Adams v. Unione Mediterranea Di Sicurta
| Decision Date | 27 November 2002 |
| Docket Number | No. CIV.A.94-1954.,CIV.A.94-1954. |
| Citation | 234 F.Supp.2d 614 |
| Parties | Steven Henry Arthur ADAMS, et al. v. UNIONE MEDITERRANEA DI SICURTA, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
John Donellan Fitzmorris, Jr., Francis A. Courtenay, Jr., Donald J. Volpi, Jr., Kirk Norris Aurandt, Courtenay, Hunter & Fontana, New Orleans, LA, Jon Daniel Picou, Lee M. Peacocke, Larzelere, Picou & Wells, LLC, Metairie, LA, for Plaintiffs.
Robert Taylor Lemon, II, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Place St. Charles, James K. Carroll, Richard A. Fraser, III, Gelpi Sullivan Carroll, Paul C. Miniclier, David A. Binegar, The Law Office of Paul C. Miniclier, New Orleans, LA, Alfred R. Gould, Jr., Aubert & Pajares, LLC, Covington, LA, Priscilla M. Schwartz, Priscilla M. Schwartz, Attorney at Law, Metairie, LA, Christopher Ogilvie Davis, George W. Healy, III, Rebecca Y. Cooper, Phelps Dunbar, LLP, New Orleans, LA, Robin C. Minturn, Robin C. Minturn, Attorney at Law, Nashville, TN, Robert I. Siegel, Nathan L. Schrantz, Hoffman, Siegel, Seydel, Bienvenu, Centola & Cordes, APLC, New Orleans, LA, for Defendants.
ORDER AND REASONS
On August 14, 2000, the United States Court of Appeals for the Fifth Circuit, remanded this matter to this Court to determine whether the Court has personal jurisdiction over UMS Generali Marine S.p.A. (formerly known as Unione Mediterranea di Sicurta and referred to as "UMS") rejecting this Court's finding at trial on the matter that UMS had waived its personal jurisdiction defenses. On remand, a number of motions were filed, including a Motion to Dismiss filed by UMS which motion was denied because of a lack of critical factual information necessary to make a comprehensive jurisdictional finding. The Court ordered briefing to be submitted to the Court, and after extensive discovery was had, supplemental briefing on the issue of personal jurisdiction has been filed. The Court is now prepared to determine whether it has personal jurisdiction over UMS as ordered by the appellate court.
The facts that give rise to this dispute are comprehensively set forth in Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 664-65 (5th Cir.2000) and are adopted by the Court. For purposes of this ruling Court will focus on those necessary facts as supplemented by the briefing, exhibits, and deposition testimony which have been filed to augment the record to determine the jurisdictional issue. The gravamen of this controversy centers on certain steel cargo owned by Duferco, S.A. ("Duferco"), insured by UMS, which was shipped from Italy, on September 16, 1993, aboard the M/V TURANDOT. It arrived in Darrow, Louisiana, for unloading onto various barges, including barge numbers CBX-207 and CBX-214, for transportation to its final destination, Cincinnati, Ohio. Canal Barge Company, Inc. ("Canal Barge"), a Louisiana corporation and the barge carrier, had obtained cargo insurance on the steel slabs from plaintiffs, Steven Henry Arthur Adams, and Certain Underwriters at Lloyds ("London Underwriters"). The shipment of steel was off-loaded and placed on the barges by the Louisiana -based Cooper/T. Smith, Inc. On October 12, 1993, under tow by the Tug BILL ANDREWS owned and/or operated by Canal Barge (UMS Answer, Rec. Doc. 83), the barges set course upriver. On or about October 16, 1993, Barges CBX-207 AND CBX-214 sank. The cargo aboard those two barges was lost and is the subject of this dispute. A.K. Steel Corporation, who was the original intended purchaser, purchased the salvaged cargo.
This Court has not held an evidentiary hearing on jurisdiction; rather, it simply ordered briefing which has resulted in the filing of a number of affidavits, deposition testimony, exhibits and other evidence.1 "When a district court decides a motion to dismiss without holding an evidentiary hearing, plaintiff must make only a prima facie showing of the facts on which jurisdiction is predicated." Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 378(5th Cir.2002). The Fifth Circuited continued, "To decide whether a prima facie case exists, we must accept as true [plaintiff's] `uncontroverted allegations, and resolve in [its] favor all conflicts between the facts contained in the parties' affidavits and other documentation.'" Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir.2000). The Court will now, based on that standard, examine the background facts that will guide it in making its determination with respect to jurisdiction.
UMS is apparently the second largest cargo insurer in Italy. It has a single office located in Genoa, Italy. All of its employees and physical assets are located in that office. (London Underwriters, Exh. B, Dep. of Luigi Giovannini, at 9-11).2 UMS maintains that it has, inter alia, (1) never stipulated an insurance contract in the United States; (2) it never has qualified to do business in the United States; (3) has never appointed an agent for service of process in the United States; (4) it does not maintain an office, post office box, address, telephone or telephone listing in the United States; (5) it does not own, or lease any real or personal property in the United States. (Doc 418, UMS Supplemental Memorandum, Ex. "B").3 Nonetheless, UMS insures cargo shipped by sea, land or air throughout the world. (London Underwriters, Exh. A, Dep. of Gianmario Rocca at 27).
It is unclear what percentage of UMS's income from 1991 through 1994 was generated by insuring cargo that was destined for United States ports. With respect to Duferco alone, UMS provided coverage for approximately 95 shipments to Louisiana between 1989 and 1995. Between 1991 and 1994, there are certificates of insurance demonstrating 39 Duferco steel shipments through New Orleans. (A.K. Steel Exh. 12, Duferco Certificates of Insurance). The insured value of these shipments totals over $39 million.
From March 20, 1991, through July 14, 1994, UMS made 40 wire transfers to entities located in the United States who were designated as "commissar d'avaria." (London Underwriters, Exh. "K"). The literal translation of these two words is "damage assessor" (Rocca at 44)4. It appears to the Court from the deposition testimony and exhibits that these are law firms or companies that were and are hired by UMS and paid in the United States. These entities basically adjust claims; they retain surveyors, handle the salvage of the cargo, and the like.
For example, Italian Claims Agency, Inc. ("ICA") assesses damage, hires surveyors and collects the necessary paperwork that is then sent to the client. Victor Bruzzone, the secretary and vice-president of ICA, testified in his deposition that he does not consider himself to be a surveyor, an adjustor or a claims agent, but an "accumulator." (London Underwriters, Exh. "D", pp. 11-13). Another company listed as a commissar d'avaria was Transatlantic Marine Claims Agency. David Tan, its president testified that it has worked for UMS for the last decade. Transatlantic Marine Claims Agency is authorized to retain the services of claims adjusters, attorneys and surveyors to handle a case, including retaining experts, without contacting UMS for permission. They are authorized to execute receipt and releases on its behalf. (London Underwriters, Exh. F. pp. 3-5). In addition, UMS apparently uses three experts based in Italy in processing its claims investigations. These persons are Captain Cappato, Engineer Menini and Dr. Cambiaso. (Dep. of Rocca pp. 37-38). Captain Cappato was involved in resolving the cargo claim at issue herein.
In addition, it appears that 137 claims were paid to the United States from 1991 to 1994. (London Underwriters, Exh. M). The primary beneficiaries were Tad U.S.A., Inc. and Duferco Steel, Inc., a subsidiary of Duferco, S.A. located in Lawrence, New Jersey. There are a number of other insureds in the United States as well. These entities are Galaxy Management, Global Lanes International Corp. Abstoss International Steel, Inc. and Thyssen Steel. (London Underwriters, Exh. "N" in globo).
UMS issued to Duferco, S.A. ("Duferco") an open cargo policy of insurance, Open Cover No. 1381/111 on August 8, 1993. It was for a 12 month term from June 1, 1993 to May 31, 1994. (A.K. Steel Exh. 4, Policy, Art. 18) (hereinafter "Policy"). It granted coverage to all shipments of siderurgical products for which Duferco was required to obtain insurance. (Policy, Art. 1).
As such, Duferco was required to:
declare each risk hereto by telex or telefax; these declarations must be sent before the sailing date and should contain details of the shipment, such as name of the vessel, voyage, sailing date, kind of cargo, approximate quantity and insured value, together with the insurance conditions requested.
An addendum to subject open cargo policy also states:
By the present addendum, forming part of the above mentioned policy, it is noted and agreed that, as partial amendment of what provided by Articles 11 and 12, it is agreed that: after discharge overside from the overseas vessel at ocean discharging port, the goods have to be re-forwarded to the final destination by means of barge, pontoon or similar means, under a separate carriage contract, a condition of this insurance is that a Surveyor, to be agreed by Underwriters, must attend to the cargo loading on barges, to ascertain the conditions of the means of conveyance and the suitability of the stowage effect on board of the same.
In case of non intervention of Surveyor at re-loading, no claim shall be recoverable hereunder.
(Policy, "DI 1381/111—App. 1"). Thus, under the very terms of this policy, UMS contemplated being involved in the actual transshipment of the cargo and requiring the approval by its agent of such stowage. It is interesting to note that this provision at one point...
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...business or economic gains by its non-resident insureds' fortuitous work in Louisiana. But see Adams v. Unione Mediterranea Di Sicurta, 234 F.Supp.2d 614, 624 (E.D.La.2002)(finding general personal jurisdiction over insurer because of the “ economic gain generated by its over-all business o......
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