The opinion of the court was delivered by: LASKER
Mattes is a Greek citizen, and was hired in Greece in 1972 under Greek articles of employment as a crew member of the S.S. AMERIKANIS, a Greek flag ship. On September 6, 1974 he allegedly suffered an injury on the vessel while it was in international waters on its way to New York. He sues to recover for maintenance and cure, wages and damages compensating him for his injuries.
Defendants have moved to dismiss or, in the alternative, for summary judgment on several grounds: that defendants Costa Line and National Hellenic American Line, S.A., did not employ plaintiff nor did they own or operate the vessel; that no basis exists for application of the Jones Act to the case, because there were insufficient contacts with this forum; that the claims for relief on the general maritime law must be dismissed because there is no diversity of citizenship; that this suit should be dismissed on forum non conveniens grounds; and that service on the defendants was improper.
I. Application of the Jones Act
The defendants vigorously urge that American law, particularly the Jones Act, cannot be applied to this case because there are not "substantial contacts" between the events in question and the United States, and rely primarily on Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953). The Lauritzen court held the Jones Act inapplicable to a suit against a Danish owner of a Danish flag ship brought by a Danish seaman injured in Cuban territorial waters, who, on being hired while temporarily in New York, had signed articles by which he agreed that his rights were to be determined by Danish law and in Danish courts. The court held that principles of international law should govern the decisions whether to apply American law in suits by foreign seamen under the Jones Act, and required dismissal of the claim. In particular, it noted the absence of any national interest in the foreign seaman's safety, particularly where the seaman was covered by a comprehensive statutory scheme in Denmark which was markedly inconsistent with American principles of recovery. Reasoning that "any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction," 345 U.S. at 582, 73 S. Ct. at 928, the court explicitly rejected the argument that "petitioner's commerce and contacts with the ports of the United States are frequent and regular, as the basis for applying our statutes to incidents aboard his ships:"
"the virtue and utility of sea-borne commerce lies in its frequent and important contacts with more than one country. If, to serve some immediate interest, the courts of each were to exploit every such contact to the limit of its power, it is not difficult to see that a multiplicity of conflicting and overlapping burdens would blight international carriage by sea." 345 U.S. at 581, 73 S. Ct. at 928.
This rationale lay the basis for the requirement that jurisdiction be founded on "substantial" rather than simply "minimal" contacts between the "shipping transaction regulated and the national interest served by the assertion of authority." 345 U.S. at 582, 73 S. Ct. at 928.
As a guide to the lower courts, Lauritzen set forth seven possible "contacts" to be evaluated in deciding whether the Jones Act should be applied to an otherwise wellfounded cause of action: (1) the place of the wrongful act; (2) the law of the flag of the vessel; (3) the allegiance or domicile of the injured; (4) the allegiance of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of a foreign forum; (7) the law of the forum. The court expressly held not to be a relevant consideration the competitive position of the foreign shipowner vis-a-vis American shipowners. 354 U.S. at 393, 73 S. Ct. 921.
The defendant Chandris American Line S.A. (of Monrovia) (hereinafter referred to as "CALSA") which concedes that it employed the plaintiff and owned the vessel AMERIKANIS, is organized under the laws of Liberia. The vessel is registered in Greece and flies under a Greek flag. As stated earlier, plaintiff is a Greek citizen and domiciliary, hired in Piraeus, Greece, by the Master of the AMERIKANIS. He signed Greek articles of employment in which he agreed to bring any claims exclusively in Greek courts and to be bound by Greek law. His injury occurred while the ship was in international waters a few hours sail from its New York City destination. He received medical treatment at St. Clare's Hospital, to which he was admitted on September 7th and from which he was discharged on September 14, 1974. Subsequently he returned to Greece and retired from seaman's work, allegedly because of the injuries for which compensation is sought. The Greek forum is accessible: CALSA has agreed to post bond to guarantee its appearance in a Greek court, should plaintiff sue there. (Defendants' Ex. 8) Defendants have also submitted an affidavit from a Greek attorney establishing that plaintiff will have a remedy in a Greek court, although it is unclear how that remedy compares to relief available under American law. (Defendants' Ex. 5)
Were Lauritzen our only guide, defendants' motion to dismiss for lack of substantial contacts would be granted. See Tjonaman v. A/S Glittre, 340 F.2d 290 (2d Cir. 1965); Moutzouris v. Nat'l Shipping & Trading Corp., 196 F. Supp. 482 (S.D.N.Y. 1960); Mpampouros v. Steamship Auromar, 203 F. Supp. 944 (D.Md.1962). The fact that plaintiff received initial medical treatment in the United States is simply not sufficiently "substantial" to justify application of American law. See Brillis v. Chandris (USA) Line, 215 F. Supp. 520 (S.D.N.Y. 1963). However, in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970), the court held that the Lauritzen list was not an exclusive one; at least one additional factor to be considered was the shipowner's "base of operations," whatever its formal allegiance might be. Id. at 309, 90 S. Ct. 1731, citing with approval, Pavlou v. Ocean Traders Marine Corp., 211 F. Supp. 320 (S.D.N.Y.1962).
The Rhoditis court sustained Jones Act jurisdiction in a suit brought by a Greek seaman, employed in Greece under Greek articles which provided that all claims would be brought in Greece and decided under Greek law, who was injured on a Greek flag ship while in American territorial waters. The vessel was owned by a Greek corporation, a 95% shareholder of which was a Greek citizen domiciled in New York. The corporation's largest office was in New York, the vessel was operated out of the New York office, and derived its entire income from cargo either terminating or originating in the United States. 398 U.S. at 308, 90 S. Ct. 1731. Although only one of the Lauritzen factors (place of injury) favored application of American, rather than Greek, law the court held that the alien owner's "substantial and continuing contacts . . . with this country" warranted application of American law, notwithstanding the foreign flag, plaintiff's nationality or his own agreement to sue only in Greece. 398 U.S. at 310, 90 S. Ct. at 1734. Adopting a different emphasis from that of Lauritzen, the Rhoditis court did not discuss the significance of the American locus of the injury, but did consider significant the desirability of achieving competitive equilibrium between foreign and American shippers when both operate in an American market.
The Hellenic Hero was not a casual visitor; rather it and many of its sister ships were earning income from cargo originating or terminating here. We see no reason whatsoever to give the Jones Act a strained construction so that this alien owner, engaged in an extensive business operation in this country, may have an advantage over citizens engaged in the same business by allowing him to escape the obligations and responsibility of a Jones Act "employer." The flag, the nationality of the seaman, the fact that his employment contract was Greek, and that he might be compensated there are in the totality of the circumstances of this case minor weights in the scales compared with the substantial and continuing contacts that this alien owner has with this country. 398 U.S. at 310, 90 S. Ct. at 1734.
It is under the Rhoditis doctrine and its progeny that plaintiff seeks to establish the applicability of the Jones Act to this suit.
In the two most recent Second Circuit decisions involving Jones Act claims by foreign seamen against foreign shipowners, district court determinations that the Jones Act was not applicable were reversed. In Moncada v. Lemuria Shipping Corp., 491 F.2d 470 (2d Cir.) cert. denied, 417 U.S. 947, 94 S. Ct. 3072, 41 L. Ed. 2d 667 (1974), the foreign seaman was injured in Brazil aboard a foreign-owned, foreign flag ship. The district court dismissed the Jones Act claims, for lack of substantial American contacts, and tried the remaining maritime claims without a jury. The court of appeals reversed, holding on the basis of Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.) cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959), that the fact that the shipowning corporation was wholly owned by American stockholders was alone a sufficient contact. In Antypas v. Cia Maritima San Basilio, S.A., 541 F.2d 307 (2d Cir. 1976) a Greek seaman was injured on a foreign flag vessel while it was on the high seas between Hamburg and the Far East. The ...