defendants have insisted that the case is governed by the law of Greece, the law of the vessel's flag, and that under Greek law the plaintiffs neither have standing to bring the action nor substantive merit to their claim. The defendants supported these contentions with the testimony of a leading Greek admiralty lawyer who testified extensively on Greek salvage and admiralty law but claimed unfamiliarity with the law administered by American admiralty courts.

 It is settled beyond all question that a claim for salvage in an American court arises out of the jus gentium and does not depend on the local laws of particular countries. S/S Belgenland v. Jensen, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152 (1885); Barkas v. Cia. Naviera Coronado, S.A., 126 F. Supp. 532 (S.D.N.Y.1954); Dalmas v. Stathatos, 84 F. Supp. 828 (S.D.N.Y.1949); Chapman v. The Engines of The Greenpoint, 38 F. 671 (S.D.N.Y.1889); Anderson v. The Edam, 13 F. 135 (E.D.N.Y.1882); The Bee, 3 Fed.Cas.No.1,219 (D.Me.1836). The applicable law is "the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted." S/S Belgenland v. Jensen, supra, at p. 369, 5 S. Ct. at p. 867. Plaintiffs' standing to sue ...

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