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KELLY v. THREE BAYS CORP.

June 9, 1959

Hurley KELLY, Libelant,
v.
THREE BAYS CORPORATION, Ltd., Respondent



The opinion of the court was delivered by: BRYAN

This is a motion to vacate service of process and dismiss the libel for want of jurisdiction of the person, pursuant to Rule 12(b)(2), F.R.Civ.P., 28 U.S.C.A., upon the ground that respondent is a foreign corporation not subject to service of process in this district, and that service was not made on a person authorized to be served on its behalf.

The motion was originally presented on affidavits only. I withheld decision pending the taking of depositions by libelant bearing on the relationship between respondent and its alleged agent Dichman, Wright & Pugh, Inc. upon whom service of process was made and upon whose activities in New York on respondent's behalf respondent's 'presence' here depends. See Memorandum Adm. No. 190-391, December 27, 1957.

 Libelant has now completed rather exhaustive depositions on this subject and asks that its motion be decided upon such depositions and various affidavits which are before the court.

 Libelant is a citizen and resident of Honduras. He sues in admiralty for personal injuries allegedly sustained in the Caribbean aboard a Panamanian flag vessel owned and operated by respondent on a voyage between Caribbean ports. Libelant was sailing under Panamanian Articles signed in Honduras.

 Three Bays is a corporation organized in the Bahamas and its main office and general and operating agent is located at Miami, Florida, with branch offices at Tampa and Pensacola.

 There can be no doubt that the claim here did not arise out of, nor had it any connection with respondent's activities in New York, whatever those activities were.

 To determine whether respondent was 'present' in this jurisdiction for purposes of service of process the question is whether respondent had 'minimum contacts' with the state of the forum 'such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice". Whether the claim asserted has any connection with the activities carried on in the state of the forum is relevant on this question. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95; Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139. See, also, French v. Gibbs Corp., 2 Cir., 189 F.2d 787; Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 175 F.2d 184, certiorari denied 338 U.S. 867, 70 S. Ct. 141, 94 L. Ed. 531; Kilpatrick v. Texas & P. Ry. Co., 2 Cir., 166 F.2d 788, certiorari denied 335 U.S. 814, 69 S. Ct. 32, 93 L. Ed. 369.

 Libelant has the burden of sustaining in personam jurisdiction. Mitchell v. The M V Wanderer, D.C.S.D.N.Y., 127 F.Supp. 540; Amotorg Trading Corp. v. Standard Oil Company of California, D.C.S.D.N.Y., 47 F.Supp. 466.

 Libelant has not met this burden.

 The following additional facts appear from the affidavits submitted and the depositions taken.

 Three Bays Corporation operates a cargo cruiser service between Florida and Caribbean ports and its ships do not come into the Port of New York. In addition to its main office and it general and operating agent at Miami and its branch offices at Tampa and Pensacola, respondent's sailing schedules list some fifty agents in Caribbean and other ports and in Baltimore, New York, Norfolk and Philadelphia.

 In New York its agent is Dichman, Wright & Pugh at 44 Whitehall Street, which also is agent for Three Bays in Baltimore, Norfolk and Philadelphia. The Dichman firm is an entirely separate corporate entity form Three Bays and there is no interlocking stock ownership or identity of any officers of directors between the two. Service here was made upon Smith, the Manager of Dichman, Wright & Pugh at its New York office. He was the Dichman employee who handled such Three Bays business as was done in New York.

 Dichman, Wright & Pugh were engaged as agents in the solicitation of cargo business for a substantial number of ocean carriers, including one of respondent's competitors. The business done here for Three Bays constituted a very small fraction, both of Dichman's business and of the total business of Three Bays, though it was carried on at fairly regular intervals.

 All offers of cargo bookings were accepted and contracts entered into at the Three Bays office in Miami, Florida, and were subject to confirmation there. Bills of lading were prepared and issued by the general agents in Miami and never by the Dichman firm. Cargo solicited was not shipped from New York. Dichman did not act as husbanding agent for Three Bays in New York and had no authority to enter into contracts on its ...


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