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KAO HWA SHIPPING CO., S.A. v. CHINA STEEL CORP.

March 23, 1993

KAO HWA SHIPPING CO., S.A., Plaintiff,
v.
CHINA STEEL CORPORATION, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 In this admiralty action, defendant China Steel Corporation ("CSC") moves, pursuant to Rules 60(b)(1) and 60(b)(4) of the Federal Rules of Civil Procedure, for an order vacating a default judgment signed by the Court on May 7, 1992, and entered on May 13, 1992, and dismissing the complaint. For the reasons that follow, CSC's motion is granted, the default judgment is vacated, and the action is dismissed.

 BACKGROUND

 The following facts, unless indicated otherwise, are not disputed by the parties. On July 13, 1989, CSC, a corporation created under the laws of the Republic of China ("ROC" or "Taiwan"), *fn1" with its principal office in Taiwan, sold 16,500 MT of Metallurgical Coke Breeze to Spacific Commercial Corporation ("Spacific"), a Taiwanese company. The material was to be divided into three shipments of 5,500 MT each. CSC was paid by an irrevocable letter of credit issued by a Taiwanese bank. Spacific took delivery of the first two shipments in Kaohsiung, Taiwan, and delivered them to third parties in Indonesia. CSC delivered the third shipment to Spacific in Kaohsiung on or about November 18, 1989. Spacific sold the third shipment to MCCI Corporation, & Philippine company, and chartered the M.V. Mahan or a substitute Panamanian flag vessel from Sun Rung Maritime Company, Ltd. to carry the shipment from Taiwan to the Philippines. On November 1, 1989, plaintiff's vessel "M.V. KAO HWA III" was substituted as the performing vessel. *fn2" In accordance with the letter of credit, CSC received payment for the third shipment in Kaohsiung on or about November 30, 1989.

 According to the complaint in this matter, due to the hazardous nature and high moisture content of the Metallurgical Coke Breeze shipped by CSC, CSC's failure to provide information regarding the moisture limit of the cargo, and the negligent loading of the vessel by CSC, the vessel "M/V KAO HWA III" and certain of its officers and crew were lost at sea on or about November 20, 1989. As a result, plaintiff commenced the instant action, as well as an action in New York County Supreme Court (the "state case"), seeking four million dollars for loss of its vessel.

 Subsequent to the action's commencement, the Court held two pretrial conferences on January 24 and February 21, 1992, at which CSC failed to appear. *fn3" CSC also failed to file an answer or other response to the complaint. Accordingly, plaintiff moved for a default judgment. Subject to the Court's instructions, on May 5, 1992, plaintiff mailed a copy of the proposed default judgment and the Affidavit of Thomas M. Lancia, sworn to on May 5, 1992 ("Lancia May 5 Aff."), to CSC in Taiwan. The default judgment was signed by the Court on May 7, 1992, and entered on May 13, 1992. According to plaintiff, copies of the entry of default were mailed to CSC. See Affidavit of Thomas M. Lancia, sworn to on August 7, 1992 ("Lancia August 7 Aff."), at P 7. *fn4"

 Presently before the Court is CSC's motion to vacate the default judgment and dismiss the complaint on the grounds that (1) the Court lacks subject matter jurisdiction because CSC is entitled to immunity under the Foreign Sovereign Immunities Act of 1976 (the "Act" or the "FSIA"), 28 U.S.C. §§ 1330, 1602-1611, (2) the Court lacks personal jurisdiction because service of process was defective under the FSIA and Rule 4 of the Federal Rules of Civil Procedure, and service of the default judgment was defective under the FSIA, (3) the default judgment against CSC was improperly entered under the FSIA, (4) CSC's failure to answer was the result of mistake, inadvertence, surprise or excusable neglect, (5) CSC does not have sufficient contacts with New York to sustain the Court's exercise of personal jurisdiction; (6) the United States is an inconvenient forum for this action.

 DISCUSSION

 Rule 60(b)(4) of the Federal Rules of Civil Procedure authorizes relief from void judgments. A judgment is void and subject to vacatur if the court lacks either subject matter jurisdiction or personal jurisdiction, regardless of whether a meritorious defense exists. Triad Energy Corp. v. McNell, 110 F.R.D. 382, 385 (S.D.N.Y. 1986); Leab v. Streit, 584 F. Supp. 748, 760-61 (S.D.N.Y. 1984); 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2862 (1973) ("Wright & Miller"). Unlike motions made pursuant to other subsections of 60(b), the Court has no discretion regarding motions to vacate void judgments under Rule 60(b)(4). The court must vacate a void judgment. Triad Energy Corp. v. McNell, 110 F.R.D. at 384 (citations omitted); Leab v. Streit, 584 F. Supp. at 760 (citations omitted); Wright & Miller § 2862. In addition, as a void judgment cannot acquire validity by way of laches, a judgment may be attacked as void at any time. Triad Energy Corp. v. McNell, 110 F.R.D. at 385; Wright & Miller § 2862.

 Subject Matter Jurisdiction

 CSC contends that the Court lacks subject matter jurisdiction, and thus the default judgment should be vacated and the action dismissed, because CSC is entitled to immunity under the FSIA. The FSIA represents the exclusive means by which United States courts may exercise subject matter jurisdiction over a foreign sovereign. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989); Fickling v. Commonwealth of Australia, 775 F. Supp. 66, 69 (E.D.N.Y. 1991). That Act provides that foreign states, including "agencies or instrumentalities" of foreign states, see 28 U.S.C. § 1603(a), are immune from suits in federal courts unless the dispute falls within specified exceptions to immunity. 28 U.S.C. §§ 1604-1607; International Hous. Ltd. v. Rafidain Bank Iraq, 893 F.2d 8, 10 (2d Cir. 1989). An "agency or instrumentality of a foreign state" means any entity-

 
(1) which is a separate legal person, corporate or otherwise, and
 
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
 
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title nor created under the laws of any third country.

 28 U.S.C § 1603(b). Thus, the threshold question is whether CSC qualifies as an "agency or instrumentality of a foreign state," namely the ROC, *fn5" ...


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