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DREES v. LYKES BROS. S.S. CO.

June 30, 1980

Joseph DREES, Plaintiff,
v.
LYKES BROS. STEAMSHIP CO. and S.S. Solon Turman, Defendants



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

I.

 This is an action under the Jones Act, 46 U.S.C. § 688, and the general maritime law for personal injuries and maintenance and cure. Defendants have moved to transfer this action to the District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1404(a).

 For the reasons set forth below, defendants' motion is denied.

 II.

 Plaintiff's complaint alleges that on November 15, 1976, while he was employed as a seaman aboard the S.S. Solon Turman, owned or chartered by defendant Lykes Brothers Steamship Company ("Lykes") and then in the vicinity of the Port of Leghorn, he suffered injuries in a fall into one of the vessel's liquid cargo tanks as a result either of the negligence of Lykes or the unseaworthiness of the vessel. *fn1" The negligence alleged is defendant Lykes's failure properly to instruct plaintiff in the course of his duties and to supervise work at the time plaintiff was injured, its failure to provide necessary ventilating equipment for the tank, its failure to warn plaintiff of a poorly prepared workplace, and its failure timely to assist plaintiff upon learning of his plight. Plaintiff alleges as unseaworthiness that his workplace at the time of injury was not safe, and that necessary ventilating equipment was either non-existent or defective.

 III.

 Defendant Lykes is a Louisiana corporation headquartered in New Orleans. Lykes maintains a small office in New York which provides only incidental services, through which it facilitates services to a limited number of local clients. The New York Lykes office is one of 22 branches maintained around the world, 15 of which are in the United States. All personnel records and other pertinent documentation are located at Lykes's principal office in New Orleans.

 Defendants intend to call as witnesses at trial the master, chief mate, boatswain, and deck utility man who were aboard the vessel at the time of the alleged accident. Plaintiff worked under Chief Mate Robert Wilson, who instructed plaintiff about his job. Boatswain Lindsay Wilson was at the scene of the accident. The master, chief mate and boatswain are residents of New Orleans. The deck utility man, James Hyland, who will testify as to the condition of the ballast tank and conversations with plaintiff prior to and after the accident, is a resident of Texas. *fn2"

 At the time of injury and the filing of the complaint, plaintiff was a cadet-trainee at the United States Merchant Marine Academy ("Academy") at Kings Point, New York. During the Academy's four-year program, cadet-trainees are required to reside at the Academy for eleven months each year, except during periods when they are assigned to American flag ships for on-the-job training during two sea periods. Defendant regularly accepted trainees from the Academy in return for a government subsidy under the Merchant Marine Act of 1936. It was during one of these training periods that plaintiff was allegedly injured.

 IV.

 This action might have been brought in the Eastern District of Louisiana, where defendant Lykes's principal office is situated. See 46 U.S.C. § 688.

 The factors to be considered in a motion to transfer under Section 1404(a) include the following: "(1) the convenience to parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; ...


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