The opinion of the court was delivered by: CONNER
This is an action to recover money damages for injuries allegedly sustained when Japan Marine Services, Ltd. ("JMS") breached its agreement to provide a crew for the SS Yukon Mart, a bulk cargo vessel owned by plaintiff Bergen Shipping Co., Ltd. ("Bergen").
The action first came before the Court on Bergen's ex parte application for leave to serve JMS in Japan by Telex, and to depose the crew of the vessel. Since the performance of the crew was the crucial issue in the lawsuit and the crew was about to depart from the United States and be reassigned to vessels in international commerce, the application was granted.
Immediately thereafter, JMS appeared to contest the jurisdiction of this Court and moved to have the order vacated on the grounds that Bergen had no reasonable basis for invoking the Court's jurisdiction and that the parties had an agreement to arbitrate its disputes. In view of the exigency of the circumstances, the Court ruled that the depositions were to go forward as scheduled without prejudice to any of JMS' rights. The Court further ruled that the transcripts were to be unavailable to either party pending resolution of JMS' jurisdictional claims.
Subsequently, JMS moved pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for an order dismissing the complaint on the grounds that this action is not within either the admiralty or the diversity jurisdiction of the Court. It has also moved pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, to quash service on the ground that the Court lacks jurisdiction over its person.
The parties have agreed that the action should be dismissed without prejudice pending the outcome of an arbitration proceeding now scheduled to commence in Tokyo. However, because defendant has claimed that plaintiff invoked the jurisdiction of this Court in bad faith, and that it attended the depositions in reliance on this Court's direction that it would not forfeit its existing rights, it is necessary to pass on defendant's pending motions which seek an order that the deposition transcripts cannot be used in the arbitration or in any other proceedings between the parties.
This action arises out of a decision by Bergen, a Liberian corporation having its principal place of business in New York, to obtain a Japanese crew for its vessel, the SS Yukon Mart. In accordance with Japanese practice, Bergen arranged for JMS, a "marine service company," to supply the crew.
The parties agreed that JMS would negotiate a labor agreement with the All Japan Seamen's Union, and furnish a crew in accordance with the terms of that agreement. JMS further agreed that it would,
"effect payment of all reasonable allotments from wages to beneficiaries directly or through such channels as may be customary and agreed by the employee . . . . [And] effect payment of wages to employees when the vessel is in Japan . . . ."
In March, 1974 the president of the seamen's union presented JMS with a proposal to revise the original agreement. Eventually, Mr. Hosaka, JMS' Director and Section Chief of the Manning Section, came to the United States for two days to meet with the crew. Negotiations continued until July 10, 1974 when the crew ceased work. On July 24, 1974 Bergen obtained permission to depose the crew with respect to its refusal to perform any further duties.
In support of its jurisdictional objections JMS contends that this Court's jurisdiction may not be ...