The opinion of the court was delivered by: CARTER
George Karvelis, a Greek seaman, was injured on March 24, 1984, while working aboard the Greek flagship Constellation Enterprise ("Enterprise") in port at Newark, New Jersey. His left hand became caught in the machinery that elevates and lowers the auto deck, and four of his fingers were severed.
Karvelis bought suit under the Jones Act, 46 U.S.C. § 688, and general maritime law against the Enterprise's owner, Entemar Shipping Co. SA ("Entemar"), its charterer, Constellation Lines SA ("Lines"), and against Entemar's and Lines' New York agent, Constellation Navigation, Inc. ("Navigation").
Entemar and Lines are Panamanian corporations, with their principal places of business in Greece. Both corporations are completely owned by Spilios A. Sofianopoulos, Nicolaos A. Spyrakos, and Dionyssios G. Vlachos, citizens and residents of Greece. Navigation is a New York corporation. Neither Sofianopoulos, Spyrakos nor Vlachos owns stock in Navigation.
Defendants have moved to dismiss the complaint against Entemar and Lines for lack of subject matter jurisdiction, or, in the alternative, on grounds of forum non conveniens. No motion has been made concerning the action against defendant Navigation.
Defendants argue that Greek law governs this case, and therefore that the court cannot assert subject matter jurisdiction
over the case
under the Jones Act. To determine whether the Jones Act governs, the court must apply the test established by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 97 L. Ed. 1254, 73 S. Ct. 921 (1953) and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 26 L. Ed. 2d 252, 90 S. Ct. 1731, reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970). In Lauritzen, supra, 345 U.S. at 582-92, the Court ruled that the Jones Act comes into play where there are substantial contacts between the event in question and the United States. The Court laid out seven determinative factors for courts to consider: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured plaintiff; (4) the allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the accessibility of a foreign forum; and (7) the law of the forum.
In Hellenic Lines, supra, 398 U.S. at 308-09, the Court added to these seven factors the "base of operations of the shipowner." Noting that the Lauritzen test was not a mechanical one, the Court emphasized that each factor must be weighed in light of the national interest that would be served by the application of the Jones Act. If a ship is more than "a casual visitor" to the United States and the shipowner is "engaged in an extensive business operation in this country," then the Jones Act should apply (even if most other factors point toward application of foreign law); otherwise, the Court reasoned, foreign shipowners operating in American waters would be allowed to escape the obligations of a Jones Act employer, and would be granted an unfair competitive advantage over their American counterparts. Id. at 309-10.
Most of the Lauritzen factors in this case point to application of Greek law. The plaintiff, defendants, and vessel are Greek. Plaintiff's articles of employment are Greek, and call for the resolution of all disputes arising out of his employment in Greek courts.
Karvelis has access to a Greek forum. The only Lauritzen factors favoring United States law are the place of the accident (New Jersey) and the law of the forum. These are not weighty factors. E.g. Pandazopoulos v. Universal Cruise Line, Inc., 365 F. Supp. 208 (S.D.N.Y. 1973) (Cannella, J.).
Plaintiff contends that the Jones Act should apply nevertheless because the defendant-shipowner has a "base of operations" in New York. See Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 472 (2d Cir.), cert. denied sub nom. Ekberg Shipping Corp. v. Moncada, 417 U.S. 947, 41 L. Ed. 2d 667, 94 S. Ct. 3072 (1974) ("substantiality [of contracts is] to be determined on an absolute scale and not by comparing or balancing the presence of certain contacts with the absence of others"). The evidence submitted to the court shows that, to a significant extent, the Enterprise is managed from New York. In an agreement dated May 5, 1978, Lines, in Greece, delegated to Navigation, in New York, authority to be Lines' "general agents to perform all of the customary services of a traffic representative . . . " (Plaintiff's Exh. 6 P. 1). As such, Navigation solicited cargo for the Enterprise--nearly 70 percent of the cargo bound for the United States was booked by navigation. (Christophides
aff. P10). Navigation had the authority to withdraw from these accounts to pay the Enterprise's expenses. Navigation also arranged for stevedoring, fuel, and tugboats for the vessel, and handled berthing and traffic matters. Navigation advertised in the Journal of Commerce as the general agent for Constellation Line.
These activities were all handled from New York, without the direction, supervision, or control of the owners and charterers in Greece. (Christophides aff. P 7).
The Enterprise was hardly a "casual visitor" to the United States. For the fifteen months preceding Karvelis' injury, the Enterprise was engaged in regulate transatlantic trade, carrying food items from Mediterranean with American-made tractors, military hardware, and other heavy machinery. (Christophides dep. at 35-36). The ship's itinerary shows that all nine voyages in those fifteen months connected United States ports--chiefly New York, Charleston, S.C., and Baltimore, Md.--with ports in the Mediterranean. (Plaintiff's exh. 3). Aside from the time the Enterprise was at sea, it was more often to be found in an American port than in the port of any other country. (Id.).
The Enterprise earned substantial income from cargo originating in or bound for the United States. This is an important consideration in determining whether the foreign defendants should be deemed to be in competition with American shippers. Hellenic Lines, supra, 398 U.S. at 310. Annually, the vessel earned approximately $7 to $8.5 million on cargo shipped from the United States to the Mediterranean, and $1.5 to $2.5 million
on cargo shipped the other way. (Christophides dep. at 37-38). According to plaintiff, this constituted 100 percent of the Enterprise's revenues.
The Enterprise was thus more than just a periodic visitor to the United States; it was in direct competition with American shippers in an American market. And in addition to the Enterprise, Lines and Entemar ran three other ships on their Constellation Line, linking the United States with the Mediterranean. (Karvelis aff. P 14).
Moreover, Sofianapoulos, Vlachos and Syprakos have some direct involvement in the management of business ventures from American shores. During 1983 and 1984, Spyrakos and Vlachos would come to the United States twice annually on business, and would work out of Navigation's New York offices. (Christophides dep. at 83-85). Sofianapoulos would come to this country, too, about once a year. (Id.). In addition, the three men own part of two shipping-related corporations in the United States. Pursuant to an agreement with Navigation, Sofianapoulos, Vlachos and Spyrakos could designate an entity to own 50 percent of three South Carolina corporations located in Charleston, S.C. -- Wando Stevedoring Co., Inc., Trident Shipping Agency, and Romney Realty. Akti
Shipping and Investment SA, a Panamanian corporation, was named. (Under the agreement, Navigation owned the other 50 percent of the South Carolina corporations). Though the precise extent of Sofianapoulos', Vlachos', and Spyrakos' ownership interest in Akti is not clear, defendants have conceded that the three are shareholders. (Defendants' brief at 8). Moreover, it is undisputed that Spyrakos is a director of Wando and Trident (though defendants claim that Spyrakos is not deeply involved, and is a director in name only). Trident is Navigation's Charleston sub-agent, and Wando performs stevedoring services for Lines' vessels, including the Enterprise. (Christophides dep. at 89-91). Trident and Wando rent their office space from Romney Realty. (Christophides dep. at 95-97).
Defendants argue that the Jones Act should not apply because "there exists no common identity between the Greek owners of the vessel involved herein and its agents in this country." (Defendants' brief at 7). They note that Sofianapoulos, Vlachos and Spyrakos own no shares of Navigation, and they point out that in Antypas v. Compania Maritima San Basilio, S.A., 541 F.2d 307 (2d Cir. 1976), cert. denied, 429 U.S. 1098, 51 L. Ed. 2d 545, 97 S. Ct. 1116 (1977), the Second Circuit held the Jones Act applicable only ...