The opinion of the court was delivered by: GALSTON
This is a motion to vacate service of a summons and complaint.
Neset, a resident of Brookly, but an alien of Norwegian nationality, instituted this action to recover damages for personal injuries allegedly suffered while employed as a member of the crew of the M/S Hermund, and while said vessel was on the high seas. He seeks also to recover damages for the alleged failure to furnish him with proper medical care, together with maintenance and cure.
The complaint alleges that Skibs A/S Oilexpress Company is a Norwegian corporation which owns, operates and controls the M/S Hermund. The defendant, Christensen, is alleged to be employed by the defendant corporation as master of the M/S Hermund, with authority 'to bind the defendants for various fees and expenses, as well as to hire crew members' and make the defendants liable therefor, and represents the defendant. It is also alleged that the plaintiff signed on in the port of New York in July 1949 as a seaman, had made four trips from New York to Europe (to the ports of Hamburg, Bremen, Rotterdam and Antwerp), and was injured on his fifth voyage back to New York. Jurisdiction is alleged in this court under the Jones Act, 46 U.S.C.A. § 688, and the general maritime law.
Service of summons and complaint was made on or about May 3, 1950 of Alf Christensen (referred to in the complaint as R. Christensen), the then acting master of the M/S Hermund. It appears from the moving affidavit that the M/S Hermund was under a time charter of September 3, 1949 to the Black Diamond Steamship Corporation, and that the time charter was in full force and effect in December 1949, when the alleged injury to plaintiff occurred and in May 1950, when service was made on Alf Christensen. The time charter was entered into in New York City and is signed by a Naess, Mejlaender & Co., Inc., as broker, for the defendant corporation.
An affidavit submitted by the plaintiff in opposition to the defendants' motion to vacate, indicates that in 1949 the M/S Hermund made eight calls at the port of New York and six calls at this port to date in 1950.
During the hearing on this motion, as well as in the affidavit opposing this motion, plaintiff stated that he is not seeking a personal judgment against the defendant Christensen, and that service upon him was solely for the purpose of obtaining jurisdiction over Skibs A/S Oilexpress Company. Therefore, the question for determination on this motion is whether such service is sufficient to confer jurisdiction over the corporate defendant.
So far as the action is based on the maritime law, the law of the flag, viz. Norway, is the law applicable here. Consequently, and since the action is between aliens, it is within the discretion of the court to accept or refuse jurisdiction.
Although plaintiff is an alien seaman seeking to recover damages for injuries suffered on the high seas while serving on board an alien ship, he is entitled to maintain an action under the Jones Act since he signed articles of employment in the United States, Taylor v. Atlantic Maritime Co., et al., 2 Cir., 1950, 179 F.2d 597. Therefor, there is jurisdiction over the subject-matter. However, in an inpersonal action, service of process on a defendant is effective only if the court can acquire jurisdiction of the person of the defendant.
Under the time charter, the M/S Hermund was hired to carry freight for the charterers exclusively. The ports of call were 'as the Charterers on their Agents shall direct'. The defendant corporation contends that since the vessel was engaged exclusively in the business of the time charterer, so that any calls it made at the port of New York were solely for the purpose of picking up and discharging freight for the charterer's account, the defendant corporation cannot be regarded as within the jurisdiction of this court on the basis that it is doing business in New York.
Plaintiff, on the other hand, points to the provisions in the time charter requiring that the owners shall be responsible for navigation and crew (Paragraph 26 of the time charter), and shall provide and pay for all provisions, wages insurance and for necessary stores, and maintain the vessel in an efficient state (Paragraph 1); together with the additional facts that the time charter was made in New York City and that the vessel has made fourteen calls to the port of New York in 1949 and 1950, as indicating that the defendant corporation is doing business here.
In the recent case of International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057, the Supreme Court reviewed this problem of obtaining personal jurisdiction over a foreign corporation. The Court states that if the activities of a foreign corporation without the state of its origin have not only been continuous and systematic, but also give rise to the liabilities sued on, it can be regarded as being 'present' where those activities are carried on, even though no consent to be sued or authorization to an agent to accept service of process has been given. It was pointed out further that the test in determining whether a foreign corporation is 'present' cannot be simply mechanical or quantitative. The Court, 326 U.S., at page 319, 66 S. Ct.at page 160, continued:
'Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws * * * That clause does not contemplate that a state may make binding a judgment in personam against * * * a corporate defendant with which the state has no contacts, ties, or relations * * * .'
'But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.'
There, defendant was a Delaware corporation having its principal place of business in St. Louis, Missouri. It maintained several places of business in several states, but not in the State of Washington. It had no office in Washington and it made no contracts there for sale or purchases of merchandise. During the years in question it employed eleven to thirteen salesmen under the direct supervision and control of sales managers located in St. Louis. These salesmen resided in Washington and their principal activities were confined to that state. They were furnished with ...