The opinion of the court was delivered by: GURFEIN
On January 30, 1970, the plaintiff, Arnulfo Jiminez, began an action in this Court against Maritime Overseas Corporation and Sea Liberties, Inc. (70 Civ. 394 ELP) to recover damages, maintenance and cure arising out of injuries allegedly sustained by him aboard the S/S Overseas Explorer. Among the injuries which the plaintiff claimed to have sustained were permanent and continuing injuries to his right hip and lower back. The plaintiff's suit for injuries allegedly sustained was tried during the period March 13 to March 17, 1972 and resulted in a $14,000 verdict in the plaintiff's favor.
During the pendency of the plaintiff's suit to recover for injuries sustained aboard the Overseas Explorer the plaintiff obtained employment aboard the Overseas Suzanne, which vessel was also operated by Maritime. While employed aboard the Overseas Suzanne the plaintiff allegedly suffered an exacerbation of the back and hip injuries which he claimed were initially sustained aboard the Overseas Explorer. In connection with his claim of exacerbation the plaintiff was examined by, among others, a Dr. Kim in Pusan, Korea. Dr. Kim in his report of his examination of the plaintiff noted a positive reaction to a VDRL test and indicated that syphilis was suspected. On or about January 7, 1972 the plaintiff was repatriated by air from Korea to the United States.
During January 1972, Strachan Shipping Company was the New Orleans agent for Maritime. On or immediately prior to January 13, 1972, the plaintiff appeared at the office of Strachan, New Orleans, presented a MRDS slip dated January 11, 1972 which classified him as not fit for duty because of his right hip for a period of two weeks thereafter, and demanded payment of maintenance and cure. On January 13, 1972 Strachan forwarded a copy of the MRDS slip dated January 11, 1972 to Maritime in New York, stating that the plaintiff was applying for maintenance and cure benefits for the period of alleged disability.
On January 17, 1972, Walter L. Reinhart, Assistant Manager, P & I Department for Maritime, acting in the course of his employment, replied to Strachan stating that they were unable to comply with the plaintiff's request for maintenance and cure benefits since their records indicated that the plaintiff had been repatriated for further treatment for "active syphilis."
A copy of Mr. Reinhart's letter of January 17, 1972 to Strachan was forwarded to Wilson & Hopkins, the attorneys then defending the plaintiff's suit for injuries allegedly sustained aboard the Overseas Explorer.
The plaintiff sues for libel. Jurisdiction is based on diversity of citizenship, the plaintiff being a citizen of Louisiana and the defendants being citizens of New York. The defendants move for summary judgment.
The law to be chosen is either the law of the State where the publication took place, De Ronde v. Gaytime Shops, 239 F.2d 735, 738 (2 Cir. 1957), or the State which has the most significant relation to the action. Restatement of Conflict of Laws 2d, Section 149. The Restatement states:
"Section 149. Defamation.
In an action for defamation, the local law of the state where the publication occurs determines the rights and liabilities of the parties . . . unless, with respect to the particular issue, some other state has a more significant relationship under the principle stated in Section 6 to the occurrence and the parties, in which event the local law of the other state will be applied."
In this case the letters were written and "published" in New York. Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505 (1931). Both the defendants are citizens of New York. The party to whom copies were sent was Wilson & Hopkins, a New York law firm. The plaintiff could have served Maritime through its agent in New Orleans but chose to bring suit here. The pendency of the action for maritime injuries in this Court gave rise, in part, to the claim of qualified privilege. I shall, accordingly, apply New York law to the determination of the motion for summary judgment.
There is no doubt that the letter to Strachan and the copy of the letter to Wilson & Hopkins, the attorneys, constituted publication. Ostrowe v. Lee, supra.
The letter to the attorneys was probably covered by an absolute privilege, because the statement was material to the lawsuit they were defending. Youmans v. Smith, 153 N.Y. 214, 219, 47 N.E. 265 (1897).
The letter to Strachan, the agent of the steamship company defendant, was covered by a qualified privilege, for Strachan was authorized to receive and process claims by Maritime's seamen in the New Orleans area for maintenance and cure. Shapiro v. Health Ins. Plan, 7 N.Y. 2d 56, 60-61, 194 N.Y.S. 2d 509, 163 N.E. 2d 333 (1959). In Shapiro the Court of Appeals said:
"[The] defendants had a duty and a right to investigate and to communicate the results of their investigation to other similarly interested persons. Those communications were privileged unless made because of malice. It was for plaintiff to show that he had facts available to prove such malice. He produced none. Suspicion, surmise and ...