# Petition — Grevas v. The Olympic Pegasus

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 969

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2686%3A1. Public record. Not legal advice.