The opinion of the court was delivered by: LEVET
The defendants Leipziger Allgemaine Transport-und Ruckversicherungs-A.G.; Svea Feuerversicherungs-Aktiengesellschaft (sued herein as Svea Feuer-Vers. Ges.); Alpina Versicherungs-Aktiengesellschaft; N.V. Allgemeene Verzekering-Maatschappij 'Providentia'; 'Colonia' Kolnische Versicherungs-Aktiengesellschaft, Koln; Hartje Muller & Co., and Carl Bolken Sohn (hereinafter for clarity referred to collectively as German underwriters) have moved for an order to set aside service of process on them.
The plaintiffs, who maintain a place of business in New York City, are co-partners, trading as Osan Supply Company, and are engaged in dealing at wholesale in frozen fish and sea food, importing such products from abroad.
On or about December 15, 1954, the plaintiffs purchased a large quantity of frozen fish from Chr. Wollmeyer GMBN (hereinafter referred to as Wollmeyer), a processor and shipper of frozen fish in Bremerhaven, Germany. On or about that day, this fish was delivered to the 'American Merchant' for delivery to the plaintiffs in New York via the Port of New York or the Port of Baltimore. In accordance with plaintiffs' instructions prior to this shipment, the German Underwriters, through one A. Atermann, an insurance broker, issued their Certificate of Insurance No. 146445, bearing date December 16, 1954, (1) certifying insurance coverage against all risks of physical loss or damage with respect to the shipment of fish which was valued at $ 53,428.20, via the 'American Merchant,' from Bremerhaven, Germany, direct to New York or indirectly via Baltimore, from shipper's (Wollmeyer) warehouse to plaintiffs' warehouse in New York, including thirty days storage after arrival at destination, and (2) undertaking to pay to the order of the bearer of the certificate the amount of loss due with respect thereof on production of the certificate of insurance and bills of lading duly endorsed. It is further stated in the certificate that:
'This Certificate represents and takes the place of the Policy, and conveys all the rights of the Original Policy Holder (for the purpose of collecting any loss or claims) as fully as if the property was covered by a Special Policy, direct to the Holder of this Certificate, and free from any liability for unpaid premiums.'
'In the event of damage occurring during the voyage, no claim for Average will be paid under this Certificate, unless notice of same has been given to Carl F. Ewig, 44 Whitehall Street, New York 5 N.Y. (USA) * * *.'
The 'American Merchant' arrived in Baltimore on or about January 6, 1955. The shipment of fish, which was inspected on board, with representatives of the German Underwriters present, was damaged by what is known in the industry as 'freezer burn.' This condition is brought about by improper keeping of the refrigeration, such as a fluctuation in temperature, resulting in dehydration and discoloration.
On January 7, 1955, formal claims letters were forwarded to defendant United States Lines Company (hereinafter referred to as United States Lines) and to Carl F. Ewig, apparently a New York representative of the German Underwriters, located at 44 Whitehall Street, New York City. At Ewig's request, plaintiffs delivered to him the original bill of lading, the original insurance certificate, the consular invoice, with other papers. Subsequently, on February 4, 1955, Ewig in effect authorized the sale of the fish at 16 cents a pond, FOB Baltimore, to minimize the loss. Ewig's letters are headed:
'Carl F. Ewig 'The Port of Bremen 'New York Representative '44 Whitehall St. 'New York 4, N.Y.'
On March 21, 1955, Ewig dispatched a letter to the plaintiffs, bearing the same heading, in which he stated that the Underwriters requested him to advise the plaintiffs that under the terms of the policy the Underwriters were not liable. Plaintiffs then negotiated further with Ewig, but no settlement resulted, and this action was instituted in the Supreme Court of the State of New York, County of New York. Jurisdiction over the German Underwriters was purportedly obtained pursuant to Section 59-a of the New York Insurance Law McKinney's Consol.Laws, c. 28. After institution of the action in the Supreme Court of the State of New York, County of New York, the defendant United States Line on a removal petition had it transferred to this court.
On July 23, 1957, the German Underwriters moved to set aside the service of process as to them because the summons was sent to them in care of Carl F. Ewig in New York, which each claimed not to be its respective place of business. Judge Edward J. Dimock of this court granted their motion on the ground that the notice was not sent to their last known principal place of business. Thereafter, plaintiffs re-served such defendants by again serving the Superintendent of Insurance and mailing, via registered mail, additional copies of the summons and complaint addressed to each of them in care of A. Atermann at Bremen, Germany, the broker whose name appears on the certificate of insurance upon which this action was founded. The address in Germany to which process was mailed was given by Ewig during a deposition taken under oath. He stated that his correspondence was specifically with the Association of Bremen Underwriters and with one Captain F. Mellert, whose address is Boebsennebengebaeude, Bremen, Germany. Ewig testified further that he maintained his association with the Bremen Underwriters since 1951 or 1952, and that claims received by him with respect to the certificates issued by these Underwriters would average twenty-five to fifty a year; that he received the claims from the insured; that the insured deposited with him a survey fee; that he designated a surveyor in his own discretion; that he secured the surveyor's report and sent it over to the Underwriters, keeping a copy for his file and paying the surveyor. Sometimes, the surveyor is Ewig's employee and usually the first survey is made by such employee unless there is a major damage. Ewig then signs a survey report and sends it to Germany. He may have a suggestion from the claimant as to how much to pay and he passes it on for instructions.
Now the German Underwriters have moved for the second time to set aside service of process on the ground that the copies of the summons and complaint were not served upon them by mailing to their last known principal place of business and that the acts performed by Ewig within the State of New York were not sufficient to constitute a transaction of business within the statute. They do not state in any of their papers what their respective places of business are. Each of the certificates issued by the Underwriters is headed with the name of A. Atermann, Assekuranz-Makler, Bremen, and the instant insurance certificate was issued by them as joint venturers. The plaintiffs say they know of no other address than that of A. Atermann.
The transaction in question involving this certificate was one of a number of similar transactions in which other certificates were issued to the plaintiffs. In at least one communication, dated February 8, 1955, addressed to the plaintiffs, Ewig designated himself 'As Agent for A. Atermann, Bremen.' Atermann affected and issued the insurance for and on behalf of the defendant Underwriters and his signature ...