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November 4, 1965

Giuseppe INGRAVALLO, Plaintiff,
POOL SHIPPING CO., Ltd., Defendant

Abruzzo, District Judge.

The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

This is a motion made by the defendant pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for an order vacating and setting aside the service of the summons and complaint made at Darlington County, Durham, England, on August 17, 1965, and dismissing this action for (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) insufficiency of service of process.

 This cause of action accrued on May 26, 1959, when the plaintiff-longshoreman while aboard the defendant's M.V. TROUTPOOL sustained an injury when a bale of rubber fell and struck him on his lower left extremity allegedly due to the defendant's negligence and breach of warranty of seaworthiness. A complaint based on diversity of citizenship was initially filed on March 23, 1962, and discontinued on December 3, 1963, at the call of the dismissal calendar. This action was again instituted on June 10, 1963, by the filing of an identical complaint, except that it named T. H. Winchester & Co. as the alleged general agent of the defendant in place of Black Diamond Steamship Co., and the summons, as in the first action, was not served because the alleged general agent was not the agent of the defendant. On August 17, 1965, some two years after the commencement of the suit and a little more than six years after the cause of action accrued, the plaintiff effectuated service upon the defendant by serving the defendant's general agent, Sir R. Ropner & Co., Ltd., at Darlington County, Durham, England, with a copy of the summons and complaint dated June 10, 1963, pursuant to Judge Rosling's order dated July 16, 1965.

 The defendant's contention that the Court lacks jurisdiction of the subject matter because the amount in controversy does not exceed $10,000 is unwarranted. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, pp. 288-289, 58 S. Ct. 586, p. 590, 82 L. Ed. 845, the Court stated:

The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. * * *

 It is apparent from reading the plaintiff's complaint and affidavit as to the extent of the plaintiff's injury and the permanency thereof that he has satisfied the requirements of the aforementioned rule.

 The plaintiff contends that this Court acquired jurisdiction over the person of the non-resident defendant by reason of the service of the summons and complaint upon the general agent of the defendant without the State and that said service of process upon the non-resident defendant was proper under the provisions of Rules 3, 4(e) and 4(f) of the Federal Rules of Civil Procedure and Sections 302, 313 and 10003 of the New York Civil Practice Law and Rules. Further, that a question of personal jurisdiction over the non-resident defendant was feasible in the light of 302 C.P.L.R. in that this cause of action was one arising out of the non-resident defendant's "transacting of any business within this state," and/or was a "tortious act committed within this state." The thrust of the defendant's argument is manypronged: (1) 302 C.P.L.R. applies only to actions instituted after the effective date of the C.P.L.R. (September 1, 1963); (2) 302 C.P.L.R. does not furnish an arguable jurisdictional basis for the service on August 17, 1965, as a "further proceeding in a pending action," pursuant to 10003 C.P.L.R., for it "would not be feasible" and "would work injustice" to justify out-of-the-country service; (3) the legislative policy stated in Section 74 of the Navigation Law, McKinney's Consol.Laws, c. 37, excluding "longarm" jurisdiction over accident claims arising solely from the use and operation of foreign documented vessels, would preclude the application of 302 C.P.L.R. to such an accident so as to nullify that fundamental provision; and (4) that plaintiff's cause of action for a breach of warranty of seaworthiness for improper stowage was not a tortious act committed within this State nor was it a cause of action arising from the defendant's transacting of any business within this State. The first issue to be resolved is whether 302 C.P.L.R. and the related 10003 C.P.L.R. are applicable to the facts of this case. This Court is of the opinion that they are. 302 C.P.L.R. provides:

§ 302. Personal jurisdiction by acts of nondomiciliaries
(a) Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:
1. transacts any business within the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. owns, uses or possesses any real property situated within the state.
(b) Effect of appearance. Where personal jurisdiction is based solely upon this section, an appearance does not confer such jurisdiction with respect to causes of action not arising from an act enumerated in this section.

 10003 C.P.L.R. provides:

§ 10003. Pending and subsequent proceedings
This act shall apply to all actions hereafter commenced. This act shall also apply to all further proceedings in pending actions, except to the extent that the court determines that application in a particular pending action would not be feasible or would work injustice, in which event the former procedure applies. Proceedings pursuant to law in an action taken prior to the time this act takes effect shall not be rendered ineffectual or impaired by this act.

 The defendant cites Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427, quite extensively to sustain his claim that the aforementioned statutes are not applicable in this case. In Simonson, page 290, 251 N.Y.S.2d page 440, 200 N.E.2d page 432, the Court held that 302 C.P.L.R. had retroactive effect only to "suits instituted after its effective date but based on previously accrued causes of action." The Court stated further on that same page, "it is manifest, despite some lower court cases to the contrary (see e.g., Steele v. De Leeuw, 40 Misc.2d 807 [244 N.Y.S.2d 97]; Rand, Inc., v. Joyas De Fantasia, 41 Misc.2d 838 [246 N.Y.S.2d 778]), that the new section does not apply to actions instituted prior to its effective date and does not operate, by relation back, to validate an attempted service of process which was jurisdictionally defective when made, because in such a case we deal with a prior service itself and not with a 'further proceeding' in the action (cf. C.P.L.R. § 10003)."

 The facts as stated in Simonson would appear, and correctly so, to sustain the conclusion reached by that Court. A careful reading of Simonson, however, must lead one to draw a different conclusion as respects the facts of the case before this Court. In Simonson the appellant was seeking by use of 302 C.P.L.R. to "validate an attempted service of process" which was made before the effective date of the new C.P.L.R. Under the old 218 C.P.A. and new 304 C.P.L.R. an action is commenced by the service of a summons. Inasmuch as the appellant did not serve the respondent with a summons, an action was not commenced and therefore appellant's later recourse to 302 C.P.L.R. in order to effectuate service was not, in effect, a "further proceeding in a pending action."

 In the Simonson case the appellant was suing for breach of contract, a state-created right governed by the state's statute of limitations. In the case before this Court the plaintiff has joined with his action for negligence an action for breach of warranty of seaworthiness. Although the action for breach of warranty of seaworthiness is analogous to a cause of action for breach of contract for the purposes of applying this State's statute of limitations, this unique species of liability, which has its roots in general maritime law and which has been interpreted by federal decisional law, cannot be considered as a statecreated right subject to the substantive law of that particular state. See Seas Shipping Co., ...

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