Catalana v. Carnival Cruise Lines, Inc.

• Decision Date: 13 September 1984
• Docket Number: Civ. A. No. M-84-799.
• Citation: 618 F. Supp. 18
• Parties: Paul J. CATALANA and Dorothy Catalana v. CARNIVAL CRUISE LINES, INC.
• Court: U.S. District Court — District of Maryland

618 F. Supp. 18

Paul J. CATALANA and Dorothy Catalana v. CARNIVAL CRUISE LINES, INC.

Civ. A. No. M-84-799.

United States District Court, D. Maryland.

September 13, 1984.

Howard Janet, Stephen L. Snyder, and George W. Liebmann, Baltimore, Md., for plaintiffs.

John H. West, III, Pamela J. White, and Ober, Kaler, Grimes and Shriver, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiffs, Paul J. and Dorothy Catalana, filed this negligence and loss of consortium action on February 29, 1984, alleging personal injuries suffered by Paul J. Catalana when he was struck by a stray golf ball on January 1, 1982, while on board a cruise ship owned by the defendant, Carnival Cruise Lines, Inc. (Carnival) (Paper No. 1). The defendant has moved to dismiss for lack of personal jurisdiction, failure to state a claim, and improper venue, or, in the alternative, has moved for summary judgment (Paper No. 4). The plaintiff has responded (Paper No. 7), and the defendant has filed a reply (Paper No. 9). After reviewing the submitted memoranda, the court concludes that no hearing is necessary. Local Rule 6(E).

I. Factual Overview

The plaintiffs, both residents of Maryland, contracted to be passengers aboard a cruise ship owned and operated by the defendant. The cruise was to leave Miami, Florida, visit ports of call in the Caribbean, and return to Miami. On January 1, 1982, while plaintiff, Paul Catalana, was walking aboard the cruise ship, he was struck on the left side of his head by a golf ball which had been driven from the ship's golf platform and ricocheted back toward the ship.

II. Motion to Dismiss for Lack of Personal Jurisdiction

The defendant states in its motion to dismiss that it is a Florida corporation with its principal place of business in Florida, that it is not registered to do business in Maryland, and that it neither transacts business in Maryland nor engages in any activity which would subject it to the personal jurisdiction of this court (Paper No. 4, at 4-5). The affidavit of Jack J. Stein, an employee of the defendant with responsibility for coordinating passenger cruises, describes the defendant as a Panama corporation with its principal place of business in Florida (Stein Affidavit, ¶ 2). This affidavit states that Carnival has no place of business in Maryland, is not registered to do business in Maryland, and does not transact business or engage in any activity in Maryland (id.). The corporation does not make direct sales of cruise ship accommodations in Maryland, but receives booking requests from travel agents throughout the country (id.). Carnival does not own or lease property in Maryland, has no offices in Maryland, has no bank accounts or telephone numbers in Maryland, and does not engage the services of any marketing representatives in Maryland (Stein Affidavit, ¶ 3). The voyage on which the plaintiff was allegedly injured originated and concluded at Miami, Florida, and was conducted through the Caribbean (Stein Affidavit, ¶ 4).

If this court has personal jurisdiction over the defendant in this case, it has it under the Maryland Long Arm Statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103. Application of the long arm statute is a two step process. First, the court must determine whether the statute purports to permit service of process on the non-resident. Second, the court must determine whether the service and exercise of personal jurisdiction comports with constitutional requirements under the Due Process Clause. Synder v. Hampton Industries, Inc., 521 F.Supp. 130, 135 (D.Md.1981); Craig v. General Finance Corp. of Illinois, 504 F.Supp. 1033, 1036 (D.Md.1980).

The plaintiffs assert that this court has jurisdiction pursuant to subsections (b)(1), (b)(2), and (b)(4) of the Maryland Long Arm Statute, which provides, in pertinent part, as follows:

"(a) Condition.—If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.

(b) In general.— A court may exercise personal jurisdiction over a person, who directly or by an agent:

(1) Transacts any business or performs any character of work or service in the State;

(2) Contracts to supply goods, food, services, or manufactured products in the State; ...

(4) Causes tortious injury in the State or outside of the State by an act or omission outside of the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured goods used or consumed in the State."

Md.Cts. & Jud.Proc.Code Ann. § 6-103 (1974).

Personal jurisdiction will exist under the Maryland Long Arm Statute if any one of its subsections is satisfied. Craig v. General Fin. Corp., 504 F.Supp. 1033, 1036 (D.Md.1980). In addition, as this court stated in Craig, 504 F.Supp. at 1036:

"This court is bound by the decisions of the Court of Appeals of Maryland as to whether a particular subsection will reach certain conduct. McLaughlin v. Copeland, 435 F.Supp. 513, 522 (D.Md. 1977); Bennett v. Computers Intercontinental, Inc., 372 F.Supp. 1082, 1084 (D.Md.1974). See Shealy v. Challenger Mfg. Co., 304 F.2d 102, 104 (4th Cir.1962). Federal law is controlling, however, as to whether the exercise of personal jurisdiction violates due process. United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. 1078 at 1081 D.Maryland 1977."

The plaintiffs assert personal jurisdiction under subsection (b)(1) of the Maryland Long Arm Statute, based on Carnival's "regular arrival and departure of vessels within the state" (Paper No. 7, at 5). The "transacting business" standard of subsection (b)(1) has been held to be coextensive with the limits of due process. Snyder v. Hampton Industries, Inc., 521 F.Supp. 130, 136 (D.Md.1981); McLaughlin v. Copeland, 435 F.Supp. 513, 523 (D.Md. 1977); Malinow v. Eberly, 322 F.Supp. 594, 598 (D.Md.1971); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A.2d 818 (1976). Reliance on Carnival's cruises from Baltimore for jurisdiction under subsection (b)(1) is misplaced, however, due to the limitation imposed by subsection (a).

In Sibert v. Flint, 564 F.Supp. 1524 at 1528 (D.Md.1983), this court described the relationship between subsections (a) and (b)(1) of the Maryland Long Arm Statute as follows:

"Consideration of personal jurisdiction under subsection (b)(1) necessarily invokes the limitation in subsection (a) that the cause of action arise from an act enumerated in (b)(1). Although subsection (a) does not provide any substantive limitation which exeeds that imposed by the Due Process Clause, see Malinow v. Eberly, 322 F.Supp. 594, 598-600 (D.Md. 1971), it does require that `some purposeful acts have been performed by the defendant in Maryland in relation to one or more of the elements of the cause of action,' id. at 599. Accord Snyder v. Hampton Industries, Inc., 521 F.Supp. 130, 145-46 (D.Md.1981); McLaughlin v. Copeland, 435 F.Supp. 513, 522-23 (D.Md.1977)."

The cruises on which the plaintiffs base their claim of jurisdiction left the port of Baltimore. The plaintiffs' cruise, however, began and ended in Miami. Because the plaintiffs' cause of action did not arise from the Baltimore cruises, the Baltimore cruises may not support a finding of personal jurisdiction under subsection (b)(1).

The plaintiffs assert that this court has personal jurisdiction pursuant to subsection (b)(2) also, because the ticket issued in this case was an air/sea contract originating in Baltimore. The defendant's brochure advertises free or reduced air fare from over 160 cities to Miami or Los Angeles for passengers on Carnival cruises. (1984 Carnival Cruise Lines brochure at 9, appended to plaintiffs' Memorandum in Response). The plaintiffs do not contend that the ticket was sold by an agent of Carnival rather than an independent travel agency. Nor do the plaintiffs claim that the carrier which flew them from Baltimore to Miami was an agent of the defendant. Instead, they contend that the defendant should be subject to personal jurisdiction simply because it offers air/sea tickets originating in Baltimore. Since the plaintiffs assert no action by Carnival with respect to the activities in Maryland, their argument is based on the actions of other entities, the travel agent and the airlines. Travel agents are not generally considered to become the agent of the one selling the cruise simply by providing tickets to passengers. Mulhern v. Holland America Cruises, 393 F.Supp. 1298, 1302 (D.N.H.1975). Nor is it likely that the airline, by carrying the passengers to Miami for these cruises, was acting as the agent of the defendant.

There is, therefore, no indication why the acts of the other entities should be attributed to the defendant.

"It is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state — thus invoking the benefit and protection of its laws."

Harris v. Arlen Properties, Inc., 256 Md. 185, 195 (1969), citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). As with the analysis of subsection (b)(1), the cruises by Carnival within Maryland are prevented by subsection (a) from providing jurisdiction under subsection (b)(2), because the cause of action alleged in this case did not arise from the Maryland cruises.

If this court possesses personal jurisdiction over the defendants, it must be as a result of subsection (b)(4). This subsection permits the court to exercise personal jurisdiction over a defendant who "regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured goods used or consumed in the State." This court has stated with regard to subsection (b)(4):

"This section

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