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RIVADENEIRA v. SKIBS

January 5, 1973

Jorge RIVADENEIRA, Plaintiff,
v.
SKIBS A/S Snefonn, Skips A/S Bergehus, and Sig. Bergensen D.Y. & Co., Defendants


Griesa, District Judge.


The opinion of the court was delivered by: GRIESA

Griesa, District Judge.

This is a personal injury action by a seaman seeking damages under the Jones Act, 46 U.S.C. § 688, and under the general maritime law doctrine of unseaworthiness. Plaintiff also claims maintenance and cure. Defendant shipowners assert that Norwegian law applies, and that defendants have fulfilled their entire obligations under that law, precluding any recovery by plaintiff in this action.

 The action was tried by the Court without a jury. The following decision constitutes the Court's findings of fact and conclusions of law.

 Plaintiff is a citizen of Ecuador. He was born in that country in 1935. Some years ago (the precise time is not specified) he started going to sea, and at times served on Norwegian flag vessels. Despite his itinerant employment his residence continued to be in Ecuador. However, in 1966 his mother died, and plaintiff decided he would try to move to the United States. At this time he took a job as a seaman on a Swedish ship engaged in the banana trade between Central America and the United States. In connection with this employment he became a member of the Swedish Seaman's Union. The Swedish ship would make calls in the Port of New York and in California. While in New York he met, and became engaged to, a girl who was a permanent resident of the United States, although a citizen of a foreign country. During the time of his employment on the banana vessel, plaintiff did not establish a residence in the United States. When the ship called in New York, he would stay on the ship, or at the home of a cousin, or at the home of his fiancee.

 On August 21, 1967 he signed off the Swedish banana vessel after nine months employment. He took a vacation from work and stayed with his cousin in New York City. At the time he left the Swedish vessel, he was given a card by the United States Immigration Service imposing a 29-day limit for his stay in the United States.

 About two weeks after leaving the Swedish ship, plaintiff started going to the Scandanavian Shipping Office in New York seeking employment on a ship which would take him out of the country, so that he could comply with the Immigration Service deadline.

 On September 20, 1967 plaintiff was hired to serve as an able seaman on board the M/T BERGEBOSS. The BERGEBOSS is a Norwegian flag vessel, owned by defendants, who are Norwegian corporations having their principal offices and places of business in Norway and having no offices in the United States. The BERGEBOSS is a tanker, and was on a time charter to a company called Pannac Limited of Nassau, Bahamas. The charterers, rather than defendant shipowners, had exclusive control over the itinerary and carryings of the BERGEBOSS. The BERGEBOSS was employed during the year 1967 in carrying oil from Venezuela to Portland, Maine. From May 1967 through March 1968 the BERGEBOSS made 19 roundtrip voyages between Venezuelan ports and Portland.

 At the time plaintiff was hired for the BERGEBOSS, plaintiff gave the Scandanavian Shipping Office an address in Ecuador as his home address. In connection with his employment he was taken from the Scandanavian Shipping Office to the Royal Norwegian Consulate in New York City, where he signed shipping articles. The different parts of the articles were in the Norwegian language with English translations. One provision of the articles was as follows:

 
"The Master of the ship named in column No. 14 and the seaman named in column No. 2 have entered into following agreement about service onboard the said ship with the duties and rights stipulated in Norwegian legislation."

 Plaintiff could read and speak some English, but claims that he did not read the provisions of this contract.

 On September 24, 1967 plaintiff joined the BERGEBOSS in Portland, Maine. Plaintiff made one round trip on the vessel from Portland to Venezuela and back from September 25 to October 12. On October 15 the vessel left Portland again for Venezuela. In the early morning of October 17, plaintiff injured his left hand. Plaintiff was opening a metal hatch cover and was trying to insert a pin to keep the cover open, so that a tank cleaning machine could be inserted. While plaintiff was attempting to secure the pin the ship rolled and the cover fell on plaintiff's left hand. There was a fracture of the third and fourth metacarpal bones, which are the bones in the main part of the hand connecting the wrist with the fingers. There is no evidence as to the exact location of the ship at the time of the accident. It can be assumed that the ship was on the high seas, not in the territorial waters of the United States or any other country.

 Plaintiff claims that the accident was occasioned by the negligence of the supervisory personnel of the ship and by the unseaworthiness of the vessel. He claims that he was made to work extra hours at night with inadequate supervision, assistance and equipment.

 It is neither necessary nor appropriate to make findings of fact or conclusions of law on the questions raised by plaintiff's claims of negligence and unseaworthiness, since I hold that Norwegian law applies and plaintiff's claims for damages are precluded by that law.

 At the time of the events in this case, the rights of an injured seaman under Norwegian law were governed by the Norwegian Seaman's Act of 1953, the Norwegian Health Insurance Act of 1956, and the Norwegian Occupational Injuries Insurance Act of 1958. Under Section 28 of the Seaman's Act an injured seaman who was not a Norwegian subject or resident was entitled to payment of wages to a maximum of one month following his departure from the vessel. He was also entitled to medical care and subsistence at the shipowner's expense for a period of six weeks after his departure from the vessel. If the seaman did not recover during the six-week period, he was entitled to further "benefit" under Section 11(1) of the Occupational Injuries Insurance Act, such benefit to be ...


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