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TISMO v. M/V IPPOLYTOS

March 28, 1991

FRANCISCO TISMO, TARUC JERRY, SAM B. SAMPIANO, TAGNAWA SALVADOR, ULDARICO C. BUCANEG, JR., RUFO A. ALDAY, IRENEO M. TARUC, YOLANDA CONDENO, EDUVIGIO A. GLORIOSO, ARMANDO GLORIA, RENATO C. CANTAL, JAMES CATAPUSAN, ANTONIO OCUMIN, JR., EDGARDO S. SISSON AND ANICETO G. LACSON, PLAINTIFFS,
v.
M/V IPPOLYTOS, HER ENGINES, BOILERS, TACKLE, APPURTENANCES, CARGO, ETC., IN REM; PROMETHEUS MARITIME CORP., GUISE SHIPPING ENTERPRISES CO. AND OUTLOOK SHIPPING, LTD., IN PERSONAM, DEFENDANTS.



The opinion of the court was delivered by: Bissell, District Judge.

OPINION

This matter arises before the Court on the basis of the defendants' various motions, made in the alternative:

  (1) To dismiss the complaint under Fed.R.Civ.P.
    12(b)(6);
  (2) For summary judgment, dismissing the
    complaint;
  (3) For summary judgment as to Count 2 of the
    complaint;
  (4) For partial summary judgment and a
    determination of the date when the penalty wage
    period starts and ends;
  (4) For summary judgment dismissing the claims of
    plaintiffs Sison, Ocumin, Cantal, Condeno,
    Sampiano, Alday and Bucaneg.

I. FACTS AND BACKGROUND

The M/V Ippolytos is a Cyprus flag vessel registered in Nicosia, Cyprus, owned by defendant Outlook Shipping, Ltd. also of Nicosia. (Bonner (defense counsel) Aff., ¶¶ 2, 3; Hofmann (plaintiffs' counsel) Aff., ¶ 3). Each plaintiff is a Filipino seaman who, prior to June 1989, signed an individual employment contract to work on the ship. (See e.g. Defendants' Exh. A). These contracts were executed in The Philippines and approved by the Philippine Overseas Employment Agency ("POEA").

The governments of Cyprus and The Philippines entered into an Agreement on Merchant Shipping in 1984 ("the treaty"). The treaty provides, inter alia, for the resolution of disputes involving ships from one country and seamen from the other:

ARTICLE 10

  (2) Any disputes arising out of the respective
  contract of employment between a shipowner of the
  one Contracting Party and a seaman of the other
  Contracting Party shall be referred for settlement
  solely to the exclusive jurisdiction of the
  competent Court or Authorities, as the case may be,
  in the country of the seaman's nationality where
  the contract of employment was signed and approved.

(See Defendants' Exh. E1) (emphasis added).

The individual employment contracts signed by the plaintiffs herein provide as follows:

  THIS CONTRACT IS IN FORCE ACCORDING TO BILATERAL
  AGREEMENT SIGNED ON JULY 30, 1984 BETWEEN THE
  GOVERNMENT OF PHILIPPINES AND CYPRUS.

SECTION H. APPLICABLE LAW AND JURISDICTION

It is understood and agreed that:

  1. All rights and obligations of the parties to
  this Contract including the annexes thereof, shall
  be governed by the laws of the Republic of the
  Philippines, international conventions, treaties
  and covenants wherein the Philippines is a
  signatory;
  2. The Philippines Overseas Employment
  Administration (POEA or Administration) shall have
  original and exclusive jurisdiction over any and
  all disputes or controversies arising out of or by
  virtue of this contract.

(Defendants' Exh. A) (emphasis added).


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