Plaintiff, a seaman, has brought this action pursuant to the Jones Act, 46 U.S.C. § 688, alleging that he suffered serious injuries as a result of the negligence of his employer, Hellenic Lines, Ltd. ("Hellenic") and the unseaworthiness of the vessel on which he was working at the time of the accident. Hellenic has filed a motion to dismiss, contending that this court lacks subject matter jurisdiction over the instant action. For the reasons hereinafter set forth, the Court will deny defendant's motion to dismiss for lack of jurisdiction. Defendant has also filed a motion to dismiss on the basis of international comity, contending that this action was already litigated in the courts of Greece and a decision adverse to the plaintiff has been rendered and affirmed. Plaintiff contends that the Greek litigation was a criminal proceeding inapplicable to this case. The Court will schedule a hearing concerning this issue.
A hearing was held concerning defendant's motions on June 9, 1983. At the hearing, the parties were directed to take appropriate discovery and to report the information gathered to the court as soon as possible. Based on the evidence presented at the hearing and the subsequent discovery conducted in this matter, the Court finds the following facts to be uncontested.
Plaintiff is a citizen and domiciliary of Greece. He entered into his contract of employment with the defendant in Greece. The defendant is a corporation organized under the laws of Greece with its principal place of business in Piraeus, Greece. The plaintiff's employment contract contains a choice of law clause which provides that the law of Greece shall govern any claim of the seaman arising in tort. Plaintiff was injured on May 2, 1980, while the M/V Hellenic Splendor was docked in New York. The Hellenic Splendor is registered in Greece and sails under the flag of Greece.
Hellenic was once owned by Pericles G. Callimanopoulos ("Pericles"), a Greek citizen residing in Connecticut and administering Hellenic from an office in New York for 35 years. Pericles died in 1980. Control of Hellenic remains vested in the Callimanipoulos family. Pericles' son, Gregory Callimanopoulos, ("Gregory") is the current head of Hellenic. He maintains an apartment in New York. In connection with his administration of Hellenic, Gregory also spends significant amounts of time in London and Piraeus. About forty (40%) percent of Gregory's time is spent in New York. In 1980 Hellenic established an American corporation, Hellenic American Agencies, Inc. ("Hellenic American") a general steamship agency organized under the laws of New York. Hellenic American does not own ships but acts as a logistical organizer and agent for Hellenic's shipping in the United States. Hellenic has approximately 30 vessels which regularly call upon United States ports and transport goods between the United States and other parts of the world. These Hellenic vessels frequently carry goods being bought or sold by the United States government (see Deposition of Jerry Joseph DiMaggio, Hellenic American vice-president of operations, June 24, 1983 at 4-10, 12-20, 28, 47). Hellenic American has offices in New York, New Orleans and Houston. Hellenic American has approximately sixty (60) employees in New York, sixty (60) in New Orleans and two (2) in Houston ( Id. at 5-7). When Gregory is in New York, he and other representatives of Hellenic meet regularly with officials of Hellenic American in order to coordinate their business activities (Id. at 13). Hellenic shares office space with Hellenic American in New York. Hellenic has approximately twenty (20) employees based in this country (Id. at 14). Hellenic's approximately thirty (30) vessels which regularly call on U.S. ports spend approximately one-third of their time in U.S. waters (Id. at 25). Repair of these vessels frequently takes place at U.S. ports but major repairs are performed in Greece (Id. at 62-63).
Based on this evidence, Hellenic argues that this Court lacks subject matter jurisdiction to adjudicate this dispute. (There is no question that Hellenic is subject to the personal jurisdiction of this Court. Hellenic regularly conducts business in the Eastern District of Pennsylvania and throughout the United States). Hellenic contends: (1) that it is not an employer within the meaning of the Jones Act, 46 U.S.C. § 688; and (2) that Greek law, not United States law applies to this case and that the Jones Act therefore is inapplicable, removing any federal question jurisdiction from this case (federal question jurisdiction constitutes the only possible basis for jurisdiction in this case since neither plaintiff nor defendant is a citizen of the United States, thereby precluding the possibility of diversity jurisdiction; (see 28 U.S.C. § 1332); and (3) that principles of comity between nations require this court to dismiss plaintiff's complaint since plaintiff has already litigated the matter unsuccessfully in Greece.
The Jones Act, 46 U.S.C. § 688, provides in relevant part:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . . Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or which his principal office is located.
As the Third Circuit has noted, "although § 688 used the term 'jurisdiction,' it has been construed to be a venue statute. Panama R. Co. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748 (1924). It incorporates the venue provision of 28 U.S.C. § 1391(c)." DeMateos v. Texaco, Inc., 562 F.2d 895 (3d Cir. 1977). Title 28 U.S.C. § 1391(c) permits a corporation to be sued "in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." See Pure Oil Co. v. Suarez, 384 U.S. 202, 204, 86 S. Ct. 1394, 16 L. Ed. 2d 474 (1966).
Thus, the Jones Act itself does not define its jurisdictional reach. Personal jurisdiction under the Act is governed by the due process minimum contracts test enunciated in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977) and International Shoe v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1951). Subject matter jurisdiction under the Act is more complex. Cases arising under the statute indicate that courts have conducted a two-pronged inquiry to determine whether a claim brought pursuant to the Jones Act presents a "federal question" within the meaning of 28 U.S.C. § 1331. First, the Court should determine whether the defendant is an employer within the meaning of 42 U.S.C. § 688, Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970). If the defendant is found to be an employer subject to the Act, the Court must then make an inquiry as to the choice of law applicable in the case at bar. If United States law would not be applied to the action, then the Jones Act does not apply and there exists no federal question jurisdiction. See Rhoditis, supra; Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953); Dracos v. Hellenic Lines, Ltd., 705 F.2d 1392 (4th Cir. 1983); DeMateos v. Texaco, supra.
Clearly, in this case, Hellenic is an "employer" within the meaning of the Jones Act. Hellenic employed plaintiff as a seaman and regularly conducted the maritime business in the United States. Determining whether Hellenic is subject to American law presents a more difficult question.
In Lauritzen, supra, the Supreme Court identified seven factors which the court should consider in determining whether the Jones Act is applicable. These factors are:
1. The place of the wrongful act;