97-2518 La.App. 4 Cir. 8/26/98, Karim v. Finch Shipping Co., Ltd.

• Citation: 718 So.2d 572
• Parties: 97-2518 La.App. 4 Cir
• Decision Date: 26 August 1998
• Court: Court of Appeal of Louisiana (US)

Page 572

718 So.2d 572

97-2518 La.App. 4 Cir. 8/26/98, 1999 A.M.C. 680

Noor Begum Karim, Wife of/and Fazal KARIM v. FINCH SHIPPING COMPANY, LTD., et al.

No. 97-CA-2518.

Court of Appeal of Louisiana Fourth Circuit.

Aug. 26, 1998.

Paul C. Miniclier, New Orleans, for Plaintiffs-Appellants.

James A. Cobb, Jr., John F. Emmett, New Orleans, for Defendant-Appellee.

Before BARRY, WALTZER and LANDRIEU, JJ.

[97-2518 La.App. 4 Cir. 1] BARRY, Judge.

Plaintiffs appeal a judgment that granted an exception of lack of personal jurisdiction in favor of Finch Shipping Company. We convert the appeal to an application for supervisory writs, grant certiorari and affirm.

Facts

On August 17, 1995 Fazal Karim, a Bangladeshi seaman, was injured aboard the M/V LOUSSIO in the North Atlantic Ocean. The M/V LOUSSIO was a Panamanian flag vessel owned by Finch Shipping Company, Ltd., a Maltese corporation. It had left its European port of origin in ballast on August 4, 1995 bound for the U.S. Gulf Coast. (Karim said it was bound for New Orleans.) The charter party agreement was executed on August 10, 1995, six days after the vessel set sail, and stated:

Vessel currently ballasting at full speed and directly to U.S. Gulf where e.i.r. basis Mississippi River is 24th/25th August, 1995, all going well, weather permitting.... (T)he said vessel ... shall with all speed, sail and proceed to ONE TO THREE SAFE BERTHS/SAFE ANCHORAGE MISSISSIPPI RIVER NOT ABOVE BUT INCLUDING BATON ROUGE....

Several days after the accident, on August 26, 1995, Karim was evacuated by helicopter to New Orleans where he received extensive medical treatment.

[97-2518 La.App. 4 Cir. 2] Karim and his wife filed this suit in Orleans Parish under the "Savings to Suitors Clause," 28 U.S.C. § 1333. Among the defendants were Finch Shipping and its insurer Ocean Marine Mutual Protection & Indemnity Association, Ltd. The Karims alleged negligence and unseaworthiness and claimed maintenance and cure. The first amended petition alleged that Finch Shipping through its agent, defendant Barwil Agencies, N.A. Inc., delayed Karim's medical evacuation from the ship, and it sought penalties based on Finch Shipping's failure to pay maintenance and cure.

Finch Shipping filed exceptions of lack of personal jurisdiction, improper venue and improper service of process. The trial court held there were insufficient contacts to support personal jurisdiction.

The Karims argue there was general jurisdiction because Finch Shipping engaged in continuous and systematic business activities in Louisiana; there was specific jurisdiction because the accident and other alleged damage arose out of Finch Shipping's contacts with Louisiana; and the assertion of jurisdiction is consistent with traditional notions of fair play and substantial justice.

Appealability of Judgment

La. C.C.P. art.1915 was amended by Acts 1997, No. 483, § 2 to provide that when a court renders a partial judgment as to one or more but less than all of the parties,

the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay.

La. C.C.P. art. 1915(B)(1).

Act 483 was effective July 1, 1997. The hearing on Finch Shipping's exception was June 13, 1997. The trial court took the matter under advisement and signed the judgment on July 9, 1997, after the effective date of Act 483. The judgment is silent as to whether the parties agreed or the court designated it final. [97-2518 La.App. 4 Cir. 3] Therefore, the judgment is not in accord with Act 483 and is not final or appealable. However, we will consider the appeal as a timely application for supervisory review, grant certiorari, and consider the merits. City of New Orleans v. Ballansaw, 475 So.2d 768 (La.1985). ¹

Overview of Jurisdictional Requirements

A court may exercise personal jurisdiction over a nonresident who acts directly or by agent as to a cause of action arising from acts or omissions enumerated in La. R.S. 13:3201(A). ² In addition, a Louisiana court may exercise personal jurisdiction over a nonresident

on any basis consistent with the constitution of this state and of the Constitution of the United States.

La. R.S. 13:3201(B).

Subsection (B) ensures that the long-arm process extends to the limits allowed by due process. La. R.S. 13:3201, Comment--1987.

[97-2518 La.App. 4 Cir. 4] Due process requires that to subject a nonresident defendant to personal jurisdiction, the defendant must have certain minimum contacts with the forum state such that the maintenance of suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945); de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d 103, 105 (La.1991).

When a controversy arises out of or is related to the defendant's contacts with the forum, the state exercises "specific" personal jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). When a forum seeks to exercise specific jurisdiction over a nonresident defendant, the meaningful contacts requirement is satisfied if the defendant purposefully directed its activities at the residents of the forum and the plaintiff's injury arose out of or was related to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985); de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d at 106.

When a state exercises personal jurisdiction over a defendant in a suit that does not arise out of and is unrelated to the defendant's contacts with the forum, the state exercises "general" jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 413-15 n. 9, 104 S.Ct. at 1872 n. 9. General jurisdiction may be supported by a party's "continuous and systematic" contacts with the forum even though damage does not arise from those contacts. Helicopteros Nacionales de Colombia, S.A., at 416-17, 104 S.Ct. at 1873. Contacts of a more extensive quality and nature are required for general jurisdiction. Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir.1990). See Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952).

The party asserting jurisdiction has the burden to show minimum contacts. Once that burden is met for either general or specific jurisdiction, a presumption of [97-2518 La.App. 4 Cir. 5] reasonableness of jurisdiction arises and the burden shifts to the opposing party to prove that the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to outweigh the minimum contacts. de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d at 107. Factors to determine the reasonableness of jurisdiction include the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 113-15, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987); de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d at 107.

General Jurisdiction

The Karims argue there is general personal jurisdiction based on the M/V LOUSSIO's three voyages to New Orleans for which Finch Shipping grossed a substantial sum; Finch Shipping's contacts with local shipping agents and suppliers relative to those voyages; and the negotiation (by management company Alpina Shipping) of Karim's voyage to load cargo in New Orleans. ³

Perkins v. Benguet Consolidated Mining Co., supra, held that a foreign corporation's contacts with Ohio were sufficiently continuous and systematic to support general jurisdiction. During the Japanese occupation of the Philippine Islands, the president and general manager of the defendant Philippine company maintained an office in Ohio from which he conducted corporate activities. He kept files, held meetings, distributed salary checks drawn on Ohio banks, and conducted a continuous and systematic portion of company business. Perkins, 342 U.S. at 446-48, 72 S.Ct. at 419.

[97-2518 La.App. 4 Cir. 6] Asarco, Inc. v. Glenara, Ltd., 912 F.2d at 787, held there were insufficient contacts for Louisiana to exercise general jurisdiction over the management company which managed the sunken vessel's last trip. The company was not licensed to do business in Louisiana, did not solicit business, maintain an office, own property, or employ personnel in Louisiana. The company's contacts consisted of about twenty calls at Louisiana ports in four years by ships which it managed.

The director of Finch Shipping, Mohammad Ilyas Shaikh, testified in deposition that Finch Shipping has no office, bank account or asset in the United States. Its officers have not been to the U.S. except for Shaikh's family trip to Disney World in 1987. Shaikh lives in Pakistan and the United Arab Emirates and has no asset or bank account in the United States. The M/V LOUSSIO's crew was from Bangladesh and its officers were from Pakistan.

When Karim was injured, one of Finch Shipping's prior contacts with Louisiana consisted of an M/V LOUSSIO voyage to New Orleans in February 1995 to load cargo. Its fourth voyage under Finch Shipping ownership (the second to New Orleans) was in August 1995 and the one on which Karim was injured. The M/V LOUSSIO sailed to New Orleans a third time on October 29, 1995 for its sixth voyage. The ship was damaged and forced to remain in New Orleans almost two months to be repaired. It was sold for scrap in Bangladesh in March 1996.

Shaikh said Finch Shipping had no...