the characteristics, merchantability and fitness for intended
[sic] purpose of the CPP." (Compl. ¶¶ 33-34, 38.)
It is well settled law that disputes involving "contracts
relating to the construction of or supply of materials to a ship"
and "warranty claims grounded in such contracts" are not within
the admiralty jurisdiction of a court. East River Steamship
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872 n. 7, 106
S.Ct. 2295, 90 L.Ed.2d 865 (1986) (finding that if plaintiffs'
claims "were brought as breach-of-warranty actions, they would
not be within the admiralty jurisdiction"). Accordingly,
plaintiffs' breach of express and implied warranty claims are not
within this Court's admiralty jurisdiction. See, e.g., Boson
Marine 6, Ltd. v. Crown Point Indus., 854 F.2d 46, 48 (5th Cir.
1988) (holding that district court correctly dismissed breach of
warranty claims for lack of subject matter jurisdiction).
2. Negligence and Products Liability Claims
Plaintiffs also allege claims of negligence and strict
liability as a result of the allegedly defective CPPs
manufactured and supplied by the Ulstein defendants. Plaintiffs
claim that the damage to the CPPs and their parts was discovered
on all five vessels while in drydock. (Compl. ¶¶ 11, 15, 19, 23,
27.) Concepts of products liability are a part of general
maritime law. To determine whether a tort is maritime in nature,
the Court must apply the "situs" and "nexus" tests set forth in
Executive Jet Aviation, Inc. v. City of Cleveland,
409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). See Employers Ins. of
Wausau v. Suwannee River Spa Lines, Inc., 866 F.2d 752, 759 (5th
Plaintiffs' "claims satisfy the traditional `locality'
requirement — that the wrong must have occurred on the high seas
or navigable waters." East River, 476 U.S. at 863-64, 106 S.Ct.
2295. Damage to the vessels was discovered while in drydock, a
"maritime locale." Id. at 864, 106 S.Ct. 2295. Plaintiffs have
also established a maritime nexus — the vessels were engaged in
maritime commerce, id., operating under a contract of
affreightment to Chiquita International, Ltd., (Compl. ¶¶ 10, 14,
18, 22, 26.).
Although not presented by these motions, I note that
plaintiffs' product liability and negligence claims do not state
a claim under admiralty law because "no products liability claim
lies in admiralty when the only injury is economic loss." East
River, 476 U.S. at 876, 106 S.Ct. 2295. "[A] manufacturer in a
commercial relationship has no duty under either a negligence or
strict products liability theory to prevent a product from
injuring itself." Id. at 871-72, 106 S.Ct. 2295 (finding that
"[d]amage to a product itself is most naturally understood as a
warranty claim"). Plaintiffs' claims are for damage to the
"product itself" for economic loss. Nevertheless, whether
plaintiffs ultimately may recover for these torts "is not a
question of admiralty jurisdiction but of substantive maritime
law."*fn4 See Employers Ins. of Wausau, 866 F.2d at 759; but
see Boson Marine 6, Ltd., 854 F.2d at 48. Accordingly, this
Court has admiralty jurisdiction over plaintiffs' claims for
negligence and products liability and supplemental jurisdiction
over the remaining claims. Defendants' motion to dismiss for lack
of subject matter jurisdiction is denied.
II. Personal Jurisdiction
A. Standard Applicable to Motion to Dismiss for Lack of
As a preliminary matter, I note that plaintiff bears the
ultimate burden of establishing that the court has jurisdiction
over the defendant. Kernan v. Kurz-Hastings, Inc.,
175 F.3d 236, 240 (2d Cir. 1999); Metropolitan Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). The
burden of proof a plaintiff must meet varies with the procedural
posture of the case. Prior to discovery, a plaintiff need only
make a prima facie showing through its pleadings and affidavits
that jurisdiction exists. Id. (citing Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). In
determining whether the plaintiff has met this burden on a Rule
12(b)(2) motion, the court must assume that all of the
plaintiff's factual allegations are true and all "doubts are
resolved in the plaintiff's favor, notwithstanding a
controverting presentation by the moving party." A.I. Trade
Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
Ultimately, however, the plaintiff must establish personal
jurisdiction "by a preponderance of the evidence, either at an
evidentiary hearing or at trial." Id. at 79.
B. Long-Arm Statutes
1. CPLR §§ 301 and 302
Personal jurisdiction in an admiralty case is determined first
by the law of the forum state. Klinghoffer v. S.N.C. Achille
Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione
Straordinaria, 937 F.2d 44, 50 (2d Cir. 1991). Accordingly, New
York law governs here. The only possible bases for jurisdiction
under New York law are New York Civil Practice Law & Rules
("CPLR") §§ 301 and 302.
In their motion to dismiss, defendants argue that they have no
contacts with New York — defendants have no employees, bank
accounts, mailing addresses, telephone listings, or property in
New York, they do not solicit business in New York, and they have
never contracted with any of the plaintiffs or made or supervised
any repairs on any of the products relating to this action in New
York. Plaintiffs concede that defendants have no contacts with
New York; rather, plaintiffs assert that personal jurisdiction is
based on Fed.R.Civ.P. 4(k)(2) pursuant to defendants' contacts
with the United States as whole, not on its contacts with any
particular state. Accordingly, both sides agree that there is no
jurisdiction based CPLR §§ 301 and 302.
2. Rule (4)(k)(2)
Plaintiffs contend that jurisdiction is proper under
Fed.R.Civ.P. 4(k)(2). Rule 4(k)(2) allows for jurisdiction over
any defendant "who is not subject to the jurisdiction of the
courts of general jurisdiction of any State" provided that:
(1) [the] plaintiff's cause of action arise[s] under
federal law; (2) . . . the defendant is not subject
to the jurisdiction of the courts of any one State;
and (3) . . . the defendant's total contacts with the
United States as a whole are sufficient to confer the
court with personal jurisdiction without offending
Aerogroup Int'l, Inc. v. Marlboro Footworks, Ltd., 956 F. Supp. 427,
434 (S.D.N.Y. 1996); Mutualidad Seguros Del Institutuo
Nacional De Industria v. M.V. Luber, No. 95 Civ. 10988, 1998 WL
1108936, *2 (S.D.N.Y. Sept. 25, 1998).