Grammenos v. C. M. Lemos

457 F.2d 1067
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 23, 1972
DocketNo. 27, Docket 71-1057
StatusPublished
Cited by6 cases

This text of 457 F.2d 1067 (Grammenos v. C. M. Lemos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grammenos v. C. M. Lemos, 457 F.2d 1067 (2d Cir. 1972).

Opinion

J. JOSEPH SMITH, Circuit Judge:

This case arises out of the claims of two foreign seamen for damages under the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States for injuries sustained when a flash fire broke out on their ship, the S/T Chariot, in Marseilles, France. They name as defendants the Nile Shipping Co., the Panamanian corporation which owns the Chariot, a Liberian flag ship, and C. M. Lemos, a Greek citizen allegedly an American resident and the beneficial owner of Nile. Appellants claim that under the expansive interpretation of Jones Act jurisdiction enunciated in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the cause of action is cognizable in American courts because the ship is ultimately owned, operated or controlled by American residents. The district court for the Southern District of New York, Sylvester J. Ryan, Judge, dismissed the complaint on the grounds of lack of personal jurisdiction and forum non conveniens. We find that the quashing of service was proper, but that the complaint ought not have been dismissed, as the plaintiffs may attempt to obtain service through methods other than the one already tried. We find forum non conveniens an inappropriate ground for dismissal.

Nile Shipping Company was organized in New York City by two Americans, and the original officers were American citizens and residents of New York. The company, a Panamanian corporation, is now owned by Greek citizens. The Chariot is one of many Nile ships; the current certificate of registry, issued in 1969, is from the Republic of Liberia. The Chariot and other Nile ships are managed by Nereus Shipping Co., a Greek corporation with offices in Piraeus, Greece. Nereus’ American agent is Triton Shipping Co., which has offices in New York. Triton collects freights payable in New York and receives accounts from subagents in ports in the dollar area of the world. All payments go to a general operating account for Nereus ships, rather than into a separate account for each ship, and Triton pays disbursements for the expenses of running the ships from this account, on approval from Nereus. Triton also solicits some business for Nereus ships in the dollar area.

Mr. Lemos was an American citizen until 1962, when he renounced his citizenship and became a Greek citizen. He maintains a residence in London, and appellants allege that he also owns a home in Rye, New York. They cite an article in Time magazine and a listing of his name with an address and telephone number in the Rye telephone directory to support this contention. Mr. Lemos is intimately involved in the Nile and Nereus companies. In a deposition in another action involving Ner-eus, Triton’s vice-president characterized Mr. Lemos as the mouthpiece or representative of the owners of the Ner-eus ships, the individual with whom Triton deals in arrangements about the vessels.

Grammenos and Orfanides signed articles for the Chariot in Greece, and the • agreement stated that Greek law was to govern disputes between the parties. During the years they served on the Chariot, a tramp tanker, it did not put in at any American ports. When appellants were injured, they were treated by French and Greek doctors. In addition to this action, they filed a companion suit in the district court for the Eastern District of Virginia. After partial pretrial discovery, the case was dismissed on the ground of forum non conveniens. The seamen appealed, and the lower court was reversed by the Court of Appeals for the Fourth Circuit. Gramme-nos v. Liberian S/T CHARIOT, No. 15,017 May 5, 1971. In that case, Ner-eus as well as Triton was served and named as a defendant and thus the problem of adequacy of service was not presented as it is here. The case was remanded for further discovery and reconsideration in light of Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4 Cir.1971), an opinion issued the same [1070]*1070day as Grammenos. In Lekkas, the court held that although American courts could decline jurisdiction over claims of foreign seamen against foreign ship owners, before doing so a court ought to satisfy itself that it had before it full information on the factors that bear on its decision, such as the ownership and control of the ship and the allegiance of the shipowner. And it held that when shipowners requested the court to decline jurisdiction, they submitted to an obligation to provide information pertinent to the court’s decision. In Lekkas, too, the case was remanded for further discovery.

Summons and complaint were served on Nile under Rule 4(d) (3) of the Federal Rules of Civil Procedure by service on Triton through one of its officers. Service on Mr. Lemos was attempted by delivery of the papers to Miss Olive Helmsley, a woman working at Mr. Le-mos’ sister’s apartment in New York City. Appellants claim that both of these attempts at service were successful, and that even if they were not, that appellees waived defects in jurisdiction by making a general appearance in the case.

Appellants’ waiver point is not well taken. The need to file a special appearance in order to object to jurisdiction or venue has vanished. A party can file a general appearance and object to personal jurisdiction or venue at any time before the answer is filed or in the answer. Kerr v. Compagnie De Ultramar, 250 F.2d 860, 864 (2d Cir.1958) ; Bjorgo v. Weerden, 342 F.2d 558 (7 Cir.1965); Noto v. Cia Secula di Armanento, 310 F.Supp. 639 (S.D.N.Y.1970); Pacific Lanes, Inc. v. Bowling Proprietors Ass’n, 248 F.Supp. 347 (D.Or.1965). If a party enters a case, makes no objection to jurisdiction, and asks the court to act on its behalf in some substantive way, it will be held to have waived further objection. Savas v. Maria Trading Corp., 285 F.2d 336, 340-341 (4 Cir. 1960); Backo v. Local 281, United Brotherhood of Carpenters and Joiners, 308 F.Supp. 172 (N.D.N.Y.1969), aff’d 438 F.2d 176 (2d Cir.1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). A request for extension of time, such as appellees made, does not constitute waiver of jurisdictional objections. Pacific Lanes Inc. v. Bowling Proprietors Ass’n, supra.

The question, then, is whether there was any defect in the service of process. The standards set in Rule 4(d) for service on individuals and corporations are to be liberally construed, to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice. Nowell v. Nowell, 384 F.2d 951 (5 Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968); Rovinski v. Rowe, 131 F.2d 687 (6 Cir.1942). But there must be compliance with the terms of the rule, and absent waiver, incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained. Moore, Federal Practice, § 4.02 [4] (2d Ed.1970); Aquascutum of London, Inc. v. S. S.

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Grammenos v. Lemos
457 F.2d 1067 (Second Circuit, 1972)

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Bluebook (online)
457 F.2d 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grammenos-v-c-m-lemos-ca2-1972.