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SAMARAS v. THE S.S. JACOB VEROLME

August 31, 1960

Charilaos SAMARAS
v.
THE S.S. JACOB VEROLME, her engines, boats, tackle, etc., in rem and Nederlandse Erts-Tanker Maats N.V., in personam



The opinion of the court was delivered by: DUSEN

The libel filed April 18, 1960, claims damages for injuries caused by the alleged unseaworthiness of the vessel and the negligence of its owners and operators, which it is claimed caused libellant to fall on the ship and suffer injuries (first cause of action), damages for failure of respondents to provide prompt and adequate medical care 'so as to safeguard (libellant) against aggravation and worsening of his injuries' (second cause of action), wages, *fn1" hospitalization pay, maintenance pay, etc., as well as the value of his personal effects and clothing allegedly improperly retained (third cause of action). Exceptions and exceptive allegations were filed to this libel which are before the court on a record consisting of answers to interrogatories (Documents Nos. 20 and 27), *fn2" affidavits (Documents Nos. 24-26, 28 and 29), and the deposition of libellant (Document No. 23).

The facts, which are contained for the most part in the deposition (Document No. 23) and affidavits of June 14 with exhibits attached (Document No. 26) and of June 24 (Document No. 24), are summarized below.

 In Rotterdam, The Netherlands, on August 3, 1959, libellant, Charilaos Samaras, a citizen and resident of the Kingdom of Greece, was employed by respondent shipowner to serve as a fireman on the S.S. Jacob Verolme, a vessel documented under the laws of The Netherlands (flying the Dutch flag, and owned and operated by respondent, Nederlandse Erts-Tanker Maats, a business entity wholly owned by citizens of The Netherlands (paragraphs 10 and 11 of Document No. 26). The terms of the contract of employment, which he signed at that time, provide for the application of Dutch law with respect to the relations between Samaras and his employer (see affidavit of June 24, 1960, being Document No. 24). *fn3"

 Thereafter, Samaras and other members of the crew were transported, at the expense of the employer, by chartered plane and bus to Newport News, Virginia, where they boarded the vessel on September 14 (paragraph 14 of Document No. 26).

 On or about October 15, 1959, while the vessel was on the high seas in international waters en route from Chile to Panama, Samaras sustained an accident with resulting injuries. Libellant alleges that he fractured his right hip when he slipped and fell on a wooden grating on deck. Following the injury, he was provided with first aid aboard the vessel and, upon arrival at the Canal Zone, was hospitalized at the Gorgas Hospital, Cristobal, a facility of the United States Public Health Service.

 On or about March 28, 1960, the medical authorities at the Gorgas Hospital recommended his discharge. *fn4" Inasmuch as the S.S. Jacob Verolme was then northbound on another voyage from Chile to Philadelphia by way of the Canal Zone, Samaras was placed on board as a passenger for the first leg of his journey to Europe. A ticket was purchased and arrangements were made to have him flown from New York to Europe on April 16, 1960, the day of his arrival in Philadelphia.

 However, upon the docking of the vessel at Philadelphia, at the request of Samaras and out of an abundance of caution, the vessel's Master authorized his being taken to St. Joseph's Hospital for re-examination in order to be sure that he was fit to complete the trip. Upon assurances from Dr. Walter D'Alonzo, the doctor in charge, and Dr. Richard Kaplan, an orthopedic specialist, that his condition was satisfactory and the trip to Europe would not have any adverse effects, further arrangements were made for an escort to New York and his overseas flight on April 21, 1960. The libellant refused to leave this country but retained the air transportation ticket to The Netherlands furnished by respondents, which is good for a year.

 A 'Bareboat Charter' of the vessel by the owner (hereinafter sometimes referred to as 'Maats') to Canadian Foreign Steamship Company, Ltd., a corporation organized and existing under the laws of the Bahamas (hereinafter called 'Charterer') was executed as of May 1, 1956 (see Document No. 31). The owners of Charterer may be citizens of the United States (see footnote 2). However, under a subsequent agreement between Maats and Charterer, Maats is 'charged with the responsibility of managing, manning, supplying and victualing the vessel '(see paragraph 8 of Document No. 26). *fn5" Since November 1957, 27 out of a total of 30 voyages by the vessel have been between ports in South American and ports of the United States (see exhibit to supplemental answers to interrogatories, being Document No. 27).

 A review of the 'connecting factors' set forth in Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254, requires the conclusion that the law of The Netherlands applies to the three causes of action stated in the libel. *fn6" See, also O'Neill v. Cunard White Star, 2 Cir., 1947, 160 F.2d 446. To use the words of the court in the Lauritzen case, 345 U.S. at page 592, 73 S. Ct. at page 933, this record shows 'an overwhelming preponderance in favor of' the law of The Netherlands. The libellant is a Greek subject, the respondents are Dutch subjects, the events took place on a Dutch ship not within the territorial waters of the United States, and the libellant was employed in The Netherlands. Against these considerations is only the fact that, for a period of approximately 18 months, this ship has come to this country regularly in its trade.

 In view of the conclusion that the law of The Netherlands, rather than the Jones Act (46 U.S.C.A. § 688) or the general Maritime Law of the United States, governs the three causes of action stated in the libel, the exceptions and exceptive allegations to these causes of action, except for the claim for earned wages, will be sustained since this is an inconvenient forum for the trial of the issues raised by those causes of action. See Romero v. International Term. Co., 1959, 358 U.S. 354, 381-385, 79 S. Ct. 468, 3 L. Ed. 2d 368; Medina v. Stockholms Rederi Aì Svea et al., No. 305 of 1956 in Admiralty (E.D.Pa., opinion of 12/31/56).

 The doctors who treated libellant immediately after the accident are located in the Canal Zone. The record does not disclose where any witnesses to the accident are located or their nationality, but their depositions can be just as easily used in The Netherlands as in this court. The libellant was provided with air transportation to The Netherlands promptly upon his being certified by respondents' doctors as fit to travel. *fn7" Cf. Bickel, 'Forum Non Conveniens in Admiralty,' 35 Cornell L.Q. 12, 26-31. It is most significant that not only is the forum unfamiliar with the law of The Netherlands *fn8" but the parties differ in many respects as to what that law is as applied to this record. *fn9" The Supreme Court of the United States has made this statement on this subject:

 'There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.'

 See Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 509, 67 S. Ct. 839, 843, 91 L. Ed. 1055.

 In Kontos v. Liberian S.S. Sophie, et al., D.C., 184 F.Supp. 835, 837, relied on by libellant, the opinion emphasized that the Liberian Code adopted "the nonstatutory general Maritime Law" of this country, which is familiar to ...


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