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,
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.
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.
(2) For summary judgment, dismissing the
(3) For summary judgment as to Count 2 of the
(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.
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:
(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
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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