In this action under the Jones Act, 46 U.S.C.A. § 688, and General Maritime Law for personal injuries by an alien seaman against a foreign shipowner, defendants raise by motion, before answer, the recurring troublesome problem of the applicability of United States laws in foreign-seamen and foreign-owner cases.
Plaintiff, a Greek subject, on March 9, 1960, at Piraeus, Greece, signed an employment agreement to proceed to the Liberian flag, S.S. National Unity, then at West Hartlepool, England, and owned by defendant Noya Compañía Naviera, S. A., (a Panamanian corporation, all of whose stock is owned by a United States citizen) and there be engaged on board said ship as an oiler.
Defendant National Shipping & Trading Corporation is alleged in the plaintiff’s complaint to be a Delaware corporation and as United States agent of defendant Noya, operated, managed, controlled, provisioned, manned and supplied the S.S. National Unity.
In the above agreement he is alleged to have contracted as follows:
“In the event of illness, accident or death during my employment, the Shipowner’s obligations with regard to my maintenance, cure and compensation for damages shall be determined by the present Greek Collective Agreement for Employment on board Ocean going Vessels, dated March 15, 1954, as well as the Greek statutes and common law.
“For any and all disputes arising under the foregoing, as well as for any other disputes dealing with my wages and lodging, absolute and exclusive jurisdiction will lie with the Greek courts.”
In the articles he signed aboard the S.S. National Unity are the following two paragraphs, translated from the Greek text:
“Illnesses, Accidents, Disputes.
“In the event of illness, accident or death during my employment, the shipowner’s obligations with regard to my maintenance, cure and compensation for damages shall be determined by the present Greek Colelctive Agreement for Employment on board Ocean going Vessels, dated March 15, 1954, as well as the Greek statutes and common law.
“For any and all disputes arising under the foregoing, as well as for any other disputes dealing with my wages and lodging, absolute and exclusive jurisdiction will lie with the Greek Courts.”
“Arbitration.
“Any difference of opinion existing between the Master and the crew with regard to the present Articles and Work Agreement, wages or working conditions on board the vessel shall be determined by the competent representative of Greece.”
The particular page of the articles he signed was in English and noted the names of the crew, their ratings, salaries, place of sign-on, discharge and comments by the master. It should be observed that all but two of the crew were Greek (the other two were Irish).
The S.S. National Unity proceeded with plaintiff on board from England to Venezuela and returned to England; thence to Brazil; Baltimore, Maryland; the Barbados; Montreal, Canada; Detroit, Michigan; Genoa, Italy; Spain, and to Boston, Massachusetts. In Boston on January 29, 1961, while plaintiff was applying-a torch to a frozen steam line pursuant to orders, the line burst causing the injuries of which he com *922 plains. He was hospitalized at the United States Public Health Hospital in Boston and after discharge was repatriated to Greece where he is at present.
Defendants’ motion is threefold: (1) to dismiss on the ground that the parties have contracted to resolve their disputes in Greece; (2) in the exercise of the court’s discretion to dismiss on the ground of forum non conveniens, and (3) that so much of the action as relies on the Jones Act should be dismissed because such statute is inapplicable.
Plaintiff states that the questions raised by the motion are much broader. He characterizes them as: “The question present is this: Can an American citizen acquire a merchant vessel built in the United States, place ownership in a Panamanian Corporation (Noya) in which he is the sole stockholder, register the said vessel under the laws of the Republic of Liberia, operate the said vessel by a Delaware Corporation (National), in which he is the sole stockholder, have both the owning and operating 'corporation engage in business within the jurisdiction of this Court, operate his vessel in international trade to and from ports in the United States and outside the Republic of Greece and through the devise of having an agent execute a questionable employment contract in Greece with the plaintiff, where the actual shipping articles are executed in England, where the ship lies, deprive this Court of jurisdiction where the tort was committed in American territorial waters and thus relegate the plaintiff to both Greek Law and a Greek forum? Stated differently, can the defendants have the tax advantages of Liberian documentation of their vessel, Panamanian ownership, operation by an American corporation, and discard the law of the flag (Liberian law), the law of the owning corporation (Panamanian law), the law of the domicile of the real party in interest, the United States citizen, owning both corporations, (the law of the United States) and solely by the contractual device already referred to, obtain the additional advantages of Greek law and a Greek forum?”
Undoubtedly the court does have jurisdiction of this action
m, personam.
Romero v. International Terminal Operating Co.,
The resolution of the problem of the applicability of the Jones Act involves a process of statutory construction now made crystal clear by our circuit’s restatement of the general and undefined direction in Lauritzen for the “valuing”, and “weighing” of the various facts or groups of facts that are said to be “points of contact” between the transaction and the states whose competing laws are involved. For in Bartholomew v. Universe Tankships, Inc., 2 Cir.,
“ * * * Accordingly, the decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be ‘weighed’ and ‘evaluated’ only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or group of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act.”
The relevant factors here which we find constitute the requisite “substantial contacts” calling for the application of the Jones Act ¡may be summarized as follows: (1)
The Place of the Wrongful Act.
Here plaintiff was injured in Boston aboard the S.S. National Unity, allegedly through negligence of defendants. This factor favors the application of American law. In Bartholomew the court characterized the place of the tort (there in American territorial waters) a “factor of significance.” Accordingly, we do the same. (2)
Allegiance of Defendants.
Defendant shipowner is a Panamanian corporation, all of whose stock is owned by a United States citizen. Its general agent in the United States the co-defendant here, is a Delaware corporation. In conformity with the liberal policies of the Jones Act the court in Bartholomew pierced the corporate veil of the defendant shipowner and treated it as an American corpo- . ration. We follow suit. (3)
The Law of the Flag.
This is of cardinal importance for Lauritzen teaches us that “the weight given to the ensign overbears most other connecting events in determining applicable law.” (
The relevant factors here parallel those in Bartholomew in that, in both cases the tort occurred in this country and that, in effect, the shipowners were both Americans. In that case, unlike ours, the plaintiff alien “resided” in this *924 cotíntry. Here plaintiff’s contacts with this country (injury and treatment)' ‘were fortuitous and transitory. However, we have in this case the added fáctor that National Shipping, the co-defendant, is a Delaware corporation and allegedly operated, managed and controlled the S.S. National Unity. The factors present in Bartholomew which we referred to were held by our Court of Appeals to be, in the aggregate, substantial contacts beyond peradventure of doubt. The factors present in this case are not in the aggregate much less substantial, and we think it fair to state that there is here something more than minimal and something just short of preponderant contacts that exist.
Opposed to such substantiality is plaintiff’s residence in, and allegiance to Greece (though we assume he did owe some allegiance to the Liberian flag while aboard ship), his agreement to look to Greek law and Greek courts for compensation, plus the likelihood that most of the testimony at trial would be in Greek. We accept, also, defendants’ argument that the Greek forum would be available to plaintiff and that they would accept process and put up sufficient security. And, also, the proffered fact that under Greek law plaintiff would be justly compensated for his injuries. Except for the agreement, these facts are, on analysis, quite minimal. Plaintiff, although a Greek resident, has chosen this forum and his choice should not be lightly disregarded merely because defendants are willing to be sued elsewhere. If the Jones Act is applicable it is of little significance where the plaintiff resides; that the testimony of plaintiff and other witnesses probably will be in Greek is, also, in our opinion, of little significance. We have, as I am sure a host of other judges in the federal courts have, tried cases involving the use of interpreters with no great difficulty. In the instant case defendants presumably had no difficulty in taking plaintiff’s deposition and in all likelihood the witnesses testimony too, being seamen, could be and will be taken by deposition. The
only troublesome factor is plaintiff's agreement to look to the law and courts of Greece, which we have assumed, contrary to plaintiff’s deposition testimony, to have been signed by him with full knowledge in the premises. If such contract was fairly made and otherwise reasonable, it would seqm that the plaintiff should be relegated to the law and forum which the parties manifestly contemplated, except as such contract may clash with our public policy. In this connection it appears to be the settled law that the ancient animosity to giving effect to contractual stipulations giving exclusive jurisdiction to foreign courts is on the wane, at least with respect to commercial actions, and that such agreements are honored if .reasonable. See Wm. H. Muller & Co. v. Swedish American Line, Ltd.,
The only contact this transaction had with Greece, of any importance, was plaintiff’s residence there. The ship never called there; the shipowner and the ship’s agents are, for our purposes, both American nationals; the flag was Liberian. Yet the shipowner required a contractual stipulation that plaintiff’s claims be governed according to the law of a country with which the ship and shipowner have no apparent connection. And if it be urged that the stipulation apparently was for the benefit of plaintiff, then in the complete absence of a countervailing basis supporting the shipowner’s insistence that plaintiff be bound by it, plaintiff should readily be permitted to waive that provision. The prophecy of Lauritzen, supra, at 589,
The two cases most earnestly relied upon by defendants, Hatzoglou v. Asturias Shipping Company, S.A.,
In Hatzoglou the ship’s articles contained a similar agreement signed by the libellant, a Greek officer, residing in Greece, to be bound by Greek law in the courts of Greece, but the accident happened on the high seas and the vessel, although registered under Liberian law, was owned by a Panamanian corporation whose principal stockholders were Greek. The only contact with America was the treatment of the seaman in a California hospital. Moreover, no Jones Act claim was asserted. Judge Bryan held the district court to be an inappropriate forum to try the general maritime claim for injuries.
In Moutzouris there was a similar agreement to be bound by Greek law but the only real contact with America was through the alleged beneficial ownership of the Liberian flag vessel. The plaintiff *926 was a subject and resident of Greece, he was engaged in and embarked on the voyage from Greece, he was injured outside the territorial waters of the United States and he received treatment in a Connecticut hospital for- three days. Analyzing these factors, Judge Dawson held that they were not sufficiently substantial to apply the Jones Act. We would agree.
Accordingly, since we have no discretion to exercise insofar as the claim under the Jones Act is concerned, having held that statute applicable, defendants’ motion addressed to that claim is denied in all respects.
With regard to the general maritime claim, we are satisfied that, in the interests of doing complete justice expeditiously, we should retain jurisdiction. Bobolakis v. Compania Panamena Maritime San Gerassimo, supra,
The motion is denied in its entirety.
This is an order. No settlement is necessary.
Notes
. “Section 30 of the Liberian Maritime Law. — Insofar as it does not conflict with any other provisions of this .Title, the non-statutory Maritime Law of the United States of America is hereby adopted as the General Maritime Law of the Republic of Liberia.” Hatzoglou v. Asturias Shipping Company, S. A., D.C.,
. Bobolakis v. Compania Panamena Maritime San Gerassimo,