Colon v. Gulf Trading Co.

• Citation: 609 F. Supp. 1469
• Decision Date: 30 May 1985
• Docket Number: No. Civ. 79-2348CC.,Civ. 79-2348CC.
• Parties: Felipe COLON, Carmen Quiñones De Colon and Wilfredo Colon, Plaintiffs, v. GULF TRADING CO., Defendant and Third-Party Plaintiff, v. FARRELL LINES, INC. and Prudential Lines, Inc., Third-Party Defendants.
• Court: U.S. District Court — District of Puerto Rico

609 F. Supp. 1469

Felipe COLON, Carmen Quiñones De Colon and Wilfredo Colon, Plaintiffs, v. GULF TRADING CO., Defendant and Third-Party Plaintiff, v. FARRELL LINES, INC. and Prudential Lines, Inc., Third-Party Defendants.

No. Civ. 79-2348CC.

United States District Court, D. Puerto Rico.

May 30, 1985.

Harry A. Ezratty, San Juan, Puerto Rico, for plaintiffs.

Antonio M. Bird, Jr., San Juan, Puerto Rico, for defendant and third-party plaintiff.

J. Ramón Rivera-Morales, Jimenez & Fuste, San Juan, Puerto Rico, for third-party defendants.

OPINION AND ORDER

CEREZO, District Judge.

This is an action in admiralty and under the Jones Act, 46 U.S.C. Section 688, by a former seaman who seeks redress for an asbestosis condition he allegedly contracted while working aboard the SS GULF DEER, a Gulf Trading Co. (Gulf) vessel. A prior ruling allowed plaintiff to amend his complaint to include as damages the loss of society of his spouse and son and to allege that the action against Gulf was not barred by laches. 576 F.Supp. 1379 (1983). Presently before us is third-party defendant Prudential Lines, Inc.'s (Prudential) Motion to Dismiss for Lack of In Personam Jurisdiction and the opposition and replies filed on January 21, 1983 and thereafter. The third-party defendant's basic contention is that it does not have any contacts with this forum and that whatever contacts may be claimed are not related to the cause of action. As its grounds for exerting jurisdiction over Prudential, Gulf advances the novel theory that Prudential committed a tort within Puerto Rico because plaintiff's symptoms of asbestosis became manifest in Puerto Rico. For the reasons that shall be stated, we reject the symptom-manifestation theory in asbestos cases as determinative of situs of a tort for purposes of attaching personal jurisdiction over a tortfeasor.

This action commenced on October 10, 1979 when Felipe Colón sued Gulf for damages resulting from exposure to asbestos while working aboard the SS GULF DEER from 1971 to 1978. Defendant answered on February 26, 1980 and raised the defenses of laches, time limitations and contributory negligence. On June 29, 1981 defendant filed a third-party complaint against Farrell and Prudential which alleged that from 1964 to 1965 while on board the SS EXIRA, a vessel owned by a predecessor corporation of Farrell, and during 1953 while working aboard the SS MOLINE, a vessel owned by Prudential, Colón was exposed to asbestos. It contended that since plaintiff had been exposed to asbestos while working on these ships, Farrell and Prudential should be held liable to him or be ordered to respond in proportion to their contribution to his condition.¹ Prudential replied on August 11, 1982 raising a number of defenses, among them, lack of personal jurisdiction. It did not object to the choice of forum nor is there any indication that inconvenience of the forum was raised as an issue. Prudential's motion to dismiss is limited to lack of in personam jurisdiction. It contains several exhibits which reveal that Prudential has never conducted any activities whatsoever in Puerto Rico. It contends that none of the situations contemplated in Rule 4.7, Rules of Civil Procedure of Puerto Rico, P.R. Laws Ann., Title 32, App. III, are present for it did not commit a tortious act in Puerto Rico, the ship with the alleged unseaworthy condition of exposed asbestos dust never docked or departed from Puerto Rico while plaintiff served as a seaman, it is not alleged that Prudential was engaged in the transportation of passengers or freight from Puerto Rico and none of the other circumstances contained in this subdivision of the Rule are raised in the third-party complaint. Gulf invokes personal jurisdiction on various alternative grounds provided by the Rule. As to Prudential, it argues that the First Circuit has suggested reading the provision in Rule 4.7 which allows jurisdiction to be exercised over nonresidents who have executed "tortious acts within Puerto Rico," as including also those wrongful acts which were committed outside of Puerto Rico but which had their damaging effects in Puerto Rico. See: Mangual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir.1983). It attempts to bring into the in personam jurisdiction area the theory adopted for asbestos-type injuries that focuses on the period when the symptoms are manifested rather than on the period of exposure to asbestos to fix the point of departure for purposes of insurance coverage and time limitations. Since Colón's symptoms allegedly surfaced while residing in Puerto Rico, Gulf concludes that Prudential committed a tort within Puerto Rico and is amenable to suit.

In arguing their respective jurisdictional positions the parties have overlooked that the due-process-in-personam problem is analyzed in terms of a state's power to summon out of state defendants vis a vis these defendants' Fourteenth Amendment due process rights not to be unjustifiedly subjected to litigate in a certain geographical area. However, this analysis is said to be inapplicable to cases where the subject matter jurisdiction of the federal court is federal law. Terry v. Raymond Intern., Inc., 658 F.2d 398, 401-403 (5th Cir.1981); Manitowoc Engineering Company v. Terry, cert. den. 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443; F.T.C. v. Jim Walter Corp., 651 F.2d 251, 255-57 (5th Cir.1981); Fosen v. United Technologies Corp., 484 F.Supp. 490, 498 (S.D.N.Y.1980) aff'd. without op., 633 F.2d 203 (2d Cir.1980); see gen: 4 Wright & Miller, Federal Practice and Procedure, Sec. 1075, N. 26; 2 Moore's Federal Practice, Para. 4.25(7), p. 4-291 N. 30 (2d Ed.) and: Foster, Long-Arm Jurisdiction, 47 F.R.D. 73 (1968). In these situations the consideration is whether the defendant has sufficient contacts with the United States as a nation and not with any particular state or territory within the union. Id. These cases point to the Fifth Amendment rather than to the Fourteenth as the source of any possible Due Process litigation over this country's power to summon beyond its territory, id.² and Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 440 N. 3 (1st Cir.1966) cert. denied 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143. Recently, our Circuit addressed the issue. In discussing the difference between the concepts of personal jurisdiction and venue, it said:

At the outset it must be understood that `minimum contacts' with a particular district or state for purposes of personal jurisdiction is not a limitation imposed on the federal courts in a federal question case by due process concerns. The Constitution does not require the federal districts to follow state boundaries. Driver v. Helms, 577 F.2d 147, 156 (1st Cir. 1978); rev'd on other grounds, Stafford v. Briggs, 444 US 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980) (reversed on statutory construction, constitutional issue not reached). The limitation is imposed by the Federal Rules of Civil Procedure. It is clear that Congress can provide for nationwide service of process in federal court for federal question cases without falling short of the requirements of due process.

Johnson Creative Arts v. Wool Masters, 743 F.2d 947, 950 (1st Cir.1984) (footnotes and citations omitted). In discussing the meaning of this distinction the court commented on the purposes behind the minimum contacts requirement:

The minimum contacts concept is grounded upon notions of territorial limitations on the power of the courts of a particular state to subject a nonresident to its jurisdiction and thereby infringe upon that person's individual liberty interest. See Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702 n. 10, 102 S.Ct. 2099, 2104 n. 10, 72 L.Ed.2d 492 (1982). The traditional, historical basis of personal jurisdiction was the court's de facto power over the defendant's person. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). If a defendant was present within the territory of the sovereign represented by the court, the court could issue a writ to the sheriff, directing him to take the body of the defendant and keep him in custody to answer the plaintiff's charges. See id.

In International Shoe, the Court determined that since the capias ad respondendum has given way to personal service of summons or other form of notice, even a person not present within the territory of the forum may be subjected to a judgment in personam if he has such contacts with the forum that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' Id. This allows a court validly to effect extraterritorial service. If a person is served within the territory of the sovereign represented by the issuing court, there is no question that maintenance of the suit against him will not offend traditional notions of fairness.

Id. at n. 3. In Trans-Asiatic Oil Ltd. S.A. v. Apex Oil Co., 743 F.2d 956 (1st Cir.1984) the court permitted the exercise of in personam jurisdiction over a defendant based on the garnishment of a debt in Puerto Rico³, regardless of whether defendant had any minimum contacts with that forum. It held that the minimum contacts analysis was inapplicable to federal courts sitting in admiralty for "federal jurisdiction being national in scope, due process only requires sufficient contacts within the United States as a whole ... the limits on a state's power over nonresident defendants do not apply to a federal court sitting in admiralty in that state...." Trans-Asiatic at 959. The court considered that Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims provided the necessary mechanism to serve process and attach personal jurisdiction regardless of the presence of contacts with the forum if the defendant had sufficient contacts with any part of the United States. Id. See also: Grand Bahama Pet. Co., Ltd. v. Canadian Transp., 450 F.Supp. 447, 451-53 (W.D.Was...