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FOSEN v. UNITED TECHS. CORP.

February 7, 1980

BJORD TURID FOSEN, Personal Representative of the Estate of JAN FOSEN, Deceased; ANNE MARIE DRANGELD, Personal Representative of the Estate of OLAN DRANGELD, Deceased; KATHLEEN MARIE TORSOE, Personal Representative of the Estate of HANS AKSEL TORSOE, Deceased; MAREN DAHL, Personal Representative of the Estate of STALE DAHL, Deceased; and INGUNN KOPPERGARD, Personal Representative of the Estate of AGE KOPPERGARD, Deceased, Plaintiffs, against UNITED TECHNOLOGIES CORPORATION, d/b/a UNITED TECHNOLOGIES CORPORATION OF NEW YORK CITY; UNITED AIRCRAFT INTERNATIONAL, INC., d/b/a UNITED AIRCRAFT CORPORATION; ALL NIPPON AIRWAYS CO., LTD., d/b/a ALL NIPPON AIRWAYS, INC., AMERICAS; and ALL NIPPON AIRWAYS, INC., AMERICAS, Defendants.


The opinion of the court was delivered by: TENNEY

This wrongful death action arises out of a helicopter crash that occurred on November 23, 1977 in the North Sea off the coast of Norway. The plaintiffs, five Norwegian citizens, instituted this suit as personal representatives of five Norwegian citizens who were killed in the accident. The decedents were employed by the Phillips Petroleum Company and worked on a mobile drilling rig in the North Sea. The accident occurred when the helicopter that was transporting them to the rig crashed about thirty miles from the coastline. Nobody aboard the helicopter survived, and none of the evidence presented so far sheds any light on how or why the accident occurred.

At the time of the accident the helicopter was owned and operated by Helikopter Service A/S ("Helikopter Service"), a Norwegian corporation that is not a party to this action. The helicopter was manufactured in 1970 by the Sikorsky Aircraft Division of defendant United Technologies Corporation ("United Technologies"). United Technologies is a Delaware corporation that maintains its principal place of business and helicopter manufacturing facilities in Connecticut. Defendant United Technologies International, Inc. ("United International"),* a Delaware corporation located in Connecticut, is United Technologies' wholly owned subsidiary and provides market support for the sale of its products in the international market. Defendant All Nippon Airways Co., Ltd. ("ANA") is a Japanese corporation that acquired the helicopter from United Technologies in 1971 and sold it to Helikopter Service in 1976. ANA owns approximately 40% of the stock of All Nippon Airways Trading Co., Ltd. ("ANA, Ltd."), another Japanese corporation that owns 100% of the stock of defendant All Nippon Airways, Inc., Americas ("ANA Americas"). ANA Americas is a California corporation that is licensed to do business in California, Washington, and New York.

 The plaintiffs allege that the crash that killed the decedents was caused by a defect in the design, manufacture, or maintenance of the helicopter. Their complaint proposes three theories of liability: negligence, strict products liability, and breach of express and implied warranties. Jurisdiction is allegedly based on diversity of citizenship, 28 U.S.C. § 1332, and the Death on the High Seas Act, 46 U.S.C. § 761. *fn1"

 Defendant ANA has moved to dismiss the complaint for lack of personal jurisdiction. ANA Americas has made a motion for summary judgment, or in the alternative, to dismiss the action for failure to state a claim upon which relief can be granted. Defendants United Technologies and United International have moved to dismiss the case on grounds of forum non conveniens. Each defendant's motion will be discussed in turn. For the reasons described below, the complaint is dismissed with respect to all of the defendants.

 ANA

 ANA is a Japanese corporation with its principal place of business in Japan. It is an air carrier engaged in the transportation of passengers and cargo between points outside of the United States. The company has no scheduled or unscheduled flights anywhere in the United States and is not authorized by the Civil Aeronautics Board to conduct such flights here. Affidavit of Mineo Takizawa, sworn to March 7, 1979, P 4 ("Takizawa Aff."). ANA does not maintain any sales, ticket or reservation office in New York or any other state. Id. P 5. The company has neither an authorized agent for service of process nor a Certificate of Authorization to do business in New York or any other state. Id. P 6.

 The company does, however, employ a financial representative, Mineo Takizawa, in New York. His primary functions are to gather financial information for the use of ANA management in Tokyo and to negotiate loans with banks located in the city. Mr. Takizawa has office space in the New York office of ANA Americas. According to Mr. Takizawa, "ANA and ANA-Americas are separate and independent entities" and "(t)he day-to-day operations of ANA-Americas are performed independently by the staff of ANA-Americas who are not employed by ANA." Id. P 12. He has stated that he is the only person in the office of ANA Americas who is employed by ANA. Deposition of Mineo Takizawa, taken March 12, 1979, at 14 ("Takizawa Dep."). However, ANA pays 50% of the monthly rent for the office as well as half of the telephone bill. Id. at 36. One of the secretaries in the office is used jointly by both companies, and ANA is responsible for half of this person's salary. Id. at 15. ANA maintains a bank account, with an average monthly balance of $ 10,000.00, in the New York branch of the Bank of Tokyo. Takizawa Aff. P 15. The money in this account is used to meet Mr. Takizawa's monthly expenses and to pay for secretarial services. Id.

 The plaintiffs contend that ANA is "doing business" in New York, and is therefore subject to jurisdiction here pursuant to N.Y.C.P.L.R. § 301 (McKinney 1972), by virtue of the activities conducted by Mr. Takizawa. *fn2" ANA argues that neither Mr. Takizawa's business transactions nor the presence of ANA Americas in New York is sufficient to render ANA amenable to jurisdiction in this state. The defendant also argues that it was not properly served in this action because the plaintiffs served Prentice-Hall Corporation Systems, Inc., the agent designated for service by ANA Americas, and not ANA. The plaintiffs, in turn, point out that ANA "was properly notified of this lawsuit through service on ANA Americas and in any event additional service is presently being effected on ANA." Statement of Points and Authority in Opposition to Defendant ANA's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Service ("Plaintiffs' Memorandum I") at 13. *fn3"

 Obviously assuming that diversity jurisdiction is present in this case, the parties have discussed only the New York "doing business" standard in the memoranda submitted to the Court on this motion to dismiss for lack of personal jurisdiction. See Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963) (en banc) (federal court in diversity action applies jurisdictional law of the state in which it sits). Unfortunately, these discussions miss the mark. As is evident from a brief recital of the facts, this action is between two foreign litigants and so diversity jurisdiction cannot be sustained. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975); Bergen Shipping Co., Ltd. v. Japan Marine Services, Ltd., 386 F. Supp. 430, 432 (S.D.N.Y.1974). Diversity jurisdiction, as defined in 28 U.S.C. § 1332, exists only in actions between: (1) citizens of different states; (2) citizens of a state and citizens of a foreign state; (3) citizens of different states and in which citizens of a foreign state are additional parties; and (4) a foreign state and citizens of a state or different states. A corporation is deemed to be a citizen of any state in which it is incorporated and of the state where it has its principal place of business. Id. § 1332(c). The plaintiffs are Norwegian, the defendant ANA is Japanese; the fact that other defendants in this suit are citizens of a state does not cure this jurisdictional defect. See Ed & Fred, Inc. v. Puritan Marine Insurance Underwriters Corp., 506 F.2d 757, 758 (5th Cir. 1975); Ex parte Edelstein, 30 F.2d 636, 638 (2d Cir.), cert. denied, 279 U.S. 851, 49 S. Ct. 347, 73 L. Ed. 994 (1929); Neeld v. American Hockey League, 439 F. Supp. 459, 462 (S.D.N.Y.1977); Lavan Petroleum Co. v. Underwriters at Lloyds, 334 F. Supp. 1069, 1071 (S.D.N.Y.1971); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3604 (1975). Therefore, contrary to what the parties evidently presumed, this Court does not have diversity jurisdiction to entertain the plaintiffs' claims against ANA. *fn4"

 This lack of diversity jurisdiction does not, however, dispose of this portion of the lawsuit. The plaintiffs also alleged jurisdiction on the basis of the Death on the High Seas Act. This Act provides, in part:

 
Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

 46 U.S.C. § 761.

 It is unclear whether the plaintiffs' claims against ANA are cognizable under this statute. First, the wrong alleged must "bear a (sufficient) relationship to traditional maritime activity" to satisfy the standard enunciated by the Supreme Court in the 1972 case of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S. Ct. 493, 504, 34 L. Ed. 2d 454 (1972). As stated by the Court, "the mere fact that the alleged wrong "occurs' or "is located' on or over navigable waters whatever that means in an aviation context is not of itself sufficient to turn an airplane negligence case into a "maritime tort.' " Id. Although post-Executive Jet cases have not yielded totally consistent results, see Hubschman v. Antilles Airboats, Inc., 440 F. Supp. 828, 836, 838 (D.V.I.1977), the accident that gave rise to this suit is probably related closely enough to extensive offshore operations to fall within the Court's admiralty jurisdiction. See Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 424 n.1 (5th Cir. 1977), rev'd on other grounds, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978); Roberts v. United States, 498 F.2d 520, 524 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S. Ct. 656, 42 L. Ed. 2d 665 (1974); Hubschman v. Antilles Airboats, Inc., supra, 440 F. Supp. at 840.

 Second, assuming the existence of admiralty jurisdiction, it must be determined whether the plaintiffs' claims against ANA actually allege a "wrongful act, neglect, or default occurring on the high seas." 46 U.S.C. § 761. The Death on the High Seas Act does provide for claims based on negligence, Krause v. Sud-Aviation, Societe Nationale de Constructions Aeronautiques, 413 F.2d 428, 429, 431-32 (2d Cir. 1969), breach of implied warranty of fitness, id., and products liability, In re Marine Sulphur Transport Corp., 312 F. Supp. 1081, 1102 (S.D.N.Y.1970), rev'd in part on other grounds, 460 F.2d 89 (2d Cir.), cert. denied, 409 U.S. 982, 93 S. Ct. 318, 34 L. Ed. 2d 246 (1972); Soileau v. Nicklos Drilling Co., 302 F. Supp. 119, 124 (D.C.La.1969). Although ANA did not manufacture the helicopter, the company's allegedly negligent maintenance and operation could have created a defect in the machine. If American law were applied, ANA could be liable for merely selling a defective product, see Restatement (Second) of Torts § 402A (1965); the result under Norwegian law, as well as the question of which nation's law applies, is uncertain. The Court need not reach these questions, however, in light of its conclusion, explained below, that the plaintiffs cannot invoke the Death on the High Seas Act because there are insufficient points of contact between the United States and the transaction giving rise to their claims against ANA. See Lauritzen v. Larsen, 345 U.S. 571, 582, 73 S. Ct. 921, 928, 97 L. Ed. 1254 (1953).

 In Fitzgerald v. Texaco, Inc., 521 F.2d 448, 454 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed. 2d 641 (1976), the Second Circuit stated that:

 
The broad principles of choice of law established for Jones Act cases in Lauritzen v. Larsen, (supra,) were declared equally applicable to cases arising under the general maritime law in Romero v. International Operating Co., 358 U.S. 354, 381-4, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959), and have been applied to suits brought under the Death on the High Seas Act. Symonette Shipyards Ltd. v. Clark, 365 F.2d 464 (5 Cir. 1966).
 
The governing principle winnowed from these cases is that the plaintiffs can recover under the Death on the High Seas Act only if they are able to establish some significant national contacts warranting the application of the statute to non-resident aliens. Lauritzen v. Larsen, supra, 345 U.S. at 582-592, 73 S. Ct. 921.

 In Lauritzen, the Supreme Court delineated the following factors that influence the choice of law to govern a maritime tort claim: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance of the shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum. Id. 345 U.S. at 583-92, 73 S. Ct. at 928-33. The Lauritzen test is not a mechanical one, and the list of seven factors is not exhaustive. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90 S. Ct. 1731, 1733-34, 26 L. Ed. 2d 252 (1970). The Rhoditis Court emphasized that the shipowner's "base of operations" is an important factor in determining whether the Jones Act applies, id. at 309, 90 S. Ct. at 1734, and the Second Circuit has suggested that American ownership of the vessel might be sufficient to establish jurisdiction under the statute. See, e.g., Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2d Cir.), cert. denied sub nom. Ekberg Shipping Corp. v. Moncada, 417 U.S. 947, 94 S. Ct. 3072, 41 L. Ed. 2d 667 (1974); Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443 n.4 (2d Cir.), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959). "(Contacts) to which the courts have paid little attention include the place of injury, . . . the place where the contract was made, . . . and the inaccessibility of a foreign forum." Moncada v. Lemuria Shipping Corp., supra, 491 F.2d at 472-73. As stated by the Second Circuit, "Jones Act jurisdiction exists only where there are substantial contacts between the transaction involved in the case and the United States, with substantiality to be determined on an absolute scale and not by comparing or balancing the presence of certain contacts with the absence of others." Id. at 472; see Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307, 310 (2d Cir. 1976), cert. denied, 429 U.S. 1098, 97 S. Ct. 1116, 51 L. Ed. 2d 545 (1977); Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392, 1396 (2d Cir. 1976).

 This case does not fall neatly within the framework or guidelines established by the Jones Act decisions, for this is a helicopter crash case, not a typical maritime accident. Yet the Court has attempted to determine whether the requisite "significant national contacts" have been established in accordance with the Second Circuit's pronouncement that Jones Act choice of law principles apply to suits brought under the Death on the High Seas Act. Fitzgerald v. Texaco, Inc., supra, 521 F.2d at 454; see also De Mateos v. Texaco, Inc., 562 F.2d 895, 900 (3d Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1449, 55 L. Ed. 2d 494 ...


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