Petition for Writ of Certiorari — Dracos v. Hellenic Lines Ltd.

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AUG 7 1985

JOSEPH F. SPANIOL, UR.

Supreme Court of the Hnited Paes ———

In The

MARIA DRACOS, as Administratrix for the Estate of Nicholas

Dracos, deceased,

Petitioner,

VS.

HELLENIC LINES LIMITED,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

AVRAM G. ADLER

Counsel of Record

ADLER & KOPS

Attorneys for Petitioner

Rohm & Haas Building

Second Floor

Sixth & Market Streets

Philadelphia, Pennsylvania 19106—

(215) 625-9999

2514

tz = © NJ (201) 257-6850eNY (212) 840-9494¢PA (215) 563-5587 v10/

es.ime. MA (617) 542-1114¢DC (202) 783-7288*USA /800) 5 APPEAL Ab P)

QUESTIONS PRESENTED FOR REVIEW

Whether the presumptive application of offensive collateral

estoppel may be disregarded at the discretion of the court without

requiring proof of change of circumstances.

Whether the Jones Act and American law are applicable to

a Greek seaman employed by Hellenic Lines Ltd., which company

had been adjudged by this Court in Hellenic Lines Ltd. v. Rhoditis,

398 U.S. 306 (1970) to be a Jones Act Employer and the evidence

establishes that the vessel on which the seaman was serving is

one of a fleet of some 24 or more vessels operated out of New

York as a base of operations and the injury occurred in an

American port.

il

TABLE OF CONTENTS

Questions Presented for Review ............cccceecccees

Seat OE RI a ack ca dkcctricneee ae eee

i U6g eS ee coe eensneeeeevesecees

FRE oe ee ee ee

PUI 5 6.5.0.0 wc.0ncn0p 5k5eueeneeh eee

Statutory Provisions Involved ...... 0.2.0 cc ccccwsecnn

Eg Be PPP re Tere rer ee ee

peemeas Dor Comin Ge WEE «ok kc ced descackeees

1. The decision below rendered nugatory the far-reaching

and ‘salutary advances in the application of offensive

ee ere ee ee reer

2. Decision below ignores substantial American interest

and conflicts with the decisions of other courts of

appeal as to the application of the Jones Act, 46 U.S.C.

Section 688 where the seaman is a foreign national.

Seeecea gag ae gesa ee SOG POSE OEE EERE SSO SO SS 22S CO eS OS

Page

ii

ill

iil

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Antypas v. Cia. Maritima San Basilio, S.A., 541 F. 2d 307

(2nd Cir. 1976), cert. denied, 429 U.S. 907 (1977)... 17

Bartholomew v. Universe Tankships, Inc., 263 F. 2d 437

EE 6, 13, 17

Blonder Tongue v, University of Illinois Foundation, 402 U.S.

SSRN IO SE ee eae 5, 10

Chemetron Corp. v. Business Funds, Inc., 682 F. 2d 1149

(Sth Cir. 1982), cert. denied, 460 U.S. 1613, 103 S. Ct.

Rae Po te. OG. 2G SES TIDES)... ww ce cences Sno 10

Dracos v. Hellenic Lines, Ltd., 705 F. 2d 1392 (4th Cir.

EE DI RE ee ee eee eC Cee Tee |

Dracos v. Hellenic Lines, Ltd., 762 F. 2d 348 (4th Cir.

Ee ee Ce eee ce dene anced nap dee |

Fisher v. Agios Nicolaso V., 628 F. 2d 308 (Sth Cir. 1980),

1981 AMC 1669, reh. denied, 636 F. 2d 1107 (1981),

Gare eee, SOO 0.5. SIG CISSI) 2... ww ccc scceces 17

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct.

839, 91 L. Ed. 1055 (1947)... .i, 3, 4, 6, 7, 9, 10, 14, 15, 16, 17

Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed.

Ne is ei add a Kaha eb 0m S20. Ba. id, 34, 27

iv

Contents

Page

Moragne v. States Marine Lines, Inc., 389 U.S. 375 (1970)

i te oe ety he Ce oe ee ds Le ae ee 11, 13

Nestle Co. Inc. v. Chester’s Market, Inc., 596 F. Supp.

gg ts ML. Baer) Srers Perse eee eT Te 10

Papaioannoiu v. Hellenic Lines, Ltd., 569 F. Supp. 724

8 PPP Pee Ter eae Tee ree oT serie )

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) ....5, 10

Provident Tradcsman’s Bank and Trust Co. v. Patterson,

390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968)

a ey Pe ope yee ee Ee Pe eye Ser ree ye ee 1]

Romero v. International Terminal Co., 358 U.S. 354, 79

eee Soe F FPP TT Te 13

Scooper Dooper Inc. v. Kraftco Corp., 494 F. 2d 840 (3rd

SCC ie ccs. daha tb Sede keeebaeeaes 8

Selectron Inc. v. American Tel. & Tel. Co., 587 F. Supp.

Se a Ns 4 oe Nba WKA DAA 046 MOSSE SOE Oe 10

Vassalos v. Hellenic Lines, Ltd., 482 F. Supp. 906 (E.D.Pa.

DRS Can gunck fee cab ee hater eawierkes baer ents 7, 16

Statutes Cited:

p RA oe eee ruta 2

46 U.S.C. 688 et seg. (Jones Act)................... i

Contents

Page

Rules Cited:

eG Bt). er eee 1]

Federal Rule of Civil Procedure 12 ............0ccece0- 3

Federal Rule of Civil Procedure 19 .............000000. 1]

Federal Rule of Civil Procedure 52(a)..............0-6: 17

Federal Rute of Civil Procedure 56 ...... 1... cn ccc ccene 3

Other Authority Cited:

Restatement Second of Judgments, Section 27.............. y

APPENDIX

Appendix A—Judgment, Opinion and Order of the United

States District Court for the Eastern District of Virginia

of rr Poy la

Appendix B—Opinion of the United States Court of Appeals

for the Fourth Circuit (Panel) and Dissent.......... 12a

Appendix C—Order of the United States Court of Appeals

RP TS Pe es Gs CUTER kecce Runa ee 32a

Appendix D—Opinion of the United States Court of Appeals

for the Fourth Circuit (En Banc) and Dissent....... 33a

Appendix E—Excerpts of Transcript of Harry }etsis..... 46a

Appendix F—Stipulation—Filed October 2, 1984 ........ 50a

A

No.

In The

Supreme Court of the United States

—

October Term, 1985

MARIA DRACOS, as Administratrix of the Estate of Nicholas

Dracos, deceased,

Petitioner,

vs.

HELLENIC LINES LIMITED,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The Petitioner, Maria Dracos, as Administratrix of the Estate

of Nicholas Dracos, Deceased, respectfully prays that a writ of

certiorari be issued to review the judgment and opinion of the

United States Court of Appeals for the Fourth Circuit entered

in this proceeding on April 27, 1983 and affirmed by the court

en banc on May 9, 1985. The opinion of the Court of Appeals

is reported as 705 F. 2d 1392 (4th Cir. 1983). The opinion of

the Court of Appeals for the Fourth Circuit sitting en banc is

reported at 762 F. 2d 348 (4th Cir. 1985); both opinions appear

in the appendix hereto. The opinion rendered by the District Court

for the Eastern District of Virginia at Norfolk is not reported.

The opinion appears in the appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fourth Circuit

was entered on April 27, 1983. A timely petition for rehearing

en banc was filed and rehearing before the court en banc was

grantec on August 29, 1983. The opinion and judgment by the

court en banc was entered on May 9, 1985 and this petition for

certiorari was filed within ninety (90) days of that date. This

Court’s jurisdiction is invoked under 28 U.S © . Section i254(1).

STATUTORY PROVISION INVOLVED

46 U.S.C. § 688 (Jones Act) provides:

Any seaman who shail suffer personal injury in

the course of his employment may, at his election,

maintain an action for damages at law, with the

right of trial by jury, and in such action all statutes

of the United States modifying or extending the

commonlaw right or remedy in cases of personal

injury to railway employees shall apply; and in case

of the death of any seaman as a result of any such

personal injury the personal representative of such

seaman may maintain an action for damages at

law with the right of trial by jury, and in such

action all statutes of the United States conferring

or regulating the right of action for death in the

case of railway employees shall te applicable.

Jurisdiction in such actions shall be under the court

of the district in which the defendant employer

resides or in which his principal office is located.

STATEMENT OF THE CASE

Nicholas Dracos was Chief Engineer of the M/V Hellenic

Star. a vessel owned and operated by Hellenic Lines, Ltd. when

the vessel was berthed at a pier in Norfolk, Virginia on May 14,

1977. He was found dead on that day in a refrigerated box on

the vessel which had a jury rig which was not ship’s equipment

as a latch to open the heavy reefer door. It was found chat when

the door was shut, anyone unfortunate enough to be within the

confines of the reefer compartment was locked inside and could

not obtain release. The temperature of the reefer box was at least

15 degrees farenheit and possibly colder. The reefer box had no

alarm bell or other signalling device to warn or alert crew members

that a person had become trapped therein.

Maria Dracos, like her late husband, is a Greek citizen

domiciled in Greece. Hellenic Lines, Ltd. is a corporation

organized and existing under the Kingdom of Greece and was

the owner and operator of the M/V Hellenic Star. The M/V

Hellenic Star flew the Greek flag. Mr. Dracos’ contract of

employment provided that Greek law be applied tc any disputes

between him and his employer. Hellenic Lines, Ltd. was the very

same defendant as in Hellenic Lines Lid. v. Rhoditis, 398 U.S.

306 (1970), in which Pericles G. Callimanopoulos, a resident alien

owning virtually all the stock of Hellenic Lines, Ltd., was found

by this Court to have such substantial contacts by virtue of its

revenues derived from United States traffic and by its base of

operations in New York as to warrant the application of the Jones

Act, 46 U.S.C. 688 et seq., for seamen employed by Hellenic Lines

Lid. Petitioner, through the pretrial procedures, took the position

that Hellenic Lines Ltd. was a Jones Act employer, having been

found so in Hellenic Lines, supra. Respondent did raise the

question of jurisdiction of the court a? pretrial proceedings, but

at no time were motions filed under Rules 12 or 56 of the Federal

Rules of Civil Procedure or at any time was there introduced any

evidence as to a change of circumstances or status.

At the trial, Harry Petsis, the Marine Superintendent of

Hellenic Lines, Ltd., on cross-examination testified that he was

in charge of the hull and machinery of Hellenic Lines’ fleet; that

he lived in New York City and his office was in New York City

(47a).* Mr. Petsis was asked point blank how many ship: there

were in the total fleet operated by Hellenic Lines. His answer

was that on the East Coast of the United States, the number varied

from 30 to 24 ships, of which the Hellenic Star was one and

confirmed that Hellenic Lines, Ltd.:owned a pier in New York

City and operated another in New York Cit: and that they had

a building at 39 Broadway, New York City, New York from which

this fleet was managed.

The court charged the jury on the Jones Act and the Maritime

Law of the United States. The jury found that respondent’s

negligence and the vessel’s unseaworthiness had been the proximate

cause of Nicholas Dracos’ death and set the total damages at Four

Hundred Seventy Five Thousand ($475,000) Dollars with a

diminution of 30% for contributory negligence on the part of

Nicholas Dracos, reducing the verdict to Three Hundred Twenty

Two Thousand Five Hundred ($322,500) Dollars.

This veraict was set aside following a motion for judgment

n.o.v. and, in the alternative, for a new trial by the trial court

on the grounds that the court lacked subject matter jurisdiction.

The court did not reach the motion for new trial, but stated

parenthetically that the arguments for a new trial were questionable

at best (4a). The Court of Appeals in a split panel affirmed on

the grounds that the dynamic nature of the shipping industry

warranted disregard of this Court’s holding in Hellenic Lines,

supra. Rehearing before the court en banc was granted and held.

A majority of the court with three judges dissenting affirmed.

Hellenic Lines Ltd., after the argument but before the opinion

went into a Chapter 11 Bankruptcy which became converted to

* Petsis testimony is found at Appendix E.

a Chapter 10 Bankruptcy. In the appendix is the lifting of the

automatic stay by the bankruptcy court.

REASONS FOR GRANTING THE WRIT

The decision below rendered nugatory the far-reaching and

salutary advances in the application of offensive collateral estoppel.

This Court, in Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979) sanctioned the use of offensive collateral estoppel. This

Court had previously in Blonder Tongue v. University of Illinois

Foundation, 402 U.S. 313, 328 (1971), approved a defensive use

of collateral estoppel. Defensive use of collateral estoppel is that

circumstance where defendant attempts to estop the relitigation

of an issue that the plaintiff had already unsuccessfully litigated

in a Suit against another defendant. Offensive estoppel precludes

the defendant from litigating an issue that the defendant had

previously lost in a suit against another and different plaintiff.

In the Parklane decis‘on, the District Court was given broad

discretion to determine wi 2n it should be applied. However, that

broad discretion was directed to certain guidelines or criteria. The

court, in establishing offensive estoppel, discussed the possibility

that the plaintiff might remain on the sideline and adopt the ‘‘wait

and see attitude’’ in the hopes that the first action by another

plaintiff would result in a favorable judgment. The passage of

time between suits demonstrates that the petitioner herein made

no such resort. The second argument to be considered by the Court

in its broad discretion was that a defendant sued for small and

“nominal damages may have little incentive to defend vigorously,

particularly if future suits are not foreseeable. This is certainly

absent in the instant case. Hellenic Lines had every incentive to

resist being tagged a ‘‘Jones Act Employer.’’ It knew that having

been tagged a ‘‘Jones Act Employer,’’ putting it in parity with

American shipowners would subject it to the same likelihood of

lawsuits under the Jones Act that would be the lot of an American

shipowner. The next criteria which this court pointed to as an

area of discretion for the trial judge would be if the judgment

relied upon was inconsistent with one or more previous judgments.

Petitioner advanced for consideration consistent cases.

The trial court did in effect accept the offensive estoppel

because it charged the jury on the Jones Act and the General

Maritime Law. At the motion for judgment n.o.v., at the urging

of the respondent, it became wedded to the idea that petitioner

was bound at the trial to introduce factual testimony to prove

subject matter jurisdiction.

The consideration given by the court to offensive estoppel

is minimal. In a footnote to the opinion, it is condensed to:

‘*The plaintiff also contends that because American )

Courts exercised jurisdiction over this defendant

in previous cases, we should do the same.”’

The argument for offensive estoppel was that Hellenic Lines

Ltd. v. Rhoditis, 398 U.S. 306 (1970), was a determination by

this Court that it found the Lauritzen criteria incomplete in the

face of a substantial American presence that Hellenic was a Jones

Act employer. The Court quoted from Judge Medina speaking

for the Court of Appeals for the Second Circuit when he said:

**Moreover, each factor, or contact, or group of

facts must be tested in the light of the underlying

objective, which is to effectuate the liberal purposes

of the Jones Act.’’ Bartholomew vy. Universe

Tankships, Inc. , 263 F. 2d 437, 441 (2nd Cir. 1959)

—_— |

The majority opinic che Court of Appeals for the Fourth

Circuit justifying the denial of the presumptive effect of this

Court’s finding in Hellenic Lines, Ltd. v. Rhoditis, supra, based

upon the passing of years, rejected cases submitted by petitioner

revealing the continuing American presence of Hellenic Lines.

The consideration of these cases was compacted in the opinion

of the majority in the phrase:

‘*The first four cases cited are inapposite because

they only reflect the status of the defendant as it

existed several years prior to the accrual of the

instant cause of action. Vassalos is inapposite

because, in that case, the issue of jurisdiction was

never raised.”’

Vassalos v. Hellenic Lines, Ltd., 482 F. Supp. 906 (E.D. Pa.

1979) is not so easily disregarded. It is a case contemporary in

time with the instant case. In that case in another district, the

United States District Court for the Eastern District of

Pennsylvania, Hellenic Lines, Ltd. agreed that the Jones Act

applied to a Greek national serving aboard a Hellenic Lines ship

who had been injured and had brought a suit under the Jones Act.

Respondent at all times remained silent as to change in

circumstances. In no pleading, in no affidavit duly filed to any

motion, did the respondent ever state for the record any fact that

would indicate or even give a court an opportunity to infer or

conclude that any of the circumstances that provided the

foundation for this Court in Rhoditis had in any way been altered.

All that the majority opinion of the Court of Appeals for the

Fourth Circuit could say was that the shipping industry is a

dynamic industry, subject to change. If anything, the stipulation

in Vassalos and the testimony of the Marine Superintendent of

a most substantial fleet operating on the East Coast out of New

York decries any significant change in circumstances.

The dissent of Judge Murnaghan notes the course that the

trial court should have taken:

‘In Rhoditis, it was established in a trial in

federal district court, was affirmed by a court of

appeals, and was impressed with the imprimatur

of the Supreme Court, that Hellenic Lines Ltd.

(‘‘Hellenic’’), the same party defendant in a Jones

Act case as the defendant in the case sub judice,

was an ‘‘employer’’ for purposes of the Jones Act.

The voluminous evidence marshalled in the

Rhoditis litigation showed that Hellenic had

sufficient American contacts to bring its activities

under the purview of the Act (23a).

In my view the Rhoditis case should have been

accorded presumptive collateral estoppel effect by

the district court, and the burden was Hellenic’s

to establish a change in circumstances since the

Rhoditis litigation sufficient to relieve that

adjudication of preclusive effect. By refusing to

place that burden upon Hellenic and, instead,

requiring the plaintiff, Dracos, to remake, if indeed

not reinvent, the entire wheel, the majority has

carried the concept of ‘changed circumstances’ to

an extreme that saps the collateral estoppel doctrine

of its vitality. Cf. Scooper Dooper Inc. v. Kraftco

Corp., 494 F. 2d 840, 846 (3d Cir. 1974) (‘Rare

would be the case in which counsel could not

conjure up some factual element that had changed

between adjudications’)’’ (24a).

‘“‘The majority’s premise—that the shipping

industry presents a constantly changing factual

situation—is divined from nothing. No fact drawn

from the record, no fact ascertainah'e by way of

judicial notice, is summoned to set the shipping

industry apart from the host of other industries

implicated in litigation daily’’ (25a).

Judge Murnaghan then went on to sum up the obligation

of a party against whom an offensive estoppel has been leveled.

**The question properly stated, the answer easily

follows. Where it is just as likely as not that

circumstances have remained the same, where

evidence of changed circumstances as a matter of

fact is most readily available to the party against

whom a prior judgment is asserted as collateral

estoppel, and where there can be no question that

the prior judgment was the product of a full, fair,

and vigorous litigation, that prior judgment should

be accorded presumptive collateral estoppel effect.

The plaintiff was entitled to assert the Rhoditis

decision and thus establish a prima facie case that

Hellenic is a Jones Act ‘employer.’ The burden,

then, properly shifted to Hellenic to come forth

with facts pertinent to a real, and not hypothesized,

change in circumstances sufficient to relieve the

Rhoditis decision of preclusive effect. That Hellenic

has not done’’ (27a).

As Judge Murnaghan points out, his opinion as to

presumptive effect and the duty of the defendant to come forward

to indicate that circumstances have changed is supported by the

Restatement Second of Judgments in Section 27' (28a).

1. While not strictly a conflict between Circuits, the court in Papaioannoiu

v. Hellenic Lines, Ltd., 569 F. Supp. 724, 729 (E.D.Pa. 1983), expressly rejected

the holding of the instant case and adopted the dissenting opinion of Judge

Murnaghan. He gave the Rhoditis decision a presumptive collateral estoppel

effect that Hellenic was a Jones Act employer.

10

The charge that offensive estoppel may contain elements of

unfairness loses vitality when it is given a presumptive effect giving

the defendant or the party upor whom it is visited an opportunity

to show facts or considerations to overcome such presumption.

This is a different situation than when the offensive estoppel is

claimed to have a preclusive effect which binds the party against

whom it is leveled from doing anything or proceeding at all.

In Selectron Inc. v. American Tel. & Tel. Co., 587 F. Supp.

856, 866 (E.D.Tex. 1984), American Telephone and Telegraph

Company submitted a 16-volume compendium of documents

containing new evidence that it asserted would change the result

of a subsequent trial. It is submitted that the trial court should

require no less of Hellenic Lines were it able to point to a single

substantial variance with the testimony in the Rhoditis case.

The need to avoid re-litigation when there is no showing that

there is anything to re-litigate and the potential unfairness for

parties to come was demonstrated in Nestle Co., Inc. v. Chester’s

Market, Inc., 596 F. Supp. 1445, 1452-53 (D. Conn. 1984), when

it appeared that the Nestle Company had had its trademark for

Toll House cookies found to be invalid on the grounds that Toll

House had achieved the dignity of a generic status, a settlement

was negotiated on the basis that the decision in the trial court

would be vacated so as to avoid offensive collateral estoppel. The

court bzlow refused on the grounds that the reach of Blonder

Tongue and Parkiane Hosiery Company should not thus be

evaded. This Court denied certiorari in a case of similar holding,

Chemtron Corp. v. Business Funds, Inc., 682 F. 2d 1149 (Sth

Cir. 1982), cert. denied, 460 U.S. 1013, 103 S. Ct. 1254, 75 L.

Ed. 2d 483 (1983).

The dissenting opinion in this case has underlined that

offensive collateral estoppel need not be necessarily preclusive but

that cast in a presumptive mode, it affords justice to all. A party

1]

who can truly claim changed circumstances should and must

demonstrate those changed circumstances to the satisfaction of

the court to avoid the preclusive effect and absent such a

demonstration, then the presumption is fulfilled that the

circumstances have not changed.

In Provident Tradesman’s Bank and Trust Co. v. Patterson,

390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 936 (1968), this Court

granted certiorari because the Court of Appeals for the Third

Circuit eviscerated the thrust of Federal Rule of Civil Procedure

19 by a misplaced concept that jurisdiction would be lacking if

a so-called indispensible party were not joined. This fulfilled the

reach of Supreme Court Rule 17(1)(c), that the court below has

rendered a decision in conflict with the applicable decisions of

this Court or frustrates a concept which this Court has utilized

in support of judicial economy and efficiency. Just as the effect

of Rule 19 was seriously compromised, the court below has

seriously compromised the concept of offensive collateral estoppel

and its advantages and goals.

Il.

Decision below ignores substantial American interest and

conflicts with the decisions of other Courts of Appeal as to the

application of the Jones Act, 46 U.S.C. Section 688 where the

seaman is a foreign national.

In 1970, the Supreme Court in Moragne v. States Marine

Lines, Inc., 398 U.S. 375 (1970) put aside past practice and held

that a right of action for wrongful-death existed under the General

Maritime Law.

The United States Supreme Court in Lauritzen, Id at 576

refused to apply the literal reach of the language of the Jones

Act when it said:

12

If read literally, Congress has conferred an

American right of action which requires nothing

more than that plaintiff be ‘‘any seaman who shall

suffer personal injury in the course of his

employment.”’ It makes no explicit requirement

that either the seaman, the employment or the

injury have the slightest connection with the United

States.

Lauritzen v. Larsen, 345 U.S. at 576-77.

This Court recognized that some degree of predictability is

necessary in the choice of law area and sets forth the following

seven possible contacts which were to be evaluated in deciding

whether the Jones Act should be applicable to a given situation:

1. The place of the wrongful act.

2. The law of the ship’s flag.

3. The allegiance or domicile of the injured seaman.

4. The allegiance of the defendant shipowner.

5. The place of contract.

6. The inaccessibility of a foreign forum.

7. The law of the forum.

Of the seven factors enumerated, the court characterized the

law of the flag as ‘‘perhaps the most venerable and universai i uie

of maritime law relevant to our problem’’, which, ‘‘must prevail

unless some heavy counter-weight appears.’’ 345 U.S. at 586. The

court held in Lauritzen that no such counterweights existed and,

13

therefore, the law of the flag controlled, precluding applicability

of the Jones Act.

The second Supreme Court decision regarding the rights of

foreign seaman was Romero v. International Terminal Co., 358

U.S. 354 (1959). Romero was a Spanish citizen who signed a

working agreement in Spain to work aboard a Spanish flag vessel

owned by a Spanish corporation. The court held that the situs

of the injury, New York, was insufficient under the Lauritzen

criteria to warrant application of this country’s law against the

Spanish shipowner.

The Romero decision is also important for the Supreme

Court’s pronouncement that for the purposes of choice of law

determination in a suit by foreign seamen, the same choice of

law criteria are applicable to both claims under the Jones Act

and claims under the general maritime law. The Supreme Court

held:

‘*. . .But the similarity in purpose and function

of the Jones Act, and the general maritime

principles of compensation for personal injury,

admit of no rational differentation of treatment

for choice of law purposes.’’

Romero v. International Terminal Co., 358 U.S. at 382.

Thus, if the court determines that the Jones Act is applicable

to a foreign claim, the general maritime remedies for maintenance

and cure and unseaworthiness will also apply. This would also

include the general maritime remedy for wrongful death outlined

by the Supreme Court in Moragne v. States Marine Lines Inc.,

398 U.S. 375 (1970) which would be available to the survivors

of deceased foreign seamen.

14

The third Superior Court decision was Hellenic Lines Lid.

v. Rhoditis, 398 U.S. 306 (1970). There were many similarities

to the instant case. Petitioner was a seaman signed on in Greece

and was a Greek citizen. His contract of employment provided

that Greek law and a Greek collective bargaining agreement apply

between the employer and the seaman and that all claims arising

out of the employment contract were to be adjudicated by a Greek

court. The Supreme Court also recognized that the respondent

could obtain relief through Greek courts if he desired.

The Supreme Court recognized that Hellenic Lines Ltd. was

a Greek corporation and that its majority stockholder was a Greek

citizen. The court also took notice that Hellenic Lines Ltd. had

its offices in New York and another office in New Orleans and

more than ninety-five percent of its stock was owned by Pericles

G. Callimanopoulos whom the court truncated to Pericles. The

court recognized that he was a resident alien and lived in

Connecticut and managed the corporation out of New York. The

vessel Hellenic Hero was engaged in regularly scheduled runs

between other parts of the world and ports in the United States.

Hellenic Lines Ltd. earned income from cargo originating or

terminating in the United States.

The Supreme Court also recognized that the Jones Act speaks

only of the defendant/employer without any qualifications. The

court looked to the Lauritzen criteria and found of the seven

factors there were four that favored the shipowner in declining

jurisdiction, namely, that the ship’s flag was Greek, the injured

seaman was Greek, the employment contract was Greek, and there

was a foreign forum available to the injured seaman.

The United States Supreme Court, however, refused to apply

the Lauritzen test in a mechanical manner. The court adopted

with approval the words of Judge Medina speaking for the Court

of Appeals for the Second Circuit:

15

The decisional process of arriving at a conclusion

on the subject of the application of the Jones Act

involves the ascertainment of the facts or groups

of facts which constitute contracts between the

transaction involved in the case and the United

States, and then deciding whether or not they are

substantial. Thus each factor is to be ‘‘weighed’’

and ‘‘evaluated’’ only to the end that, after each

factor has been given consideration, a rational and

satisfactory conclusion may be arrived at on the

question of whether all the factors present add up

to the necessary substantiality. Moreover, each

factor, or contact, or group of facts must be tested

in the light of the underlying objective which is

to effectuate the liberal purposes of the Jones Act.

(Emphasis added.)

Bartho/omew v. Universe Tankships, Inc., 263 F.

2d 437, 441 (2d Cir. 1959).

We see no reason whatsoever to give the Jones

Act a strained construction so that this alien owner,

engaged in an extensive business operation in this

The United States Supreme Court noted that Pericles was

a permanent resident alien. As such he is accorded all the

constitutional rights of a citizen other than the privilege of holding

office or voting. The court noted as significant that the injury

had occurred in the United States, that the forum was the United

States court, and that Pericles had a base of operations in New

York. Rhoditis, 398 U.S. at 310. The court also noted that the

vessel upon which the alien seaman was injured was not a casual

visitor but rather it and its sister ships were earning income from

cargos Originating in or terminating in the United States. The court

went on to say:

16

country, may have an advantage over citizens

engaged in the same business by allowing him to

escape the obligations and responsibility of a Jones

Act ‘‘employer.’’ The flag, the nationality of the

seaman, the fact that his employment contract was

Greek, and that he might be compensated there

are in the totality of the circumstances of this case

minor weights in the scales compared with the

substantial and continuing contracts that this alien

owner has with this country. If, as stated in

Bartholomew v. Universe Tankships Inc., 263 F.2d

437, the liberal purposes of the Jones Act are to

be effectuated, the facade of the operation must

be considered as minor, compared with the real

nature of the operation and a cold objective look

at the actual operational contacts that this ship

and this owner have with the United States. By

that test the Court of Appeals was c’ -arly right

in holding that petitioner Hellenic Lines was an

‘*emplover’’ under the Jones Act.

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 310.

The trial court cast aside the compelling testimony of the

maritime superintendent, including the fact of an office building

in New York City and two piers. This substantial presence, plus

the constant trafficking of the fleet at East Coast ports, was cast

aside on the possibility that there might be other vessels in other

parts of the world. It refused to consider that in a

contemporaneous case in the Eastern District of Pennsylvania,

Vassalos v. Hellenic Lines, Ltd., 482 F. Supp. 906 (E.D. Pa. 1979),

Hellenic Lines had conceded it was a Jones Act employer.

The trial court’s ultimate decision was that the evidence was

insufficent to show an American base of operations or substantial

17

enough American contacts to require the application of the Jones

Act or the General Maritime Law. The Court of Appeals said

these findings are factual and not clearly erroneous. Fed. R. Civ.

P. §2(a). ~

Rhoditis stood for a practice of reality. Rhoditis stood for

the principle that substantial American presence dictates substantial

fulfillment of the sweeping language of Congress in enacting the

Jones Act. Lauritzen nad changed that in the interests of curbing

the broad sweep of Congressional language.

We respectfully submit that factual details make it difficult

to claim true conflict between the circuits. Partially this is caused

by the courts below seizing upon literally parts of sentences taken

from the Rhoditis opinion. It is respectfully submitted that the

instant case in the Fourth Circuit conflicts sharply with the Second

Circuit, Antypas v. Cia. Maritima San Basilio, S.A., 541 F. 2d

307 (2nd Cir. 1976), cert. denied, 429 U.S. 907 (1977);

Bartholomew v. Universe Tankships, Inc., 263 F. 2d 437 (2nd

Cir. 1959), and the Fifth Circuit, Fisher v. Agios Nicolaos V.,

628 F. 2d 308 (Sth Cir. 1980), 1981 AMC 1669, reh. denied, 636

F. 2d 1107 (1981), cert. denied, 454 U.S. 816 (1981) where lesser

contacts were deemed substantial.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Fourth Circuit.

Respectfully submitted,

Avram G. Adler

Counsel of Record

ADLER & KOPS

Attorneys for Petitioner

la

APPENDIX A—JUDGMENT, OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA DATED AUGUST 21,

1981

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

Civil Action File No. 79-491-N

MARIA DRACOS, as Administratrix of the Estate of Nicholas

Dracos, deceased,

Plaintiff,

VS.

HELLENIC LINES LIMITED,

‘ Defendant.

JUDGMENT DATED AUGUST 21, 1981

This action came on for WY (hearing) before the Court,

Honorable J. CALVITT CLARKE, JR., United States District

Judge, presiding, and the issues having been duly rri@¢ (heard)

and a decision having been duly rendered,

It is Ordered and Adjudged the the defendant’s motion for

a judgment non obstante veredicto is granted and judgment is

entered in favor of the defendant.

2a

Appendix A

Dated at Norfolk, Virginia, this 21st day of August, 1981.

W. FARLEY POWERS, JR.

Clerk of Court

/s/ illegible

Deputy Clerk

3a

Appendix A

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

CIVIL ACTION

NO. 79-491-N

MARIA DRACOS, as Administratrix of the Estate of Nicholas

Dracos, Deceased,

Plaintiff,

v.

HELLENIC LINES, LIMITED,

a Greek corporation,

Defendant.

OPINION AND ORDER

This matter comes to the Court on the defendant’s Motion

for Judgment Non Obstante Veredicto.' The plaintiff, Maria

Dracos, the administratrix of the estate of Nicholas Dracos, filed

suit against the defendant, Hellenic Lines, Limited (‘‘Hellenic’’),

on May 3, 1979. The Complaint alleged that Nicholas Dracos

died on board the M/V HELLENIC STAR on May 14, 1977,

as a result of the defendant’s negligence and failure to provide

1. The defendant has also filed a Motion for a New Trial. Because of our

disposition of the defendant’s Motion for Judgment Non Obstante Veredicto,

we need not address this second motion.

4a

Appendix A

a seaworthy vessel.*? Following a three-day trial, the jury found

that the defendant’s negligence and the vessel’s unseaworthiness

had been the proximate cause of Nicholas Dracos’ death and set

the total damages oi Four Hundred Seventy-Five Thousand Dollars

($475,000).?

The defendant’s initial and strongest contention in support

of its motion is that the plaintiff failed to prove that this Court

had jurisdiction over the instant dispute.‘ The plaintiff filed suit

under the Jones Act, 46 U.S.C. § 688 et seq., and under the general

maritime law of the United States.‘ The defendant raised the

2. It is undisputed that the defendant is the owner of the vessel, M/V

HELLENIC STAR, on board which Nicholas Dracos died.

3. The jury found that Nicholas Dracos’ percentage of contributory

negligence to his death was 30%. The jury further found that, without deduction

for contributory negligence, the damages for loss of support, financial

contributions and reasonable funeral expenses totaled Four Hundred Thousand

Dollars ($400,000) and the damages for loss of nurture, companionship,

consortium and physical pain and mental anguish totaled Seventy-Five Thousand

Dollars ($75,000).

4. The defendant has raised several other grounds in support of its motion.

Hellenic contends that the plaintiff was improperly permitted to proceed on

the theory of unseaworthiness, that this Court improperly allowed the jury to

consider an award for non-pecuniary losses and that the evidence was insufficient

to permit the submission of the case to the jury. Although we find the validity

of these arguments questionable at best, we need not address them in detail

in light of our disposition of the defendant’s motion on the basis of the

jurisdictional issue.

5. Although the plaintiff did not specifically allege general maritime

jurisdiction, she alleged that Nicholas Dracos ‘‘died as a result of . . . the

(Cont’d)

——--— —

Sa

Appendix A

issue of jurisdiction by stating in its Answer that ‘‘[t]he defendant

asserts that this court has no jurisdiction over the subject matter

of this action as neither the Jones Act or any other American

law or statute is applicable to the causes of action asserted herein.”’

The defendant reasserted this position in its Statement of Issues,

filed on July 5, 1979, and in the Order on the Final Pretrial

Conference, entered by this Court on October 3, 1980. The

plaintiff, therefore, has received extensive notice of the jurisdiction

Issue.

Because this issue has been raised by the defendant, the

plaintiff bears the burden of proving the facts necessary to permit

this Court to exercise jurisdiction over the instant dispute.* See,

e.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178,

189 (1936); Haynes v. James H. Carr, Inc., 427 F.2d 700 (4th

Cir.), cert. denied, 400 U.S. 942 (1970). In Lauritzen v. Larsen,

345 U.S. 571, 583-90 (1953), the Supreme Court listed the seven

factors to be considered by a court attempting to determine

whether the Jones Act provides a jurisdictional basis for a suit

(Cont'd)

unseaworthiness of the said vessel.’’ Because pleadings in the federal courts

are to be liberally interpreted, we interpret this allegation as stating a cause -

of action under general maritime law.

6. The plaintiff contends that under Romero v. International Terminal

Operating Co., 358 U.S. 354 (1959), she needs only to assert jurisdiction for

this Court to exercise jurisdiction under the Jones Act «. general maritime law.

Such a contention is not only illogical, but also is contrary to the holding of

Romero. In Romero, the Supreme Court actually upheld the lower court’s

dismissal of an injured seaman’s suit on the grounds that insufficient contacts

existed with the United States under the Lauritzen test. Thus, Romero stands

only for the proposition that if a plaintiff asserts jurisdiction, the court may

assume jurisdiction for the limited purpose of determining whether it properly

may exercise jurisdiction over the subject matter of the dispute.

6a

Appendix A

by an injured seaman against a foreign shipowner.’ These factors

include:

(1) The place of the wrongful act;

(2) The law of the flag;

(3) The allegiance or domicile of the injured

seaman;

(4) The allegiance of the defendant shipowner;

(5) The place of the execution of the employment

contract;

(6) The inaccessibility of the foreign forum;

(7) The law of the forum.

Jurisdiction is to be assumed by a federal court only if a review

of these factors discloses substantial contacts between the

7. The Jones Ac* provides in pertinent part:

Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury . . .; and

in case of the death of any seaman as a result of any such

personal injury the personal representative of such seaman

may maintain an action for damages at law with the right

of trial by jury, and in such action all statutes of the United

States conferring or regulating the right of action for death

in the case of railway employees shall be applicable.

46 U.S.C. § 688 (1976).

7a

Appendix A

‘*shipping transaction regulated and the national interest served

by the assertion of authority.’’ Jd. at 582. In Romero v.

International Terminal Operating Co., 358 U.S. 354 (1959), the

Supreme Court extended the applicability of the criteria

enumerated in Lauritzen to claims brought under general American

maritime law.

The broad principles of choice of law and the

applicable criteria of selection set forth in Lauritzen

were intended to guide courts in the application

of maritime law generally . . . [T]he similarity in

purpose and function of the Jones Act and the

general maritime principles of compensation for

personal injury, admit of no rational

differentiation of treatment for choice of law

purposes. Thus the reasoning of Lauritzen v.

Larsen governs all claims here.

Id. at 382 (footnote omitted). See also Lekkas v. LIBERIAN M/V

CALEDONIA, 443 F.2d 10 (4th Cir. 1971). Thus, the seven factors

listed in Lauritzen govern our power to exercise jurisdiction because

the plaintiff has pled only two jurisdictional bases: the Jones Act

and general American maritime law.

A review of these seven factors reveals that only two, the

place of the wrongful act and the law of the forum, support an

application of American law to the instant dispute. The other

five clearly support an application of Greek law. The vessel flew

the Greek flag, the decedent was Greek, the shipowner is a Greek

corporation, the contract of employment was drafted and executed

in Greece, and the plaintiff, the decedent’s wife, who is also Greek,

could have filed suit in Greece had she chosen to do so. In effect,

the only nexus with this forum is that the decedent died while

8a

Appendix A

the M/V HELLENIC STAR was moored in Norfolk, Virginia,

and that suit was filed in this district. The Court in Lauritzen

emphasized that in a maritime context, the place of the wrongful

act is of minor importance because of the international flavor

of maritime enterprises. 345 U.S. at 583-84. Moreover, the Court

stated that the fact that suit was filed in an American court

essentiaily should play no part in that court’s decision whether

to apply American law unless that court had identified a significant

American interest in the dispute. See id. at 590-91; DeMateos

v. Texaco, Inc., 562 F.2d 895, 900 (3d Cir. 1977), cert. denied,

435 U.S. 904 (1978). The Lauritzen Court found the flag of the

vessel and the allegiance of the shipowner to be the two most

important factors in determining whether American law should

be applied. See 345 U.S. at 584-87; Southern Cross Steamship

Co. v. Firipis, 285 F.2d 651, 653 (4th Cir. 1960), cert. denied,

365 U.S. 869 (1961). Both these factors point to the application

of Greek law to the instant dispute. Accordingly, under a strict

Lauritzen analysis, neither the Jones Act nor American general

maritime law should govern.

In Hellenic Lines, Inc. v. Rhoditis, 398 U.S. 306 (1970),

however, the Supreme Court liberalized the Lauritzen test by

adding an eighth factor to be considered by a court faced with

the question of jurisdiction. Justice Douglas, writing for the Court,

stated that ‘‘the list of seven factors in Lauritzen was not intended

as exhaustive . . .the shipowner’s base of operations is another

factor of importance in determining whether the Jones Act is

applicable; and there may well be others.’’ Jd. at 309. The Court

found that the base of operations of the shipowner was located

in the United States and that the owner therefore had substantial

contacts with this county. Jd. at 310. The evidence revealed tinat

the shipowner had its largest office in New York and another

office in New Orleans. Moreover, the owner of 95% of the stock

9a

Appendix A

of the company, although a Greek citizen, had been a United

States domiciliary for approximately twenty-five years and a lawfui

permanent resident alien of this country for nearly twenty years.

Finally, the vessel aboard which the injury occurred was engaged

in trips between various ports of the United States and the Middle

and Far East and derived its entire income from cargo that either

originated from or terminated in this country. Jd. at 307-08. See

also Fisher v. AGIOS NICOLAQS V, $28 F.2d 308, 317 (Sth Cir.

1980) (vessel’s entire service and entire revenues arose from a base

of operations in the United States); Antypas v. Cia Maritima San

Basilio, S. A. 541 F.2d 307 (2d Cir. 1976), cert. denied, 429 U.S.

1098 (1977) (some of stockholders of company were American;

shipping line operated out of New York City; earnings of vessel

collected in and expenses of vessel paid from New York); Moncada

v. Lemuria Shipping Corp., 491 F.2d 470 (2d Cir.), cert. denied,

417 U.S. 947 (1974) (corporation that owned vessel was wholly

owned by Americans; all officers of corporation were Americans;

vessel was managed and chartered from the United States; and

40% of vessel’s voyages began or ended in the United States).

The facts regarding the defendant’s base of operations proved

by the plaintiff in the instant case do not rise to the level of those

facts established in Rhoditis or in the other three cases cited above.

The plaintiff relies essentially on the uncontradicted testimony

of Harry Petsis, the marine superintendent of Hellenic, to support

her contention that the base of operations of Hellenic is located

in the United States.*

8. The plaintiff also contends that because American courts have exercised

jurisdiction over this defendant in previous cases, we should do the same. The

defendant cites several cases as support for this contention, including Hellenic

Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970); Masonite Corp. v. Hellenic Lines,

Lid., 412 F. Supp. 434 (S.D. N.Y. 1976); R. L. Pritchard & Co. v. S.S.

10a

Appendix A

(sic) testified that he has an office in New York City and that

Hellenic has a fleet of approximately twenty-four ships operating

on the East Coast of the United States, but that this number

fluctuates. He further testified that he supervises five port

engineers, that he is responsible for the maintenance of the huils

and machinery of Hellenic’s East Coast fleet and that all repairs

to this fleet have to be funneled through New York City. In

addition, the record contains evidence that the HELLENIC STAR

had called on at least two American ports before arriving in

Norfolk in May of 1977.°

We FIND such evidence insufficient proof that the base of

operations of Hellenic Lines is located in the United States. The

plaintiff presented no evidence of the extent of the defendant’s

worldwide operations, the nationality or domicile of the owner(s)

of the defendant, the location of the defendant’s principal business

office, or the percentage of the income of the vessel and the

defendant derived from contacts with the United States. Without

such information, we are unable to determine whether the activities

(Cont’d)

HELLENIC LAUREL, 342 F. Supp. 388 (S.D. N.Y. 1972); Mpiliris v. Hellenic

Lines, Ltd., 323 F. Supp. 865 (S.D. Tex. 1970), aff’d per curiam, 440 F.2d

1163 (Sth Cir. 1971); and Vassalos v. Hellenic Lines, Ltd., 482 F. Supp. 906

(E.D. Pa. 1979). The first four cases cited are inapposite because they only

reflect the status of the defendant as it existed several years prior to the accrual

of the instant cause of action. Vassa/los is inapposite because, in that case, the

issue Of jurisdiction was never raised.

9. The plaintiff asserts that Mr. Petsis testified that he was in charge of

eight, not five, port engineers and that New York City was the center of

operations of the fleet. We have carefully reviewed a transcript of the testimony

of Mr. Petsis and find nothing in his testimony to support these assertions.

lla

Appendix A

of Hellenic Lines in this country encompass a small or a large

percentage of its total worldwide activities. Accordingly, the

plaintiff has failed to meet its burden of proof that the base of

operations of the defendant is located in the United States.

Thus even under the more liberal standard established by

Rhoditis, the plaintiff has failed to demonstrate that the defendant

has substantial enough contacts with the United States to justify

the application of either the Jones Act or general American

maritime law. Only two of the eight factors enumerated in

Lauritzen and Rhoditis, the place of the injury and the law of

the forum, point to the application of American law. Moreover,

these factors are to be given relatively little weight in comparison

to the other six factors, all of which point to the application of

Greek law. See Morewitz v. Andros Compania Maritima, S. A.,

614 F.2d 379, 383 (4th Cir. 1980). The plaintiff only asserted the

Jones Act and general maritime law as the bases for this Court’s

exercise of jurisdiction over the dispute. Because neither of these

bodies of law is applicable to the instant dispute, this Court had

no jurisdiction to hear the case. Accordingly, the defendant’s

Motion for a Judgment Non Obstante Veredicto is GRANTED.

The Clerk is DIRECTED to enter judgment in favor of the

defendant.

/s/ J. Calvitt Clarke, Jr.

United States District Judge

August 21, 1981

Norfolk, Virginia

12a

APPENDIX B—OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT (PANEL)

AND DISSENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-1870

MARIA DRACOS, as Administratrix of the Estate of Nicholas

Dracos, Deceased

Plaintiff-Appellant

v.

HELLENIC LINES LIMITED, a Corporation

Defendant-Appellee

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District

Judge.

Argued March 4, 1982 Decided April 27, 1983

Before WIDENER and MURNAGHAN, Circu't Judges, and

POTTER, District Judge.*

* United States District Court for the Western District of North Carolina, sitting

by designation.

l3a

Appendix B

Avram G. Adler (Anne E. Fialkowski, Adler, Barish, Levin and

Creskoff; C. Arthur Rutter, Jr., John H. Klein, Breit, Rutter

& Montagna, on brief) for Appellant; Carter B. S. Furr, W. L.

Berkley, III (Jett, Agelasto, Berkley, Furr & Price, on brief) for

Appellee.

WIDENER, Circuit Judge:

This appeal presents to us the principal issue of what, if any,

collateral estoppel effect facts previously found which underlie

the choice of law in a maritime tort action should have in resolving

a similar choice of law issue in a later action. Also involved is

whether there are sufficient American contacts to require a choice

of the law of the United States. The disirict court refused to give

collateral estoppel! effect to prior cases and concluded that the

law of the United States did not apply. On the basis of this choice

of law, the district court further concluded that it lacked subject-

matter jurisdiction and granted the defendant’s motion for

judgment notwithstanding the verdict. We affirm.

I.

Nicholas Dracos was the chief engineer aboard the M/V

HELLENIC STAR. He was last seen alive on May 14, 1977, when

the ship was berthed in Norfolk, Virginia. Later that day, members

of the crew found Dracos dead in the ship’s refrigerator hold.

Maria Dracos, the widow of Nicholas Dracos and the

administratrix of his estate, filed suit on account of the death

of her husband against Hellenic Lines, Ltd., which was his

employer and the ship’s owner. The complaint asserted causes

of action for damages on account of negligence under the Jones

l4a

Appendix B

Act, 46 U.S.C. § 688, and for unseaworthiness under the general

‘*American Maritime Law,’’ apparently as a pendent claim. See

Romero, infra, p. 380.

Throughout the course of this action, the defendant contested

the district court’s jurisdiction on the ground that the law of the

United States did not apply. The defendant raised the issue of

the applicability of foreign law in its answer and reiterated its

position in its pretrial statement of issues and in various motions.

Because it believed that Greek law determined the rights and

liabilities of the parties, the defendant also asserted that the

plaintiff’s causes of action did not arise under the laws of the

United States and thus the plaintiff had failed to state a

jurisdictional basis for her suit. After the jury returned a plaintiff’s

verdict, the defendant moved for judgment n.o.v. Upon

considering this motion, the district court concluded that neither

federal law nor general maritime law of the United States applied

in this case. The district court thus found itself to be without

jurisdiction and entered judgment for the defendant.'

1. We have not had urged upon us and do not decide any effect The Bremen

and Mercury Coal cases, infra, should have upon our decision, but note that

if the rules followed in those cases apply here the result would be the same.

We also note that in Lauritzen, infra, at 589, the Court recognized that a

contractual choice of law should generally control the parties’ rights and duties,

unless public policy requires otherwise. While Rhoditis, infra, did not in terms

address the contractual choice of forum question, it could have been raised

in that case. Whether there is any inconsistency between Rhoditis and The

bremen, the court has not decided.

In The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972), decided

after Rhoditis, infra, the Court upheld a forum selection clause in an international

contract in an admiralty case, even though it would result in the application

(Cont'd)

15a

Appenaix B

II.

Federal courts are courts of limited jurisdiction; their

jurisdiction will not be presumed. Lehigh Mining & Manufacturing

Co. v. Kelly, 160 U.S. 327, 337 (1895). Accordingly, plaintiffs

must affirmatively plead the jurisdiction of the federal court.

FRCP 8(a)(1); McNutt v. General Motors Acceptance Corp., 298

U.S. 178, 189 (1936). Of course, a federal court has jurisdiction

to inquire into its own jurisdiction, Romero v. International

Terminal Co., 358 U.S. 354, 359 (1959), and the district court

did just that in the case at hand.

The plaintiff concedes, as she must, that she had the burden

of showing such facts that would lead the court to choose

American law. Therefore, the plaintiff’s burden of proving

jurisdiction was principally a burden to show that the court must

choose American law, for on its choice of law its jurisdiction

depended.

In Laritzen v. Larsen, 345 U.S. 571, 583-90 (1953), the

Supreme Court enumerated seven factors to be considered in

choosing the proper choice of law to govern a maritime tort: (1)

the place of the wrongful act, (2) the law of the flag, (3) the

(Cont’d)

of foreign law in a foreign court. It held that forum-selection clauses are prima

facie valid and should be enforced unless they are unreasonable under the

circumstances. Id. at 10. The Bremen involved causes of action in contract and

in tort, but the Court placed a heavy burden of proof on the party claiming

that the particular controversy was not one in mind when the parties contracted.

Id. at 17. The Bremen has been followed, in this Circuit and elsewhere, in cases

not involving international contracts or suits in Admiralty. See Mercury Coal

& Coke Inc. v. Mannesmann Pipe and Steel Corp., slip op. at 5-6, No. 82-1145

(4th Cir. 1982).

l6a

Appendix B

allegiance or domicile of the injured seaman, (4) the allegiance

of the defendant shipowner, (5) the place of the execution of the

employment contract, (6) the inaccessibility of the foreign forum,

and (7) the law of the forum. The Court explained that like factors

guide choices of law in light of the interests of the governments

and national interest involved. Id. at 582. They also determine

the applicability of both the Jones Act and general maritime law.

Romero, supra, at 382. The Supreme Court has also said that

these seven factors are not exhaustive and that they should not

be applied mechanically. Hellenic Lines, Lid. v. Rhoditis, 398

U.S. 306, 308-09 (1970). The Rhoditis Court added other factors

to be considered in choosing the proper law. The presence of the

foreign shipowner’s base of operations within the United States

was an important factor in making the Jones Act apply to a foreign

seaman’s tort claim. 398 U.S. at 309. Additionally, it was held

that the substantial and continuing American contacts of Hellenic

Lines had to be considered. 398 U.S. at 310.

The district court in the case before us carefully considered

these factors. The defendant shipowner and employer. was a Greek

corporation. Its vessels flew the Greek flag and were registered

under Greek law. Both the plaintiff and her husband were Greek

citizens and domiciliaries. The contract of employment between

Nicholas Dracos and the defendant was drafted and executed in

Greece as a collective bargaining agreement of the Panhellenic

Seaman’s Federation. The contract made Greek law in Greek

courts control the rights and liabilities arising from the employment

relationship. Maria Dracos had remedies available in a Greek court

had she chosen to seek them.

The district court found that only two of the Lauritzen factors

pointed to the selection of American law. Nicholas Dracos died

while the M/V HELLENIC STAR was berthed in Norfolk, and

17a

Appendix B

his widow sued in the United States District Court for the Eastern

District of Virginia. As the district court correctly noted, these

two factors are relatively unimportant in a maritime context.

Because a ship may travel through waters governed by various

nations, the test of lex loci delicti would introduce an untoward

uncertainty in which standards apply. Romero, supra, at 384;

Lauritzen, supra, at 583. The nature of maritime commerce is

such that a vessel will inevitably have contacts with many different

nations. If the courts of each nation with substantial contacts

applied their own law, the overlapping duties imposed on

shipowners would blight maritime shipping. Lauritzen at 581. And

as is often the case with maritime torts, the place of the wrong

in this case was fortuitous. Romero at 384.

The filing of suit in federal court is also immaterial unless

this country has a significant interest in having its law applied.

See Lauritzen, supra, at 590-91. An American interest can be most

readily made out when the two most important Lauritzen factors,

the ship’s flag and the shipowner’s allegiance, point to this country.

Lauritzen, supra, at 584-87. In Rhoditis, however, the Supreme

Court decided that an analysis should take into account substantial

and continuing American contacts. Rhoditis held that when the

shipowner, although a foreign corporation, had its base of

operations in the United States, and had substantial and continuing

contacts with this country, then American law applied in a

maritime tort action. Rhoditis, supra, at 310.

In concluding that American law did not apply in this action

against the same party defendant sued in Rhoditis, the district

court examined the evidence of the defendant’s operations and

contacts with the United States. The court found the evidence

insufficient to show an American base of operations or substantial

enough American contacts to require an application of either the

18a

Appendix B

Jones Act or géneral American maritime law. These findings are

factual and are not clearly erroneous FRCP 52(a). It also

concluded that earlier cases in which federal courts determined

that American law applied in cases involving Hellenic Lines had

no collateral estoppel effect.

ITI.

In the district court, the plaintiff relied on a number of cases,

in which Hellenic Lines had been involved in the federal courts,

to support its theory of offensive collateral estoppel. On appeal

it does not rely on any of them except Rhoditis, which we will

discuss later, and Vassalos v. Hellenic Lines, 482 F.Supp. 906

(E.D. Pa. 1979). Vassalos does not serve as an estoppel because

there was no choice of law question decided in that case. Plaintiff’s

claim that Hellenic stipulated in Vassalos to the applicability of

the Jones Act is an incorrect construction of that opinion, which

states that the stipulation in question was that the action was

‘*prosecuted pursuant’’ to the Jones Act, not a stipulation of choice

of law to confer jurisdiction.

In Rhoditis, the Supreme Court held that the defendant was

subject to American law based on a finding that ‘ ie shipowner

had its base of operations in the United States and had substantial

and continuing American contacts. Those findings, however,

concern the defendant’s operations only at the time of the Rhoditis

case. The Rhoditis Court did not purport to find that the defendant

had its operations permanently based in this country or that its

American contacts would continue indefinitely. Twelve years

elapsed between the injury to Rhoditis and the death of Dracos.

The plaintiff in this action, who was neither a party nor in

privity with a party to the Rhoditis litigation, asserts that she does

19a

Appendix B

not bear the burden of proving that the defendant had an American

base of operations or substantial continuing American contacts

because of the effect of the findings in Rhoditis. This is her

principal claim on appeal.

The plaintiff’s assertion is made possible by the discard of

the doctrine of mutuality. That doctrine prevented a party from

using a prior judgment to estop an adverse party from contesting

an issue unless both parties were bound by the judgment. Blonder-

Tongue Laboratories, Inc. v. University of Illinois Foundation,

402 U.S. 313, 328 (1971). Blonder-Tongue approved in patent

cases a defensive use of collateral estoppel, which in that case

was a defendant’s attempt to estop the relitigation of an issue

that the plaintiff had already unsuccessfully litigated in a suit

against another defendant. Blonder-Tongue, however, was a

prelude to the offensive use of collateral estoppel by which a

plaintiff may seek to estop a defendant from relitigating an issue -

previously litigated and lost to another and different plaintiff.

In Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), the

Supreme Court sanctioned the use of offensive collateral estoppel.

Parklane approved a plaintiff’s estoppel of a defendant from

litigating an issue the defendant had previously lost ia a suit against

another and different plaintiff. In doing so, however, the Court

granted district courts ‘‘broad discretion to determine when it

should be applied.’’ Parklane at 331.

In the instant case, the plaintiff’s attempt to preclude the

defendant from relitigating the issue of the location of its base

of operations or the substantiality of its American contacts is

20a

Appendix B

its claim to the use of offensive collateral estoppel.? The district

court considered the propriety of allowing the defendant to be

so estopped, and concluded that the doctrine should not apply.

In refusing to apply the doctrine, the court reasoned at one place

that earlier adjudication reflected the status of the defendant only

as it existed several years prior to the accrual of the cause of action

(twelve years between Rhoditis and the instant case, and ten years

in the only other case on point). We think that the district court’s

holding that the doctrine did not apply to the defendant is not

an abuse of its broad discretion in view of the lapse of time.

The dynamic nature of the shipping industry, with its

constantly changing economic climate and regularly changing

fleets, ports, and operations, indicates a changing factual situation

that may require the choice of American law under Lauritzen

and Rhoditis one year but may not require the same choice some

years later. The district court pointed out in its opinion relevant

facts with respect to base of operations and American contacts

proved to have existed at the time of Rhoditis which the plaintiff

did not prove continued to exist at the time of the injury or trial

in this case. That is an additional reason for us to find that the

district court did not abuse its discretion in declining to apply

collateral estoppel to the facts necessary to make a choice of law

upon which its jurisdiction depended. The case of International

Shoe Machine Corp. v. United Shoe Machinery Corp., 315 F.2d

449 (Ist Cir. 1963), is persuasive here. In that case, offensive

collateral estoppel was claimed under § 5 of the Clayton Act,

2. We should say at this point that the issue presented to us was not

presented to the district court in quite the same context. We have examined,

for example, the briefs filed with respect to the motion for judgment n.o.v.

and do not find any reliance on Parklune. And that case is not relied upon

here although its application is the controlling authority.

2la

Appendix B

15 U.S.C. § 16, which established a kind of statutory offensive

collateral estoppel well prior to the Parklane decision. The statute

permits a final judgment or decree in favor of the United States

to be used as prima facie evidence by any other party as to all

matters to which the defendant would be estopped in another

action by the government. The court held that offensive collateral

estoppel did not apply because the first judgment related only

to the period embraced by the evidence adduced at the first trial.

315 F.2d at 457. Unless it is shown that the condition found at

a first trial is so permanent as to be unlikely to be disturbed,

then we think offensive collateral estoppel may not be used with

respect to that condition unless it be shown that the facts upon

which the condition was based continued 19 exist. Such facts were

not shown here, as the opinion of the district court pointed out.

We are thus of opinion that the district court did not err

in its choice of law upon which its jurisdiction depended, snd

its judgment is

AFFIRMED.

22a

Appendix B

MURNAGHAN, Circuit Judge dissenting:

Before the decision in Hellenic Lines Ltd. v. Rhoditis, 398

U.S. 306 (1970), the course which this case should have taken |

would have been simple enough. The plaintiff, customarily saddled

with the burden of establishing a right to recovery, would have

had to adduce evidence sufficient to establish all the elements

of a cause of action under the Jones Act, 46 U.S.C. § 688.'

1. Those ingredients include not only proof of the requisite wrongful

conduct, but also proof of American contacts sufficient to establish the

applicability of the Jones Act to the defendant, Hellenic Lines Ltd. While the

appellee and the district judge have referred to the issue of Hellenic’s American

contacts as one going to the subject matter jurisdiction of the district court,

it seems more proper to recognize the issue as relating to the existence ve/ non

of a cause of action. As would be the case with any statutory cause of action,

a failure to establish that the statute applies to the set of facts presented would

lead to a judgment on the merits against the plaintiff, and not to a dismissal

for lack of subject matter jurisdiction. See, e.g., Romero v. International

Terminal Operating Co., 358 U.S. 354, 357 n.4, 359, 381, 382 n.53, 385 (1959).

‘*As frequently happens where jurisdiction depends on subject matter, the

question whether jurisdiction exists has been confused with the question whether

the complaint states a cause of action.’’ Jd. at 359. The Supreme Court’s decision

in Bell v. Hood, 327 U.S. 678 (1946), serves as the guide that will lead us out

of the confusion. A well-pleaded complaint that arguably states a cause of action

satisfies the subject matter jurisdiction requirement; upon further proof and

consideration of the law, the cause of action might fail on its merits, but all

the while subject matter jurisdiction remains undisturbed. |

A parallel to the Sherman Act highlights the difference between subject

matter jurisdiction and the cause of action itself. Read at face value, the Sherman

Act condemns ‘‘[e]very contract . . . in restraint of trade,’’ 15 U.S.C. § 1; the

Jones Act makes liable any ‘‘defendant employer’’ in a.suit brought by ‘‘[a]ny

seaman’’, 46 U.S.C. § 688. But just as an understanding of the Sherman Act’s

(Cont'd)

23a

Appendix B

The Rhoditis adjudication changed the scenario to a

significant degree. In Rhoditis, it was established in a trial in federal

district court, was affirmed by a court of appeals, and was

impressed with the imprimatur of the Supreme Court, that Hellenic

Lines Ltd. (‘‘Hellenic’’), the same party defendant in a Jones

Act case as the defendant in the case sub judice, was an

- “employer’’ for purposes of the Jones Act. The voluminous

evidence marshalled in the Rhoditis litigation showed that Hellenic

had sufficient American contacts to bring its activities under the

purview of the Act.

(Cont’d) :

legal and policy heritage compels a conclusion that Congress did not really intend

to proscribe ‘‘every’’ contract that restrains trade, e.g., Standard Oil Co. v.

United States, 221 U.S. 1 (1911); United States v. Joint-Traffic Assn., 171 U.S.

505 (1898), an understanding of the backdrop of the Jones Act compels a similar

conclusion that not every ‘‘defendant employer’’ truly was intended to be

governed by the Act’s proscriptions. The common law doctrine of ‘‘ancillary

restraints,’’ for instance, early was seen as a limitation on the plain and

widereaching language of the Sherman Act, e.g., United States v. Addyston

Pipe & Steel Co., 85 F. 271 (6th Cir. 1898), aff’d, 175 U.S. 211 (1899); the

words of the Sherman Act, accordingly, had to be treated as terms of art.

Similarly, longstanding principles of international comity and the traditions of

admiralty practice inform and limit the plain, widereaching language of the

Jones Act, rendering the words of that Act terms of art as well. Hellenic Lines

Lid. v. Rhoditis, 398 U.S. 306, 314-15 (1970) (Harlan, J., dissenting). An antitrust

plaintiff who fails to establish that the contract he or she challenges is among

those special contracts condemned by the Sherman Act plainly will suffer an

unfavorable judgment on the merits. E.g., Packard Motor Car Co. v. Webster

Motor Car Co., 243 F.2d 418 (D.C. Cir. 1957), cert. denied, 355 U.S. 822 (1987).

So, too, should a Jones Act plaintiff lose on the merits, rather than see the

case dismissed for want of jurisdiction, whenever he or she fails to establish

that the employer he or she sues is among those special ‘‘defendant employer{s]’’

subject to the Act.

24a

Appendix B

In my view the Rhoditis case should have been accorded

presumptive collateral estoppel effect? by the district court, and

the burden was Hellenic’s to establish a change in circumstances

since the Rhoditis litigation sufficient to relieve that adjudication

of preclusive effect. By refusing to place that burden upon Hellenic

and, instead, requiring the plaintiff, Dracos, to remake, if indeed

not reinvent, the entire wheel, the majority has carried the concept

of ‘‘changed circumstances’’ to an extreme that saps the collateral

estoppel doctrine of its vitality. Cf, Scooper Dooper Inc. v. Kraftco

Corp., 494 F.2d 840, 846 (3d Cir. 1974) (‘‘Rare would be the

case in which counsel could not conjure up some factual element

that had changed between adjudications.’’).

I

Time can work changes, a fact noted by the majority and

an observation as to which no reasonable mind could register

dissent. The question to be resolved here, however, is whether

the mere possibility of change—a truism—should be allowed to

render meaningless a factual finding reached a dozen years before

after full, fair and vigorous litigation which, at least as likely as

not, is dispositive of the case currently before us. To that properly

phrased question, I submit, there is but one answer.

A

I have stated the question in terms of a mere possibility of

change because, as a careful reading of the majority opinion

2. We need not, for present purposes, investigate to what extent

“*presumptive collateral estoppel’’ differs from, or merely is contained within,

the concept of a failure to meet the burden of proving the opposite.

25a

Appendix B

will reveal, that is precisely what confronts us here. The linchpin

of the majority’s argument reads as follows:

The dynamic nature of the shipping industry, with

its constantly changing economic climate and

regularly changing fleets, ports, and operations,

indicates a changing factual situation that may

require the choice of American law . . . one year

but may not require the same choice some years

later.

Ante, at 10. The majority’s premise—that the shipping industry

presents a constantly changing factual situation—is divined from

nothing. No fact drawn from the record, no fact ascertainable

by way of judicial notice, is summoned to set the shipping industry

apart from the host of other industries implicated in litigation daily.

More importantly, the majority opinion, by abstracting the

inquiry into one regarding an entire industry, fails to focus upon

the relevant circumstances that are or are not so likely to change.

It is not the entire shipping industry with which we primarily are

concerned, but a specific business enterprise—Hellenic. Even less

in the way of evidence suggests that Hellenic is a particularly

volatile corporation subject to any change in circumstances that

are pertinent here. Indeed, the evidence that we do have, along

with the contentions of the parties here on appeal, is to the

contrary. Of the circumstances established as pertinent by the

Supreme Court in Rhoditis—i.e.; the circumstances implicitly

assumed to be rife for change in the majority opinion—particular

consideration was paid to the fact that Hellenic’s owner was a

lawful permanent resident alien of the United States who had

attained such status 18 years before that litigation. Rhoditis, 398

U.S. at 309. The owner’s base of operations was New York, id.

26a

Appendix B

at 310, and the ship upon which the injury occurred was among

several Hellenic ships ‘‘earning income from cargo originating

or terminating here,’’ id. at 310. Confronted with those

circumstances, the Rhoditis Court could ‘‘see no reason whatsoever

to give the Jones Act a strained construction so that this alien

owner, engaged in an extensive business operation in this country,

may have an advantage over citizens engaged in the same business

by allowing him to escape the obligations and responsibility of

a Jones Act ‘employer.’ ’’ Jd. at 310.

As to those circumstances—the only circumstances that

matter—what is there present in the record to support the

proposition that change is anything more than a possibility? It

is possible that, over the course of the twelve year period separating

the Rhoditis decision and the present case, a change of ownership

or a change in the owner’s base of operations might have occurred.

Certainly, though, it cannot be disputed that it is as likely that

no change has occurred (or that any change has strengthened the

plaintiff’s case) as it is likely that change in fact has taken place

which dictates a result different from that reached in RhAoditis.’

3. Hellenic contends that the owner in fact has died. Brief for Appellee

25. The plaintiff contends that the death of the owner is irrelevant because

his death did not occur until after her cause of action accrued. Reply Brief

for Appellant 7. The record, however, is silent. Lacking evidence, we can only

surmise that pertinent change is no more likely than irrelevant change. There

is no evidence bearing on who the successor owner or owners were, or what

were their citizenships and residences.

The record, it is fair to say, is in a state of great uncertainty surrounding

the entire matter. That further demonstrates the speculative nature of change

supposed to exist on the mere basis of the passage of twelve years. Who bears

the burdens associated with the speculative nature of time and the changes it

brings is, as shall be seen, the critical matter we should address in a principled

fashion.

27a

Appendix B

It is a possibility that Hellenic’s fleet might no longer service

the United Siates to the extent that it did in 1970. But we do

know, from Hellenic’s own contentions, that its fleet still services

the United States and that, in fact, Hellenic still operates regularly

from a pier in New York. Knowing that much, it can only be

concluded that change is no more likely than no change.

The case, then, involves but a truism: It is merely possible,

but by no means more likely than not, that Hellenic’s

circumstances have changed.

B

The question properly stated, the answer easily follows. Where

it is just as likely as not that circumstances have remained the

same, where evidence of changed circumstances as a matter of

fact is most readily available to the party against whom a prior

judgment is asserted as collateral estoppel, and where there can

be no question that the prior judgment was the product of a full,

fair, and vigorous litigation, that prior judgment should be

accorded presumptive collateral estoppel effect. The plaintiff was

entitled to assert the Rhoditis decision and thus establish a prima

facie case that Hellenic is a Jones Act ‘‘employer.’’ The burden,

then, properly shifted to Hellenic to come forth with facts pertinent

to areal, and not hypothesized, change in circumstances sufficient

to relieve the Rhoditis decision of preclusive effect. That Hellenic

has not done.

Precisely such an approach is recommended by § 27 of the

28a

Appendix B

Restatement (Second) of Judgments, which in pertinent part,‘

provides:

When an issue of fact or law is actually litigated

and determined by a valid and final judgment, and

the determination is essential to the judgment, the

determination is conclusive in a subsequent

action... whether on the same or a different

claim.

The Restatement’s drafters foresaw the difficulties that might

arise due to a change in circumstances, and addressed the issue

in comment c of § 27. Consistent with those scholars who have

given the matter careful thought, e.g., 18 C. Wright, A. Miller

& E. Cooper, Federal Practice and Procedure § 4417, at 159-69

(1981), the drafters of the Restatement advocated a flexible

approach to the problem of time and the probable changes it wili

work. Under their view, a prior adjudication should be given no

effect only when ‘‘the bearing of the first determination is so

marginal because of the separation in time and other factors

negating any similarity.’’ § 27, comment c (emphasis supplied).

Where some time has passed, but not so much time that the first

determination can rationally be deemed impertinent—our case—

4. Omitted from the quotation of the Restatement’s text is its qualification

that the subsequent action be one ‘‘between the parties’’ to the first litigation

asserted to be preclusive. The requirement of mutuality, of course, has fallen

by the wayside, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), as

the drafters of the Restatement recommended, Restatement (Second) of

Judgments § 29. Section 29 makes pellucidly clear that the existence ve/ non

of a mutuality requirement has absolutely no bearing on the issue presented

here, one involving only a question of possible change in factual circumstances

as time has gone by.

29a

Appendix B

the Restatement places the burden upon the party opposing the

application of collateral estoppel to show that change has in fact

occurred:

[I]Jn the absence of a showing of changed

circumstances, a determination that, for example,

a person was disabled, or a nonresident of the state,

in one year will be preclusive with respect to the

next as well. In other instances the burden of

showing changed or different circumstances should

be placed on the party against whom the prior

judgment is asserted.

§ 27, comment c.

The Restatement, of course, binds no one. But it is persuasive.

Good sense should control and the policy advocated in § 27 makes

eminently good sense. There is a public interest in reducing needless

litigation in our crowded and heavily pressed courts of the same

question time and again, absent some real reason to believe that

time has, indeed, brought change. The case against repetitive

litigation is stronger where, as here, the necessary evidence is not

easily available to the party seeking to invoke the prior litigation

but readily at hand to the party who would urge a change of

circumstances. Hellenic knows best what Hellenic does; if indeed

Hellenic’s circumstances have changed since 1970, then it is

Hellenic who is best situated to demonstrate that fact.

Integral to collateral estoppel policy, as well, is the public

interest in affording a party its day in court; the jurisprudence

of due process does not permit otherwise. Placing the burden on

Hellenic to establish some change in its circumstances, however,

is just such an offer of a day in court. Whatever hardship the

30a

Appendix B

placing of such a burden upon Hellenic might produce is, I submit,

negligible and, in any event, outweighed by the hardships that

otherwise must be endured by the judicial system and parties such

as the plaintiff here who should reasonably be able to rely as

meaningful upon a valid and final judgment in an earlier case

where the very same question was litigated.

II

The district court, I conclude, abused its discretion in refusing

te give any weight to the Rhoditis judgment, a determination

which, absent proof of a change in Hellenic’s circumstances, would

have established the applicability of the Jones Act and necessitated

a denial of defendant’s motion for judgment n.o.v. And because

there is absolutely no evidence in the record pointing to a change

in circumstances, the judgment n.o.v. obviously must be reversed.

Rather than reinstating the jury’s verdict for the plaintiff,

however, we should remand the case for a new trial only on the

issue of the applicability of the Jones Act—i.e., on the issue of

Hellenic’s American contacts. That disposition is required because

Hellenic, relying upon the trial judge’s ruling that the Rhoditis

decision vas of no use to the plaintiff, consequently offered no

proof of any changed circumstances it might have had available.

Hellenic is entitled to its day in court on that matter, and

a new trial restricted to the ‘‘contacts’’ question serves that end.

At that trial, the plaintiff would be entitled to assert the Rhoditis

decision to establish prima facie that Hellenic is a Jones Act

‘‘employer’’ with the requisite American contacts. Absent

production of sufficient evidence to the contrary by Hellenic,

judgment would be entered for the plaintiff on the verdict returned

by the jury. Should Hellenic sustain its burden on the ‘‘contacts’’

3la

Appendix B

question by showing a relevant change in circumstances, the

Rhoditis decision would then have no bearing cm the case here.

In that event, unless plaintiff succeeds in proving anew American

contacts sufficient to make Hellenic a Jones Act ‘‘employer’’ on

the date the injury occurred, judgment’ for the defendant

notwithstanding the verdict would be appropriate.

32a

APPENDIX C—ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-1870

MARIA DRACOS, as Administratrix of the Estate of Nicholas

Dracos, Deceased

Plaintiff-Appellant

V.

HELLENIC LINES LIMITED, a Corporation

Defendant-Appellant

ORDER

Upon a request for a poll of the court on the petition for

rehearing en banc, those voting in favor of rehearing en banc

were Chief Judge Winter and Judges Phillips, Murnaghan, Sprouse

and Ervin; those opposing rehearing en banc were Judges Russell,

Widener, Hall and Chapman.

It is accordingly ADJUDGED and ORDERED that the poll

has carried.

It is further ORDERED that the case will be reheard en banc

in the regular order of business of the court. The clerk will make

appropriate arrangements.

/s/ Ilegible

For the Court

re

33a

APPENDIX D—OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT (EN BANC)

AND DISSENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-1870

Maria Dracos, as Administratrix of the Estate of Nicholas Dracos,

deceased,

Appellant

versus

Hellenic Lines Limited, a corporation

Appellee

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District

Judge. (79-491-N)

On Petition for Rehearing E:» Banc.

Argued: December 5, 1983 Decided May 9, 1985

Following reargument en banc, and prior to our decision, Hellenic

Lines filed a bankruptcy proceeding in the United States

Bankruptcy Court for the Southern District of New York, Case

No. 83-B11776. As a result of the bankruptcy proceeding, the

34a

Appendix D

case before us became subject to the automatic stay provisions

of the Bankruptcy Code, which was lifted by an order of that

Bankruptcy Court October 1, 1984.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL,

PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, and

CHAPMAN, Circuit Judges.

Avram G. Adler (Anne E. Fialkowski, Adler, Barish, Levin and

Creskoff; C. Arthur Rutter, Jr., John H. Klein, Breit, Rutter

& Montagna, on brief) for Appellant; Carter B. S. Furr, W. L.

Berkley, III (Jett, Agelasto, Berkley, Furr & Price on brief) for

Appellee.

WIDENER, Circuit Judge:

This appeal presents to us the principal issue of what, if any,

collateral estoppel effect facts previously found which underlie

the choice of law in a maritime tort action should have in resolving

a similar choice of law issue in a later action. Also involved is

whether there are sufficient American contracts to require a choice

of the law of the United States. The district court refused to give

collateral estoppel effect to prioi cases and concluded that the

law of the United States did not apply. On the basis of this choice

of law, the district court further concluded that it lacked subject-

matter jurisdiction and granted the defendant’s motion for

judgment notwithstanding the verdict. We affirm

35a

Appendix D

I.

Nicholas Dracos was the chief engineer aboard the M/V

HELLENIC STAR. He was last seen alive on May 14, 1977, when

the ship was berthed in Norfolk, Virginia. Later that day, members

of the crew found Dracos dead in the ship’s refrigerator hold.

Maria Dracos, the widow of Nicholas Dracos and the

administratrix of his estate, filed suit on account of the death

of her husband against Hellenic Lines, Ltd., which was his

employer and the ship’s owner. The complaint asserted causes

of action for damages on account of negligence under the Jones

Act, 46 U.S.C. §688, and for unseaworthiness under the general

‘*American Maritime Law,’’ apparently as a pendent claim. See

Romero, infra, p. 380.

Throughout the course of this action, the defendant contested

the district court’s jurisdiction on the ground that the law of the

United States did not apply. The defendant raised the issue of

the applicability of foreign law in its answer and reiterated its

position in its pretrial statement of issues and in various motions.

Because it believed that Greek law determined the rights and

liabilities of the parties, the defendant also asserted that the

plaintiff’s causes of action did not arise under the laws of the

United States and thus the plaintiff had failed to state a

jurisdictional basis for her suit. After the jury returned a plaintiff’s

verdict, the defendant moved for judgment n.o.v. Upon

considering this motion, the district court concluded that neither

federal law nor general maritime law of the United States applied

36a

Appendix D

in this case. The district court thus found itself to be without

jurisdiction and entered judgment for the defendant. '

II.

Federal courts are courts of limited jurisdiction; their

jurisdiction will not be presumed. Lehigh Mining & Manufacturing

Co. v. Kelly, 160 U.S. 327, 337 (1895). Accordingly, plaintiffs

must affirmatively plead the jurisdiction of the federal court.

FRCP 8(a)(1); McNutt v. General Motors Acceptance Corp., 298

U.S. 178, 189 (1936). Of course a federal court has jurisdiction

to inquire into its own jurisdiction, Romero v. International

1. We have not had urged upon us and do not decide any effect The Bremen

and Mercury Coal cases, infra, should have upon our decision, but note that

if the rules followed in those cases apply here the result would be the same.

We also note that in Lauritizen, infra, at 589, the Court recognized that a

contractual choice of law should generally control the parties’ rights and duties,

unless public policy requires otherwise. While Rhoditis, infra, did not in ternis

address the contractual choice of forum question, it could have been raised

in that case. Whether there is any inconsistency between Rhoditis and The

Bremen, the Supreme Court has not decided.

In The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972), decided

after Rhoditis, infra, the Court upheld a forum selection clause in an international

contract in an admiralty case, even though it would result in the application

of foreign law in a foreign court. It held that forum-selection clauses are prima

facie valid and should be enforced unless they are unreasonable under the

circumstances. Id. at 10. The Bremen involved causes of action in contract and

in tort, and the Court placed a heavy burden of proof on the party claiming

that the particular controversy was not one in mind when the parties contracted.

Id. at 17. The Bremen has been followed, in this circuit and elsewhere, in cases

not involving international contracts or suits in admiralty. See Mercury Coai

& Coke, Inc. v. Mannesmann Pipe and Steel Corp., 696 F.2d 315, 317 (4

Cir. 1982).

37a

Appendix D

Terminal Co., 358 U.S. 354, 359 (1959), and the district court

did just that in the case at hand.

The plaintiff concedes, as she must, that she had the burden

of showing such facts that would lead the court to choose

American law. Therefore, the plaintiff’s burden of proving

jurisdiction was principally a burden to show that the court must

choose American law, for on its choice of law its jurisdiction

depended.

In Lauritzen v. Larsen, 345 U.S. 571, 583-90 (1953), the

Supreme Court enumerated seven factors to be considered in

choosing the proper choice of law to govern a maritime tort: (1)

the place of the wrongful act, (2) the law of the flag, (3) the

allegiance or domicile of the injured seaman, (4) the allegiance

of the defendant shipowner, (5) the place of the execution of the

employment contract, (6) the inaccessibility of the foreign forum,

and (7) the law of the forum. The Court explained that like factors

guide choices of law in light of the interests of the governments

and national interest involved. Id. at 582. They also determine

the applicability of both the Jones Act and general maritime law.

Romero, supra, at 382. The Supreme Court has also said that

these seven factors are not exhaustive and that they should not

be applied mechanically. Hellenic Lines, Ltd. v. Rhoditis, 398

U.S. 306, 308-09 (1970). The Rhoditis Court added other factors

to be considered in choosing the proper law. The presence of the

foreign shipowner’s base of operations within the United States

was an important factor in making the Jones Act apply to a foreign

seaman’s tort claim. 398 U.S. at 309. Additionally, it was held

that the substantial and continuing American contacts of Hellenic

Lines had to be considered. 398 U.S. at 310.

The district court in the case before us carefully considered

38a

Appendix D

these factors. The defendant shipowner and employer was a Greek

corporation. Its vessels flew the Greek flag and were registered

under Greek law. Both the plaintiff and her husband were Greek

citizens and domiciliaries. The contract of employment between

Nicholas Dracos and the defendant was drafted and executed in

Greece as a collective bargaining agreement of the Panhellenic

Seaman’s Federation. The contract made Greek law in Greek

courts control the rights and liabilities arising from the employment

relationship. Maria Dracos had remedies available in a Greek court

had she chosen to seek them.

The district court found that only two of the Lauritzen factors

pointed to the selection of American law. Nicholas Dracos died

while the M/V HELLENIC STAR was berthed in Norfolk, and

his widow sued in the United States District Court for the Eastern

District of Virginia. As the district court correctly noted, these

two factors are relatively unimportant in a maritime context.

Because a ship may travel through waters g.verned by various

nations, the test of lex loci delicti would introduce an untoward

uncertainty in which standards apply. Romero, supra, at 384;

Lauritzen, supra, at 583. The nature of maritime commerce is

such that a vessel will inevitably have contacts with many different

nations. If the courts of each nation with substantial contacts

applied their own law, the overlapping duties imposed on

shipowners would blight maritime shipping. Lauritzen at 581. And

as is often the case with maritime torts, the place of the wrong

in this case was fortuitous. Romero at 384.

The filing of suit in federal court is also immaterial unless

this country has a significant interest in having its law applied.

See Lauritzen, supra, at 590-91. An American interest can be most

readily made out when the two most important Lauritzen factors,

the ship’s flag and the shipowner’s allegiance, point to this country.

39a

Appendix D

Lauritzen, supra, at 584-87. 4nd in Rhoditis the Supreme Court

decided that an analysis sks) take into account substantial and

continuing American contacts. Rhoditis held that when the

shipowner, although a foreign corporation, had its base of

operations in the United States and had substantial and continuing

contacts with this country, then American law applied in a

maritime tort action. Rhoditis, supra, at 310.

In concluding that American law did not apply in this action

against the same party defendant sued in RhAoditis, the district

court examined the evidence of the defendant’s operations and

contacts with the United States. The court found the evidence

insufficient to show an American base of operations or substantial

enough American contacts to require an application of either the

Jones Act or general American maritime law. These findings are

factual and are not clearly erroneous. FRCP 52(a). It also

concluded that earlier cases in which federal courts determined

that American law applied in cases involving Hellenic Lines had

no collateral estoppel effect.

III.

In the district court, the plaintiff relied on a number of cases,

in which Hellenic Lines had been involved in the federal courts,

to support its theory of offensive collateral estoppel. On appeal

it does not rely on any of them except Rhoditis, which we will

discuss later, and Vassalos v. Hellenic Lines, 482 F. Supp. 906

(E.D. Pa. 1979). Vassalos does:not serve as an estoppel because

there was no choice of law question decided in that case.

In Rhoditis the Supreme Court held that the defendant was

subject to American law based on a finding that the shipowner

had its base of operations in the United States and had substantial

40a

Appendix D

and continuing American contacts. Those findings, however,

concern the défendant’s operations only at the time of the Rhoditis

case. The Rhoditis Court did not purport to find that the defendant

had its operations permanently based in this country or that its

American contacts would continue indefinitely. Twelve years

elapsed between the injury to Rhoditis and the death of Dracos.

The plaintiff in this action, who was neither a party nor in

privity with a party to the Rhoditis litigation, asserts that she does

not bear the burden of proving that the defendant had an American

base of operations or substantial continuing American contacts

because of the effect of the findings in Rhoditis. This is her

principal claim on appeal.

The plaintiff’s assertion is made possible by the discard of

the doctrine of mutuality. That doctrine prevented a party from

using a prior judgment to estop an adverse party from contesting

an issue unless both parties were bound by the judgment. Blonder-

Tongue Laboratories, Inc. v. University of Illinois Foundation,

402 U.S. 313, 328 (1971). Bionder-Tongue approved in a patent

case a defensive use of collateral estoppel, which in that case was

a defendant’s attempt to estop the relitigation of an issue that

the plaintiff had already unsuccessfully litigated in a suit against

another defendant. Blonder-Tongue, however, was a prelude to

the offensive use of collateral estoppel by which a plaintiff may

seek to estop a defendant from relitigating an issue previously

litigated and lost to another and different plaintiff.

In Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), the

Supreme Court sanctioned the use of offensive collateral estoppel.

Parklane approved a plaintiff’s estoppel of a defendant from

litigating an issue the defendant had previously lost in a suit against

another and different plaintiff. In doing so, however, the Court

4la

Appendix D

granted district courts ‘‘broad discretion to determine when it

should be appliea.’’ Parklane at 331.

In the instant case, the plaintiff’s attempt to preclude the

defendant from relitigating the issue of the location of its base

of operations or the substantiality of its American contacts is its

claim to the use of offensive collateral estoppel.* The district court

considered the propriety of allowing the defendant to be so

estopped, and concluded that the doctrine should not apply. In

refusing to apply the doctrine, the court reasoned at one place

that earlier adjudication reflected the status of the defendant only

as it existed several years prior to the accrual of the cause of action

(twelve years between RhAoditis and the instant case, and ten years

in the only other case on point). We think the district court’s

holding that the doctrine did not apply to the defendant is not

an abuse of its broad discretion in view of the lapse of time.

We do not hold that the approach taken by the district court

in this case is obligatory in each case, only that the approach

it took was within its discretion. The approach a district court

takes may well vary depending upon the facts of each case and

such factors, for example, as lapse of time, as here. If the facts

upon which choice of law and thus jurisdiction is based are fixed

and subject to litife or no change, then a district court may be

within its discretion nut to permit an effort to show change. On

the other hand, if the facts upon which jurisdiction is based are

inherently subject to change, then a district court may be justified

2. We should say at this point that the issue presented to us was not

presented to the district court in quite the same context. We have examined,

for example, the briefs filed with respect to the motion for judgment n.o.v.

and do not find any reliance on Parklane. And that case is not relied upon

here although its application is the controlling authority.

42a

Appendix D

in giving the prior finding no preclusive effect. Because the district

court applied no presumption here, we have no occasion to

consider whether or not any presumptive effect exists on account

of the Rhoditis finding, and we lay down no general rule to be

followed except that a district court may, within its discretion,

examine the facts surrounding jurisdiction, determine whether they

are fixed, or changing, or subject to change, and then ascertain

what effect a prior finding has in each case. In the case at hand,

the changing nature of the industry involved and the 12-year lapse

of time indicate that the district court’s action was consistent with

the flexible approach we think should be taken although it did

not denominate it as such. For a good discussion of the various

aspects of this issue, see Wright, Miller and Cooper, Federal

Practice and Procedure (1981), § 4417.

The dynamic nature of the shipping industry, with its

constantly changing economic climate and regularly changing

fleets, ports, and operations, indicates a changing factual situation

that may require the choice of American law under Lauritzen

and Rhoditis one year but may not require the same choice some

years later. The district court pointed out in its opinion relevant

facts with respect to base of operations and American contacts

proved to have existed at the time of Rhoditis which the plaintiff

did not prove continued to exist at the time of the injury or trial

in this case. That is an additional reason for us to find that the

district court did not abuse its discretion in declining to apply

collateral estoppel to the facts necessary to make a choice of law

upon which its jurisdiction depended. The case of /nternational

Shoe Machine Corp. v. United Shoe Machinery Corp., 315 F.2d

449 (ist Cir. 1963), is persuasive here. In that case, offensive

collateral estoppel was claimed under § 5 of the Clayton Act,

15 U.S.C. § 16, which established a kind of statutory offensive

collateral estoppel well prior to the Parklane decision. The statute

43a

Appendix D

permits a final judgment or decree in favor of the United States

to be used as prima facie evidence by any other party as to all

matters to which the defendant would be estopped in another

action by the government. The court held that offensive collateral

estoppel did not apply because the first judgment related only

to the period embraced by the evidence adduced at the first trial.

315'F.2d at 457. Unless it is shown that the condition found at

a first trial is so permanent as to be unlikely to be disturbed,

then we think offensive collateral estoppel may not be used with

respect to that condition unless it be shown that the facts upon

which the condition was based continued to exist. Such facts were

not shown here, as the opinion of the district court pointed out.

We are thus of opinion the district court did not err in its

choice of law upon which its jurisdiction depended, and its

judgment is

AFFIRMED.

44a

Appendix D

MURNAGHAN, Circuit Judge, dissenting:

In dissent following a rehearing en banc, I have little to add

to my dissent at the panel level appearing in Dracos v. Hellenic

Lines Ltd., 705 F.2d 1392, 1397 (4th Cir. 1983). I should point

out two things, however:

A. The statement that Greek law should apply made in the

contract between Hellenic and the seaman is put forth by the

majority as a factor somehow distinguishing the Supreme Court

decision in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 318

(1970), the case which creates in my judgment an offensive

collateral estoppel. For one thing, however, Hellenic delayed far

too long in seeking to raise the point. Second, and more

importantly, such a choice of law provision also appeared in the

contract involved in Rhoditis,’ yet was not given the effect the

en banc majority attributes to it. Hence the provision calling for

application of Greek law appearing in the Dracos contract hardly

suffices as a basis for distinguishing Rhoditis.

B. There is solace in the reasoned assessment by United States

District Judge Raymond J. Broderick in Papaioannoiu v. Hellenic

Lines, Ltd., 569 F.Supp. 724, 728-29 (E.D. Pa. 1983) of the issue

which separates the majority and me:

Upon serious reflection of the problems presented

in this litigation, this Court finds that Judge

3. Justice Harlan, dissenting, stated ‘‘In the case before us, there is no

reason to disregard either the law of the flag or plaintiff’s contractual undertaking

to accept Greek law as controlling . . . .”’ (Emphasis supplied). Yet the majority

of the Supreme Court did determine that there was a reason to disregard the

contractual undertaking to accept Greek law as controlling.

PREM CATTLE

45a

Appendix D

Murnaghan’s dissent enunciates the applicable rule

which gives the Rhoditis decision a presumptive

collateral estoppel effect regarding this Court’s

subject matter jurisdiction of Jones Act claims

against Hellenic. . . . The passage of time, without

more, is not sufficient to overcome the

presumption created by Rhoditis. As heretofore

noted, the defendant has not shown sufficiently

changed circumstances regarding Hellenic. This

Court therefore has determined that it has

jurisdiction in this action based on the eight factors

enunciated in Lauritzen and Rhoditis as well as

on the basis of the defendant’s failure to present

sufficient evidence to overcome the effect of the

collateral estoppel created by the findings of fact

in Rhoditis.

I am authorized to state that Judge Phillips joins in this

opinion.

WINTER, Chief Judge, dissenting:

I dissent for the reasons expressed in the dissenting panel

opinion, Dracos v. Hellenic Lines Ltd., 705 F.2d 1392, 1397 (4

Cir. 1983), and for the reasons expressed by Judge Murnaghan

in dissenting from the opinion of a majority of the in banc court.

46a

APPENDIX E—EXCERPTS OF TRANSCRIPT OF HARRY

PETSIS (PP. 13-15)

THE CourT: Oh, I don’t think so.

I overrule the objection.

BY MR. BERKLEY:

Q. You may answer the question.

Did you receive any complaints about the machinery

on the HELLENIC STAR prior to May 14, ’77?

A. No, as far as I remember.

Q. If you had received any, would they be in your file?

A. We have no — we have nothing in our file saying

that there was something major, abnormal, other than that, and

we have all these certificates which shows that everything was

in order.

MR. BERKLEY: Excuse me, Your Honor.

I have no further questions of this witness.

THE COURT: All right. You care to

cross-examine?

MR. ADLER: May I, Your Honor? May I, Your

Honor?

CROSS-EXAMINATION

BY MR. ADLER:

Oe LN Ne AEN 2 A OO =

47a

Appendix E

Q. | How many ships are there in the fleet operated by

Hellenic Lines?

A. Over on the East Coast of the United States, there

are approximate twenty-two to twenty-four. It varies. Sometimes

there are thirty. But I would say on the average of twenty-four

ships — twenty-two to twenty-four ships.

Q. All right. And your office is where? Where is your

office?

A. In New York.

Q. Where in New York?

A. 39 Broadway.

Q. And from 39 Broadway, you’re responsible for the

engineering —

You’re the marine superintendent?

A. That is correct.

Q. All right. And as marine superintendent, are you only

concerned with the engineering aspects of the vessel or are you

also concerned with the other departments on a vessel?

A. We’re concerned on hull and machinery maintenance.

Q. I see. Now, winches aboard a vessel are customarily

repaired by the deck department; isn’t that right?

A.

48a

Appendix E

No. If it’s mechanical repairs, which is mechanical

repairs, it’s by the engineers.

Q.

What parts of the vessel do you require the deck

department —

Q.

A.

Well, let me withdraw that question.

You have a deck maintenance man, don’t you, —

We have —

— among the deck — among the deck crew?

Well, we have the maintenance men of cleaning and

all belongs to the deck — on the decks, but the machinery belongs

to the engineer, the stuff.

Q.

All right. So that on this fleet of ships, of which the

HELLENIC STAR was one, all reports of survey, complaints,

major repairs, would have to come to you at 39 Broadway?

A.

Q.

On the East Coast, yes.

And you have a pier in New York, too, don’t you?

That’s correct; yes.

That’s Hellenic Lines’ pier.

It’s Pier 57, isn’t it?

It used to be, yes. It’s still our own property, but we

49a

Appendix E

moved to Northeast Terminal now, which is — Hellenic Lines

contracting.

Q. When did you move?

A. I would say about a year, fourteen months ago.

Q. Okay. Now, when a vessel would come in to Pier 57

in New York, did you conduct — did you have your...

50a

APPENDIX F—STIPULATION - FILED OCTOBER 2, 1984

UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT

OF NEW YORK

CASE NO. 83 B11776

IN RE:

HELLENIC LINES LIMITED,

Debtor,

STIPULATION

WHEREAS, there is currently pending in the Court of

Appeals for the Fourth Circuit the matter of Maria Dracos,

Adminstratrix of the Estate of Nicholas Dracos, Deceased, v.

Hellenic Lines Limited; and

WHEREAS, subsequent to the oral argument before the

Court of Appeals and while the matter was still pending, Hellenic

Lines Limited filed for protection under Chapter 11 of the

Bankruptcy Act of the United States Bankruptcy Court for ihe

Southern District of New York; and

WHEREAS, an Automatic Stay took effect on the filing of

the said Petition in Bankruptcy; and

WHEREAS, the Court of Appeals having already heard re-

argument and given the matter consideration was denied the

opportunity to render its decision; and

WHEREAS, on August 10, 1984, Petitioner, Maria Dracos,

Adminstratrix of the Estate of Nicholas Dracos, filed a Motion

for Relief from the Automatic Stay arising from the filing of the

Petition in Bankruptcy; and

Sla

Appendix F

WHEREAS, the relief sought is solely for the purpose of

allowing the Court of Appeals for the Fourth Circuit to render

its decision in the matter still pending before it; and

WHEREAS, this Stay shall remain in effect for all other

purposes.

IT IS HEREBY STIPULATED by counsel and the Attorney

for the Trustee in Bankruptcy that the Automatic Stay is

terminated solely for the purpose of allowing the Court of Appeals

for the Fourth Circuit to render its decision in the matter of Maria

Dracos, Administratrix of the Estate of Nicholas Dracos,

Deceased, v. Hellenic Lines Limited.

IT IS FURTHER STIPULATED that this Stay shall remain

in effect for all other purposes, and that no further actions shall

be taken by the Petitioner without application to this Court.

Respectfully submitted,

ADLER & KOPS

BY: /s/ Bruce D. Scherling BY: /s/ Carole F. Kafrissen

BRUCE D. SCHERLING, CAROLE F. KAFRISSEN,

ESQUIRE ESQUIRE

Attorney for Trustee in Attorney for Plaintiff

Bankruptcy Rohm & Haas Building

Suite 305 Second Floor

Six E. 45th Street Sixth and Market Streets

New York, NJ 10017 Philadelphia, PA 19106

(215) 625-9999

SO ORDERED:

BURTON R. LIFLAND

J.

Dated: October i, 1984

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