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Akofin v. Jumbo Navigation

March 30, 2007

OLGA AKOFIN AS PERSONAL REPRESENTATIVE OF YURIY AKOFIN, DECEASED AND PERSONALLY AND NATALYA AVTAEVA KHASENEVICH AS PERSONAL REPRESENTATIVE OF SULEIMAN KHASENEVICH AND INDIVIDUALLY, PLAINTIFFS,
v.
JUMBO NAVIGATION, N.V., DEFENDANT.



The opinion of the court was delivered by: Haight, Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs in this action are foreign personal representatives of two foreign seamen who lost their lives as the result of an accident on board a foreign-flag vessel which occurred in American Territorial waters. Plaintiffs sue the foreign owner of the vessel to recover damages, invoking the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States.

Defendant moves to dismiss the complaint on the ground of forum non conveniens. For the reasons that follow, the motion is granted and the complaint will be conditionally dismissed.

BACKGROUND

On December 9, 2003 the M/V STELLAMARE lay at the port of Albany, New York for the purpose of loading a large, heavy generator for ocean carriage. The STELLAMARE flew the flag of the Netherlands and was registered in the Netherlands Antilles. She was owned by defendant Jumbo Navigation, NV ("Jumbo"), a Netherlands Antilles corporation.

During the loading operation, the STELLAMARE capsized, causing the death of two members of the vessel's crew, Yuri Akofin and Suleiman Khasenevich ("the decedents"). Plaintiffs Olga Akofin and Natalya Avtaeva Khasenevich, respectively the personal representatives of the decedents, bring this action to recover damages resulting from their deaths. The plaintiffs are citizens of the Russian Federation and reside in Russia. The decedents were citizens and residents of Russia. They were employed on board the crew of the STELLAMARE pursuant to an agreement entered into by Jumbo and the Maritime Transport Workers Union of Russia. Both decedents executed their personal contracts of employment with Jumbo in St. Petersburg.

The plaintiffs accepted US $60,000 and $75,000 respectively from Jumbo and executed in St. Petersburg, Russia releases with respect to the decedents' employment and deaths. The releases are dated January 19 and January 23, 2004.*fn1

Plaintiffs filed their complaint in this Court on February 22, 2005. The complaint alleges that the action is brought under the Jones Act and the general maritime law of the United States. Complaint ¶ 1. Plaintiffs' claims are presently asserted against Jumbo, the owner of the STELLAMARE. The complaint originally listed three other companies as parties defendant, but the plaintiffs dismissed their claims against those entities by a stipulation endorsed by the Court on June 17, 2005, and the caption of the case has been amended accordingly.

Plaintiffs' theory of the case is spelled out in ¶¶ 21-24 of the complaint:

21. Upon loading a generator, the vessel listed and/or capsized, causing the death of the

above-mentioned deceased crew members.

22. The disaster was due to the negligence of the master of the STELLAMARE and other employees of defendants of either defendant in failing to properly shift the ballasting of the vessel and for other acts of negligence and fault, including violation of safety regulations.

23. The improper loading and ballasting made the vessel unseaworthy causing the list and/or capsizing of the vessel and the vessel was otherwise unseaworthy.

24. Decedents drowned as a result of the capsizing of the vessel and prior to death had a period of severe and intense suffering.

The complaint contains a demand for trial by jury.

Jumbo now moves to dismiss the complaint. It asserts that the casualty and the resulting deaths are not covered by the Jones Act and do not fall within the general maritime law of the United States. While Jumbo acknowledges that the action falls within this Court's admiralty and maritime jurisdiction, it moves for dismissal on the ground of forum non conveniens.

DISCUSSION

I. Applicability of the Jones Act and the General Maritime Law of the United States

Defendant contends that in the circumstances of the case plaintiffs are not entitled to invoke the Jones Act and American general maritime law. I agree.

In the Jones Act, Congress made available to seamen certain rights and remedies against the owners of vessels upon which they serve. In the case at bar, the personal representatives of two deceased foreign seamen ...


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