Panagangelos Antypas v. Cia. Maritima San Basilio, S. A.

541 F.2d 307

• Court: Court of Appeals for the Second Circuit
• Decided: August 2, 1976
• Docket: 726, Docket 75-7672
• Status: Published

Opinions

Mr. Justice CLARK:

This is an appeal from an order of the District Court dismissing appellant’s complaint seeking recovery for maintenance and cure, and injuries allegedly sustained in 1972 while employed as a seaman aboard the Greek flag vessel Eurybates. The injury allegedly occurred while the vessel was on the high seas proceeding on a voyage from Hamburg to the Far East and back to Europe. Jurisdiction is predicated on the Jones Act, 46 U.S.C. § 688.¹ The suit was dismissed on the ground of forum non conveniens because the contacts of the employer as measured by Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), are minimal. Our examination of the record² reveals substantial contacts sufficient to support jurisdiction under Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), and we reverse.

The District Court found: “The only United States contact in this case is the presence here of defendant P. D. Marchessini & Co., (New York) Inc., which acted as a ship’s agent while Cia. Marítima San Basilio S. A. vessels were in United States ports . The evidence submitted by plaintiff is not sufficient to support its claim that the shipping line is controlled by American citizens from New York. In fact, plaintiff has failed to distinguish the facts relating to the ownership and operation of the S.S. “Eurybates” by Cia. Marítima San Basilio, S. A. from those found to be true concerning its ownership and operation of another vessel in Garis v. Compania San Basilio S.A., 386 F.2d 155 (2d Cir. 1967). Opinion, November 14, 1975 (unpublished).³

Our examination of the record indicates a direct connection between the Eurybates, the vessel on which appellant was injured, the appellee shipowner, Cia. Marítima San Basilio, S.A. (San Basilio), a Panamanian corporation, and the appellee P. D. Marchessini & Co., (New York) Inc. During 1972, the Eurybates operated alternatively on the two liner services constituting the Marchessini Lines, one service from the United States to Europe and back, and the other from the United States to the Far East and back. The operation of the Marchessini Lines, a trade name used by San Basilio and Sociedad Marítima San Nicholas, S.A., was conducted by P. D. Marchessini & Co. from its offices in New York.⁴ All of the stock of San Basilio and Sociedad Marítima San Nicholas, S.A., was owned by Panaghi D. Marchessini, his wife, Helen, and two sons, Dimitri and Alexander. Apparently, each was a citizen of the United States.⁵

The “joint service” operation under the name “Marchessini Lines” was subject to the Shipping Act of 1916, 46 U.S.C. § 801, et seq., as well as the jurisdiction of the Federal Maritime Commission. A copy of the agreement filed with the Maritime Commission between the two parties trading as Marchessini Lines is in the record. This agreement provides for the delegation to P. D. Marchessini and Co. Ltd. (London), a general agency, and empowers it to redelegate to its subagent in the United States full and complete responsibility for the booking and solicitation of cargo and passengers, and collection of freight and passenger revenues for account of Marchessini Line vessels, including the Eurybates. Pursuant to this agreement, P. D. Marchessini & Co. (New York) was given the power to fix rates, allocate tonnage and space sailings.

The record also includes copies of advertisements inserted in shipping journals calling attention to the Marchessini Lines, soliciting business therefor, and indicating the dates of sailings of various vessels, including the Eurybates. One advertisement includes a listing of agents in Philadelphia, Baltimore, Charleston, Tampa and Los Angeles and designates Marchessini &' Co. (New York) as “USA General Agents.” The Marchessini Lines advertised also in the New York Times, describing its service as “linking North Europe, U.S. East Coast and Far East” and listing the address of P. D. Marchessini & Co. at 26 Broadway, N.Y. The record includes also tariffs filed by P. D. Marchessini & Co. (New York) with the Federal Maritime Commission on sailings from Atlantic and Gulf ports of the United States to Far East and European ports. In addition, the record includes samples of accounts prepared by P. D. Marchessini & Co. (New York), for vessels of the Marchessini Lines and an extract from the “Owners” volume of Lloyd’s Register of Shippers indicating that the owner of the Eurybates could be contacted “c/o of P. D. Marchessini & Co. (New York), 26 Broadway”.

We find these contacts between the transaction involved and the United States to be substantial and that Jones Act jurisdiction exists. It appears that at least some of the stockholders of the shipowner, San Basilio, are American citizens. This contact, in and of itself, has been held sufficient to support jurisdiction under the Jones Act. Bobolakis v. Cia. Panameña Maritima, San Gerassimo, 168 F.Supp. 236 (S.D.N.Y. 1958). In addition, however, the record here shows that Marchessini Lines was operated by P. D. Marchessini & Co. from New York and that the Eurybates was under its direct control. Moreover, the earnings from the vessel appear to be collected in New York and the expenses of the vessel paid from New York.

These contacts are substantial and predominate over such factors as the ship’s flag, the place of incorporation of the shipowner, and the seaman’s nationality. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320 (S.D.N.Y.1962). We hold that the District Court clearly erred in finding the contacts to be insubstantial and in failing to apply the Jones Act. Where the Jones Act applies, this Court has held that a district court has no power to dismiss on grounds of forum non conveniens. Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443 (2d Cir. 1959). Accordingly, we reverse.

1 . The statute confers rights upon “Any seaman who shall suffer personal injury in the course of his employment . .

2 . Appellant’s “Exhibits in Support of Opposing Affidavit”.

3 . In Garis v. Cia. San Basilio, 261 F.Supp. 917 (S.D.N.Y.1966), aff’d, 386 F.2d 155 (2d Cir. 1967), the District Court dismissed a complaint for personal injuries by a Greek seaman sustained aboard a vessel owned by Cia. Marítima San Basilio, S.A., the same defendant that appears as appellee herein, on the grounds that the defendant had insufficient contacts with the United States to justify retaining jurisdiction. The opinion is distinguishable since the proof here is different from that relied upon by the parties there. Moreover, the court’s reasoning in Garis largely has been modified by the subsequent decisions of Hellenic Lines Ltd. v. Rhoditis, supra, and Moncada v. Lemuria Shipping Co., 491 F.2d 470 (2d Cir.), cert. denied sub nom. Ekberg Shipping Corp. v. Moncada, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974).

4 . Appellees admit the P. D. Marchessini & Co. (New York) is a New York corporation having its place of business at 26 Broadway, New York, New York, and that all of its stock is owned by American citizens. Appellees’ Brief at 4.

5 . At deposition Panaghi D. Marchessini testified that he, his wife and his two sons were stockholders of Cia. Marítima San Basilio, S.A. and Sociedad Maritime San Nicholas, S.A., and that each is a citizen of the United States. Appellant’s Exhibit 12 in Support of Opposing Affidavit. On April 21, 1976, appellee filed a certified copy of a certificate of loss of nationality of the United States, stating that Panaghi D. Marchessini “made formal renunciation of American nationality” on December 27, 1962. Although this may raise a question about his nationality, it does not bear upon the status of his wife and sons who own stock in Marchessini & Co. (New York).