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PANDAZOPOULOS v. UNIVERSAL CRUISE LINE

October 26, 1973

Dimitrios PANDAZOPOULOS, Plaintiff,
v.
UNIVERSAL CRUISE LINE, INC., et al., Defendants


Cannella, District Judge.


The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge.

The defendants' application, which is deemed to be a motion pursuant to Rule 39(a)(2) of the Federal Rules of Civil Procedure, is denied.

 The issue before the court is whether the plaintiff in this seaman's personal injury action is entitled to a jury trial of his claims or whether he is limited to a non-jury trial within the scope of Rule 9(h) of the Federal Rules of Civil Procedure governing admiralty and maritime claims. The resolution of this question revolves around a determination by this court of the applicability of either the Jones Act, 46 U.S.C. ยง 688, or alternatively, the laws of the Republic of Panama to the causes of action asserted by the plaintiff. Subsidiary to this choice of law problem is a question of diversity of citizenship between the parties, which, if present, would also entitle the plaintiff to a jury trial. For the reasons set out below, it is the opinion of this court that the facts of this case allow the plaintiff to state a claim cognizable under the Jones Act, that the Jones Act and American maritime law provide the applicable law, to the exclusion of the law of the Republic of Panama, and that the plaintiff may proceed to a jury trial of his claims. In light of this conclusion, it is not necessary for the court to consider or pass upon the diversity of citizenship question raised.

 The facts that give rise to the plaintiff's claim are not in dispute and may be simply stated. The facts necessary for a determination of the applicability of American law, namely, the ownership and control of the vessel, are more complex and are the subject of substantial dispute; these facts will be discussed below.

 The plaintiff, Dimitrios Pandazopoulos, was at the time of his injury and is presently a Greek national residing in Greece. He was hired in Piraeus, Greece as an engineering member of the crew of the S/S Caribia, the vessel upon which his injuries were sustained. The S/S Caribia is registered in Panama and flies that nation's flag. At all relevant times it was owned by the defendant Universal Lines, S.A. (hereinafter Universal Lines) and operated by the defendant Universal Cruise Lines, S.A. (hereinafter Universal Cruise) both Panamanian corporations. On January 10, 1969, the plaintiff and other crew members signed standard-form Panamanian articles while the vessel was in Naples, Italy. On January 22, 1969, when the Caribia was again in Naples, the plaintiff and other crew members executed an agreement which made reference to employment under the terms of the Greek Collective Bargaining Agreement with regard to working conditions and wages. Both of these documents were executed in the presence of the Panamanian Consul in Naples.

 The S/S Caribia arrived in the Port of New York on February 13, 1969 and departed for her first Caribbean cruise the next day. On February 28, 1969, the vessel was again in New York for a period of several hours before departing on a second cruise. On March 5, 1969, the plaintiff was injured while working in the ship's generator room, at a time when the vessel was on the high seas, some five hours out of the Port of St. Thomas, Virgin Islands. The plaintiff was treated for his injuries at a St. Thomas hospital and was subsequently flown to New York and, thereafter, repatriated to Greece.

 The court must proceed with its inquiry into the choice of law issue presented in accordance with the seven factor approach set out by the Supreme Court in the landmark case of Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953). The seven enumerated Lauritzen factors are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; and (7) the law of the forum.

 The Lauritzen test is not satisfied by a mechanical counting of contacts. Hellenic Lines v. Rhoditis, 398 U.S. 306, 308, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970). Rather, the court must utilize the seven factors as tools in an evaluative search for substantial contacts between the claim asserted and the United States and its law. A conclusion that the Jones Act or other American law is applicable to a maritime case involving foreign elements is warranted only if, as a result of its search, the court discovers a more than minimal nexus between the claim and the American forum. The contacts found need not be preponderant, but must be substantial. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 440 (2 Cir. 1959), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959).

 Each contact or connecting factor present in a given case must be weighed by the court and the substantiality of the contacts is dependent upon the weight attributed to each. Judge Medina clearly stated the rule in the following terms:

 
[The] decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be "weighed" and "evaluated" only to the end that after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or group of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act.

 Id. at 441 (quoted with approval in Rhoditis, supra, 398 U.S. at 309, f.n. 4, 90 S. Ct. 1731). It is against this background of well settled precedent that the instant case must be considered.

 The first Lauritzen factor, the place of the wrongful act, is attributed little weight under the teachings of that case. This is especially so in instances such as this where the seaman's injury occurred on the high seas. "The test of location of the wrongful act or omission . . . is of limited application to shipboard torts, because of the varieties of legal authority over which she may navigate." 345 U.S. at 583, 73 S. Ct. at 929. See also, Romero v. International Terminal Co., 358 U.S. 354, 384, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959).

 The second and fourth factors enumerated by the court in Lauritzen, the law of the flag and the allegiance of the defendant shipowner, are the crucial, determinative points of contact on the issue presently before the court and the court believes that it is well advised to defer their discussion until after other, less significant, factors have been presented and evaluated.

 The allegiance or domicile of the injured seaman is the third factor to be analyzed under the Lauritzen approach. It is not disputed that the present plaintiff is a Greek national who has always maintained his home in Greece. Although this fact is weighed against the applicability of the Jones Act, it is not determinative of the choice of law issue. See, Lauritzen, supra, 345 U.S. at 586-587, 73 S. Ct. 921; Rhoditis, supra, 398 U.S. 306, 308, 90 S. Ct. 1731, 26 L. Ed. 2d 252. The weight accorded to this factor in the present case is further diminished because the question before the court involves a choice between American and ...


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