San Pedro, California. Despite the report of the doctor that libelant had a 'hearing defect,' respondents did not send libelant to an ear specialist and required him to sail with the vessel. By the time the ship returned to California on August 8, 1960, Libelant's hearing loss had increased and respondents' doctor recommended an operation. The operation was not performed, instead respondents discharged libelant and repatriated him to Marseilles, France, where respondents furnished libelant with treatment from August 27, 1960 to March 2, 1961. Since March 2, 1961, respondents have not provided libelant with further medical care 'even though their own doctor certified on March 6, 1961, that libelant required 'treatment of long duration'.'
6. The individual respondents are Greek citizens and residents.
7. The American corporate respondent acted solely as agent for the vessel and her owners, and not on its own behalf.
8. The foreign corporate respondents were incorporated in Panama and have their principal offices in Montevideo, Uruguay.
On the foregoing facts respondents contend that if jurisdiction is retained by this court the parties will be prejudiced by delay and expense in obtaining testimony of Greek witnesses, by the inconvenience attendant the use of interpreters with danger of errors in translation, problems in applying Honduran law and, all in all, there are insufficient contacts of the parties and of the claims with the American forum to justify retention of jurisdiction by this court.
Libelant, on the other hand, points out quite properly that wherever the case is tried it will be necessary to have the testimony of American and French doctors as well as testimony of Greek witnesses so that interpreters will be required in any event. As for the law to be applied, libelant contends that American law -- the Jones Act -- will be applicable to his claim for aggravation of the hearing condition. He alleges that the OLYMPIC FLAME and the two foreign corporate owner respondents were ultimately owned and controlled by American interests. Respondents have denied this, averring that the owners are Panamanian corporations financed 'by other than American interests.'
American ownership and control appears to be a factor of significance in determining whether the Jones Act is to be applied: Southern Cross S.S. Co. v. Firipis, 285 F.2d 651 (4th Cir. 1960), cert. denied, 365 U.S. 869, 81 S. Ct. 903, 5 L. Ed. 2d 859 (1961); Rodriguez v. Solar Shipping Ltd., 169 F.Supp. 79 (S.D.N.Y.1958); 1958); Bobolakis v. Compania Panamena Maritima San Gerassimo, 168 F.Supp. 236 (S.D.N.Y.1958). Libelant wants the opportunity to establish that such ultimate American ownership and control exists. Presumably specific facts bearing upon such control and ownership are within respondents' knowledge, but they have not set them forth in pleadings or affidavits, contenting themselves with making a general conclusory statement of denial.
On the present state of the record I cannot say that the alleged ultimate American ownership and control has been disproved. Libelant will be afforded the opportunity to establish the existence of such ownership and control for whatever effect it may have upon choice of law, and upon whether this court's jurisdiction over the non-wage causes of action is mandatory or discretionary, and, if discretionary, whether it should be exercised. Rodriguez v. Solar Shipping Ltd., supra; Bobolakis v. Compania Panamena Maritima San Gerassimo, supra; Bartholomew v. Universe Tankships, Inc., supra; Motor Distributors Ltd. v. Olaf Pedersen's Rederi A/S, 239 F.2d 463 (5th Cir. 1957), cert. denied, 353 U.S. 938, 77 S. Ct. 816, 1 L. Ed. 2d 760, rehearing denied, 353 U.S. 989, 77 S. Ct. 1282, 1 L. Ed. 2d 1147 (1957); Tsangarakis v. Panama S.S. Co., 197 F.Supp. 704 (E.D.Pa.1961).
Since this court must hear libelant's wage claims and since the record does not clearly show that injustice will result from this court's retention of jurisdiction of the non-wage claims, see Motor Distributors Ltd. v. Olaf Pedersen's Rederi A/S, supra, 239 F.2d at 465, respondents' exceptions seeking dismissal of the libel on the ground of forum non conveniens will be overruled.
And now, this 28th day of February, 1964, it is ordered, adjudged and decreed that respondents' exceptions are overruled and the motion to dismiss the libel is denied.