The opinion of the court was delivered by: TENNEY
Defendant Yukon Compania Naviera, S.A., (hereinafter referred to as "Yukon") moves pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims (hereinafter referred to as the "Supplemental Rules"), and Fed. R. Civ. P. 12(b) to vacate an allegedly illegal maritime attachment and dismiss the instant complaint on the grounds of insufficiency of process, lack of in personam jurisdiction, and because another identical cause of action is pending in the United States District Court in Massachusetts.
From the papers before me it appears that Crestwood Shipping Agencies, Inc. (hereinafter referred to as "Crestwood"), a corporation organized under the laws of New York and maintaining a business office in this district, is the general agent for defendant Yukon. On June 30, 1970, Crestwood and the Atlantic Bank of New York (hereinafter referred to as the "Bank") were served with: 1) a Process of Maritime Attachment and Garnishment; 2) a complaint alleging that defendant breached a charter agreement; 3) a Summons to Show Cause Why Intangible Property Should Not Be Paid Into Court; and 4) a Marshal's Notice of Attachment informing Crestwood and the Bank that Yukon's credits and funds had been attached.
The controversy underlying the instant motion is an alleged anticipatory breach of charter party by Yukon as owner of the vessel "S/T VEGA" (hereinafter referred to as "VEGA"). It further appears that plaintiff Antco Shipping Company, Ltd. (hereinafter referred to as "Antco") has commenced additional litigation against defendant and its vessel in Massachusetts by arresting the "VEGA". Although plaintiff has alleged damages in the amount of $3,000,000 in both actions, Yukon was permitted to post a $900,000 bond with the Massachusetts District Court in order to release the "VEGA" from arrest.
Defendant, relying on Rule B of the Supplemental Rules -- which, in pertinent part, provides:
"With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant's goods and chattels, or credits and effects in the hands of garnishees named in the complaint to the amount sued for, if the defendant shall not be found within the district."
-- urges that the attachment was illegally made since defendant could be "found within the district".
In support of its position that it could have been found herein, defendant has offered the following, essentially undisputed, facts. The charter party in issue was entered into in this district and was signed by James G. Page, Assistant Secretary of Crestwood, for and on behalf of Yukon.
Clause 35 of said charter specified that any notice required to be given be addressed to the owner or to the "Owner's Agent, Crestwood * * * 29 Broadway, New York, New York 10006."
In addition, it was agreed that the charter payments be paid to the bank in New York "For credit to: Crestwood * * * 'VEGA' Acct. #: 02-061-988."
Defendant contends that its presence within this district is further evidenced by the fact that various communications exchanged between plaintiff and Crestwood during the course of the charter were often signed by or addressed to Crestwood as agent for Yukon.
Finally, in an affidavit furnished at the Court's request, Yukon's president, Harry Panagopulos, states that Crestwood, as agent for Yukon, "[conducts] all business on behalf of Yukon relating to the maintenance and operation of the 'VEGA' in New York, including the vessel's chartering and operation."
In addition, Crestwood "collects money for Yukon's account in New York, receives cargo and personal injury claims arising out of the operation of the 'VEGA', pays crews' wages and advances cash to the Master when the vessel is in New York and the United States."
Mr. Panagopulos has also affirmed that the vessel has at various times docked at the Port of New York, whereupon Crestwood would act as Yukon's agent.
The Court is mindful that affiant has not been specific either as to whether the "VEGA" docked in this district or in the Eastern District, since the Port of New York extends to both districts, or as to when and where the previously noted activities were conducted by Crestwood for Yukon in this district. In concluding the affidavit, defendant's president has, of course self-servingly, asserted that Yukon is willing to appear generally to defend against plaintiff's claim provided proper service is effected upon its agent Crestwood.
Predicated upon the foregoing and other facts purportedly indicating plaintiff's knowledge of the agency between defendant and Crestwood, Yukon contends that Antco, before resorting to the more drastic remedy of foreign attachment, was obligated to first attempt service of a summons upon Crestwood in order to obtain personal jurisdiction over Yukon. Implicit in this contention is the corollary that the attachment under Supplemental Rule B was improper because the defendant could be found within this district.
Although plaintiff does not dispute that Crestwood was Yukon's agent in this district for certain purposes, it earnestly disagrees with defendant's contention that the existence of this agency constitutes sufficient presence herein to warrant a finding under Rule B that defendant can be "found within this district".
In support of its position, plaintiff enumerates the following factors as being indicative of defendant's absence from this district within the meaning of Supplemental Rule B: 1) defendant maintains no office or place of business herein and is not licensed to conduct business in this state; 2) defendant is neither listed in the Manhattan telephone directory nor in the directory of the building in which its agent Crestwood maintains its office; 3) Yukon's name does not appear on the door to the agent's office; and 4) there are no officers or directors of defendant residing or transacting business within this district.
In sum, plaintiff contends that Yukon is essentially a "one-ship" Panamanian corporation, which, for tax purposes, maintains no presence and conducts no business either ...