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MED-SPAN SHIPPING SERVS. v. JERRY JONES MACK

January 10, 1978

MED-SPAN SHIPPING SERVICES, LTD., Plaintiff, against JERRY JONES MACK, INC. and BAGHER NAVID (Navid Brothers Trading Firm), Defendants.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

In this admiralty case, an ocean carrier sues to recover freight for the trans-Atlantic carriage of certain cement mixer trucks. Defendant Jerry Jones Mack, Inc. ("Mack"), a New Jersey corporation, was the shipper. Defendant Bagher Navid (Navid Brothers Trading Firm) ("Navid"), an Iranian corporation, was the consignee.

 Mack moves to dismiss the complaint for lack of jurisdiction over the person, Rule 12(b)(2), Fed.R.Civ.P., or, in the alternative, for summary judgment, Rule 56, Fed.R.Civ.P. Plaintiff cross-moves for leave to amend the complaint, Rule 15(a), Fed.R.Civ.P., and for summary judgment, Rule 56, Fed.R.Civ.P.

 FACTS

 In the spring of 1975, Navid sought to acquire a number of used cement mixer trucks.Mack located eighteen such trucks in Connecticut and, acting as Navid's agent, arranged for their sale to Navid for a commission of $200.00 per truck. Payment for the trucks was to be by letter of credit, payable to the order of Mack, the latter, in turn, to remit the purchase price to the Connecticut seller.

 Navid engaged plaintiff to carry the trucks to Iran. Since Mack was also acting as shipper and made the arrangements for carriage with the plaintiff, Mack engaged the services of Albert E. Bowen, Inc. ("Bowen"), a New York-based freight forwarder, to prepare and execute the bill of lading and attend to the other details of the transaction.

 Ultimately, plaintiff delivered the trucks to Iran, and Navid paid a portion of the freight. Plaintiff thereupon instituted this suit against Mack and Navid for the remainder of the freight and for storage charges.

 PERSONAL JURISDICTION

 Mack moves to dismiss the complaint for lack of jurisdiction over the person. Rule 12(b)(2), Fed.R.Civ.P. Plaintiff bases jurisdiction on Rule 4(e), Fed.R.Civ.P., and New York's long-arm statute, which, in pertinent part, provides:

 "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

 1. transacts any business within the state...." N.Y. CPLR § 302(a).

 The parties agree that Mack itself performed no acts within the state. They further agree, however, that Bowen served as Mack's local agent and, on Mack's behalf, performed certain acts within the state. *fn1" The question, therefore, is whether Bowen's acts amounted to the transaction of business. We hold that they do and deny Mack's motion to dismiss.

 As stated above, Bowen acted as Mack's freight forwarder. In that capacity, Bowen prepared the bill of lading for shipment to Iran and presented the bill to the carrier for execution. Such acts are tantamount to the execution of a contract of carriage within the state and might, in themselves, be a sufficient premise for the exercise of jurisdiction. George Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 653, 363 N.E.2d 551, 554, 394 N.Y.S.2d 844, 847-48 (1977).

 Our decision, however, need not rest solely upon this single act by Bowen. As Mack's agent, Bowen performed substantial additional activities which, when viewed in conjunction with the execution of the bill of lading, are more than ...


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