HELLENIC LINES v. RHODITIS

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Argument of James M. Estabrook

Chief Justice Warren E. Burger: Number 661, Hellenic Lines against Rhoditis.

Mr. Estabrook, you may proceed whenever you're ready.

Mr. James M. Estabrook: Thank you, Your Honor.

Mr. Chief Justice, may it please the Court.

I represent the petitioner herein in a petition for certiorari from the Fifth Circuit.

George Wood, the original counsel of record who tried this case in Mobile and who argued the case in the Fifth Circuit is very sorry he's unable to be here.

He called me about two weeks ago and said he had the recurrence of a heart condition, asked me if I could possibly argue.

I agreed.

I was hoping to see him here but unfortunately his brother passed away on Saturday right after a golf game and George was unable to attend.

I represent not only the petitioners herein but I also submitted a brief amicus for the Royal Greek Government.

As I said before this is an appeal -- a petition for certiorari by Hellenic Lines Limited and Universal Cargo Carriers from a decision of the Fifth Circuit affirming an admiralty decree in the Southern District of Alabama Southern Division in favor of the libellant below the respondent here.

The accident occurred August 3, 1965 in a libel in rem and in personam was filed August 13, 1965.

So the case came up under the old admiralty rules.

Briefly, the facts which are pertinent are that Rhoditis, the libellant below and the respondent here was a Greek seaman with a wife and two children in Greece.

He is a resident of Greece.

He joined the Greek Flag Motorship Hellenic Hero in Heraklion Crete.

He signed the standard Greek articles.

While the opinion of the District Court contained in the findings and conclusions stated he is illiterate.

He is practically illiterate in English.

The record is disclosing that he can read and write only figures and write only his address in English but that he can read and write Greek since he can write letters to his wife and he can read Greek.

The Hellenic Hero, a Greek flag vessel was sailing in the United States, India, Pakistan Trade.

At the time the depositions herein were taken, the Suez Canal was either open or had just been closed.

Now, this trade through Suez no longer exists.

The practical difference, however, is this that whereas in -- when the depositions were taken and on the record it appears that Hellenic Lines had 20 ships, 24 ships sailing out of New York and U.S. ports and only 12 ships out of European ports based on Pireas at present.

The American-based ships are down to 20 and the European ships are up to 19.

The -- also there is some --

Chief Justice Warren E. Burger: Well, is this not a situation which fluctuates from time to time depending on the demands for shipping?

Mr. James M. Estabrook: Of course it does.

The demands of this case happened to be away from the American trade and in favor to foreign trade also there while the report, the facts as stated by the trial judge stated there was no intermediate traffic at present time, there is a considerable amount of trade between intermediate ports particularly between the Indian, Pakistan ports and South Africa.

Briefly, the acts did occur in this manner.

As the Hellenic Hero was tying up, and the purpose of this is to show how the acts had really involves only the people of the ship, he was tying up in New Orleans.

They have the lines opened and the spring line or a line leading from the bow aft not directly to dock but aft to keep the ship from surging ahead was being secured where that is working up in the bow.

This spring line was secured around the winch and they had been taking the strain on it and when they are going to tie the ship up, they had to take this line which is a heavy wire rope off the winch drum and bend it around bollards which are two iron columns about three feet high and about three feet apart like two fourplex and you bend this wire around the bollards making about eight -- figure eights and that's how you secure the ship.

But when you take the wire off the winch drum, it's necessary to secure it by a small piece of chain which the interpreter and the record referred to as a keeper.

Actually the correct term is stopper and you take the slide chain and you wind it around the wire tying some knots on it and that will take the strain off the wire in the drum because the end of the chain is secured to the bits.

Then with the strain off the wire and the drum, you can loosen the wire on the drum and put it on the bits.

Well, they did that.

They -- the stopper or keeper looked new, looked to be in good condition.

They put it on.

They took the wire off the drum and they were putting it on the bits and as they were putting it the second turn, the chain suddenly broke as the engines of the ship went ahead.

That's the testimony.

Why they went ahead, nobody knows, but of course that would put extra strain and the line leading aft extra strain on the chain.

The chain broke and the piece of a chain struck Rhoditis in the leg.

Rhoditis was then taken to a hospital in New Orleans after his first cast was removed.

As soon as he was able to travel, he was moved to Greece and he was able to return to work according to the trial court the next March.

Hellenic Lines, the employer is a Greek corporation.

It had in its employ some 1100 seamen.

It paid taxes last year of over $5 million to Greece.

Some old repair bills were paid to Greece of about the same amount.

It, however, did have a New York office and in the New York office, the record shows it employed between 75 to 100 people depending on whether it appeared to the testimony.

It has a New Orleans office, 10 to 15 people and the Pireas office of 70 to 75.

If you disregard the seaman, then you do have more people employed in the offices in New York than in Greece but if you take the seaman into account and they are all Greeks then you have a pronounced Greek flavor to the company.

There are also some longshoremen employed in New York , stevedores, but we also have longshoremen abroad and actually you employ a lot more longshoremen abroad than you do in this country because you have better machinery in this country.

So in any international run, you tend to have more longshoremen than the other side.

We believe this -- however there are some American features the operation.

The substantial part of Hellenic Heroes trade is to and from the United States.

While Hellenic Lines is a Greek corporation, the majority stockholder and the principal executive officer or general manager of the company is a resident of the United States although a citizen of Greece.

We have in our brief for the petitioner and the record indicates he received several honors from the kingdom of Greece.

We are not claiming sovereign immunity, diplomatic immunity or anything like that.

Mr. Callimanopoulos has been of assistance, the Greek mission.

He is receiving official Greek passport from time to time and the purpose of this proof in the record is to show his allegiance to Greece.

He is a bona fide Greek citizen.

He performs duties to the Greek Government.

We believe this case comes squarely under the doctrine of Larsen against Lauritzen because both these cases emphasized two things, the primacy of the flag, that is very important.

The flag of a ship should determine the law applicable to the ship and also the fact that it's important that there will be an available forum.

There is an available forum in this case.

Mr. Rhoditis can pursue his claim for compensation in Greece, and there we must pay him under Greek law and under the collective bargaining agreement.

In fact, the collective bargaining agreement specifies particularly the adoption of Greek law and this is very similar to the collective bargaining agreement that was followed by this Court in Larsen against Lauritzen which provided for determination of disputes in Denmark.

The -- in Larsen against Lauritzen, we had an accident in Havana where the ship sailing between United States and the West Coast of South America.

Both -- that ship never did go to Denmark in a regular trade.

Both vessels had crews of substantially crews of the citizenship of the flag.

They -- the Randa did have a few Chileans but all the officers and most of the crew were Danes.

In both cases, the -- we claim the place of the acts in this is unimportant.

In the Randa the man was injured in Havana yet he was brought to the United States for medical treatment and he remained.

Larsen actually remained in the United States until he was able to sail again, so the medical testimony was readily available here yet the Court held that Jones Act did apply.

In both cases, the court was based for the seaman who was engaged under the terms of the collective bargaining agreement negotiated with the assistance of the national union and the national association of shipowners.

We the petitioner here and the Greek Government are both very much opposed to the "runaway flag".

Insofar as the respondent and his amici argue against the runaway flag were or in fully in a Court.

We believe that argument is solved but we say it does not apply to this case.

Our position is that as stated in the Larsen case and quoted in my brief amicus, "Each state under international law" it's page 3 "may determine for itself the conditions upon which you can grant us nationality to a merchant ship thereby accepting responsibility for it and acquiring authority over it.

We believe that the phrase "accepting responsibility" is important.

If a nation does not accept responsibility for its merchant ships then that you have a runaway flag situation.

Justice John M. Harlan: Mr. Estabrook does his remedy that you have referred to under Greek law still subsists?

Mr. James M. Estabrook: Yes.

Justice John M. Harlan: Statute of limitations is not involved?

Mr. James M. Estabrook: He can -- it still subsists, that was -- we have the same thing in Tsakonites, Your Honor.

Tsakonites brought his case up in the Second Circuit.

This Court denied certiorari and thereupon Tsakonites commenced proceedings in the Greek court and recovered and that is exhibit A on the Greek Government's brief.

If you don't accept responsibility for a ship then you have true runaway flag.

For instance, you may have a ship under say Panamanian or Liberian Registry with a Cayman Island crew, Norwegian officers and Spanish engineers.

You don't have the regular inspection that we have.

The Greek Government insists on regular inspections of the ship, regular surveys.

It insists on Greek ownership.

If you have a foreign corporation owning a Greek ship then does exists here then the technical ownership was in universal cargo carriers, a Panamanian corporation but the ship was in fact operated by Hellenic who hired the crew then you must under Greek law have an agent in Greece who can make the reports necessary.

You must have the ship under the Greek flag.

I mean you do have a -- you must also have a Greek crew.

You must have Greek officers.

You have a pension plan in Greece known as NAT capital N, capital A, capital T to which all Greek seamen must contribute.

To this doctrine of recognizing responsible flags has been followed by this Court not only Larsen against Lauritzen in 1953 but again in 1959, in Romero case where a Spanish seaman was injured on a Spanish ship in the port of New York, the Court held that Spanish laws should and not the Jones Act.

A similar case in McCulloch against Honduran Union quoted in the petitioner's brief where the Court -- this Court held that the National Labor Relations Act would not apply to Honduran flag ships with Honduran crews operated by Honduran corporations between New York and Honduras even though the Honduran corporations were subsidiaries of an American corporation.

The -- they recognized the law of the flag as being a responsible flag for the reason that these Honduran ships were actually meant by Hondurans and they had Honduran officers.

The background being of course that these ships were carrying bananas and one of the conditions for granting banana concessions, the fruit company would be that bona fide Honduran ships would be used to transport bananas and while the ultimate directions of these ships is in the United States, the allegiance of the owner, a Honduran corporation was to the Republic of Honduras.

For that reason when the Court declined to apply the National Labor Relations Act.

Justice Hugo L. Black: May I ask you whether your problem is based on a statute or the Constitution?

Mr. James M. Estabrook: My problem, Your Honor, is based on the statute, the Jones Act and possibly on the General Maritime Law.

Justice Hugo L. Black: The famous Jones Act had some provision in it that prevent this trial in this country?

Mr. James M. Estabrook: No, the Jones Act, Your Honor, provides has been interpreted as applying not to the rights of foreign crews on foreign ships but to the rights of American seamen on American ships.

But the Jones Act and this Court was held not apply to the rights of a Danish seaman on a Danish ship in Lauritzen against Larsen or to the rights of a Spanish seaman on a Spanish ship in Romero against International Terminal Operating Corporation.

Justice Hugo L. Black: Do you question one of the jurisdictions?

Mr. James M. Estabrook: No, sir.

There's no question of jurisdiction here.

Justice Hugo L. Black: Do you think the courts had jurisdiction?

Mr. James M. Estabrook: There are jurisdiction in rem and in personam, yes Your Honor.

This was in admiralty.

Justice Hugo L. Black: What you're saying is some statute.

Mr. James M. Estabrook: Yes, the Jones Act --

Justice Hugo L. Black: Can you find something in that statute that shows that the case could be tried here?

Mr. James M. Estabrook: The Jones Act, Your Honor has been interpreted by this Court in 19 -- it does, there's in the statute.

Now, I brief this point thoroughly in my Randall, Larsen -- Lauritzen against Larsen case.

The Jones Act is Section 20 of the Merchant Marine Act of 1920.

Certain sections of that Act specifically apply to foreign ships.

I'm talking primarily about the provision against advances that applies to foreign ships as well as to American ships and so states in the statute.

There's another section, the so-called penalty wage statute that specifically applies to foreign vessels.

That requires a shipowner to pay half earned wages in an intermediate port and all of the earned wages within four days after arriving from a foreign voyage at the port of destination.

Now, the history is rather interesting.

When those two sections were originally enacted, I believe it was the Shipping Act of 1916 or maybe a little earlier.

They were in general terms such as the Jones Act.

The courts construe both those sections in the first instance as not applying either to advances made in a foreign port or to foreign ships.

At that point, both sections were amended specifically to apply foreign vessels.

Consequently, cases like Strathearn against Dillon read that the Congress had the power to apply a statute to foreign vessels but --

Justice Hugo L. Black: What was the power?

Mr. James M. Estabrook: To apply statutes as to pay and as permitting advances to foreign vessels but unless it specifically applies to foreign vessels then they shouldn't be construed so as to apply the foreign vessels and the reason for that is this, other sections of the Shipping Act refer to the rights of any shipowner who call in American consul in a foreign port must submit disputes in a foreign port.

Well, obviously, you wouldn't expect the British or Japanese or Greek ship to see an American consul in London.

He'd go to his own consul if he had trouble.

So the statute, the Jones Act has been construed as not applying to foreign crews despite the broadness of the terms and this construction of the Jones Act in the Larsen case of 1953 was followed by the Romero case is 1959 and yet Congress did nothing to amend the Act.

Justice Hugo L. Black: Are you (Voice Overlap) to decisions for this Court or statute?

Mr. James M. Estabrook: The decision of this Court, Your Honor.

Justice Hugo L. Black: You're not relying on the statute?

Mr. James M. Estabrook: What?

Justice Hugo L. Black: You're not relying on the statute?

Mr. James M. Estabrook: I'm relying -- I'm relying on the decisions of this Court construing the statute.

Justice Hugo L. Black: Well, you mean construing, well, that's difficult.

Mr. James M. Estabrook: Yes.

Justice Hugo L. Black: You are relying basically on a statute?

Mr. James M. Estabrook: No, I'm relying basically under the decisions of this Court construing the statute.

I'm saying that the statute does not apply.

Justice Hugo L. Black: You wouldn't say the construction by this Court was different from the statute, would you?

You seem to draw a distinction between the decisions of this Court.

Mr. James M. Estabrook: Well, I was -- I was afraid you might ask me for the words of the statute I was relying on and there aren't any.

Justice Hugo L. Black: I was thinking about it.

Mr. James M. Estabrook: There aren't any words Mr. Justice Black but the words I rely on are the decisions of this Court.

Justice Hugo L. Black: Now, you say the Court does have jurisdiction?

Mr. James M. Estabrook: Yes, sir.

Justice Hugo L. Black: Our courts.

Our courts have jurisdictions?

Mr. James M. Estabrook: Yes, no question.

Justice Hugo L. Black: And suppose they are tried the case what -- would it be governed by Greek law or by American law?

Mr. James M. Estabrook: It should be governed by Greek law.

Justice Hugo L. Black: Altogether?

Mr. James M. Estabrook: Yes, Your Honor.

Justice Hugo L. Black: Why?

Mr. James M. Estabrook: Because this is an act of internal management of a Greek ship.

I think the Court will be better advised to decline jurisdiction.

Most of our courts in the Second Circuit in the situation like this actually declined jurisdiction on the condition that the shipowner appear in the forum of its native country.

Justice Hugo L. Black: Suppose the man live here?

Mr. James M. Estabrook: We have that in O'Neil against Cunard Your Honor where I believe a resident of the United States was injured on a British ship and the Court declined jurisdiction.

He was not permitted to sue under the Jones Act.

Justice Hugo L. Black: He's trying to exercise it or said he didn't have?

Mr. James M. Estabrook: My recollection is that they said the Jones Act did not apply and since the man was insisting in a jury trial --

Justice Hugo L. Black: Was the complaint in this case based wholly on the Jones Act?

Mr. James M. Estabrook: No, it was not Your Honor.

Justice Hugo L. Black: What other laws?

Mr. James M. Estabrook: General Maritime Law of the United States.

Justice Hugo L. Black: Maritime Law of the United States.

Mr. James M. Estabrook: Yes, Your Honor.

Justice Hugo L. Black: Well, that's not based on the statute.

Well, your -- your prior argument is not based on the statute.

Mr. James M. Estabrook: On that point, my argument is based in the committee of nations and the application of the Greek law.

I say that neither the General Maritime Law of the United States has applied the internal management of the ships nor the Jones Act is applicable.

This man's rights should be bound under the Greek law.

Justice Hugo L. Black: Suppose all the evidence and everything in connection with the case shows that that it was thoroughly inconvenient to find in a way except in this country.

Mr. James M. Estabrook: Well, in that case --

Justice Hugo L. Black: Don't you have jurisdiction?

Mr. James M. Estabrook: In that case Your Honor, the Courts have tried the cases.

That's the old case I think of Gambera against Bergoty and I believe -- I believe that is a correct decision.

If we don't have a convenient forum I agree with Mr. Chief Justice Clark on television on a Sunday, one of the big injustices is delay and if we don't have a convenient forum and the man cannot get a proper decision in one place, he should get it in another.

Justice Hugo L. Black: Do you agree then that this case -- this Court might not have or merely have jurisdiction but might have the power to try and probably and could be of should be tried?

Mr. James M. Estabrook: I think so but I think it should also apply the Greek law.

I think they've applied the wrong law.

They applied the general maritime law of the United States and the Jones Act.

Justice Hugo L. Black: What injury will it do to the defendant to try a case?

Mr. James M. Estabrook: In this -- our particular case, it does this injury.

If that -- if a seaman is repaid greater to Greece under Greek law he gets his remedy right away and he goes ahead and if he goes into the office with a medical certificate, he gets his money and the existence of the suit in this country is not a defense.

Justice Hugo L. Black: (Voice Overlap) based on the fact that he thinks he made a mistake, he can get a better remedy in Greece.

Mr. James M. Estabrook: In this case, he very likely could because this remedy in this country is rather small when you consider the seriousness of the injuries and when you consider that he got I believe $6,000.00 in this country and that's all he gets, he can't go back.

Justice Hugo L. Black: Where is he now?

Mr. James M. Estabrook: He's sailing in big ships out of Greece.

Justice Hugo L. Black: Out of Greece.

Mr. James M. Estabrook: Yes.

He returned to Greece in about a month after the accident.

He was repatriated to Greece and at any time after September, I believe, he could have started this action, this proceeding in Greece and in fact he got some money in Greece when he first got there.

Justice Hugo L. Black: If the statute does not provide automatically, if he cannot possibly have a remedy in this country.

Mr. James M. Estabrook: No, he does not.

Justice Hugo L. Black: Well, then why --

Mr. James M. Estabrook: Well, the Greek law is --

Justice Hugo L. Black: Why is it a question of discretion in each case?

Mr. James M. Estabrook: Well, because first of all, you have a question of congestion in the Courts and the second place, the Greek remedy is similar to workman's compensation.

It's very similar.

Justice Hugo L. Black: Are you arguing that the Greek remedy is better but maybe the man who is hurt doesn't think so?

Mr. James M. Estabrook: I'm arguing that the Greeks think the Greek remedy is better and the Greeks have provided the Greek remedy for Greek seamen somewhat a workman's compensation with punitive damages in the event there's a violation of the safety law or a safety regulation.

Justice Hugo L. Black: But does you adversary agree with you here that it will be better if he's tried to have his case tried in Greece?

Mr. James M. Estabrook: I doubt it very much.

Justice Hugo L. Black: So you're not -- you're not standing here firm in that argument.

Mr. James M. Estabrook: But I'm saying that he has -- by Greek rights an adequate remedy in Greece as provided for by Greek law and in accordance with the collective bargaining agreement, in accordance with Larsen against Lauritzen, in accordance with the Romero case, the correct law to be applied is the Greek law and under the Greek law, he will get --

Justice Hugo L. Black: But then sometimes you mean.

You don't mean always under all circumstances, I understood you to say.

Mr. James M. Estabrook: Well, I believe in circumstances where you have a seaman on -- injured on a ship which is a bona fide foreign flag operator.

In other words, the country of the flag has responsibility for the ship that it cruise the ship, it supervises the ship and where there's a forum readily available, then I believe it will be better for these -- our courts that decline jurisdiction and in any event, this decision below --

Justice Hugo L. Black: It will be better to decline if it's a matter of discretion.

Mr. James M. Estabrook: Yes.

But I say this decision is wrong because they did apply United States law not Greek law.

Justice Byron R. White: Could he have his recovery here and also have recovery under the Greek law?

Is there any danger of double liability?

Mr. James M. Estabrook: Well, there's --

Justice Byron R. White: You said the existence of a --

Mr. James M. Estabrook: Actually there's not too serious a danger.

That there's a danger some double liability because I believe he collected $140.00 in Greece before Pireas was advised of the existence of the suit in this country.

Justice Byron R. White: And they stopped paying?

Mr. James M. Estabrook: Then they -- then they stopped paying, yes.

Because he had -- this is a technical violation of the articles.

Justice Byron R. White: Let's assume that the Jones Act expressly applied to accidents on foreign flag ships sailing in American waters but the parties as in this case contracted out, attempted to contract out, the parties here expressly agreed to the application of Greek law I take it.

Mr. James M. Estabrook: Yes they did.

If the Jones Act expressly applied to foreign flag vessels sailing in American waters, then a number of sections of the Jones Act specifically invalidate any contractual exemption from the Act.

There is a section of the Railway Labor Act which is incorporated in reference by the Jones Act which makes an attempt to avoid the Act by contract invalid.

Justice Byron R. White: What about contracting out of the application of the General Maritime Law?

Mr. James M. Estabrook: That would be valid.

Justice Byron R. White: Well, that's another basis for your argument I take it that the parties here have agreed to the application of a foreign law.

Mr. James M. Estabrook: That's right.

That is correct.

That is one basis but this principle basis of my argument is this case comes squarely under Larsen -- Lauritzen against Larsen and Romero.

Justice Byron R. White: But certainly it's fortified by the parties expressed agreement.

Mr. James M. Estabrook: That's right, it is.

And Lauritzen against Larsen so states.

Justice Hugo L. Black: I understand the part of your argument is based on the fact that this will be better for this man to sue in Greece.

How do you explain this suing in this country?

Mr. James M. Estabrook: Because he can get -- he can get more money quicker.

Justice Byron R. White: Well, probably better, would you while I'm here.

I would think that would be decided then if you have a lawsuit to be able to get more money quicker.

Mr. James M. Estabrook: But sometimes if you have an accident like this, this act could flare up later, you can lose in the long run.

Thank you.

Argument of Joseph B. Stahl

Mr. Joseph B. Stahl: Mr. Chief Justice and may it please this honorable --

Chief Justice Warren E. Burger: Mr. Stahl.

Mr. Joseph B. Stahl: Thank you, Your Honor.

May it please this Honorable Court.

According to this Court in the Lauritzen case, there are two justifications for disregarding the law of the nation of the vessel's foreign flag in order to apply American law in a suit such as this.

The first justification is if the flag is merely one of convenience and not bona fide.

The other is if there exists some heavy account of weight to even a bona fide foreign flag, we contend in this case that this is -- this Greek flag is a flag merely of convenience by virtue of the following facts which I shall attempt to state as briefly as possible.

The ship owner in this case Mr. Callimanopoulos, a Greek citizen concededly and the owner of the petitioner corporations started a shipping business in Greece in 1935.

This Greek operation operated from Greece was reduced to absolutely nothing in World War II by sinking an enemy action.

At the end of World War II during which incidentally the Greek Government had confiscated his ships for military defense purposes, in 1945 he came to the United States and started over a completely anew in the shipping business such that there was no continuum of Greek operation and Greek flag used.

He started over here as if he had never been in any shipping business anywhere else.

And the fact is that now, he has been a domiciliary of this country for 25 years.

During the last 19 of which, he has enjoyed permanent resident alien status.

Justice Hugo L. Black: That's the end of (Inaudible), you mean the owner of the ship?

Mr. Joseph B. Stahl: Yes, Your Honor.

Yes, Mr.Justice Black.

Justice Hugo L. Black: Where was the ship built?

Mr. Joseph B. Stahl: Some of them in Japan, some of them in Germany, some of them I believe in this country.

The record does not develop that quite extensively although there is an indication that the first five --

Chief Justice Warren E. Burger: Are any of them -- are any of them American built ships?

Mr. Joseph B. Stahl: Yes, the very first five ships he bought were American Liberty ships which incidentally he bought from the United States Government.

Justice Potter Stewart: I don't think an individual owned those ships.

That was a corporation owned 90-95% by this resident of Greenwich, Connecticut.

Mr. Joseph B. Stahl: That is correct.

I'm not sure.

Justice Potter Stewart: So an individual doesn't own a ship.

Mr. Joseph B. Stahl: The corporation --

Justice Potter Stewart: -- owns the ship.

Mr. Joseph B. Stahl: The registered owner is a Panamanian corporation --

Justice Potter Stewart: Hellenic Lines Limited is the owner of the ships, am I correct?

Mr. Joseph B. Stahl: Not the registered owner, no, Your Honor.

Justice Potter Stewart: Universal Cargo Carriers?

Mr. Joseph B. Stahl: Yes, it's potentially Universal Cargo Carriers Corporation which is a Panamanian corporation.

All the stock in which is owned petitioner Hellenic, 99% of the stock in which is owned by Mr. Pericles Callimanopoulos, 99 --

Justice Hugo L. Black: 99 and what?

Mr. Joseph B. Stahl: Just 99%.

Justice Hugo L. Black: He only owns 99%.

Mr. Joseph B. Stahl: That's all.

Chief Justice Warren E. Burger: He is a -- he is a --

Justice Hugo L. Black: What's Panama have to do with it?

Mr. Joseph B. Stahl: Absolutely nothing except that is a symbol of convenience for this man because apparently of its lax shipping laws.

Justice Hugo L. Black: You have to be an American citizen at organizing corporation, 99% of the stock and what do they do for Panama, what they get from Panama?

Mr. Joseph B. Stahl: He registered the ownership of 19 of 22 of his United States line of service vessels to a Panamanian corporation.

Justice Hugo L. Black: How long has he been a resident of this country?

Mr. Joseph B. Stahl: 25 years and he's been a domiciliary for that long and for the last 19 he has had permanent resident alien status.

Justice Hugo L. Black: Who is the owner of this other 1% of the stock?

Mr. Joseph B. Stahl: His son who also lives here, a Mr. Gregory.

Justice Hugo L. Black: Where does his son live?

Mr. Joseph B. Stahl: Also in New York.

Justice Potter Stewart: He's not an American citizen, is he?

Mr. Joseph B. Stahl: I don't believe his son is either although the --

Justice Potter Stewart: Neither one is?

Mr. Joseph B. Stahl: Neither one are American citizens, that is correct.

Chief Justice Warren E. Burger: They're both Greek nationals, aren't they?

Mr. Joseph B. Stahl: I would not call them nationals.

I would call them nominal citizens Your Honor, Mr. Chief Justice.

Chief Justice Warren E. Burger: Well, where did they get a passport if they want to travel?

Mr. Joseph B. Stahl: Well, I'm not familiar with the regulations for foreign travel, Your Honor.

Chief Justice Warren E. Burger: But they are Greek nationals who were domiciled in the United States.

That's the factual and legal situation, isn't it?

Mr. Joseph B. Stahl: Well, it is but I argue that the domicile in the United States in this case --

Chief Justice Warren E. Burger: Well, you may argue the significance of the domicile but that doesn't change the fact that he's a Greek national.

Mr. Joseph B. Stahl: No, Your Honor.

I'm sorry, that is correct.

Justice Hugo L. Black: He's a Greek national who chooses to live in this country with his family.

Mr. Joseph B. Stahl: Yes, Your Honor.

Continuing on factually, he finances his entire operation with money borrowed from New York banks and always has.

The claims manager of petitioner, Hellenic, is the United States citizen in domiciliary.

Its treasurer who collects freight rates charged all over the world is a United States citizen domiciliary and one of its directors is the United States citizen in domiciliary.

His ships are operated from the United States in five regular line of services.

That is the operating instructions emanate from offices in New York City.

All the voyages of which line of services originate and terminate the United States with all cargos thereon originating and terminating in the United States ports.

He is charging freight rates fixed by United States line of conference systems of which his corporations are members.

He handles virtually no trade with the nation from which he came, Greece, but trades actively with 15 other nations.

He owns his docks in New York.

He employs regularly in this country approximately 215 people and employs only at most a total 75 in Greece but more significant and I'm getting at what I think establishes the broad of the connection with the United States.

It is the policy of his company that all cargos including European cargos are solicited only by his New York office even in situations were the Greek office learns of their movement first in Greece, they are required by the rules of the company to relay this information to petitioners U.S. office so that the latter, not the Greek office, may solicit such cargo and most significant, getting to this Panamanian corporation.

In 1956, Mr. Callimanopoulos registered the ownership of most of his U.S. line of service vessels to two Panamanian corporations created by him especially for this purpose, Trans Pacific Cargo Carriers, Inc. and petitioner, Universal.

Justice John M. Harlan: Supposing this accident had occurred in a foreign port, and would it be your view that they're subject to getting a personal jurisdiction or in rem jurisdiction in the United States, this action could have been brought under the Jones Act here?

Mr. Joseph B. Stahl: Your Honor, Mr. Justice Harlan, I think that that inquiry emphasizes the importance of the place of the wrongful act and I would have to say that because of the overwhelming preponderance of his contacts with the United States.

If the seamen were able to perfect his suit by process in the United States even for an injury in a foreign port, the Jones Act would be applicable.

I think that the seven factors emphasized by Lauritzen when weighed here under these circumstances even changing the place of the wrongful act would indicate that the Jones Act would apply.

Justice Hugo L. Black: What are his contacts with the Greek Government?

Mr. Joseph B. Stahl: To my way of thinking, the only contacts are really convenient economic one.

He buys the flags that he flies on his ships.

Justice Hugo L. Black: He buys what?

Mr. Joseph B. Stahl: The flags that he flies on his vessels in Greece and he hires his crews in Greece.

Now, he is obliged by Greek law to deduct from the wages he pays his seamen certain money for taxes which he pays in Greece and before the Suez Canal closed, some of the vessels he operated exclusively between Europe and Turkey were repaired in Greece but none of these U.S. line of service vessels to which the Jones Act was applied in this case.

Those are his only contacts.

Justice Hugo L. Black: What are his contacts with Panama?

Mr. Joseph B. Stahl: Nothing but a paper corporation.

Justice Hugo L. Black: You mean there's no corporation that was organized in Panama?

Mr. Joseph B. Stahl: It was really organized in New York City and some papers were mailed to Panama according to a routine that they have for establishment.

Justice Hugo L. Black: Panamanian corporation owned by the man 99%, his son, the other 1%, it does -- didn't premier in Greece, is that it?

Mr. Joseph B. Stahl: No he doesn't do any significant -- he does practically no shipping of cargo to Greece.

Justice Hugo L. Black: But what does he do?

Mr. Joseph B. Stahl: He ships cargos between the United States and 15 other nations besides Greece, India, Pakistan and Burma.

Justice Hugo L. Black: He doesn't ship any from Greece?

Mr. Joseph B. Stahl: He testified himself and so did his claims management only occasionally do they handle cargo to and from Greece.

Justice Hugo L. Black: But he has nice paper relationship with Greece, doesn't he?

Mr. Joseph B. Stahl: I feel that that's all he has with Greece, Your Honor, Mr. Justice Black.

Justice John M. Harlan: Was there any American, a workman or a citizen, or an American contact involved in the occurrence of this accident?

Mr. Joseph B. Stahl: The only contact with American workman that could have been had and this was developed by counsel for petitioners when the deposition of the respondent was taken was that the ship was in tow by an American tug but there was never any attempt either on the part of my side of the case or that of my opponents to show that he tug was responsible for the parting of the line.

Justice John M. Harlan: What -- what public policy would you bring to bear in your view that enacted the Jones Act that there was an American interest did you say in the circumstances of this case?

Mr. Joseph B. Stahl: Absolutely none Your Honor but I don't think that this Court need justify its affirmation of the Fifth Circuit in this case on those kinds of considerations.

The considerations that I have urged for an affirmance are technical legal ones based on the rules laid down by this Court in the Lauritzen amici curiae who have taken my side of this case have argued that it would help to equalize competition between American and foreign shipping if the Jones Act were applied to foreign operators that come in to our ports.

But Mr. Justice Jackson in the Lauritzen case indicated that the argument of that type was misaddressed to this Court and it should have been taken over that at Congress and if it was in the interest of the United States, it was not for this Court to legislate it but for Congress to do so and I don't think that that is necessary to justify an affirmation of the Fifth Circuit's decision in this case.

Chief Justice Warren E. Burger: It would equalize competition if this Court did order all foreign flag ships to pay the same rates of pay for their seamen as we do, wouldn't it?

Mr. Joseph B. Stahl: Certainly.

Chief Justice Warren E. Burger: But we haven't any power to do that.

Mr. Joseph B. Stahl: I don't think you do but I don't think that that's fatal to my cause here.

Justice Thurgood Marshall: Mr. Stahl, what about the union contract that applies Greek law?

Mr. Joseph B. Stahl: First, let me say that the Larsen -- this court in the Lauritzen case specifically ruled out the law provided for by the contract and they in fact that that could determine or even effect the application of the Jones Act.

Many readers of the decision have been mislead into thinking so but what the case actually says is that the place of the contract while it has some weak significance, the law of the contract has none and this is --

Justice Thurgood Marshall: That's not my understanding of Mr. Estabrook's argument.

His argument is that once the Court took jurisdiction, it was bound by the Greek law.

Mr. Joseph B. Stahl: Well, we --

Justice Thurgood Marshall: That's his point.

Can you give me your answer to that specific point?

Once the court takes jurisdiction, it should apply the Greek law.

Mr. Joseph B. Stahl: Our argument is that what law applies is the question, the answer to which must be arrived at through the course of testing the seven factors enunciated in Lauritzen.

Justice Byron R. White: Why do you -- why do you set aside the special agreements would apply to Greek because of the provisions of your Act?

Mr. Joseph B. Stahl: No, I will explain that fully.

Well, that's part of it, yes.

Justice Byron R. White: I thought that's Mr. Justice Marshall's question.

How do you get around the agreement --

Mr. Joseph B. Stahl: That's part of it, yes.

The Jones Act of course itself says that any contract rule regulation or device whatsoever the purpose intended which shall be to abrogate the common carriers' liability with this chapter to that extent shall be void and this Court in Lauritzen recognized and the specific language was but we think another result would follow if the contract attempted to avoid applicable law.

Now, the significance of that can only be that something besides the contract was determined in the first place, what law is applicable.

Justice Byron R. White: Well, I know but absent such provision of contract, maybe you could -- maybe you could inquire the general principles on what will happen out there once that discloses the agreement sometimes.

Mr. Joseph B. Stahl: Lauritzen does.

It says, you must find the answer through the seven factors that this Court listed and once that determination is reached, the contract cannot shake it.

Justice Byron R. White: What about, did you sue here under the General Maritime Law?

Mr. Joseph B. Stahl: We did, Your Honor, and that's -- well, that is an alternative argument of mine that even if Your Honors don't apply the Jones Act, the District Court was well within its discretion to take jurisdiction and apply our law.

Justice Byron R. White: What about the agreement of the parties -- that is the Greek law.

Mr. Joseph B. Stahl: Yes.

I'm glad Your Honor asked me that because I do have a succinct answer to it.

It has been held in general maritime law cases which I've cited in my brief, notably the Blanco versus Phoenix Compania De Navegacion, S.A. out of the Fourth Circuit that two things must concur when a seaman signs a restrictive provision in employment contract.

The first is that regardless of his literacy well-known, the restrictive provision be explained to him and the second is that he be paid extra compensation for his agreement so restrict his rights.

The evidence in this case indicated that neither was the provision explained to him.

He was completely unaware of its existence.

Justice Byron R. White: It doesn't matter to the lower courts whether it was decided to the lower court.

Mr. Joseph B. Stahl: Well, they are in evidence and they sustained the judgment.

Justice Byron R. White: You would sustain (Inaudible).

Mr. Joseph B. Stahl: I don't know if Your Honor would see fit to it.

But they are in the record.

Justice Byron R. White: That's your only answer though of the General maritime Law that yes you would by the agreement parties, in those conditions (Inaudible).

Mr. Joseph B. Stahl: I would say that not as the between respondent and petitioner Universal.

Petitioner Universal is a Panamanian corporation and a contract between a Greek citizen and a Panamanian corporation for the application of Greek law, I don't think would be entitled to any greater weight because there's no exclusive ruling out of the contract in the Jones Act.

Justice Byron R. White: What is the general rule as part of the contract with respect to a particular body of law who may know that they're going to be operating within the area of several nations involved?

Can they pick one up and one who (Inaudible)?

Mr. Joseph B. Stahl: This Court said in the Lauritzen case that in contract matters, in a suit for breach of contract for specific performance, then they would be bound by the law chosen in the contract but the Court pointed to the obvious that a Jones Act suit is for tort and such a contract cannot control what law applies in a tort case.

Justice John M. Harlan: Was there any finding in the courts below that the registering of new ship is simply one that provides convenience?

Mr. Joseph B. Stahl: Well, that was in effect the decision of the Fifth Circuit and of the District Court but I'm not certain in what sense -- I am arguing that this is a flag of convenience.

Justice John M. Harlan: As I know it, you're arguing about some other states, are there any findings of fact that support that?

Mr. Joseph B. Stahl: Specifically, I don't recall that language in the District Court but I do in the Fifth Circuit's opinion.

That was their exact language but let me say this.

Justice Hugo L. Black: Then what is the theory that causes this to be called a Greek ship?

Mr. Joseph B. Stahl: I beg your pardon, Your Honor?

Justice Hugo L. Black: On what theory was this called a Greek ship?

Mr. Joseph B. Stahl: Merely because of the flag which it flies, it has a Greek flag.

Justice Hugo L. Black: Well, it could fly a Panamanian flag, couldn't it, I guess?

Mr. Joseph B. Stahl: If the owner saw fit to purchase a flag in Panama, I'm sure he could.

Chief Justice Warren E. Burger: Well, do you rule out the significance that the owner of the -- the owners of the stock are Greek nationals?

Mr. Joseph B. Stahl: Yes, Your Honor and --

Chief Justice Warren E. Burger: And say that has no significance at all?

Mr. Joseph B. Stahl: Yes, Your Honor, I would not only say that but I would say that if these were American citizens that that has no significance at all.

When you're dealing with the question of the national allegiance of a corporation, which is what we're dealing with here, and the law to which its subject, the U.S. citizenship of its stockholders could not render American law applicable to it.

If this was so, American citizens would have the power to taint and stigmatized bona fide foreign enterprises by buying their stock and thereby subjecting them to more stringent American laws.

And when it comes to a corporation, it's my understanding of a basic corporation law that presence of principal actors and parties in a forum state of the corporation and conduct in the forum of the corporation's principal business including all managerial and operational functions far outweighs the naked fact that the incorporation elsewhere as far as determining that the law of the forum is applicable to such a corporation and this has been the decision of many of our district in the circuit courts in cases specifically involving the application of the Jones Act of foreign registered corporations.

What they have looked to is not the citizenship of the stockholders but to the place where the corporation makes its money.

Any other result would result in chaos.

If corporations were held subject to the laws of the place where they paid dividends to their stockholders or to the law of the place where they borrowed the money to finance their operations, this would indeed result in chaos and do more to blight international commerce in the application of the Jones Act to this case.

Chief Justice Warren E. Burger: But when you're dealing with a company that ships in and out of 15 nations, you can hardly say it makes its money in any one of those places, can you?

Mr. Joseph B. Stahl: Well, I would say that if the --

Chief Justice Warren E. Burger: It makes its money on the high seas, doesn't it?

Mr. Joseph B. Stahl: Well, that is of course a legitimate invalid way of looking at it but the money is paid in New York City, that's where the checks or the credits are forwarded.

Chief Justice Warren E. Burger: Well, suppose he had arranged then to meet your point to have all of his payment, all payments made through a bank in Zurich, Switzerland, would that undermine your argument?

Mr. Joseph B. Stahl: Well, I would clarify it in order to maintain and say that it is the base of operation or the commercial domicile.

The place where the corporation carries on its principal business and when I said the place where it makes money, I meant the place where it does what it has to do to make the money.

He's running ships from New York.

Justice Hugo L. Black: Does the record show how many of these liberty ships he had bought from the Government?

Mr. Joseph B. Stahl: He started off buying five but then apparently he is a very intelligent operator and he made enough money to build up to a fleet of what now totals approximately 40 ships which has been built all over the world.

Justice Hugo L. Black: Now, suppose this gentleman had determined instead of organizing a corporation on paper somewhere in Panama or I believe anywhere around the world, just to run it himself like he's actually doing with his son, what would have been the law of the Government?

Mr. Joseph B. Stahl: It would depend on the place from which he run it to my way of thinking.

It would depend -- if we are to look at the corporations and ask -- in other words, if we only look at this corporate façade and ask what is the allegiance of this corporations, I would say it is the place where the corporations do their business but if on the other hand, we are to look at the individual, I think we should do what this Court did in the Lauritzen case and that is look to the national allegiance of this individual shipowner and I've cited a body of law of what I think is impressive universality and maturity going back 150 years according to which in the eyes of the law of nations, a man's national allegiance is deemed to be to that nation where he has his domicile because domicile is prima facie evidence of national character susceptible of course at all times to explanations.

If it be for a special purpose and transient in its nature then it does not derogate from or destroy the prior or original national character but if it be taken up with the intention of remaining as here, then it substitutes for the original or prior national character, the disabilities and penalties as well as the privileges and immunities of the United States citizen.

Your Honor, Mr. Justice Black, held that in the case of Kwong Hai Chew versus Colding in which the Justice Department attempted to deport without a hearing a resident alien and he claimed that the constitutional privileges were available to him.

I see if I may so that the Honorable Mr. Davis here represented the Government in that case and Your Honor held that even though Congress had never said it, and the constitutional convention didn't put it in the Constitution, Your Honor held that the constitutional protections were available to resident aliens and these cases which I've cited, have held further resident aliens are subject to our draft laws.

They must pair all their lives for the honor of this country's defense even though they are not citizens.

Justice John M. Harlan: I take it there is no legislative history for purpose of the Jones Act pointing either directions for coverage of the Jones Act in this situation.

Mr. Joseph B. Stahl: There is none in the legislative history.

I would like to emphasize --

Justice John M. Harlan: Were there any bills have been introduced in the Congress that follows Lauritzen or Romero?

Mr. Joseph B. Stahl: No there were not.

Let me say this.

Though I think there's a good reason based on language of Mr. Justice Jackson in the Lauritzen case, he pointed that the laws of this -- the shipping laws of this country which are contained in Title 46 are many and of those very few are specific in their language, in their application either to American or foreign shipping operations and this is what he said about that.

He said many give no evidence that Congress addressed itself to their foreign application and are in general terms which leave their application to be judicially determined from context and circumstance.

He decided that where Congress has been silent, while it is not -- the courts not only made but they must speak on what they mean and then specifically with reference to the Jones Act, he said Congress could not have been unaware of the necessity of construction imposed upon courts by such generality of language and was well warned but in the absence of the more definite directions than are contained in the Jones Act, it would be applied by the courts two foreign advanced ships and foreign seamen in accordance with the usual doctrine and practices of maritime law.

So apparently Congress has felt that the courts must and are able to determine in each case whether they are sufficient contacts of the United States as weighed by the seven factors to Lauritzen test to warrant or justify the application to foreign transactions or not.

So that in effect, it has not been necessary for Congress to legislate on that.

I think it would even be dangerous for Congress to legislate on that because these shipping operators -- the national symbols for which they surround themselves are but part and parcel of the paraphernalia that's dictated by the exigencies and convenience of their economics and commerce and the scrambled types of transactions at which we have a wonderful example here are just typical.

And it would be very difficult for Congress to comprehend in one act something that would slice the line between a bona fide foreign operator like Mr. Jay Lauritzen of Denmark who has always incidentally been a Danish domiciliary and an operator like Mr. Pericles Callimanopoulos who is enjoying the privileges and the immunities as American citizen by living here.

Justice Hugo L. Black: Do you have any statistics on the number of ships bought from the American Government on five terms that operate under Panamanian registry although they do all their business practices in this country?

Mr. Joseph B. Stahl: I do not Your Honor and they are certainly would not make a matter of proof in this case.

Let me if I may dwell upon the Tsakonites decision as Your Honors I believe have been made aware, this case comes to you on a conflict between the circuits that Tsakonites court decided on identical facts that the Jones Act did not apply.

Incidentally, with regard to what I contend as a flag of convenience here, I would be the first to say that if Mr. Callimanopoulos had just recently come over here, -- if he had just recently come here and then only temporarily to get started, a United States office is merely a small branch to a Greek office and they were a continued and uninterrupted use of Greek flags as part of a principal business in Greece which is not the case and even Your Honor would say that the Court of the United States would be stretching matters rather far to brand his flags as flags of convenience but whereas here, there's an overwhelming preponderance of contacts with the United States as I've outlined and corporate registry in Panama, it is obvious that what this man is doing is dictated by convenience.

And if the Court is prepared to say that even under these circumstances, such a flag is a bona fide flag, then I would conclude that the United States has become a fair game to a certain extent for economic parasites to entrust themselves like binnacles in the whole of our maritime commerce.

But getting to Tsakonites, in Tsakonites, the basis of the decision was, I beg your pardon, let me say that no case has really set forth guidelines as to what determines whether a flag is one of convenience or not.

Our courts have had no difficulty for instance in saying that where American citizens domiciled here and operating ships from here, have gone shopping abroad in a foreign marketplace of flags and gotten a foreign flag, and such a flag is obviously not a good faith flag and on the other hand, where it is foreign citizens with a bona fide foreign operation and the foreign flag of the same nation, then that is obviously a bona fide flag.

But these facts are in between and I would think that the Court would be doing a service at least to the Circuit Courts Of Appeal to tell us what is the flag of convenience so that never again shall two circuit Courts Of Appeal look at identical facts and come up with opposite conclusions as the Fifth and the Second have done here.

Now, this was the reason for the Second Circuit's decision in Tsakonites.

It was the law of the contract.

They conceded their own confusion as a result of the facts.

They said, "We must concede that these -- this constellation of facts" and I'm only paraphrasing, "presents a combination never before seen in any other case and they took the easy but the wrong way out and decided the case on the law of the contract which as I believe has been well dealt with cannot wag the dog, that's only the tail and the act of the law must be determined on the basis of the seven Lauritzen factors.

I believe I have also indicated that it is not necessary for Your Honors to decide that this flag is one of convenience in order to uphold the Fifth Circuit even if it is a bona fide flag in accordance with Lauritzen, there exists to it that heavy counterweight of the domicile and national allegiance of the shipowner.

May I have an alternative argument that the General Maritime Law would be applicable here as not being repugnant to the law of Greece under two theories.

Two cases which I have not cited in my brief, one from this Court, the Scotland and the other Heredia versus Davies held that in matters of this type where foreign law is not proved, it may be presumed to be the same as the law of the United States.

That being the case, then there is nothing repugnant to the law of Greece in applying the General Maritime Law of the United States.

Justice John M. Harlan: What was the amount of the judgment that (Inaudible)?

Mr. Joseph B. Stahl: $6,000.00 and I'd like to say that this is about --

Justice John M. Harlan: Do you know what he would get under Greek law?

Mr. Joseph B. Stahl: Approximately one-thirtieth of that.

Justice John M. Harlan: One-thirteenth?

Mr. Joseph B. Stahl: One thirtieth.

There was a testimony in the District Court.

I beg your pardon, he would have been able to get 4800 drachmas, I think it was and that's divided by 30, it's a $160.00 which they did pay him and incidentally that payment was made to my client after the petitioners were on notice that he was represented by counsel.

This was an attempt to label money as part of a foreign remedy in order to try to determine applicable law.

It was a payment made to a known represented claimant.

Justice Potter Stewart: He was rehabilitated.

I mean repatriated to --

Mr. Joseph B. Stahl: Yes, he was.

Justice Potter Stewart: -- Greece at the expense of the shipowner wasn't he, or ship operator?

Mr. Joseph B. Stahl: That is correct.

Yes, Your Honor.

Justice Potter Stewart: And how about medical care?

Mr. Joseph B. Stahl: He received most of that in Greece although he was hospitalized for approximately two weeks in the United States but that is a factor which if I may say has never been given any weight by any court.

Well, I understand.

I just asked.

What were -- what were the nature and extent of his injuries?

Justice Potter Stewart: His injuries were merely two puncture fractures of the small bone or fibula of his lower leg.

Mr. Joseph B. Stahl: When I say puncture fractures, it was made by broken chain lengths, so there were two prongs and they're just punctured about half an inch deep and just made some chunky fractures.

Justice Potter Stewart: Is that a line part or something?

Mr. Joseph B. Stahl: I beg your pardon?

Justice Potter Stewart: A line part, is that what you call that?

Mr. Joseph B. Stahl: Yes, that is correct.

Justice John M. Harlan: I notice in the Lauritzen versus Larsen case, the last footnote is 29, that's for the judgment does it, may I just quote, "cases such as that now in judgment be administered to public law of nations and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country."

Do you know what the law of nations would require you?

Mr. Joseph B. Stahl: Well a law --

Justice John M. Harlan: And where would we find this?

Mr. Joseph B. Stahl: A long time ago, this Court, I believe in the Osceola decided that the maritime law of nations at least as far as it applies to seamen is that they have a right of action for damages for unseaworthiness but since that time, the General Maritime Law has come to be viewed as the General Maritime Law of the United States as distinguished from whatever the international maritime law and the law of nations is.

But I think that that quotation taken in connection with his dispensing or giving short shrift to the argument that the interest of the seamen in that case were the interest of the United States because if he were granted recovery, it would equalize competition, this was I believe Mr. Justice Jackson's way of saying that we cannot consider the interest of the United States in this kind of a contact -- context in order to oust some applicable law of another foreign nation, of a foreign nation.

Chief Justice Warren E. Burger: Thank you, Mr.Stahl.

Mr. Joseph B. Stahl: Thank you.

Chief Justice Warren E. Burger: Mr.Estabrook.

Rebuttal of James M. Estabrook

Mr. James M. Estabrook: I think I have a couple of minutes, Your Honor.

I would just like to point out none of the courts below considered at all the number of Greek seamen on these ships.

There are over 1100 seamen to back up our point that this is a bona fide Greek operation.

We also have another resting opinion from Judge Hoffman in Virginia which is the next to the supplemental brief which he goes in great detail to the point raised by Mr. Justice White on the application of the contract restrictions to determine the law to be applied and finally, we have the fact that Mr. Callimanopoulos, he may be a binnacle, but he's a fair paying binnacle.

As a domiciliary, he is required to pay income taxes here and he isn't trying to avoid any of his American obligations.

He has obligations to America, and to Greece and as far as his allegiance to Greece is concerned, he is a citizen of Greece and the Larsen case definitely stated, it was the allegiance of the shipowner that should be considered as one of the primary points.

His allegiance was to Greece.

Justice Thurgood Marshall: Mr. Estabrook, are they part of the reason for the large number of Greek seaman be the factor that there are cheaper labor?

Mr. James M. Estabrook: One -- one of the points, things Your Honor, there are over 100,000 Greek seamen and one of the largest groups of seamen in the world and I think the principal --

Justice Thurgood Marshall: Well, is the standard wages for Greek seamen equal to that of the United States, the answer is no.

Mr. James M. Estabrook: Of course not.

It is higher though than say Spanish seamen.

Justice Thurgood Marshall: But we're dealing with the United States here.

Mr. James M. Estabrook: It is lower and --

Justice Thurgood Marshall: Does he pay taxes in Greece?

Mr. James M. Estabrook: Yes, he does, Your Honor.

Justice Thurgood Marshall: And does he pay on these insurance policies over there, working compensation clauses, or do the seamen pay that?

Mr. James M. Estabrook: He pays on -- he pays that there.

Justice Thurgood Marshall: I thought you said the seamen pay them.

Mr. James M. Estabrook: The seamen -- no, the seamen contribute and he contributes to a seaman's pension fund, NAT, N-A-T.

Justice Thurgood Marshall: Oh!

Well, that's not involved here.

Mr. James M. Estabrook: No, that's not involved here.

This -- this man is getting his NAT and he will get his NAT when he retires.

Justice Thurgood Marshall: But do you agree that he will end up with a $160.00 he got if he went back to Greece?

Mr. James M. Estabrook: He'll get more than that Your Honor.

Justice Thurgood Marshall: How much?

Mr. James M. Estabrook: I don't know.

Justice Thurgood Marshall: 165?

Mr. James M. Estabrook: No.

He was just disabled for I think seven months.

He got 40 pounds a month.

He'd probably get $500.00 or $600.00 as wages, he'd get medical but the most important thing he'd get in Greece would be that this should reactivate itself.

He would then get further medical attention and a further payment along the lines of workman's compensation.

The Greek law is actually designed to be similar like the New York State Workman's Comp.

Justice Thurgood Marshall: He gets paid while he's working?

Mr. James M. Estabrook: He gets paid while he's disabled.

Justice Thurgood Marshall: But he's working now?

Mr. James M. Estabrook: He's working now.

He won't get paid if a thing should --

Justice Thurgood Marshall: So what would he get now?

$260.00?

Mr. James M. Estabrook: No, he'd get more than that.

He got paid once.

Justice Thurgood Marshall: But you don't know how much more?

Mr. James M. Estabrook: I don't know how much more and if there's any -- I don't -- this Court found no disability so he'd get --

Justice Thurgood Marshall: Couldn't I assume from the fact that you're defending this case that there would be more?

Mr. James M. Estabrook: We're defending this case because as a matter of principle --

Justice Thurgood Marshall: I see.

Mr. James M. Estabrook: -- he'd get more.

I can assure you that as far as this, if it were not for the principle involved, this case would never be here, Your Honor.

Justice Byron R. White: But you would be making the same argument whether the -- suppose that this individual was a Greek or an American, wouldn't you?

Mr. James M. Estabrook: On this ship, yes.

I'd say that --

Justice Byron R. White: So it's really irrelevant about the allegiance of the majority stockholder of this corporation, your argument would be the same?

Mr. James M. Estabrook: That's right.

In fact the McCulloch case says it is the same.

Justice Byron R. White: And you're -- and the owner of the ship anyway is a Panamanian corporation?

Mr. James M. Estabrook: All of the stock of which is owned by a Greek Corporation.

Justice Byron R. White: By a Greek Corporation and 99% of which is owned by --

Mr. James M. Estabrook: A Greek citizen domiciled in this country.

Justice Byron R. White: But those things are really irrelevant, aren't they, to your argument because as long as the ship is registered in Greece --

Mr. James M. Estabrook: That's right.

Justice Byron R. White: -- carrying the foreign flag and a Greek crew --

Mr. James M. Estabrook: Yes.

Justice Byron R. White: -- it's irrelevant to your argument who the owner is.

Mr. James M. Estabrook: That's -- yes, that follows the argument in the McCulloch.

Now, in Larsen against Lauritzen, the allegiance of the owner, the fact the owner is a Greek citizen is important and the same way in the Romero case which followed --

Justice Byron R. White: You say there are no such things as flags of convenience.

Mr. James M. Estabrook: I say there are many flags of convenience but this isn't one of them.

Justice Byron R. White: This isn't one of them because --

Mr. James M. Estabrook: Because of the fact the Greek Government is responsible for the good order and maintenance of the ship.

They have a Greek crew on board this ship.

They have Greek licensed officers.

They have Greek inspections.

This is a bona fide Greek operation.

Justice Byron R. White: And that -- and that anybody from anywhere around the world can go and --

Mr. James M. Estabrook: No, no.

Justice Byron R. White: And get -- and get their ships that are -- that may be built abroad, owned abroad and licensed in Greece?

Mr. James M. Estabrook: No, Your Honor.

The Greek law set forth in my brief requires over 50% of the stock ownership of a corporation with a Greek flag ship being Greek.

That's right in there.

Justice Hugo L. Black: It is not true here though, is it?

Mr. James M. Estabrook: Yes, it is.

Justice Hugo L. Black: I thought you said 99% was owned by one man who lives in this country --

Mr. James M. Estabrook: And is a Greek citizen.

Justice Hugo L. Black: And 1% by his son.

Mr. James M. Estabrook: No, I will say that 99% --

Justice Hugo L. Black: What?

Mr. James M. Estabrook: I will say that 99% was owned by one man --

Justice Hugo L. Black: In this country?

Mr. James M. Estabrook: A Greek citizen with allegiance to Greece.

He's a Greek citizen.

Justice Hugo L. Black: But he lives in this country.

Mr. James M. Estabrook: Yes, he does.

Justice Hugo L. Black: And did his business in this country?

Mr. James M. Estabrook: Yes, but he is a Greek citizen.

Justice Hugo L. Black: Had been living here many years?

Mr. James M. Estabrook: Yes, Your Honor.

Justice Hugo L. Black: May I ask you just one other question about the contract?

Suppose the Government -- the federal law did govern our law, when this man was to make his contract, they have said, "Well, you got to sign this contract which agrees that we will not owe you any money under your American law," would that have been valid under America?

Mr. James M. Estabrook: Under the Jones Act, it would not be valid.

Justice Hugo L. Black: It would not be valid.

Mr. James M. Estabrook: There's a specific provision of the Jones Act.

Justice Hugo L. Black: That's right.

Mr. James M. Estabrook: Yes.

Justice Hugo L. Black: Alright, that's I wanted to know.

Chief Justice Warren E. Burger: Thank you, Mr.Estabrook.

Mr. James M. Estabrook: Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you, Mr.Stahl.

The case is submitted.