citing Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 44, 227 N.E.2d 851 (1967), cert. denied 389 U.S. 923, 19 L. Ed. 2d 266, 88 S. Ct. 241 ; Bryant v. Finnish Nat. Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 627-8, 208 N.E.2d 439 2 (1965).
For example, in Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990), the court found that the defendant was not doing business in New York when it neither solicited business, had offices, held bank accounts or property, or employed individuals in New York. Similarly, in Masonite Corp. v. Hellenic Lines, Ltd., 412 F. Supp. 434 (S.D.N.Y. 1976), the court found that a foreign shipowner who had no offices or employees in New York and who did not solicit business or conduct any regular service to or from New York was not doing business in New York. Jurisdiction pursuant to § 301 was also declined in Mullins v. Hak, 674 F. Supp. 997 (E.D.N.Y. 1987). There, the defendant trucking firm had no offices, warehouses, personnel, or bank accounts in New York. However, it did deliver and pick-up cargo in New York if requested by customers, therefore logging an average of over 1,000 miles in the state each week. Nevertheless, the court ruled that the defendant's presence was only occasional and not sufficiently permanent to constitute doing business.
Here, neither Calluna nor European has sufficient contacts with New York to constitute doing business. Calluna is a Liberian corporation with offices in Liberia, and its sole asset is the Amazon. Calluna has no offices, employees, agents, property or bank accounts in New York, nor does it maintain a mailing address or telephone listing in New York. Affidavit of Maria Ladas, sworn to on September 3, 1991 ("Ladas Aff.") para. 1. European is a Liberian corporation with offices in Greece. It has never been licensed to do business in New York. European has no officers, employees, agents, bank accounts, or property in New York. It does not maintain any mailing address or telephone listings in New York. Affidavit of Georgios Bardis, sworn to on September 3, 1991 ("Bardis Aff.") para. 14.
It is undisputed that while the Amazon has made trips to New York, those trips were made at the discretion of its charterers, not according to any regular schedule, because the vessel is regularly chartered for operation in the tramp trade. Accordingly, the Amazon's contacts with New York lack the permanence and continuity which would lead to the conclusion that the vessel's owner or operator is doing business in New York.
B. CPLR § 302: Long-Arm Jurisdiction
CPLA § 302(a)(1) provides for jurisdiction over any non-domiciliary who, in person or via an agent, "transacts any business within the state or contracts any where to supply goods or services in the state," so long as the cause of action arises out of that transaction of business or supply of goods or services. Plaintiff argues that because the Amazon made numerous visits to ports in New York to deliver oil, both Calluna and European either contracted to supply goods or transacted business in New York. Plaintiff also argues that the use of a New York shipping broker, Elka Maritime ("Elka"), constitutes transacting business in New York via an agent.
1. Contracting to supply goods in New York
The pleadings and affidavits do not show that either Calluna or European contracted to supply oil to New York. At all relevant times, the Amazon was operating in the "tramp trade" as opposed to in "liner service." It is undisputed that: (1) in liner service, a vessel's owner operates the vessel on a regular schedule sailing to and from specific ports, and the owner solicits and books cargo in the scheduled ports for its own account, thus deriving income directly from those cargos; (2) that a vessel operating in the tramp trade is available to any charterer who is willing to pay a competitive rate for the use of the vessel's cargo carrying capacity; (3) that a tramping vessel's itinerary is not determined by the owners or managers, but rather by the charterer of the moment; and (4) that it is the charterer's obligation to pay for the use of the vessel whether or not it has carried cargo, and therefore profit or loss on the cargo is entirely the risk of the charterer.
Because deliveries of oil to New York were made while the Amazon was operating in the tramp trade, neither Calluna or European contracted to supply oil in New York.
2. Transacting Business in Person
The showing necessary for a finding that a defendant "transacted business" is considerably less than that necessary to establish that a defendant was "doing business" in New York. Hoffritz for Cutlery, 763 F.2d at 58. See also Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964). When determining whether a non-resident defendant has transacted business in New York, a court should look at the totality of the defendant's activities within the forum and determine if the defendant has engaged in purposeful activity in New York, thus invoking the benefit and protections of state law. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.S.2d 443, 261 N.Y.S.2d 8, 19, 209 N.E.2d 68 (1965). See also Galgay v. Bulletin Co., 504 F.2d 1062, 1064 (2d Cir. 1974).
The activities of Calluna and European do not indicate that either corporation transacted business in New York. While the Amazon did make periodic visits to New York, those visits were made while the vessel was operating in the tramp trade, not in liner service offered by the owner or operator. As such, Calluna and European merely allowed the charterer of the Amazon to direct that the vessel go to New York to discharge of cargo. It was not necessary for the Amazon to actually visit New York for the Defendants to earn their income; such visits occurred merely at the discretion of the charterer of the moment.
3. Transacting Business via an Agent
Loberiza argues that because the Amazon was at times chartered through Elka, a New York based chartering agent, this court has personal jurisdiction over European and Calluna on the theory that they transacted business in New York via an agent. Elka was not involved, however, in the chartering of the Amazon for the voyage on which Loberiza was injured. Edelman Aff. at 4-5. Thus, the requirement that there be an "articulable nexus between the business transacted and the cause of action sued upon" is not met. McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (1981). See also Beacon Enterprises v. Menzies, 715 F.2d 757, 764 (2d Cir. 1983).
Defendant's motion to dismiss for lack of personal jurisdiction is granted.
IT IS SO ORDERED.
Dated: New York, New York
January 14, 1992
Robert P. Patterson, Jr.