Fabrica De Tejidos La Bellota SA v. M/V MAR

Citation799 F. Supp. 546
Decision Date06 August 1992
Docket NumberCiv. No. 1989-357,1990-341.
PartiesFABRICA DE TEJIDOS LA BELLOTA S.A. Inversiones Y Servicios S.A. Empresa Nacional De Comercializacion De Insumos, Selcco S.P.A. Manifattura De Legnano Sp.P.A. Camcotton S.A. Compania De Xeguros Crux Del Sur S.A., Plaintiffs, v. The M/V MAR and the M/V WITTUG, their engines, boilers, tackle furniture, apparel, shipping containers, etc. in rem Achille Lauro Lines S.R.L. d/b/a Lauro Lines, Charter Transport Co. Inc., West Indies Transport Limitada S.A. Waldric Ltd. and Witwater Corporation, In Personam, Defendants. WALTER MATTER, S.A., Textile AGB, S.A., Jose Toyo, S.A., Gil Mas, S.A., Inca Tops, S.A., Schweiz Insurance, Sitip Cotton, S.P.A., Sit Transportes Intern, S.A., Union Iberoamericana, Plaintiffs, v. The M/V MAR, the M/V WITTUG, their engines, boilers, tackle, furniture, apparel, shipping containers, etc. in rem Achille Lauro Lines, S.R.L. d/b/a Lauro Lines, Charter Transport Line, Inc., West Indies Transport Co., Inc., West Indies Transport Limitada, S.A., Waldric, Ltd., Witwater Corporation, In Personam, Defendants.
CourtU.S. District Court — Virgin Islands

Gregory Hodges, Dudley, Topper, Feuerzeig, St. Thomas, U.S. Virgin Islands, MacHale A. Miller, O'Neil, Eichin, Miller & Breckinridge, New Orleans, La., for plaintiffs.

Frederick G. Watts, Watts & Streibich, St. Thomas, U.S. Virgin Islands, Alan Van Praag, William D. Hummell, Snow Becker Krauss P.C., New York City, for defendant Achille Lauro Lines, s.r.l.

Susan Bruch, Grunert Stout Moore & Bruch, St. Thomas, U.S. Virgin Islands, for defendants Charter Transport Line, West Indies Transport Co., Inc., West Indies Transport Limitada S.A., Waldric Ltd. and Witwater Corp.

FRANK A. KAUFMAN, Senior District Judge.*

Plaintiffs, South American shippers or their successors in interest, caused cargo to be placed aboard the M/V MAR, a vessel owned by Waldric, Ltd. and chartered1 to Charter Transport Lines, Inc., a Panamanian corporation, and subchartered by Charter Transport to Achille Lauro Lines, an Italian corporation. Plaintiffs seek damages for the alleged tortious loss of their cargo. In response, defendant Achille moves for dismissal, asserting a lack of in personam jurisdiction because none of the Virgin Islands' jurisdictional statutes apply and because Achille does not have sufficient minimum contacts with the Virgin Islands to meet the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition, Achille contends that the bills of lading governing the shipment of plaintiffs' cargo contain a forum selection clause which provides for litigation in Italy of any claims arising out of the carriage.

For the reasons set forth in this opinion, this Court concludes that plaintiffs have not made a prima facie showing that any negligent repair took place in St. Thomas. Further, the affidavits and other papers filed in this case do not amount to prima facie proof by plaintiffs that the repair in St. Thomas—negligent or otherwise—was the proximate cause of the MAR's sinking. Alternatively, even if personal jurisdiction over Achille is present and were exercised in this case, Achille is entitled to enforce the forum selection clause in the bills of lading executed by plaintiffs' predecessors in interest.

FACTS

Plaintiffs' cargo shipments originated in Chile and Peru and were bound to ports in Spain and Italy. Once in the Atlantic, en route from South America to Spain and Italy, the MAR became disabled and its manager, West Indies Transport Company, Inc., a Virgin Islands corporation with its principal place of business on St. Thomas, decided to have the vessel towed to Spain in a "dead" condition. Witwater Corporation, also a Virgin Islands corporation, was hired to handle that towing. After the towing commenced, the MAR sank, allegedly in relatively calm seas, off Anguilla in the British West Indies.

Although the cargo neither originated in nor was destined for the Virgin Islands, plaintiffs base their claim that the Virgin Islands has in personam jurisdiction over Achille upon the fact that en route from Italy to South America the MAR deviated from its route and was brought into St. Thomas for repairs—which repairs, plaintiffs allege, were negligently made and which negligence, plaintiffs allege, was the proximate cause of the MAR's sinking two months later during its return trip while carrying plaintiffs' cargo.

Plaintiffs argue that Achille, either directly or through its agent, the vessel's Master, breached its duty to provide to plaintiffs a seaworthy vessel to transport the cargo because the repairs made in St. Thomas were negligently made and because Achille failed appropriately to oversee those repairs and assure that they were properly made.

Achille, on the other hand, contends that the MAR deviated to St. Thomas at the direction of the ship owner and that this particular activity was outside the scope of agency, if any, between Achille and the ship owner—that Achille simply time chartered the ship to transport cargo. In that context, Achille takes the position that under the time charter party, it simply provided the itinerary for the duration of the charter period. While the Master is responsible to the charter with respect to carrying out the charterer's instructions for making port calls, any activity having to do with the good of the vessel itself, such as operations, maintenance and navigation, remains the responsibility of the ship owner. See Grant Gilmore & Charles L. Black, supra n. 1, at 194.

Thus Achille argues that the decision to divert into St. Thomas for repairs was not made by it and that the notification it received about the diversion was only for the purpose of permitting it to determine how much time, if any, to consider the ship off hire for the purpose of computing the amount of money that would ultimately be owed for the duration of the charter. In sum, Achille asserts that the Master and Charter Transport were not its agents in making the decision to divert into St. Thomas.2

Achille further argues that plaintiffs have presented no evidence indicating that the repairs made in St. Thomas were negligently made or, more importantly, that the repairs were in any way connected to the cause of the MAR's sinking.

As addressed in detail infra, in the face of a defendant's challenge to personal jurisdiction, the plaintiff has the burden to make a prima facie showing that such jurisdiction exists. Because of that fact-based inquiry, what follows in this opinion is a somewhat detailed outline—taken from the affidavits filed in this case—of the MAR's movements and its associated problems from the time it came under charter until it sank.

The MAR apparently was located in Gibraltar when it came under charter.3 From Gibraltar it went to Brindisi, Italy and from Brindisi to La Spezia, Italy. The vessel's Master, Captain Crawford, first joined the ship in La Spezia on July 14, 1989. According to Captain Crawford's unsworn statement, when he initially joined the ship, "she looked in fairly good condition and caused me no concern."4 Upon leaving La Spezia, the MAR traveled to Marseille, France then to Valencia, Spain and then to Gibraltar. Captain Crawford hired Donald Michael Hogan in Gibraltar as Fourth Engineer, although Mr. Hogan was qualified as a chief engineer.5 According to Captain Crawford, "In Gibraltar ... we suffered the usual small engine room mechanical problems. There were obvious fuel pump, generator and oil filtration problems."6 From Gibraltar, the MAR sailed for Guatemala.

"During the voyage we suffered major problems with the generators and called in to St. Thomas, Virgin Islands as the nearest port of refuge in August 1989. Technicians from a Florida company came aboard and repaired the generators...."7 While the MAR was in St. Thomas, Captain Crawford promoted Mr. Hogan to Chief Engineer. Upon leaving St. Thomas, the MAR headed for Guatemala, "during which time the generators were okay but then the vessel suffered fuel pump problems."8 The MAR then traveled from Guatemala through the Panama Canal to Callao, Peru where it discharged its European cargo and loaded additional cargo.

Upon leaving Peru, the MAR went to San Antonio, Chile where it discharged cargo and took on more cargo. While the vessel was docked at San Antonio, "both engines were inoperative with the engineers working to make the necessary repairs.... Engine repairs were completed on the 20th of September and the vessel shifted berths...."9 On September 23, the MAR was advised to proceed to Callao to take on more cargo. Captain Crawford "advised New York that the port engine was in danger of losing power because of fuel pump failure."10 While en route to Callao on September 25, the steering engine failed.11

According to Captain Crawford, the following occurred from and after the MAR's arrival at Callao:

On the 26th of September we arrived at anchor at Callao. On the 27th vessel was unable to go alongside as scheduled because of engine problems. The basic problem was generators and electrical engineers were brought on board to effect repairs.... Repairs were completed on the evening of the 27th and vessel ready in all respects to sail.
... On the 29th operations were completed and we departed Callao. We were now under manual steering and heading for Panama Canal.
On the 1st of October port engine was stopped to effect repairs to the fuel pump. I advised New York of our difficulties with fuel pumps, generators, steering motor, filtration system.
The vessel arrived at anchor at Balboa Panama on the 4th of October. Mr. Dieter Reizer came on board to effect repairs on the port engine fuel pump.... Still at anchor on the 5th of October the steering motor was sent ashore for rewinding.
... The transit of the canal got underway in the evening of October 6 and we arrived at anchor at
...

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