available. See, e.g., Scottish Air International, Inc., 81 F.3d at 1233. There is no suggestion anywhere in plaintiffs' voluminous papers that there is anyone with knowledge of any of these matters in the United States, let alone within range of a subpoena issued by this Court. Thus, it is perfectly plain that the cost of producing willing witnesses for trial would be far less to all concerned were the case conducted in Greece and that this Court would lack any means of compelling live trial testimony from unwilling witnesses. Moreover, even the procurement of deposition testimony from unwilling witnesses would be fraught with all of the difficulties and delays inherent in the use of letters rogatory and other means of securing evidence from abroad.
Plaintiffs' response to this showing is twofold. As to the owner interests, it claims that the vessel in reality was owned by Pappas or entities that he controlled and was run from offices in Greenwich, Connecticut; the records and key executives, say plaintiffs, are in or within subpoena range of this District. They place principal reliance as to ABS upon the fact that its world headquarters is in New York.
Insofar as the case turns on the condition of the ship at the time it was in Piraeus and what transpired there, the bulk of the evidence -- including everyone with personal knowledge -- is in Greece. While Pappas and his colleagues as plaintiffs suggest, may have received reports from Piraeus and made decisions on what to do and not to do, the bulk of the relevant evidence regarding the ship, the surveys and the repairs during this period is in Greece.
This is true as well for ABS, which handled the surveys out of its Piraeus office using Greek resident surveyors.
The controversy concerning the settlements with three of the plaintiffs adds to the strength of defendants' position on this issue. The releases were procured by a Greek lawyer in Greece from Greek releasors and the settlements approved by Greek courts. Plaintiffs' effort to set aside those releases manifestly depends exclusively on evidence available only in Greece, even puffing aside, for the moment, any question as to the applicable law.
Accordingly, the private interest factors weigh substantially in favor of dismissal in favor of a Greek forum.
Public Interest Factors
The principal public interest factor to which the parties have devoted their attention is choice of law. Plaintiffs' position is that the Jones Act, 46 U.S.C. § 688, the DOHSA, 46 U.S.C. §§ 761 et seq., and general maritime law govern this action while defendants argue that the governing law is likely to be that of Greece. While the Court need not definitively resolve the choice of law issue at this point, the likelihood that foreign law will apply weighs against retention of the action. E.g., Damigos, 716 F. Supp. at 108. Accordingly, at least a preliminary assessment of the law applicable is essential.
Section 1 of DOHSA gives a cause of action for wrongful death to the personal representative of a person whose death is caused by "a wrongful act, neglect, or default occurring on the high seas . . ." 46 U.S.C. § 761. Section 4 permits the enforcement in federal courts of rights of action for wrongful death granted "by the law of any foreign State . . ." Id. § 764. While it is not yet clear whether these two provisions are mutually exclusive or, instead, whether a court may give effect both to DOHSA and to foreign-created rights,
the question whether Section 1 applies at all is determined under the principles of Lauritzen v. Larsen, 345 U.S. 571, 97 L. Ed. 1254, 73 S. Ct. 921(1953), and its progeny.
Under Lauritzen, the following factors determine choice of law:
"(1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of the foreign forum; and (7) the law of the forum." 345 U.S. at 579.
In Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 306, 26 L. Ed. 2d 252, 90 S. Ct. 1731, the Court added the shipowner's base of operations to the list. And in Romero v. International Terminal Operating Co., 358 U.S. 354, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959), the Court held that the same analysis governs the applicability of the Jones Act and the general maritime law.
Here, the law of the flag and the allegiance of Marika, the shipowner, is Liberia. The allegiance of the injured seamen and the place where the contracts of employment were made was Greece. There is an accessible Greek forum. The Court assumes arguendo that the shipowner's base of operations was the United States.
The place of the wrongful act, depending upon the facts, may be less straightforward. Certainly any negligence in the conduct of the surveys or in the making of repairs in Piraeus occurred in Greece. To the extent, however, that plaintiffs succeed in establishing that there is a causal connection between the sinking and decisions made in or instructions issued from Pappas' New York area offices, there may be a wrongful act in the United States. Nevertheless, application of the Lauritzen-Rhoditis analysis demonstrates that there is at least a substantial possibility that foreign law will govern the claims at Bar, either in whole or in part, quite apart from the employment contracts' provision choosing Greek law, which further buttresses defendants' position.
There is a final public interest consideration that bears more than passing mention. This is a case brought on behalf of Greek seamen who shipped aboard a Liberian vessel crewed by a Greek company which, wherever its ownership lay, was engaged exclusively in carrying cargos to and from non-U.S. ports. There are fora and remedies available to plaintiffs under the law of their country of domicile. Three of them already have settled their claims for sums which are substantial, even if they perhaps might seem low by American standards. There seems little justification for opening the courts of the United States -- which are paid for by U.S. taxpayers and whose juries are composed of U.S. citizens asked to drop their everyday activities to serve -- to claims in these circumstances even if, as plaintiffs stoutly argue, the ultimate base of operations of the vessel in question was the United States. That no doubt is why judges of this Court repeatedly have dismissed cases like this one -- all brought by the same attorney -- in favor of Greek fora. E.g., Damigos, 716 F. Supp. 104; Tsangaris v. Elite Co., 1993 U.S. Dist. LEXIS 9235, No. 92 Civ. 7855 (RPP), 1993 WL 267425 (S.D.N.Y. July 9, 1993); Geralis v. Westwind Africa Line, Ltd., No. 84 Civ. 4310 (DNE) (S.D.N.Y. Apr. 19, 1989); Hasakis v. Trade Bulkers, Inc., 690 F. Supp. 260 (S.D.N.Y. 1988); Kassapas v. Arkon Shipping Agency, Inc., 578 F. Supp. 400 (S.D.N.Y. 1984); Doufexis v. Nagos S.S. Inc., 583 F. Supp. 1132 (S.D.N.Y. 1983); Krimizis v. Pan-Oceanic Navigation Corp., Slip Opinion, LEXIS GENFED Library, DIST File, No. 83 Civ. 5667 (JFK), 1985 WL 3834 (S.D.N.Y. Nov. 14, 1985).
Rhoditis is not to the contrary. The injury there in question occurred in the United States, and the vessel was engaged in carrying cargoes to and from U.S. ports. The interest of the United States in providing a remedy and a forum in that case was far greater than it is here, and it is important to note that the case did not even involve the question whether a forum non conveniens dismissal was appropriate. The public interest factors thus weigh heavily in favor of dismissal.
Defendants' motions to dismiss on the ground of forum non conveniens are granted and the action dismissed on the following conditions:
1. Each defendant shall consent to (a) the institution and maintenance, within ninety days following the date of this order, of an action against it in the courts of Greece based on the claims asserted in this action, and (b) service of any necessary process in such action upon its counsel of record in this case in lieu of any personal or other service that otherwise might be required.
2. Each defendant shall agree that the time from the commencement of this action until the expiration of ninety days following the date of this order shall be disregarded in determining the timeliness of any action contemplated by paragraph 1.
Each defendant shall file, on or before June 25, 1996, a document setting forth its acceptance of these conditions. The entry of judgment is stayed pending filing of such documents.
Dated: June 12, 1996
Lewis A. Kaplan
United States District Judge