Petition — Grevas v. The Olympic Pegasus

Supreme Court. U U.S,

FILED

: OCT 12 1977

Sa eS

% . MICHAEL RODAK, JR., CLERK

t. a IN THE

ee "Supreme Court of the United States

F bic October Term,

wo _ 997558

GEORGE GRE vAs

Petitioner

M/V OLYMPIC PEGASUS her enuines. boilers,

boats, tackle, apparel, machinery etc ,

in rem

je and

. SOMERSET NAVIGATION CO _ in personam,

/ Respondents.

- ooo’

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT ©+ APPEALS

FOR THE FOURTH CIRCUIT

AUGUSTUS ANNINOS

STUART R. GORDON

Howell, Anninos, Daugherty & Brown

808 Maritime Tower

Norfolk, Virgirwa 23510

Counsel for Petitioner

INDEX

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

STATUTE INVOLVED

STATEMENT

REASONS FOR GRANTING THE PETITION

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

Opinion and judgment of

United States Court of

Appeals for the Fourth

Circuit

Order of the United States

Court of Appeals for the

Fourth Circuit

Memorandum Order of the

United States District

Court for the Eastern

District of Virginia

Section 8-60, Code of

Virginia

Page

App.

App.

App.

App.

10

2)

22

1]

13

34

CITATIONS

Cases

Page

Arguelles v. U.S. Bulk Carriers,

Inc., 408 F.2d 1065, certiorari

granted 90 S.Ct. 2163, 398 U.S.

957, 26 L.Ed.2d 541, Aff'd. 91

S.Ct. 409, 400 U.S. 351, 27

Un an « bead oh ue Obes beeee 6s 19

Grevas v. M/V OLYMPIC PEGASUS,

557 F.2d 65 (4th Cir. 1977) 11, 17

Hanson v. Denckla, 357 U.S.

235, 78 $.Ct. 1228, 2

L.E€d.2¢6 1263 (1958) .... 1, 13, 15

International Shoe Co. v. Washington,

326 U.S. 310, 66 S.Ct. 154,

90 L.Ed. 95 (1945) ..... en, Cae U8

Jernigan v. Lay Barge Delta Five,

296 F.Supp. 127, AFT, 423

Pi og ee i fe we 19

Lee v. Walworth Valve Co., 482

P , 299-300 (4th Cir

Oe ee es a ee we ey 17

McGee v. International Life Insurance

Co., 355 U.S. 220, 78 S.Ct. 199,

Z2U.€d.2d 223 (1957) ... 1, 12, 13

Moore-McCormack Lines, Inc. v. Bunge

Ratliff v. Cooper Laboratories, Inc.,

444 F.2d 745, 748 (4th Cir.

. sJesaevadeekaubae Geb vt 16, 17

Shaffer v. Heitner, U.S. ,

jet ne “swe dy 14, 15, 18

Travelers Health Assoc. v. Commonwealth,

188 Va. 877, .E.

Aff'd. 339 U.S. 643, 70 S.Ct. 927,

a ee eéeeeee 11

Statutes

ee cccccecce 3

Code of Virginia, §8-60 ..... 3, 4, 9, 10

Miscellaneous

Rule 4, Federal Rules of

nn bi wc ee eset ocecée )

LS AA i AEE A LIL ALLOY < -

a ree Ce Ow de

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

GEORGE GREVAS,

Petitioner,

V.

M/V OLYMPIC PEGASUS, her engines, boilers,

boats, tackle, apparel, machinery, etc.,

in rem,

and

SOMERSET NAVIGATION CO., in personam,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner prays that a writ of certio-

rari issue to review the judgment and

A en ee 8 we

o et, lle kneel la het te le at ee = Ait tnt pee tie Rte le

denial for a re-hearing and re-hearing en

banc of the United States Court of Appeals

for the Fourth Circuit.

OPINION BELOW

The opinion of the United States Court

of Appeals for the Fourth Circuit, together

with its denial for a re-hearing and re-

hearing en banc, is reported at 557 F.2d

65 (1977), and is reproduced in the Appen-

dix to this Petition, at pages 1 - 11.

This case was commenced in the Federal

District Court for the Eastern District,

Norfolk Division, where the Respondents'

motion to quash service of process was

granted. (App. 13 - 34).

JURISDICTION

The judgment of the United States Court

of Appeals for the Fourth Circuit was

entered on June 7, 1977, and on August 5,

1977, the request for re-hearing and re-

hearing en banc was denied with Circuit

ee. ee ee

Judge Widener, dissenting. Jurisdiction

of this Court is invoked under 28 U.S.C.

Section 1254(1).

QUESTION PRESENTED

Whether, within the limitations of the

due process clause of the Fourteenth

Amendment of the United States Constitution,

the Respondent, by its activities and

relationship with the forum, has rendered

itself amenable to jurisdiction and sub-

ject to service of process pursuant to

Section 8-60 of the Code of Virginia, as

amended.

STATUTE INVOLVED

Section 1 of the Fourteenth Amendment

of the United States Constitution, U.S.C.

Constitutional Amendment 14, Section Il,

provides in part:

". . . nor shall any state deprive

any person of life, liberty, or

property, without due process of

1OMt 2+ 2 «

Title VIII, Section 60, of the Code of

Virginia, as amended, provides in part:

"If a foreign corporation doing

business in this State or a foreign

corporation transacting affairs

in this State has no registered

agent in this State, process or

notice may be served on... the

Clerk of the State Corporation

Commission. .. ."

(Set forth in full at App. 35)

STATEMENT

The Petitioner, George Grevas, a mer-

chant seaman of Greek nationality, on

March 3, 1976, signed an enlistment

agreement in Piraus, Greece, to perform

services aboard the OLYMPIC PEGASUS, and

joined the vessel in Augusta, Italy, on

March 4, 1976. The owner of the vessel

was Somerset Navigation Company, Panama,

S.A., a Panamanian corporation, sailing

under the Liberian flag. The only busi-

ness office maintained by Somerset is

located at Montevideo, Uruguay. All

accounts receiveable and payable are

0 Bell

a ee ne ee ee

made on behalf of the Respondent by an

agent, Olympic Maritime, S.A., at Monte

Carlo, Monaco.

None of the stockholders or officers

of the Respondent are citizens or resident

aliens of the United States. There are

eight directors; five of Greek nationality,

two of Uruguanian nationality, and one of

Argentinian nationality. All of the

shares of the Respondent are owned by a

Panamanian corporation, the control of

which is unknown.

The OLYMPIC PEGASUS was the only

vessel owned, operated or chartered by

the Respondent, and at the time of the

injury was under a time charter to

Sovfracht, as agents for the Union of

Soviet Socialist Republics.

Early in March, the vessel left Odessa,

U.S.S.R., and on March 5, 1976, while at

sea, received word to change course and

head toward the east coast of the United

States.

On March 16, 1976, while the vessel was

at sea heading for the United States, it

received specific orders to proceed to

Norfolk, Virginia, to load cargo.

On March 17, 1976, at about 9:30 a.m.

of that day, the Petitioner was ordered

to go on deck and secure barrels contain-

ing acid which had been secured by rope

and had become loose. While on deck, one

of the containers which was loose fell,

breaking and spilling acid all over the

deck, causing the Petitioner to slip and

fall into the acid, sustaining severe

burns to the eyes, stomach, hands, arms

and legs. The Petitioner has been informed

by physicians upon his return to Greece

that he has lost the sight of his right

eye ind a substantial portion of the sight

of his left eye.

The vessel continued on its course from

March 17, 1976, until March 20, 1976, when

it ended its sea passage and proceeded to

the Norfolk Pilot Station.

The vessel remained in Norfolk, Virginia,

between March 20 and March 28, 1976.

Prior to departing from Norfolk, Virginia,

the vessel loaded, over a three-day

period, 24,513.272 long tons of soybean

(53,928,600 pounds) for a value in excess

of $4,500,000.00.

In addition, while in Norfolk, the

vessel was assisted in and out of anchor-

age, took on 225 long tons of water for

consumption aboard the vessel, was

inspected by immigration and customs

officials and by an insurance representative

of the defendant. In addition, its propel-

ler was inspected for repairs and thirteen

members of the crew were sent ashore for

medical examinations. Also, a new member

of the crew was signed aboard.

The Petitioner remained in Norfolk,

Virginia, from March 20, 1976, until on

a a a ee =—s Lhe Co eed

or about June 18, 1976, when he was

returned to Greece, a period of nearly

three months. On March 20, 1976, he was

admitted to the United States Public

Health Service Hospital in Norfolk,

Virginia, and remained under treatment

until June 15, 1976. During this time,

in addition to receiving extensive medi-

cal assistance at the United States

Public Health Service Hospital, the

Petitioner was also examined by a private

opthalmologist and physicians on behalf

of the Respondent.

Prior to his return to Greece, the

Petitioner retained counsel, an action

was instituted and extensive depositions

were taken.

Suit was instituted in the United

States District Court for the Eastern

District of Virginia, Norfolk Division,

on April 22, 1976.

ee

Purported service of process was made

on the Respondent, pursuant to Rule 4 of

the Federal Rules of Civil Procedure, in

accordance with $8-60 of the Code of

Virginia, as amended, through the State

Corporation Commission of the Commonwealth

of Virginia, on or about June 10, 1976.

The Respondent appeared specially by

counsel and filed a motion to quash service

of process and plea to the jurisdiction

On or about June 18, 1976. On

September 13, 1976, the District Court,

in a memorandum opinion, concluded that

the Respondent's contact with the State

of Virginia was not “fairly extensive"

and therefore not sufficient to sustain

service of process under §8-60 of the

Code of Virginia.

On September 21, 1976, the Petitioner

filed a motion for reargument of the

issues determined by the order of the

District Court. The Court denied this

motion.

~~ eee | eal

ee ed

The Court of Appeals affirmed the

judgment of the District Court and denied

the petition for re-hearing and re-hear-

ing en banc. (App. 11 - 13).

REASONS FOR GRANTING THE PETITION

This Petition involves a substantial

question concerning the application of

the due process clause of the Fourteenth

Amendment to the scope of the jurisdiction

permitted of a corporation doing business

within the forum.

The Respondent, Somerset Navigation

Co., was served with process pursuant to

Section 8-60 of the Code of Virignia, as

amended, which the Circuit Court of

Appeals has acknowledged, has extended

jurisdiction to the limits allowed by the

due process clause of the Fourteenth

Amendment. Moore-McCormack Lines. Inc.

v. Bunge Corp., 307 F.2d 910 (4th Cir. 1962)

10

- ee ae ae ene

ie —

Travelers Health Assoc. v. Commonweaith,

188 Va. 877, 51 S.E.2d 263 (1949) Aff'd.

339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154

(1950); Grevas v. M/V OLYMPIC PEGASUS, 557

F.2d 65 (4th Cir. 1977).

The Circuit Court, in attempting to

define the boundaries of due process, has

incorrectly interpreted and applied the

law as it now exists, creating a severely

restrictive criterion inconsistent with

the decisions of this Court, imposing an

unnecessary and unreasonable burden upon

the Petitioner in the pursuit of a forum.

The controlling standard is the con-

stitutional test of "minimum contacts",

promulgated in International Shoe Co. v.

Washington, 326 U.S. 310, 66 S.Ct. 154,

90 L.Ed. 95 (1945), and refined in the

subsequent decisions McGee vy. International

Life Insurance Co., 355 U.S. 220, 78 S.Ct.

199, 2 L.Ed.2d 223 (1957); Hanson v.

Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2

L.Ed.2d 1283 (1958).

11

The Court, in International Shoe Co.

. Washington, supra, was careful to point

Out that in applying this test it was not

to be a merely mechanical or quantative

test, stating:

"Whether due process is satisfied

must depend upon the quality and

nature of the activity in relation

to the fair and orderly administra-

tion of the laws which it was the

purpose of the due process clause

to insure. That clause does not

contemplate that a state may make

binding a judgment in personam

against an individual or corporative

defendant with which the state has no

contacts, ties or relations."

(326 U.S. 319, 66 S.Ct. 160).

In McGee v. International Life Insur-

ance Co., supra, the single act of the

defendant delivering an insurance policy

in the jurisdiction when the circumstances

surrounding the contract had connections

with the state, was sufficient for due

process purposes.

12

on 4 call

aS ee

ere el Ye

In Hanson v. Denckla, supra, | the Court

recognized that the unilateral activity of

One seeking jurisdiction of the defendant

is not sufficient to satisfy the juris-

dictional requirements, but that:

". . . it is essential in each case

that there be some act by which the

defendant purposefully avails itself

of the privilege of conducting

activities within the forum state,

thus invoking the benefits and

protection of its law..."

(357 U.S. 253, 78 S.Ct. 1240).

A combined reading of International

Shoe Co., McGee and Hanson appears to

establish the requirement that the non-

resident defendant must do some act or

consummate some transaction within the

forum. Once the affirmative act is

established, it is necessary to review the

1/ Notwithstanding the fact that the plain-

tiff was a non-resident and the cause of

action arose outside the forum, the Court

followed International Shoe Co. v. Washing-

ton, supra, imposing no greater burden in

the satisfaction of due process.

13

contacts among the forum state, the

defendant and the litigation to determine

whether the acceptance of jurisdiction is

consistent with the due process tenents of

"fair play" and “substantial justice."

The latest decision of this Court,

Shaffer v. Heitner, U.S. » 97

§.Ct. 2469 (1977), while primarily ruling

that in rem jurisdiction is subject to

the same standards as applied to in personam

jurisdiction, it is clearly applicable to

Our case as it sets forth the necessary

criterion determining the extent of due

process.

It is imperative that we recognize that

the Court, in Sheffer v. Heitner, supra,

while acknowledging that the plaintiff was

a non-resident and the cause of action arose

outside the jurisdiction as in-our case,

adhered to the same criterion previously

formulated by this Court in determining

the extent of due process, making no

distinction and imposing no greater

14

requirement to assume jurisdiction.

The decision of the Court in Shaffer v.

Heitner, supra, relied heavily upon Hanson

v. Denckla in determining the extent of

due process, seeking to find that there

"be some act by-.which the defendant purpose-

fully avails itself of the privilege of

conducting activities within the forum

state, thus invoking the benefits and pro-

tection of its laws" and that there be

“contacts among the forum state, the

defendant, and the litigation."

The Circuit Court below has, froma a

series of cases culminating in the case

now before this Court, evolved a rule

inconsistent with the decisions of this

Court. Each aspect of that rule and its

applicability to the facts of our case are

set forth below:

1) where the plaintiff is a stranger

to the forum state;

15

a. It can only be assumed that

the Circuit Court considers a party

a stranger to the forum if at the

time of the accident he has no con-

tact even if he subsequently and as

an integral part of the cause of

action becomes substantially involved

with the jurisdiction. Petitioner

was taken by Respondent to the

forum where he was hospitalized and

received extensive medical care

for three months, including examin-

ations by Respondent's physicians.

2) the injuries did not occur in the

state or are unrelated to the corporation's

activities in the state; and

b. The OLYMPIC PEGASUS was the

Respondent's only vessel and there-

fore its only commercial enterprise.

While the cause of action arose on

the high seas, it was under orders

and engaged at the time of the acci-

dent in proceeding to Norfolk,

Virginia, to receive a substantial

cargo. Its activities at the time

of the accident were not unrelated

to the forum.

3) the contacts between the corporation

and the forum state must be "fairly sub-

stantial" before in personam jurisdiction

over the corporation may be imposed without

offending the notions of fairness and

justice inherent to due process. Ratliff

16

v. Cooper Laboratories, Inc., 444 F.2d 745,

748 (4th Cir. 1971); Lee v. Walworth Valve

Co., 482 F.2d 297, 299-300 (4th Cir. 1973);

Grevas v. M/V OLYMPIC PEGASUS, 557 F.2d

65, 58 (4th Cir. 1977).

c. The contacts of the Respondent

to the forum are substantial in that

its entire corporate activity became

inextricably tied to Virginia from

March 20, 1976, to March 28, 1976,

and the vessel loaded a cargo having

a value in excess of $4,500,000.00;

was assisted in and out of anchorage;

took on water; was inspected by

immigration and customs officials

and an insurance representative; had

its propeller inspected; sent some

crew members ashore for medical

examinations and signed on one new

crew member.

The test of the Circuit Court requiring

"substantial contacts" was originally

applied to defeat a plaintiff from utiliz-

ing the Court where he had no contact with

the forum except where he had engaged in

forum shopping. The rule was reiterated

in subsequent cases and was adopted in the

case now before this Court, a case clearly

not involving forum shopping. In applying

17

the mechanical test of “substantial contacts"

the Court below is imposing a Standard

Clearly inconsistent with the decision of

this Court in Shaffer Vv. Heitner, supra,

which did not require any greater contact

of the defendant with the jurisdiction

because he was a non-resident and the cause

Of action arose Outside the jurisdiction,

but merely held that once a defendant

voluntarily associated itself with the

jurisdiction, the Sufficiency of the contact

in relationship with the defendant, the

forum and the litigation was to be reviewed

as to its relevancy.

The activities conducted by the Respondent

in the forum were of Such a substantial]

nature that it Clearly demonstrates that

it “voluntarily associated" itself with

the State of Virginia, “invoking the bene-

fits and protection of its laws."

The Court, in Shaffer y, Heitner, Supra,

in dealing with the elements to be consid-

ered in defining the “contacts among the

18

forum state, the defendant and the liti-

gation" suggested that attention be given

to the following:

1) the likelihood that records and

witnesses will be found in the state

(page 2582);

a. All of the hospital records

and treating physicians are located

within the jurisdiction, including

those physicians employed by the

Respondent in the defense of this

action. De bene esse depositions

of the Petitioner have been com-

pleted and all of the records of

the vessel are in the language

of the forum.

2) the interest of the state in the

action (page 2582);

b. The state has a compelling

interest in the Petitioner as

historically, the state has treated

seamen of all nationalities as wards

of the Court. The economic impact

upon the state conducting business

in excess of $4,500,000.00 is a

significant one in which the state

has an interest. Argquelles v. U.S.

Bulk Carriers, Inc., 408 F.2d 1065,

certiorari granted 90 S.Ct. 2163,

398 U.S. 957, 26 L.Ed2d 541, aff'd.

91 S.Ct. 409, 400 U.S. 351, 27 L.Ed2d

456; Jernigan v. Lay Barge Delta

Five, 296 F.Supp. 127. aff'd. 423

F.2d 1327.

19

3) the availability of another forum

(Note 37, page 2584): and

c. In light of the Respondent's

elusive contacts with Other juris-

dictions, there can be no assurance

that any other forum is available

to the Petitioner. The availability

of a forum also implies the avail-

ability of an adequate remedy. The

benefits afforded a Greek seaman

under Greek law ceases after four

months.

4) the extent of any hardship upon

the defendant by having the defendant

defend in the forum state (page 2586).

d. The Respondent is an inter-

national corporation with minimum

contacts with numerous jurisdic-

tions throughout the world, and

having insignificant contact with

Greece. The extent of the contact

with Virginia during the period

the vessel was here is Substantially

more than any economic activity

conducted in Greece. Since there

is no center from which the

Respondent conducts its activities,

it would not be a hardship to

require it to be answerable in

Virginia, where it conducted

extensive economic activites.

An examination of these requirements

to our case reveals that the Circuit Court

below adopted a mechanical formula of

20 .

"substantial contacts" which is inconsistent

with the decision of this Court which has

achieved a delicate balance in reviewing

the contacts between the defendant, the

forum and the litigation.

CONCLUSION

The Petitioner respectfully requests

that this Court grant the Petition for

a writ of certiorari.

Respectfully submitted,

AUGUSTUS ANNINOS

STUART R. GORDON

Howell, Anninos, Daugherty

and Brown

808 Maritime Tower

Norfolk, Virginia 23510

Counsel for Petitioner

21

APPENDIX

Before CRAVEN,* Circuit Judge; FIELD,

Senior Circuit Judge, and THOMSEN,**

Senior District Judge.

Stuart R. Gordon and Augustus Anninos

(Howell, Anninos, Daugherty & Brown, on

brief), for Appellant; A. Jackson Timms

(Seawell, McCoy, Dalton, Hughes, Gore &

Timms, on brief), for Appellees.

THOMSEN, Senior District Judge:

The question presented in this appeal

is whether defendant shipowner was subject

to service of process in a suit filed

against it and its vessel! in the Eastern

District of Virginia by a Greek seaman

claiming damages for personal injuries

sustained in an accident on board ship,

* Judge Craven participated in the decision

of this case following the argument and

voted to affirm, but died before this

opinion was prepared.

** Of the United States District Court for

the District of Maryland, sitting by

designation.

1/ The vessel left port before the suit was

instituted and no process was ever served

on it.

App. 2

failure to treat, maintenance and wages

due. Under Rule 4, F. R. Civ. P., service

of process was made (1) on the Central

American Steamship Agency, Inc., a New

York agent for the shipowner, and the

Secretary of the Commonwealth of Virginia,

as statutory agent for Central, pursuant

to $$ 8-81.2 and 81.3 of the Code of

Virginia (the “Long Arm" statute), and

(2) on the clerk of the State Corporation

Commission, pursuant to § 8-60 of that

Code. The district court granted the

motion of the shipowner, appearing

specially, to quash service of process

and dismissed the action for lack of in

personam jurisdiction.

On March 3, 1976, plaintiff, an experi-

enced Greek seaman, signed in Greece an

enlistment agreement, in accord with the

Greek Union Agreements, for service as a

boatswain on the M/V Olympic Pegasus; he

joined the vessel in Italy the next day.

App. 3

The vessel sails under a Liberian flag and

is owned by defendant, a Panamanian corpora-

tion with no resident agent in Virginia and

none of whose stockholders or officers is

a United States citizen. She had sailed

from Odessa, USSR, under a time charter

to an agent of the USSR; on March 16,

while at sea, she received orders to

proceed to Norfolk to load cargo.

The Olympic Pegasus encountered rough

seas on March 17, and plaintiff was

injured on that date while attempting to

secure cargo on deck. He was treated on

board after the vessel had communicated

with the United States Coast Guard and

received medical advice. The vessel

arrived in Norfolk on March 20 and plain-

tiff was transferred ashore to the United

States Public Health Service Hospital.

The vessel departed from Norfolk on

March 28, after taking on a sizeable cargo

of soybeans; plaintiff remained under

App. 4

treatment in Norfolk until he was returned

to Greece on June 18, 1976.

The asserted basis for service of process

under $$ 8-81.2 and 81.32 was a wage claim

by plaintiff. When a seaman leaves a vessel

for medical treatment he must be paid all

wages due him to the date he leaves the

ship. 46 U.S.C. 596. Jurisdiction over

a wage claim made in good faith under that

section is mandatory, and if the court

possesses jurisdiction over all other

claims asserted. Dutta v. Clin Grahan,

§28 F.2d 1258, 1260 (4 Cir. 1975);

Elefterious v. Tanker Archontissa, 443

F.2d 185, 188 (4 Cir. 1971); Bekris vy.

Greek M/V Aristoteles, 437 F.2d 219, 220

(4 Cir. 1971). The district court found

as a fact that plaintiff had not established

2/ Subsection (a)(2) of § 8-81.2, relied

upon by plaintiff to establish personal

jurisdiction over defendant, provides:

"(a) A court may exercise personal

App. 5

—

a good faith wage claim, and therefore

quashed service of process because there

was no cause of action within the meaning

of § 8-81.2(a)(2).

Plaintiff conceded that he was paid most

of his wages, but contended that an addi-

tional amount was due him for overtime

work performed under an oral agreement

with the chief mate. The district court

carefully assessed the record, which con-

tained ample evidence that plaintiff had

been paid all wages due him to the date he

left ship. The only evidence to support

2/ (continued)

jurisdiction over a person, who acts

directly or by an agent, as to a cause of

action arising from the person's

uw *& *

"(2) Contracting to supply services

or things in this State * * *,"

Section 8-81.3(a) provides that when the

exercise of personal jurisdiction is

authorized by § 81.2, process may be served,

inter alia, on the Secretary of the

Commonwealth of Virginia.

App. 6

4 » @ ieee

plaintiff's wage claim was his own testi-

mony; he presented no record of the alleged

agreement or of the wages alleged to be

due under it. As the court concluded, to

find that plaintiff was entitled to the

wages he claimed would require a determina-

tion that, in addition to his regular work-

ing hours and three overtime hours per day,

plaintiff had also worked ten more overtime

hours each day he was on board ship. The

district court's finding that plaintiff

had not established a good faith wage

claim is not clearly erroneous and must

be affirmed. Rule 52(a), F. R. Civ.P.

Process was also served on defendant

pursuant to § 8-60.2 Jurisdiction under

Section 8-60 has been extended to the

3/ Section 8-60 provides in pertinent part:

"If a foreign corporation doing business

in this State or a foreign corporation

transacting affairs in this State has no

App. 7

a‘...

limits allowed by due process, see, e.g.,

Moore-McCormack Lines, Inc. v. Bunge Corp.,

307 F.2d 910, 914 (4 Cir. 1962); Travelers

Health Association v. Commonwealth, 188 Va.

877, 51 S.E. 2d 263 (1949), aff'd, 339 U.S.

643 (1950); the controlling standard is

therefore the constitutional test of "mini-

mum contacts".4 The district court con-

cluded that defendant's contacts with

Virginia were not sufficient to sustain

service of process under § 8-60.

3/ (Continued)

registered agent in this State, process or

notice may be served on any agent of such

corporation in the city or county in which

he resides or in which his place of

business is or on the clerk of the State

Corporation Commission. Service, when duly

made, shall constitute sufficient founda-

tion for a personal judgment against such

corporation when other requisites exist."

xh See ey Shoe Co. v. Washington,

26 U.S. 310 (1945); McGee v. Internationa

Life Insurance Co., 355 U.S. 220 (1957);

Hanson v. Denckla, 357 U.S. 235 (1958).

App. 8

Plaintiff is a Greek citizen whose only

connection with Virginia was a three-month

hospitalization in a federal hospital in

Norfolk. His cause of action arose out-

side of Virginia and his injuries have no

connection with any of defendant's activi-

ties in Virginia. where a plaintiff is a

stranger to the forum state and his injuries

did not occur in the state or arise out of

the foreign corporation's activities in the

state, the contacts between the corporation

and the forum state must be fairly sub-

stantial before in personam jurisdiction

over the corporation may be imposed with-

out offending the notions of fairness and

justice inherent in due process. O'Neal

v. Hicks Brokerage Co., 537 F.2d 1266,

1268 (4 Cir. 1976); Lee v. Walworth Valve

Co., 482 F.2d 297, 299-300 (4 Cir. 1973);

Ratliff v. Cooper Laboratories, Inc., 444

F.2d 745, 748 (4 Cir. 1971).

App. 9

Defendant is a Panamanian corporation

none of whose officers or stockholders is

a United States citizen. Its sole contact

with Virginia was the visit of the Olympic

Pegasus to Norfolk between March 20 and

28, 1976. During that visit the vessel

remained at anchor until March 26, when it

began loading its cargo of soybeans before

departure on the 28th. While in Norfolk,

the vessel was assisted in and out of

anchorage, took on water, was inspected

by immigration and customs officials and

by an insurance representative, had its

propeller inspected, sent some crew members

ashore for medical examinations and signed

On one new crew member. These few activi-

ties deriving from a single visit of the

vessel to Virginia do not amount to contacts

sufficient to subject defendant to in

personam jurisdiction in Virginia under

Section 8-60 with respect to a non-resident's

App. 10

cause of action arising outside of

Virginia.

The judgment of the District Court is

AFFIRMED.

FILED

Aug. 5, 1977

WILLIAM K. SLATE, II

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-2387

George Grevas,

Appellant,

versus

Olympic Pegasus, M/V

her engines, boilers,

boats, tackle, apparel,

machinery, etc., in rem,

and Somerset Navigation Co.,

in personam,

Appellees.

App. 11

Appeal from the United States District

Court for the Eastern District of Virginia,

at Norfolk. Richard B. Kellam, District

Judge.

The appellant's petition for rehearing

and suggestion for rehearing en banc has

been submitted to the court, a poll of the

court was requested, and in the poll a

majority of the judges eligible to vote,

voted to deny rehearing en banc. Judge

Widener voted to grant rehearing en banc.

The panel considered the petition for

rehearing and is of the opinion that it

should be denied.

It is accordingly adjudged and ordered

that the petition for rehearing and

suggestion for rehearing en banc is denied.

The Clerk is directed to send a

certified copy of the order to West

Publishing Company.

App. 12

Entered at the direction of Judge

Roszel C. Thomsen, U.S. District Judge

for a panel consisting of Judge Field,

and Judge Thomsen.

FOR THE COURT

/s/ William K. Slate, II

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

A

GEORGE GREVAS,

Plaintiff,

Vv. :CIVIL ACTION

M/V OLYMPIC PEGASUS, her :NO. 76-232-N

engines, boilers, boats,

tackle, apparel, machinery,

etc., in rem,

and

SOMERSET NAVIGATION CO.,

in personam,

Defendants.

App. 13

MEMORANDUM ORDER

Plaintiff, a Greek seaman, was injured

March 17, 1976, while in the performance

of his duties as boatswain aboard the

OLYMPIC PEGASUS when the ship encountered

rough seas in the Atlantic Ocean about

four days from Norfolk, Virginia. Upon

arrival at Norfolk, plaintiff was trans-

ferred to the United States Public Health

Service Hospital in Norfolk. After a

period of hospitalization, he was repat-

riated to Greece, where he is now residing.

The injuries to plaintiff consisted of

burns to the face, body, arms and legs from

some type of caustic acid, said to be used

generally for cleaning of storage tanks.

Process for defendant Somerset Naviga-

tion Company (Somerset) was served upon

the Central American Steamship Agency, Inc.

(Central), located in New York City,

alleged to be an agent for Somerset, and

served upon the Secretary of the Common-

App. 14

wealth of Virginia, as statutory agent

for Central, pursuant to Virginia Code

8-51.3. Somerset appeared specially and

filed a motion to quash service of process

and plea to the jurisdiction of this

Court. Subsequently plaintiff had alias

process issued and served on the Clerk of

the State Corporation Commission as agent

for Central alleged to be the statutory

agent for Somerset. Similar motion to

quash service of process and plea to the

jurisdiction was filed as to service of

the alias process.

Following the filing of the motion and

plea and the scheduling of argument there-

on, the Court postponed ruling to enable

the parties to present such evidence as

they deemed pertinent on the issues. The

deposition of the plaintiff was taken and

filed, and affidavits and exhibits were

submitted for consideration on the motion

App. 15

and plea. Counsel appeared and ergued the

issues orally.

ee

Plaintiff is a fifty-four year old

Greek seaman who has been going to sea

some twenty-seven years. On March 3, 1976,

he signed an agreement of enlistment in

Piraeus, Greece, for service aboard the

OLYMPIC PEGASUS for an indefinite length

of time. The owner of the vessel was

Somerset Navigation Company Panama S.A.,

a Panamanian corporation, and it sailed

under Liberian flag. The enlistment

agreement was in accord with the Greek

Union Agreements!

1/ The sreek Collective Bargaining Agree-

ment provided that any claims arising out

of illness or accident would be governed

by Greek Law, “being judged exclusively

by . . . Greek Law Courts... ."

App. 16

ao i a

None of the stockholders or officers

of Somerset are citizens or resident aliens

of the United States. Somerset has no

registered agent in Virginia. The OLYMPIC

PEGASUS was the only vessel owned, oper-

ated or chartered by Somerset. At the

time of the alleged injury the OLYMPIC

PEGASUS was under time charter to

Sovfracht as agents for the Union of

Soviet Socialist Republics (U.S.S.R.).

The vessel left Odessa, U.S.S.R. in

early March and on March 5th, while at

sea, received word to change its course

and head to Norfolk, Virginia. On

March 17, the vessel encountered gale

force winds and rough seas, requiring it

to reduce its speed and change course.

Plaintiff was injured about 9:30 a.m. of

that day. At about 10:25 the vessel trans-

mitted a medico message to the United States

Coast Guard in Norfolk seeking medical

advice for the plaintiff's burns. It

App. 17

received a reply about 12:04 as to the

treatment to be furnished?

Weather conditions required the vessel

to change course several times on its

journey to Norfolk. It arrived at anchor-

age in Norfolk at about 0821 hours on

March 20th. Plaintiff was transferred

ashore at approximately 0930 hours and

carried to the Public Health Hospital.

On March 20, 1976, the plaintiff's son,

who was also a member of the crew of the

vessel, demanded and received the full

earnings of his father, which he signed

for.

Plaintiff was employed at a monthly

salary of -k 129.93 in accordance with the

2/ It is stated that the Coast Guard does

not attempt emergency at sea evacuations

unless the United States Public Health

Service Hospital recommends “immediate"

evacuation, and when it recommends "“evacu-

ation as soon as possible" the Coast Guard

will not attempt emergency at sea evacua-

tions, and the vessel is to evacuate ashore

as soon as the vessel arrives in port.

App. 18

Greek Collective Bargaining Agreement. He

was to receive a Sunday bonus pay of

kt 14.29 per month, 11% of the monthly wage,

plus an additional monthly bonus of & 20.78,

the total base pay being & 165.00 monthly.

It seems clear he was paid wages from

March 3rd through March 20th, 18 days, in

the amount of - 99.00. He was guaranteed

3 hours overtime for each day worked while

on board, and was paid a total of 39 hours -

March 4th through March 16th. Actually,

he worked some 29 hours overtime, for

which he was paid, plus 39 hours guaranteed

overtime, for a total of 68 overtime hours

at the rate of -.54 per hour, or - 36.72.

He was paid a seniority bonus of & 5.00

per month, prorated, or - 2.83, and was

patd the vacation pay with food allowance,

etc. of &k 13.23, and the prorated share

of the owner's voluntary bonus of & 21.00.

There is really no dispute concerning the

payment to the plaintiff of the above sums.

App. 19

(The evidence concerning the facts is here-

after set out.) However, plaintiff claims

that there was due him an additional

t 50.00 to - 60.00 for overtime work in

cleaning the tanks aboard the ship. He

Says this arose out of a verbal agreement

with the first mate, and that he had a

record of the times when the work was

performed and the exact amount due.

The vessel is a bulk carrier with six

main tanks or holds and twelve topside or

wing tanks. The personnel aboard consisted

of six able-bodied seamen, two ordinary

seamen, and the bosun, Grevas, aboard.

During the period of plaintiff's employ-

ment aboard the vessel, the deck crew was

paid for cleaning the vessel's six main

tanks or holds at the rate of & 28.00 per

tank, as provided under the Bargaining

Agreement, for a total of & 168.00. The

deck crew also washed the six main tanks

or holds for which they were paid t 5.00

App. 20

per tank or & 30.00, and they cleaned the

12 topside tanks at the rate of -k 6.00 per

tank or - 72.00. The total earnings were

kE 270.00, or & 30.00 for each of the nine

men. Plaintiff was paid this & 30.00.

An additional sum of & 2.33 was paid to

plaintiff for carrying stores.

Plaintiff was due and entitled to sick

seaman's wages. He has been paid $600.00,

which appears to have been a sum in excess

of what he was entitled to receive.

On the issue of jurisdiction, if there

is a bona fide wage claim, asserted in good

faith, it seems this Court has and must

accept jurisdiction of that claim, and if

it has and takes jurisdiction of that

claim it should take jurisdiction of the

other claims and dispose of the whole case.

Dutta v. The Clan Graham, 528-F.2d 1258,

1260 (4th Cir. 1975); Bekris v. M/V

ARISTOTELES, 437 F.2d 219, 220 (4th Cir.

1971).

App. 21

Where a seaman leaves a ship because

he is being hospitalized for medical treat-

ment he should be paid wages to the date

he leaves the ship. See 46 U.S.C. $§596-

597; Norris, Law of Seamen (Third Edition)

Vol. 1, $405, page 481; Elefteriou v.

Tanker Archontissa, 443 F.2d 185, 188

(4th Cir. 1971). The question must there-

fore be decided as to whether the wage

claim is a good faith wage claim.

| When the issue of jurisdiction came

before the Court on June llth, the Court

withheld ruling to permit the parties to

submit such proof as they deemed pertinent

on this issue. Defendant was directed to

answer interrogatories going to the issue

of jurisdiction. Interrogatories were

answered, deposition of plaintiff has been

filed, and affidavits have been submitted?

3/ Following argument on September 3rd,

defendants asked permission to submit addi-

tional affidavit. Plaintiff objected saying

App. 22

Allegations of jurisdiction in the plead-

ings, when controverted, are without proba-

tive value, and when jurisdiction is chal-

lenged, the burden rests on the plaintiff

to prove it. City of Kenosha v. Bruno,

412 U.S. 507, 514 (1973); Thomsen v.

Gaskill, 315 U.S. 442, 446 (1942); Kvox,

Inc. v. Associated Press, 299 U.S. 269,

277; McNutt v. General Motors Corp., 298

U.S. 178-187-9; Haynes v. James H. Carr,

Inc., 427 F.2d 700 (4th Cir. 1970). We

turn then to the evidence presented to

establish jurisdiction. Eliminating the

allegations in the pleading, as we must,

the only evidence to support a wage claim

is the testimony of plaintiff. There is

no doubt he was paid $371.28, which was

the amount due as shown by the wage account.

His claim is that there was an additional

3/ (Continued from App. 22) time for sub-

mitting proof on issue of jurisdiction had

passed.

App. 23

amount due him. He was asked by counsel:

Q. Was that money that he gave

you the total wages and bene-

fits that were due and owing

you on your discharge on

March 20, the discharge from

the vessel on March 20, 1976?

A. I think they still owe me

some money, but he did not

bring me an itemized bill.

(Tr. of ptf. deposition p.22)

Later he explained the sum due thusly,

"It's about 50 or 60 pounds, or maybe more.

(Tr. of ptf. deposition p. 56), which

plaintiff claims is for overtime work done

on the tanks. When asked for the record,

he said he had it "someplace with my

papers, but I don't remember where I put

it." (Tr. p. 57). Later he said he was

told by the Chief Mate to “do the work and

I can give you this amount of money." (Tr.

p. 58). He said he had nothing to verify

his claim beyond the payroll record or

account of wages, a copy of which is

attached to the deposition.

App. 24

The wage account shows plaintiff

actually worked and was paid for 29 hours

overtime, and in addition paid for 39 hours

of overtime at the rate of three hours

of overtime per day guaranteed by the

Bargaining Agreement for the days when he

did not otherwise work overtime, for a

total of 68 hours overtime. Secondly,

the 9 man crew was paid for cleaning the

tanks the sum of 270 pounds, of which

plaintiff's share was 30 pounds. He was

paid and received that sum.

At the rate of pay for overtime specified

in the contract of .54 of a pound per hour,

he would have to work almost 120 hours of

overtime to earn 60 pounds. This would

mean that he would have worked the 120

hours in addition to the 68 hours over-

time paid for, plus his regular working

hours. Too, he was paid 30 pounds as his

share of the joint work of the crew for

cleaning the tanks.

App. 25

The record just does not support a claim

for any additional wages due plaintiff.

Apparently he is confused about his over-

time pay. With a provision in the Bargain-

ing Agreement for overtime pay, and for

pay for cleaning the tanks, it is not

reasonable to find that the first mate

agreed to pay plaintiff 50 to 60 pounds

for overtime work within the period

March 4 to the 17th. He was injured in

the morning of the 17th, so we are really

concerned with a period of some 12 days.

To haye earned the sum stated he would have

worked 10 hours per day in addition to his

regular working hours, plus the fact that

he was paid the three hours minimum for

the great majority of those days. He has

failed to carry his burden of proving this

claim.

While it seemed at argument the plain-

tiff agreed with the wage account statement,

if not accepted as correct, there is no

App. 26

evidence to contradict it. The account

shows $371.28 due plaintiff was paid to

his son on the day plaintiff was removed

from the ship. Plaintiff says his son

gave him around $300.00 and, at his direc-

tion, his son kept some of the money, but

plaintiff does not know how much. The

son signed showing he received $371.28.

Although the matter was continued from

June 11th until September 3rd, to permit

the parties to submit proof of facts to

support jurisdiction, no affidavit, state-

ment or other evidence was presented from

plaintiff, his son or anyone else to chal-

lenge the correctness of the payment of

the $371.28. Nor was any evidence presented

to support the claim of overtime allegedly

due plaintiff for cleaning the tanks, save

the indefinite statement of plaintiff.

Plaintiff did not present the record of his

overtime, which he said he had, nor was

App. 27

any explanation made of a failure to

present it.

The Court therefore finds that a good

faith wage claim has not been established,

a prerequisite to jurisdiction under this

provision of law.

ITI

Secondly, plaintiff asserts there is

jurisdiction under the claim for maintenance

and for aggravation of injuries from fail-

ure to provide medical treatment and cure.

This claim arises under general maritime

law. Under the facts of this case, the

omission, if any, occurred outside of

Virginia, and personal jurisdiction may

not be asserted under Virginia Code 8-81.24

See Elefteriou v. Tanker Archontissa, supra

(443 F.2d 188).

4/ There is no evidence of any aggravation

from failure to treat, but if there was,

the failure occurred outside of Virginia.

App. 28

IV

We turn to the issue of "doing business",

the only other basis for jurisdiction or

which would justify the manner of serving

process in this case.

Defendant's vessel came into Norfolk

only on one occasion and that after the

injury had been inflicted.

The Virginia Long Arm Statute is a one

act statute. Kolbe v. Chromodern Chair Co.,

211 Va. 736, 180 S.E.2d 664 (1971); Ajax

Realty Corporation v. J. F. Zook, Inc.,

493 F.2d 818 (4th Cir. 1972). But service

of process on this question does not arise

under the Virginia Long Arm Statute, 8-81.2.

It arises under the “doing business" statute

8-60 of the Code of Virginia. International

Shoe Co. vy. State of Washington, 326 U.S.

310 (1945) fixed the standard for doing

business as requiring certain "minimum

contacts" to exist between the foreign

corporation and the state. The question

App. 29

here is whether one contact meets the test.

No case has been cited to the Court to show

that one contact is sufficient to meet the

"minimal contact" test under 88-60. The

Fourth Circuit has not passed on this ques-

tion. Two cases from this Court have held

one contact is sufficient. Pappas v.

Steamship ARISTIDIS, 249 F.Supp. 692 (E.D.

Va. 1965); Skarpelis v. M/T ARTHUR P., 302

F.Supp. 147 (E.D. Va. 1969). See also

Raymond International, Inc., v. Microdot,

Inc., C/a 177-73-N (E.D. Va.) and cases

there cited.

Here plaintiff is a Greek seaman, signed

on in Greece, is subject to the terms of

a Greek Bargaining Agreement” the ship is

owned by a Panamanian corporation, is

5/ Where fixes jurisdiction in Greek courts.

There is no evidence as to any unfairness

in the Agreement. See The BREMAN, 407 U.S.

1, 12 (1972).

App. 30

chartered to an agent of the U.S.S.R., the

injury occurred on the high seas, the Jones

Act is not applicable® and the plaintiff

is now in Greece. Jurisdiction over suits

between foreign seamen and foreign ship-

Owners is discretionary. Dutta v. The

Clam Graham, 528 F.2d 1258 (4th Cir. 1975).

In exercising this discretion consideration

must be given to the factors described in

Lauritzen v. Larsen, 345 U.S. 571 (1953)

and Hellenic Lines, Ltd. v. Rhoditis, 396

U.S. 306 (1975). That is, the place of the

wrong, the law of the flag, the citizenship

and domicile of the injured seaman, the

place of contract of employment and its

terms, inaccessibiilty of a foreign forum,

the law of the forum, time elapsed since

the time of injury and whether any recon-

pense has been provided, the quality of

6/ Hellenic Lines, Ltd. v. Rhoditis, 398

U.S. 306 (1970)

App. 31

the ship's contact and any other pertinent

factors. Weighing all of these factors,

and even considering the service of process

as valid, it would seem this Court ought

to refuse to accept jurisdiction. As

Judge Craven wrote in Ratliff v. Cooper

Laboratories, Inc., 444 F.2d 745 (4th Cir.

1971), at page 746:

Whether jurisdiction in the sense

of power exists depends upon con-

cepts of "fairness" and "convenience"

and not upon mere compliance with

procedural requirements of notice,

nor even corporate "presence" with-

in the state.

Continuing at page 748, Judge Craven wrote:

Significant in the instant factual

setting is the lack of a "rational

nexus" between the forum state and

the relevant facts surrounding the

claim presented (citations omitted).

If plaintiff's injury does not arise

out of something done in the forum

state, then other contacts between

the corporation and the state must

be fairly extensive before the bur-

den of defending a suit there may

be imposed upon it without offending

traditional notions of fair play

and substantial justice. (Citations

omitted).

App. 31A

In the Ratliff case the Court went on

to point out that the defendant's contacts

with the State “although possibly suffi-

cient to constitute ‘presence’ are none-

theless minimal."” The Court pointed out

that the inquiry was limited to determin-

ing whether the facts "fall within those

notions of due process, i.e., fairness and

convenience, which would make it not

unreasonable to require the defendant

corporations to litigate far from home."

Id. p. 747. That is, whether the activities

of defendants were extensive enough in

7/ The reference to Ratliff case also

covers the case of Nichols v. Sterling

Dru In the Nichols case Sterling Drug

had filed application and been granted

authority to do business in South Carolina,

and had appointed an agent for service of

process; it maintained five “detail men"

who live in South Carolina and promote its

products through personal contacts with

doctors and drugstores. Cooper Labora-

tories’ activities in South Carolina were

limited to solicitation by mail to dealers

and wholesalers, and mailing of promotional

App. 32

South Carolina to warrant in personam juris-

diction when plaintiffs were nonresidents

and the cause of action arose out of the

State.

While the action at bar is admiralty

and reasons for assuming or taking juris-

diction are different from the average

civil case, one of the prime issues here

is the sufficiency of service of process.

That is, where the plaintiff's injury does

not arise out of something done in the

forum state, is the test in the Ratliff

case, i.e.,"other contacts between the

Corporation and the State must be fairly

extensive before the burden of defending

7/ (Continued from App. 32) literature

to about 650 doctors on its mailing list.

Plaintiffs in those cases were not resi-

dents of South Carolina; had purchased

and consumed drugs at other locations than

South Carolina. Their interest in South

Carolina was its statute of limitations

period of 6 years.

App. 33

a suit there may be imposed upon it with-

out offending traditional notions of fair

play and substantial justice" (444 F.2d 748)

met by the one single contact. Contact

here is clearly not "fairly extensive”.

If not sufficient to justify service of

process under 8-60 of the Code of Virginia,

the Court is without jurisdiction.

Considering all of the facts and cir-

cumstances of this case, the motion to

quash service of process is granted, and

the Court being without jurisdiction, the

action is DISMISSED.

/s/ Richard B. Kellam

United States District Judge

Norfolk, Virginia

September 13, 1976.

CODE OF VIRGINIA, 1950, AS AMENDED

Section 8-60. How process served on

foreign corporation on and after

App. 34

had as aforesaid, then on affidavit of that

fact an order of publication may be awarded

as provided by Section 8-71 and Section

8-72. (Code 1919, Section 6064; 1956,

e. 432.)

App. 36