# Amicus Curiae Brief — Hellenic Lines Ltd. v. Rhoditis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0195%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 306 ## Text . : ra _fhe INDEX TO BRIEF’! Page : STATEMENT OF THE Cat i2.ks Seat cddinc sah cbewanes Te INTEREST OF NATIONAL MARITIME Unton OF AMERICA vase le 2: PRELIMINARY: STATEMENT .... pe eecewdbacebsons Snaakayines 4 . ARR es sss acawus os whack ahd aabeks Kianieeeee ae I. Where a Shipping Corporation Is Commercially Domi- » ciled in the United States and Its Stockholders Are U. S. Residents, and the Vessel’s Operations Are American- Based, and While in American Port a Foreign Seaman Is Injured Thereon in His Employment, the Facade of a -Foreign Flag Will Not Prevent the Application of the ‘Jones GR 5 nn Ws Oe Aids dees cds on hiked cca kane tie i /\ II. The Jones: Act Was Intended to Apply to and Benefit All f » Seamen on Vessels Owned or Operated by American In- terests Irrespective of the Flag Carried sete eee eeeee ees 15 CONCEAIGION 0. ccc secccccccpecccccces eee eee [Ae aes 4 seen 22 TAR OF CITATIONS. ‘ee Cited: | eee eo Bartholomew v. Universe. Tankships, 263 F. 2d 437 (2 Cir., ns RP CE SOME SOE ee Pa 10, 11, 13, 22 Cunard Steamship Co. v. Mellon, 262 U. S. 100, 67 L. ed. 894 RRUER Ss 6 arn vba heap nies bs nh VEL Peter pore err ee tt The Exchange v. McFad 7 Cranch = 3 L.*ed. 287° | CREE reek he Panchen ch cknss cdenmcsskshacev ee r5 Gambera v. Bergoty, 132 F. 2d 414 (2 Ci; WR). .8% 10, ‘20, 22 Gerradin v. United Fruit Co., 60 F. 2d 927 (2-Cir., 1932) ..20, 22 Groves v. Universe Tankships, Inc. (S. D. N. Y. > Jahuary ar 1970) 38 L. W. 2417 DEPRES ERAE A GAEDE S ROSS thoes s 11 International Longshoremen’s Local: 1416 v. Ariadne Shipping es nae eee Wee Saw (iby S88, October Term, soos scrips des sigs Be RE EE OOP PO Oe 22 : Kwong Hai Chew v. Colts. 344 ue s. 590, 97 L. ed. 576° (1953) atva’’s PeKCRND UMD DO Rohe eeu Es ba 06) bd we acs cs 14 "ii Lauritzen v. Larsen, 345 v. S. v1, 97 L. ed. 1254 (1953) "aia : 5, 6, 7, 8, 9, 10, 12, 13, 22 Leonhard v. Eley, 151 F. 2d 409 (10 Cir.,. 1945) rover fee Al, 14 Monteiro v. Sociedad Maritima San Nicolas, S. A., 280 F. 2d 568 (2 Cir., 1960) in ea Wke amk ed ves ee phianeshiwnesan 18 Romero v. -International Terminal ‘Operation Co., et ‘al, 358 U. S. 354, 3 L. ed. 2d 368 (1959) ....... bb ash ous bite ae is Southern Cross S. S. Co. v. Firipis, 285 F. 2d 651 (4 Cir., : BE) sib phweessehircasacel Weiaces Pde cssevivescc 13 Strathearn S. S. Ca. v. Dillon, 252 U. S. 348, 64 L. ed. 607 oe RARE ARISES BLE oS EER cee "18 Tsakonites v. Transpacific b sacsigcin Corp, 368 F. 2d 426 (2 Cir., UMN CME ead AES ERE MS Sin de deseo poeciicck, 8, 13 Wildenhus’ Cass, 120 "5. 1, 301: ot, at os ewan oes obs a 20 Uravie v. Jarka Co., 282 U. S. 234, 75 L. ed. 312 (1931) ...10, 22. TS AT N,N AOC EE RN ARN, Re ‘ TABLE OF CITATIONS (Gontinned). ie : "Statutes Cited: ; Page Jones Act of June 5, 1920, c. 250, Sec. 33, 41 Stat. 1007, 46 ao I A hic ears cchcac stn . 2, 17, 19, 21, 23 Merchant Marine Act of 1920, Act of June 5, 1920,. c: 250, 41_ Sent MP 46 USCA WE iiss eels 17 Seainan’s Act of March 4, 1915, 38 Stat. 1164, Ch. 153, Sec. 4 ..18, 23 .Seaman’s Welfare Act of March 4, 1915, c. 153, Sec. spe 38 Sent. 1008 3. asi. eve cceshiddsnctenseetersees 16 © ais Ca Wikn ius edar' bissenaseekkawes 7 Authorities Cited: ? ‘Boczek, “Flags of Convenience” (Harvard Univ. Press, 1962), ere ASONSbApSESHORA SASHA se ececcecges 19 Cong. Rec. E. 2267, March 20, 1969 ewes weds vewk sun's aki oc ae H. R. Rpt. No. 645, 62nd Cong., 2nd Session, p.7 ........... eye t Gures ‘ 3 t So. é <2 - @ IN THE 8 oe | et } a, . SUPREME COURT OF THE UNITED STATES Octoser TERM, 1969. eM ay \ HELLENIC LINES LIMITED. AND UNIvitesaL* _ CARGO CARRIERS, INC, oe, e j Petitioners, = v. . ZACHARIAS RHODITIS, : Respondent. BRIEF ON BEHALF OF NATIONAL MARITIME | ‘UNION OF AMERICA AS AMICUS CURIAE. © * ~ Sane ‘The N tional: Maritinfé Union of America has obtained and filed the written consents of counsel for all parties - herein to file ‘this brief as amicus curiae in support of respondent. is | statoiaont of the Case STATEMENT OF THE CASE. " F ad eeu: a Greek merchant seaman, dakar aboard ‘the S. S. ‘‘Hellenic. Hero”’ in.Greece. Said vessel is owned _ by Universal Cargo Carriers, Inc., a Panamanian corpora- _ tion, which in turn is owned by ‘Hellenic Lines, a Greek corporation. The vessel flies the Greek flag. The said companies are managed and controlled from rohit offices in New York City. Pericles G. Callimanopoulos, a Greek citizen, owns 95% of the stock of Hellenic Lines. He has resided in the | e/United States since 1945, and performs duties as managing ~ director of the company from his office in the United States. ’ Mr. -Callimanopoulos became a ‘‘permanent’’ resident- in 1957. Under his direction, the ‘‘Hellenic Hero”? regularly and continuously runs to and from United States ports.. ~ Said vessel earns its entire income from’ iigisoited * cargo to and from the United States. a On August 3, 1965, while aboard the vessel i in the Port of New Orleans, the respondent was injured because of the negligence of petitioners and the unseaworthiness of the vessel. He brought suit in the Southern District of Ala- - bama for damages under the Jones Act,! and obtained judg- ment against both petitioners. The petitioners appealed, contesting the applicability of the Jones Act. The United States Court of. Appeals for the Fifth Circuit affirmed the judgment, and denied rehearing (412 F. 2d 919 (1969) ). The companies filed Petitioh for Certiorari which was granted by this Court on January 12, 1970.. Briefs have been filed herein by the petitioners, and, upon consent of all parties, by the Royal Greek Government, the Greek Cham- “-ber of Shipping and the Union of Greek shipowners, as amici curiae, in support of:. petitioners. 1, Act of June 5, 1920, c. 250, Sec. 33, 41 Stat. 1007, 46 USCA | % National Maritime Union . 3 INTEREST OF NATIONAL MARITIME UNION OF AMERICA, The National Maritime Union he America, AFL-CIO, is a labor organization representing American merchant em? * seamen. is union represents approximately 40, 000 sea- . men and labor agreements with 89 American steamship compahies which operate cargo and panera vessels throughout the world. | This union and its members are ae and deeply concerned with the effect of any decision of this Court con- cerning the application of the Jones Act to a nierchant - seaman where, although the vessel flies a foreign flag, the principal stockholders of the company are residents of the” United States and the company has its principal offices i in the United States and conducts-its primary business here, and where the very ship involved earns its regular income from thé é cargo going to or from the United States—where the vessel is, in fact, flying a foreign ‘‘flag of convenience.”? . Although essentially American-owned and commer- _ cially domiciled in the United States, and regularly doing business in our commerce in dompetition with American- flag vessels, these companies are evading responsibility for. compliance with American statutes, labor standards, safety ' provisions, shipping regulations and tax laws, to the serious detriment of our merchant marine and our econt y- The t & ~ A ' growth and protection of the American merchant marine, . as well as the American national interest dre the constant . concern of this ‘union and its m manners. € “sai? e - 4 | ° * . Preliminary Statement PRELIMINARY STATEMENT. _ It would be in conflict with the. declarations of Con- gressional intent to conclude that, in enacting the Jones Act, . _* or any of the Merchant Marine Acts, Congress intended to exempt therefrom vessels owned and operated by companies: _ domiciled in the United States and/or owned by residents of the United States, because of the facade of a foreign flag. Such an exemption would confer upon these vessels, which’ regularly use our ports to compete with American-flag ship- | ping, a distinct competitive advantage in operational costs, at the expense of the American vessel and taxpayer. Public ‘policy relative to American economic and nhilitary require- _Ments demands that our laws bind equally all who are regu- . larly involved in our ‘commerce, be they citizens or aliens. Such conformity to American laws arid standards will place the alien on an equal basis with the American merchant marine in competing for American business. Permitting the law of the flag’ to govern blindly the activities of . these vessels would be an act of discrimination against our own merchant marine and our seamen. It is, indeed, cheaper to operate bey he pale of American laws, and, thus, it makes for easier competition against American-flag vessels in’the quest for the American dollar—free of American obligation, . | : | ar Where American national interest is involved, ‘all:who approach our shores for a share of our national product and economy must be subject-to our laws. This nation must not permit foreign-flag ships to take advantage of our bene- fits equally with the American merchant marine, and, simul-' - taneously, evade the accompanying obligations. The J ones _ Act, abroad ameliorating statute, was passed to benefit all seamen who come within the American jurisdiction, and all who submit thereto must be governed by that law. *- ae Is Commercially Domi- and Its Stockholders Are Vessel’s Operations Are can-Based, and ile in American Port a For- Seaman Is Injured Thereon in His Employment, th Facade of « Foreign Flag. Will Not Proven! th Application of the J ones ‘Act. — : The petitioners and the amici on their behalf seek bai . from the decision of this Court in Lauritzen v. Larsen, 345 U. 8. 57 1, 97 L. ed. 1254 (1953). The conclusion reached upon the facts in that case is wholly inapposite to the present _ one. However, the analysis and reasoning in ‘Lauritzen demonstrate the propriety of the Goctaion: of the Court be- _ low uponsthe instant facts. - . 5 In Lauritzen, this Court held that the Jones Act did nen apply to a seaman’s injury aboard a Danish-flag vessel -where the event, the seaman and the shipowners were all foreign, and the only American contact was that articles, were signed in New York. The Court noted that maritime | ; law tries to resolve conflicts between competing laws “‘by . ascertaining and valuing points of contact between the trans-.’ action-and the states or governments whose competing laws _ are involved’’; that is, the criteria are found by ‘‘weighing of the sigitiienids of.one or more connecting factors between ; the shipping transaction regulated and the national interest . served by the assertion of cps ae - .(U. S. at 582, L. ed. at 1267). ‘This Court then listed | seven factors to be weighed: 1, ~ The place of the wrongful act; 2. the.law of the flag; 3. the allegiance or domicile of the injurdd ; 4. the allegiance of the defendant shipowner ; 5. the place of contact ; 6. inaccessi- bility of foreign forum ; 7. the law of the forum. In Labriteen, 6. i i Arguyent the injury occurred in Cuba; hére, it occurred in the United States. In that case and this one, the injured-seaman was a foreigner, and a non-resident, In Lauritzen, it appeared aed this owner is a Dane by nationality and domicile” (U.S. at 588, L. ed, at 1270). But here, while the owning corporations may be Panamanian and Greek, the actual owners of these companies are 20 year domiciliaries of the’ a afi ' United States; and, as more fully discussed hereinafter, the companies themselves are domiciled in and operate wholly out of| United States executive offices. In Lauritzen, the seaman relied chiefly on the fact that shipping articles had been signed in New York. . This Court held that ‘‘the place . of contracting . . . was fortuitous’’ since the ‘‘seaman takes his employment ... . where he finds it’’ (©. 8. at 588, L. ed. at 1271).. Thus, the fact that Rhoditis signed on the ‘‘ Hellenic Hero”’ in Greece is of minimal, if any, significance. The . acvessibility of a foreign forum, comparable in both of these cases, was described by this Court in Lauritzen as ‘‘not per- suasive’’, since even American courts can grant a forum under a foreign law, if the Amerféan law be deemed in-. _applicable. (U.S. at 589-90, L. ed. at 1271-72). In both Lauritzen and the instant case, the forum was ' the same. In Lauritzen, however, this Court was caused to note that the fact that the shipowner does frequent business _ in the forum state ‘‘may fall quite short of the considera- " tions necessary to bring extra territovial torts to judgnient under our law.’’ (U.S. at 590, L. ed. at 1272.) But, in the instant case, first, the shipowner corporation has its main office in the United States, all management of business and operations is performed in the United States and the vessel -. involved operates exclusively to or from U. §. ports and earns its entire iricome in such commerce, Second, we are _-not here dealing with an ‘‘extra-territorial tort’’, but wi an event that occurred within the United States. The ques- tion for réview as expressed by the petitioners asks whether QF 3 4’ } 3 ” ° Argument ob has 7 & the courts below were correct in applying the Jones Act in this ‘case ‘‘solely’’ on the ground that the majority stock- _ holder of the corporate owner resided in the United States.? ° Petitioner ignores the fact that the accident occurred in the mee Port of New Orleans, and, that the petitioner corporations have their principal offices, operations and control here, 412 - F, 2d 919, 921, 924-25, at oh : The ‘‘law of thé flag” in Lauritzen, ’as here, was foreign. This Court there said that this factor is of ‘‘car- dinal importance’’ and must prevail ‘‘unless some heavy counterweight appears”’ (U.S. at 584, 586, L. ed. at 1269, 1270). In Lauritzen, this Court deemed the other ‘‘connect- ing events’’ as weighing heqvily in favor of Danish law, . since the only contrary factors were the facts that service ; of process was in New York and the plaintiff signed on the vessel there (U. S. at 592-93, L. ed. at 1273). Most’ signi- ficant are these remarks by Mr. Justice Jacksén’ (U. S. at . 592-93, L. ed. at 1273): “‘. . . We do rot question the power of Congress to condition access to our ports by foreign-owned vessels upon submission to any liabilities it may consider good | American policy to exact. But we can find no justif- erga cation for interpreting the Jones Act to. intervene be-. ee tween foreigners and their. own law because of acts on — ‘a foreign ship not in our Waters.” iF: is : Under this ‘Court’s ‘pervasive reasoning and discussion, the ‘facts in this ease demand the opposite conélusion, be- -cause the “‘heavy counterweight’’ does appear. _ .2. Petitioners assert that this stockholder resided here “as a - _ Yepresentative of Greece to the United Nations.” Howevef- the rec- ords show only testimony by a representative of petitioner’s claims - manager that Mr. Callimanopoulos was a member of the Greek dele- . gation to the United Nations (R. 114-116)» This is wholly in- “a sufficient ‘i achieve ergy Agen is pT to ambassadors and _ 3 ' Thinisters plenipotentiary, or specific designation and agreement. ‘ oT a U. N. and U. S., August 4, 1947, Gh. 482, Sec. 15, '22 USCA (note), Sec. 15. ; 8 , | Argument : The instant facts show that th Panamanian and Greek ‘ corporations which own the ‘‘Hellenie’ Hero”’ have princi- pal offices in New York and another in New-Orleans. Hel- lenic Lines is managed from a base in New York, and all duties of management are performed.there (412 F. 2d at. 921). Further, the ‘Hellenic Hero’’, which is the vessel involved, not only, regularly runs to or from United States ports, but her entire income is earned from cargo going to or from the United States. oh ae te ee In addition, and most significant to: this Court’s dis-. -eussion in ‘Lauritzen, these American-domiciled owning corporations are owned by shareholder's who have resided - in New York since 1945. The majority owner, Pericles | Callimanopoulos became a ‘‘permanent resident’? in 1956, or 1957.2 In New York, Mr. Callimanopoulos performs’ all) _ ' duties as managing director of the owning corporation, and it is under this direction that the ‘‘Hellenic Hero”? has been operating (412 F. 2d at 921). bee In Lauritzen, Mr. Justice Murphy made note ‘of the recent -practice of American shipowners adopting ‘flags of convenience’’, in discussing’ the ‘‘allegiance of the de- ' fendant'shipowner”’ (U. S. at 587-88, L. ed. at 1270) : “Until recent times this factor was ndt a frequent oc- ~ easion of conflict, for the nationality of the ship was . that of its owners. But it is. comnion knowledge that” ’ in recent years a practice has grown, particularly ~_among American shipowners, to avoid stringent ship- 3. Tsqkonites v. Transpacific .Carriers Corp., 368 F. 2d 426, - 427 (2 Cir., 1966). eee | 4. Petitioners. and ‘their amici urge that under this reasoning, “the great merchant fleets, passenger and cargo vessels” ‘such as Cunard Line, et al., should also be told that their “commercial pres- - ence in the. United States” overrides their flags (Brief of Amici’ . Curiae, Greek Chamber ‘of Shipping, et al., p. 10). This alarm is - . Obviously misconceived, for we .are here dealifig, not with mere’ “commercial presence” of ‘a foreign corporation,. but with corporate - , and shareholder domicile, operation and control in the United States. @. < a. x “* . /—— —E Argument ome 9 ping laws by seeking foreign registration eagerly offered by some countries. . Confronted with such oper-" ations, our courts on occasion have: pressed beyond the formalities of more or less nominal foreign registra- tion to enforce against American shipowners the obli- gations which our, law. placés upon them. But here again the utmost liberality in disregard of. formality * does not support the Application of American law in this case, for it appears beyond doubt that this owner ‘is a Dane by nationality ‘and domicile.” =. > Here, on the other hand, we have owning corporations and | individual stockholders who are wholly, and for more than a score of years, domiciled; resident and operating in the United States. Further, they make their living, not spo- | radically but regularly, in American commerce. Indeed, the only non-American factor is the retention of: Greek and | Panamanian nationality and incorporation. From. these, the petitioners have eked the fiction’ of ‘*foreign-flag’’® in order to insulate themselves from the laws of the United States, despite the fact ‘that they are long-time United States domiciliaries. , In view of the American domicile, ownership and oper- ation in this case, the Court below concluded that the ‘‘ Hel- ' lenic Hero’s”’ flag ‘‘is more symbolic than real’’, ‘so that the ‘‘flag’’ is not due the same weight which Lauritzen gave to ‘a more sturdy flag’’, and said: ‘‘We therefore pierce the corporate veil and conclude that the Hero’s flag is merely ( one of convenience.’’ (412 F. 2d at 923).° | 5..In Cunard Steamship Co. v. Mellon, 262 U. S. 100, 123-24, 67 L. ed. 894, 902 (1923), this Court said, in response to the “law - of the flag” argument that “the statement sometimes made that’ a merchant -ship is a part of the territory of the country whose: flag. _. She flies. . .-. is a figure 6f speech—a metaphor * * * a fiction. . . .’ 6. The sheer illusory nature of the Greek flag is further empha- sized by the fact that the ship is owned by Universal Cargo Carriers, which is a-Panamanian corporation, and is, in turn, owned by Hellenic . Lines, a Greek corporation. i ° - . - : é ai ihinia dhintiaeda hein ads Adaieies dato samaemer eee 10 - ee Argument The Court below referred, in its decision, to Bartholo- mew v. Universe Tankships, 263 F. 2a 437 (2 Cir., 1959). The decision in that case, which followed’ and discussed Lauritzen emphasized the uselessness of injecting foreign: ‘incorpération or registry between American-domiciled owners‘and an American event. In Bartholomew, Judge Medina reviewed the.teachings of Lauritzen as applied against prior -decisions of this Court _and various Courts: of Appeals. He noted a general refusal of. the complete _ application of the Jones Act, despite its general language «ip of the necessity of a ‘“mutual forbearance to avoid international retaliation’’, as expressed in Lauritzen. But, he noted, too, that the absence of any ‘‘single special factor of obvious significance’? would not necessarily defeat the . application of the Jones Act: Thus, the Jones Act has been applied despite a-foreign flag, and although the tort did not occur in “American waters (263 F. 2d at 440).? Contacts considered significant in one case, he noted have been held _ not controlling in another. (440) He concluded that the test is that ‘‘substantial’’ contacts are necessary. Thus, each factor is to be weighed and evaluated to reach ‘‘a rational and satisfactory conclusion’’ as to whether the factors add up to the necessary substantiality. However, Judge Medina admonished: : i “6 » 00h 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. - . > (441) ef of looking through the ‘facade of foreign registration and 7. Indeed, Judge Medina pointed out that iri Uravic v. Jarka Co., . 282 U.S. 234, 75 L. ed: 312 (1931) afd in Gambera v. Bergoty,.132 F. 2d'414. (2 Cir., 1942), ownerslip~ef the vessel by American citi: zens was lacking. : — Continuing, he stated that the practice in this type of case 7 Ps RM by . —s er a o ely Argument Sb 4 _ incorporation to the American ownership behind it is now ‘ well established. . . .”? (442), and that | “| This is essential unless the purposes of the Jones Act are to be frustrated by American shipown- _ ers intent upon evading their obligations under the law by the simple expedient of incorporating in a foreign ‘ country niall Fabiciasioe tas vessels under a foreign - flag. . . . In the case now before us appellant has taken the trouble to: insert an additional nominal for- eign corporation between the flag and the true bene- ficial ownership of the‘vessel. But we have little diffi- culty in brushing all this aside when considering the } " applicability vel non of the Jones Act. Complicating | x the mechanics of evasive schemes cannot serve tomake | them more effective.. What we now do is not to disre- gard the corporate entity to impose liability on the Stockholders, but rather to consider a foreign corpora- __ - tion as if -it were an American corporation pursuant. — to the liberal policies of a regulatory act.’’ , As the Court below noted in the instant case, the fact that the owners here are not American citizens as in Ba@rtholo- mew, but aliens domiciled in the United States, makes no difference in piercing the flag of convenience, since liens _ residing here are subject to the same commercial and tort laws as if they wer&citizens (412 F. 2d at 924).® The rele- - below (412 F. 2d at 923) ? jf 8. Citing Leonhard v. Eley, 151 F. 2d 409,.410 (10 Cir., 1945), _ _ where the Court held that the duties and obligations of resident aliens ° , “do not differ materially from those of . . . citizens”. vant factors require the conclusion reached by the Court 9. Recently, in Groves v: Universe Tankships, Inc. (S. D..N. Y., January 20, 1970) 38 ‘L. W. 2417, the Court similarly found the . “heavy counterweight” of a foreign flag, where the seaman and. the owning corporations were foreign, but whose stock was owned almost . entirely .by two Ametican citizens in residence, who ran the business . ¢ 12 7 Arguinent’ ° -+* . | | In this case we find that henry counterweight: . the ‘Hellenic Hero’ was for’ all commercial purposes owned. and operated by a United States domiciliary.’’ - In Romero v. International Terminal Operation Co., et al., 358 U. S. 354, 3 L. ed, 2d 368 (1959), this Court discussed “‘the broad principles of choice of law and the applicable criteria: of ° selection set forth in Lauritzen’’, admonishing that ‘‘due regard must be had for the differing interests “advanced by varied aspects of maritime law.’’ (U.S. at - 382, L. ed. at388.) This Court noted that the doctrines such as lex loci delicti will not be mechanically applied ; however, it was not dismissed as an itent of consideration. Instead the controlling considerations were held to be ‘‘the inter- acting interests of the United States and of foreign coun- tries.’’ (U. S. at 383, L. ed. at 388.) In Romero, as in ‘Lauritzen, both vessels were under foreign flags, both sea- men were foreigners, the owning eorporations were foreign’ and were owned by foreign citizens and residents. In. Romero, unlike Lauritzen, the injury occurred in American waters, but Mr. Justice Frankfurter said: that ‘‘the amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly. fortuitous circumstance of the place of injury.’’ (U.S. at 384, L. ed. at 389.) It is clear that this Court, in its application of the Jones - ‘ Act i in the case of a foreign flag vessel, acts upon the vary-. "ing interests of the United States depending upon the vary- | ing factors. The ‘more transparent the facade of ‘‘foreign- ness’’, the greater the ‘‘interests’* of the United States. - In Lauritzen and Romero, the foreign owning and operating corporations were, in fact, foreign. In the instant case, as from principal offices in the United States. Judge Bryan said that American ownership, operation and control and dre merely mechanics in a. scheme d igned to avoid the consequence of such — and evade American shipping laws.” / __. the foreign registration and incorporation were “a facade to disguise / Lo om, . o- a Tawa Argriment eas, is: held*by the Court below, they were merely fictions, and the ~ reg) ownership was in persons in permanent residence in'the United States. - id ie vices ee *. In Southern Cross 8. 8. Co. v. Firipis, 285 F. 2d 651 — (4 Cir., 1960), a Greek seaman was injured aboard Honduran- flag vessel in the port of Norfolk. The Court noted the seven factors as set out in Lauritzen, acknowledging that the greatest weight was given to ‘‘the law of the flag’’. How- . ever, the Court said,‘‘if the law of the flag is to control, the ‘flag must not be one of convenience merely but bona fide,’’ quoting the discussion of that point by Mr. Justice Jackson — in Lauritzen (345 U. S. at 58). The ship was owned by a Liberian corporation, whose stock wag owned by Greek citi- ‘zens (80% ) and.an American citizen (20%). Orders direct- ing ship movements came“from both places (though the opinion indicates that. ‘‘effective control?’ appeared to*be .- “by American interests’ ’). Inview of this ‘‘ effective [ Arferi- Ps can] control’’ and the fact that the injury occurred in an . Amerigan port, the Court held that ‘‘the flag was nothing . more than illusory’’ and that the Jones Act applied (654, 695)."° Chief Judge Sobeloff quoted the language from - ‘Bartholomew (263 F’. 2d at 440) that, under Lauritzen; ‘‘the contacts considered most vital in one case are not necessarily of controlling importance in another.’’ (285 F. 2d at 655). In its opinion the Court. below recognized that, on the same facts as here, a contrary result’ was reached by the Second Circuit in a 2-1 decision, in Tsakonitesev.:Trans- pacific*Carriers Corp., 368 F. 2d 426 (2 Cir,, 1966). « Peti- 10. Ina footnote, p. 654, the opinion states: , “Moreover, even in situations where the flag was not shown to be merely one of convenience, other considerations have been held © to justify the application of the Jones Act to ships of foreign istry. The Supreme Court in the Lauritzen case held that the law of the flag was the most important’ element, not, that ’ it was always the controlling element, and the Court i that heavy countervailing considerations might override it... . we > ” a we 14. Argument i tioner, of course, relies on that. case. | The Court below, however, was unable to accept the reasoning and conclusion _ _ of the majority, but agreed with the ‘persuasive logic’’ of Judge Waterman’s dissent (925). As the Court below con- cluded, Judge Waterman would have ‘*pierced through the facade of foreign registration and foreign incorporation and have applied United States law.’’ Since the injury © oecurred in the United States and the defendant shipowner, though an alien ‘‘has continued to régister his vessels abroad while he currently enjoys the considerable benefits of per- manent resident alien status here, a status ‘deliberately sought by him’’, and one which gives to him the. same con- stitutional protections" and places on him the-same duties and obligations” as if he-were a citizen (368 F. 2d at 429- 30). Thus, J wee Jotorman concluded, unless the same obligations that United States taw imposes on eitizen- shipowners, are imposed on resident alien shipowners, ed resident alien-shipowner like Callimanopoulos will be able to enjoy the considerable benefits of lawful permanent resi- dent alien status in this.country without being subject to the duties and obligations exacted of an otherwise similarly . situated competitive shipowner who is an American ship- owner (368 F’. 2d at 430). ye As the Court below concluded, ‘‘the power of the flag is - not limitless, and its cloth should not be stretched beyond realistic and reasonable lengths’’; ‘‘maritimé allegiance’’ must not be measured by a subjective-nationalism, “but in terms of economic ties’’ which are real and palpable (412 . LF. 2d at 926). In applying either the Jones Act or the “law of nations’’ the courts must seek the ‘‘factual’’ rather than the ‘‘fictional’’ factors, for the choice of law deals with fact. 11. Citing Kwong Hai Chew v. Colding, 344 U. S. 590, 596, 97 - L. ed. 576 (1953).° 12. Citing Leonhard v. Eley, 151 F. 2d 409, 410 (10 Cir., 1945), ed , *. Argument - : 15 II. The Tones Act Was, Intended*to Apply to and Benefit 4ll Seamen on Vessels Owned or Operated by Ameri- can Interests Irrespective of the Flag Carried. The pre-Lauritzen background .of the -Jones Act, its _ » &onstitutional basis, and the policy which generated it,.con-' firm the decision. of the Court below. The Act was the cul- mination of the consistent trend toward the protection of the interests of merchant seamen, as an implementation and exercise of the power of Congress to regulate commerce and to nurture and protect American interests against foreign’ incursion. Those interests which seek to limit its applica- _ tion urge conflict between it and the laws of nations or inter- ‘ national maritime law. However, ‘the power of Congress cannot be denied, and the protective policy expressed in the “Set isclear. In its plain language and operation, it is broad y in scope, giving protection to all. seamen injured in their | employment in which the Uitited ‘States has a legitimate — interest. Therefore, it benefits foreign as well as American - seamen and binds all who submit themselves to our juris- diction by entering American ports and partaking of our . Commerce, This Court has expressed a. strong policy, based es- pecially on economic and defense requirements, that our laws be applied equally to all who conduct regular business in the United States, be they aliens or citizens. -The general policy was early stated: in The\ Exchange v. Mc Faddon, 7 Cranch 116, 136, 144, 3 L. ed. 287, 293, 296 (1812), where Mr. Chief Justice Marshall said: " | ‘‘The jurisdiction of the nation within ‘its own territory is necessarily exclusive and ‘absolute. It is . susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an exter- . nal source, would imply a diminution of its sovereignty ‘to the extent of the restriction, and an investment of — ¢ "Rec: E. 2267. 16 ie Argument that sovereignty fo the same extent i in that } power which could impose such resttiction. ” - * *- ‘*When saieehs individuals of one nation spread themselves through ‘another as business or caprice may direct, mingling indiscriminately with ‘the inhabitants of that other, or when merchant vessels enter for the . ““purposes of trade, it would be obviously inconvenient’ and dangerous to society, and would subject the laws | to continual infrattion, and the government to _degra- dation, if such individuals or mercharifs did not owe temporary and local allegiance, and were not amenable to the. jurisdietion-of the country...” ee oe | 4 " It is a shocking fact that, as of 1969, vessels flying the American flag carried only six per cent of our total imports and exports:® -The Jones Act, as well as the prior Sea- men’s Act which it amended were intended by Congress to reduce the competitive advantage of foreign-flag operators . seeking American-business. As it is Constitutionally em- _powered, Congress has recognized’ that detriment to the American economy by weighted foreign competition is an effect going far beyond the ‘‘internal affairs’’ of a foreign _ vessel. Congress has refused to permit the American mari- « me industry td be so handicapped in the face of growing - * foreign competition. The] result was a direct. benefit to - foreign seamen as well as to the American economy. - The Seaman’ s Welfare Act of March 4, 1915, ¢. 153, Sec. 20, 38 Stat. 1185, was intended by Congress to pro- mote, diane and. strengthen the United States merchant marife.. The Legislative History shows that its propo- nents, noting that ‘‘the dperating expenses of a foreign — . 13. Remarks by Congressman Dent, March 20, 1969. Cong. . aa reenact ee Argument — > ae - vessel are lower than [those] of an Amieriésn vessel’?, in- ° tended that the wage and émployment provisions of the Act ‘‘will equalize the cost of operation so, that vessels of the United , States will not be placed at a disadvantage’, H. R. Rpt. No. 645, 62nd Con 7 2nd Session, p. 7.. The Merchant Marine Act of 1920," broadly amended various. _ Statutes concerning the merchant marine. ‘Seex1, 46 USCA | 861, expressed its purpose and policy: : ‘*Purpose and policy of United States eee =” necessary for-the national defense and for the proper growth of its foreign and domestic com- merce thaf the United States shall have a merchant marine of the best equipped and most suitable types of vessels sufficient to carry the greater portion efits - commerce and serve as a naval or military auxiliary in time of war or national emergency, ultimately to be « owned and operated privately by citizens of the ited States ; and it is declaredt6 be the soley of the United ° - States to do whatever may benecessary to develop and encourage the maintenance Of such a merchant marine, and, insofar.as may not be inconsistent with the. express provisions of this act, the Federal Maritime Board and the Secretary of Commerce shail, in the disposition of vessels and shipping property as hereinafter pro- vided, inthe making of rules and regulations, and in the administration of the shipping laws keep always in’ - view this purpise. and object as the primary end to be | attained.’’ (Emphasis supplied). r ~ ‘Section 33 Sallie was the J ones Act, 46 USCA. 688, an - amendment to Section 20 of the Seamah’s Act of March 4, _. 1915, expanding rights to recover damages to ‘‘any seaman 14. Act of June 5, 1920, c. 250, 41 Stat 1007, 46 USCA: 861, et seq.,-etc. ee, : : & * | Argument : pore an hs og er: personal injury in the course of his em- . “, a S. Co. v. Dillon, 252 U. Sy848, 64 L, ol. 607 (1920), in holding that a British seathan on a British vessel in'an American port, is entitled to the protection of . Sec. 4 of the Seaman’s Act of March 4, 1915, ‘38 Stat. 1164 | Ch:153 (conce ing payment of wages),.to which statute | the Jones Act #% an amendment, Mr. J ustioe Day said (U.S. at 354-55, L. ed. at 611): oy ve . Apart from the text, which we think : plain is by no means clear that if the’act"Were given a construc- . tion to limit. its applicati American seamen only, : the purposes of Congress would be subserv or. such, . limitede construction would have a tendency to prevent - the‘employment of American seamen, and to promote the engagement of those who were not entitled to sue for -half wages under the provisions of the law. But, taking the provisions of the act as the same are written, we think it plain that it manifests the purpose of Congress to place American and foreign seamen on sort to the courts of the United States*for the enforce- ment of the, ‘act. .’? (Emphasis supplied). . In Monteiro v. Sociedad Maritéma San Nicolas, S. A., . 280 Fr 2d 568 (2 Cir.,,. 1960), an\action for penalty wages * under 46 USCA 596, y a foreign Seaman on a foreign ves- \ sel paid off in the Unjted States, helding that the seaman _ gould recover under the ‘‘foreign. vegsel’’ provision, Judge preys & said (573-74) : : ‘This conclusion } fortified Soy examination of the reasons. behind the insertion "of the foreign vessel proviso. These reasons, hinted at in Mr. Justice Day’s! Opinion in snirmmsain 8.8. Co. v. Dillon, supra, 252 XV vA an equality of right in so far.as the privileges of this - section are concerned, with equal opportunity to_re- . % e- Argument \ Seay 19 - LA en ' U.S. at page 355, 40 S. Ct. at page 352, are impres- . sively marshalled in the opinion that Mr. Justice Bran-— _ deis had prepared for possible delivery in that case,see — Bickel, The Unpublished Opinions of Mr. Justice Bran- - deis, pp. 35, 47 ff., reprinted in 69 Harv. L.’Rev. 1177, - 1190 ff. geview of the legislative materials shows that: the proviso was inserted for the benefit not so much of foreign as of Americah Seamen. It was thought that to apply to foreign vessels touching at American ports some of the same requirem nts. imposed upon our own — would tend to ‘equalize the cost‘of. operation’ of Amer- ican and foreign flag vessels and thereby discourage American shipowners from placing their vessels under foreign flags. See particularly H. R. Rep. 645, 62nd Cong., 2d Sess. (1912), p. 8; H. R. Rep. 852, 63rd Cong., L "2d Sess. (1914), p. 19; and the remarks of Senator Fletcher, 50 Cong. Rec. 5748-49 (1915). This purpose could be beter attained by giving foreign seamen un- obstructed and mandatory access to the federal courts . Yather than/by leaying it to the discretion of each dis- - . trict judge to remit the seaman to a foreign consul, who could hardly be counted upgn to apply the special ~Temedies of §§ 596 and 597. ... .’? (Emphasis sup- plied). a Thus, the Courts have confirmed that Congress has sought, by the Seamen’s Act atid amendatory/Jones Act, to reduce the competitive advantage of foreign flag operators. ne 15. “This affirmative intention of the Congress with regard to labor relations on foreign vessels has been expressed by the Congress _ ‘ “in statutes dealing with wage payments to seamen on foreign vessels in American ports, the so-called ‘Seamen’s Wages Acts.’ These Acts . of Congress were actuated by the American flag shipping’s apparent ‘interest in reducing the competitive advantage of the foreign-flag ; operators by inttirectly forcing them to pay higher wages, and so equalizing the costs of American and fo -flag opera- tions. .-. .” Boczek, “Plags of Convenience” (Harvard Univ. Press, “*\ DD. _ | Argument In Caeradin « v. United Fruit Co., 60 F. 2a 927° (2 Cir., 1982), J udge A. N: Hand; after pointing out that many United States statutes impose obligations upon American and foreign shipowners, concerning safety measures (60 F,.2d at 928), which contain ‘‘minute datatis of internal “management”, said (60 F. 2d 929) : rr . wie . So far as such -an sipeitine may ‘have force, it is se to say that matters of ‘internal manage- ment’ are not involved. in-an action by a seaman to, recover damages for injuries suffered through: the neg- ligence of the shipowner. A similar contention: was e in cere v. Jarka, supra, to defeat the action by an/American stevedore for injuries suffered while at : work in New York Harbor on a German-owned ship, *. but Justice.Holmes answered it by saying (282 U. S. "at page 240, 51 S. Ct. 111, 112, 75 L. Ed. wap, : We. see no reason for liniting the liability for torts committed there when they go beyond the scope of dis- cipline and private matters that do not interest the ter- ritorial as ht (Emphasis . supplied) ee Complying ‘with .this “Court’s teaching, that the. “at tending circumstances of the particular ease’’ will control the decision,’* in Gambera v. Bergoty, 132 F. 2d 414 (2 Cir., ~ 1942), the Court lied the Jones Act where the injured seaman was an alien of 20 years’ residence here,” and was injured aboard a foreign-flag vessel within United States waters. .The Court recognized that where an alien seaman _ is serving on a foreign ship owned by aliens and on a voyage which begins and ends abroad, he cannot sue under the Jones Act for injuries suffered ‘while the ship happens. to be stopping ata portof call within our territorial waters’? “16. Wildenhus’ Case, 120 U. S. 1, 30 L.-ed. 565, 569. 17. The’ seaman had taken his “first papers” for naturalization. \; en, < Argument CS 5 21 (415). But, the Court said that, the facts at issue were dif- ferent. The seaman had lived in the United States for 20 years, serving mostl¥ on ‘American ships, and the 2, voyage 3 began. and ended in the Thited. States. Applying these . factors to the Jones Act policy, the Court gave that seaman the benefit of the’ statute. J udge' L. Handsaid, at p. 416: _ * “he Jones Act was the culmination of : a series of efforts, largely those of the Seamen’s Union, to secure more adequate relief for American seamen, injured in their employment. It is extremely unlikely at Con- . gress should have meant to exclude aliens who, in every . sense‘that mattered, were members of that class merely ~ because they had. not been naturalized . . . In Ura- *. vie v. F. Jarka Co., supra. 282 U.S; 234, 51 S. Ot. 111, - 75 L. Ed. 312, it was at least left open whether the act applied to foreign seamen and that would go niuch further than to apply it to an alien, circumstanced like the libellant. We see nothing in the definatory section, . § 713, Title 46 U.S.C.A., to limit the application of the act to Ameriean ships or American citizens. As to . Ships Uravic v. F. Jarka Cp., supra, was ‘an express answer and thereafter the definition no:longer offered - an obstacle to including foreign seamen.’’ © Applying the beneficent viling. ‘behind the statute the Court held that its previously applied technical — must bend where the circumstances dictate. \ : » The same ameliorating circumstances: exist in ‘the in- stant case. The ‘‘Hellenic Hero’’ bears a Greek name and. fag, It is titled to a Panamanian corporation which is ed by a Greek corporation. There, her Greek contacts ‘end. The real ownership ‘‘is essentially American’? and its ecommerce is essentially American (412 F. 2d yat 921), Ninety-five per cent of oe stock in the Greek corporation i is- ce - 22 are a oe - Conclusion : mana by residents of the United States: The corporation | ‘has its principal office in New York, where all management is based, and another in New Orleans. The managing . owner-shareholder ‘has resided -in the United States for over 20 years, and the vessel involved earns all of its i Income ‘from trips to or from the United States. . Clearly, the same weight of circumstances exists here as in Gambera. There, the Seaman was a resident alien who - had previously sailed mostly in United States ships, but he . ~ was injured on a foreign vessel in American waters. In - _ the instant case, the seaman is foreign, but he was injured in an American port aboard a foreign-flag ship owned és- sentially by long-resident aliens and managed by a com- pany seated in the United States, which vessel operates ex- | chisively to or from United States ports. As: Judge Hand stated, to hold that: the circumstances here do not come within the Act‘‘would.. . . pretty clearly defeat the over- — riding purpose of Congress. sd a In Bartholomew v. Universe Tankships, ‘Inc., 263 F. 2a 437, 442-43 (2 Cir., 1959), Judge Medina stated that this. Court’s opinion in Lauritzen v. Larsen, 345 U. S. 571, 97 L, ed. 1254 (1953) gives no indication whatever ofan inten- be tion to repudiate Uravic, Gerradim or Gambera. -_ Recently, in International Longshoremen’s Local 1416 -.», Ariadne Shipping Co., — U. S. —, 38 L. W. 4207 (No. - _ 231, October Term, 1969, 3/9/70), this Court held that long- shore work casually performed for the vessel in connection with its regular operation did not involve ‘‘any internal affairs’’ of the vessel referring to v ravic v. Jarka. . a8: CONCLUSION. ; - Under the factors set forth in Lauritzen, the Greek flag in this case is without any substance, and is completely out- weighed by: 1..the American-based and domiciled owning corporations ; 2. executive and everyday control from prin- a ‘ a ¢ - * ‘Conclusion } 23° cipal offices here; 3. ownership of these American-domiciled corporations by persons, who haye resided i in the United States for 20 years who became ‘‘permanent residents’? 8. 3 years before the incident ; 4, the vebsel involved earns her entire j income from cargo going to or from the United States; the ‘heavy, cotinterweigh ef against the — Bia? flag & overwhelmingly exists here. ~As . _. The Seamen’s Acts of 1915 and the anschding Jones Act . : were adopted to assist the American merchant marine by ~ protecting the individual rights ‘of seamen and by equaliz-.. ing the cost of operation, as concerns American commerce, . . between American and foreign-flag vessels. This, Congress. . had the Constitutional right, indeed: obligation, to do. - : view of the fast-faditig American merchant marine, : public policy behind the Jones Act i is more significant than ever before. . The decision of the Court of Auoicall for the Fifth Circuit the policy of the Congress, and should be affirmed. Respectfully submitted, v F'rzepMaNn, BorowsKy.4& Lorry, * Counsel for National Maritime ihre Amicus Curiae, {oe eel . > urt in the ‘past and Ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0195%3A06. Public record. Not legal advice.