The opinion of the court was delivered by: BRYAN
Respondent moves for an order vacating and setting aside a foreign attachment made by libelant of $ 1,645,509.73 to respondent's credit with the Atlantic Bank of New York which was levied under Rule 2 of the Rules of Practice in Admiralty Cases promulgated by the Supreme Court (28 U.S.C.).
Libelant, an Italian corporation, sues in personam to recover damages in the sum of five million dollars arising from non-delivery of a cargo of soybean oil shipped aboard the steamship Perama which was lost at sea on March 18, 1957. The cargo was loaded at Baton Rouge, Louisiana, for carriage to Genoa or Leghorn, Italy. The libel, filed on July 19, 1957, alleges that respondent is a Panamanian corporation and was the owner and operator of the Perama at the time of its loss. It contains a clause for foreign attachment of the proceeds of the hull insurance policy covering the loss of the Perama in the hands of several garnishees in this district. There are no allegations in the libel as to the place of business of the respondent, nor does it allege that respondent is not doing business in this district or cannot be found here.
A citation in personam with a clause of foreign attachment in the usual form was issued to the United States Marshal for this district on the date the libel was filed, directing him to cite the respondent 'if it shall be found in your district,' and 'if said respondent cannot be found,' to attach respondent's credits in the hands of the named garnishees. On July 22, 1957 the Marshal certified that he had attached respondent's credits in the hands of the Atlantic Bank at 139 William Street, New York City, and that 'after due and diligent search' he had been 'unable to find the within named respondent in my district.' Respondent had a credit with the Atlantic Bank of $ 1,645,509.73.
The Marshal's statement that he had been unable to find the respondent in the district after due and diligent search was not accurate. It is conceded that the Marshal made no attempt whatsoever to find the respondent or to serve it with process prior to making the attachment. The Marshal was informed by the libelant's proctors that service could not be effected upon the respondent, and proceeded to serve the process of foreign attachment on the garnishees named without any independent inquiry or search for the respondent.
Respondent contends that it has been continuously present and doing business in this district since its incorporation in late 1956, with an office at 25 Broadway, New York Cit; that its president Sideratos a New York resident, was regularly present at this office and available to receive service on respondent's behalf during the period when the attachment was levied; and that all of this was well known to libelant's proctors who had represented Sideratos and other of his companies on prior occasions and had had various dealings with them. Respondent asserts that the failure of the libelant's proctors to inform the Marshal that service could be effected on the respondent, and the absence of any attempt to effectuat such service, requires that the attachment be vacated.
Libelant, on the other hand, asserts that, while it was aware Sideratos operated and controlled other companies which conducted business in this district at the 25 Broadway address, it was unable, after extensive search, to locate the respondent corporation in this district; that it was therefore justified in informing the Marshal that service could not be made upon the respondent here; and that the foreign attachment was properly levied and should stand.
Rule 2 of the Rules of Practice in Admiralty cases, in so far as pertinent, provides:
'In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit, or by a simple warrant of arrest of the person of the respondent in the nature of a capias, as the libellant may, in his libel or information pray for or elect; in either case with a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the district. * * *'
Thus a foreign attachment may be levied only 'if said respondent shall not basic question is whether this provision has been complied with as to the corporate respondent here.
'When applied to a corporation this requirement (that a respondent be found within the jurisdiction) is the equivalent of saying that it must be present in the district by its officers and agents carrying on the business of the corporation. In this way only can a corporation be said to be 'found' within the district." The Melmay, D.C.Canal Zone, 1933 A.M.C. 1057; Benedict on Admiralty (6th ed.) Vol. 2, Sec. 289, p. 351. See, also, American Potato Corporation v. Boca Grande S.S. Co., D.C.E.D.Pa., 233 F. 542; Belgian Mission for Economic Cooperation v. Zarati Steamship Co., Ltd., D.C.S.D.N.Y., 90 F.Supp. 741; Stefanakis v. Sociedad Maritima S. Nicolas, D.C.S.D.N.Y., 102 F.Supp. 544; Tesoriero v. Rederi and Cosmopolitan Shipping Co., Inc., D.C.S.D.N.Y., 1955 A.M.C. 718; Cordts v. Beneficial Loan Soc., D.C.N.Y., 34 F.Supp. 197.
A foreign corporation can be said to be present and doing business within the jurisdiction when its activities within this district are sufficient to make it not unfair or unreasonable to require it to respond to suit in this forum. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413, 96 L. Ed. 485; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95; French v. Gibbs Corp., 2 Cir., 189 F.2d 787; Szabo v. Smedvig Tankrederi A.S., D.C.S.D.N.Y., 95 F.Supp. 519, 1951 A.M.C. 481. Each case depends upon its own facts and no one single factor is determinative. International Harvester Co. v. Commonwealth of Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; St. Louis Southwestern Ry. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486.
The facts, as they appear from the affidavits submitted by the respective parties on this motion, are as follows:
In the fall of 1956 respondent was incorporated under the laws of Panama. Its principal stockholder was the Edison Steamship Corporation with offices at 25 Broadway, New York City. Anastasios Sideratos, who was the president of Edison Steamship Corporation and another company with its office at this address, was also president of respondent. The respondent was formed for the purpose of acquiring the S.S. Perama and its only business was the ownership and operation of this vessel. Shortly after its incorporation it acquired the vessel and proceeded to recondition it at a cost of some one million dollars. It made two voyage charters of the vessel during the second of which she was lost.
Apparently the only office which the respondent had, apart from what appears to be its statutory office in Panama, was at 25 Broadway with the Edison Steamship Corporation and the other Sideratos companies. The first and only business meeting of the directors was held a this office. The negotiations and transactions attendant upon respondent's acquisition of the Perama, and all of its business in connection with the vessel's reconditioning, chartering and operation, were carried on there. The officers of Edison ...