Jenkins v. Lykes Bros. SS Co.

• Citation: 48 F. Supp. 848
• Decision Date: 12 February 1943
• Docket Number: Civil Action No. 2543.
• Parties: JENKINS v. LYKES BROS. S. S. CO., Inc., et al.
• Court: U.S. District Court — Western District of Pennsylvania

48 F. Supp. 848

JENKINS v. LYKES BROS. S. S. CO., Inc., et al.

Civil Action No. 2543.

District Court, E. D. Pennsylvania.

February 12, 1943.

Abraham E. Freedman, of Freedman & Goldstein, of Philadelphia, Pa., for plaintiff.

John B. Shaw, of Krusen, Evans & Shaw, of Philadelphia, Pa., for defendant.

BARD, District Judge.

This is an action brought by an American merchant seaman, a citizen of Pennsylvania, for damages and cost of maintenance and cure for personal injuries sustained in the course of his employment aboard a vessel owned and operated by the defendant, Lykes Brothers Steamship Company, Inc., hereinafter referred to as Lykes. Service of the summons and complaint was made by service on Charles Kurz & Company, Inc., hereinafter called Kurz, at the latter's office in Philadelphia, Pennsylvania. Lykes has moved to vacate the service on the ground that it is a foreign corporation not doing business in Pennsylvania and that Kurz was not its agent upon whom service would bind it.

In support of its motion defendant offered the deposition of an officer of Kurz as to the extent of defendant's operations in Pennsylvania and the extent of the services rendered to it by Kurz. From this deposition it appears that Lykes is a steamship company incorporated in Louisiana and maintains no office nor employees in Pennsylvania. Although not on a regular schedule, its ships have entered and left the Port of Philadelphia during the last ten years, and during a recent two year period thirty-five of its vessels have done so. Throughout this ten year period Kurz, which is engaged in the business of custom house broker, steamship agent and forwarder, has "handled" defendant's ships at Philadelphia on a ship to ship basis, being paid separately for each job. The services rendered by Kurz are to arrange for pilotage and towage; to see that the cargo is properly and promptly discharged and loaded; to assist in custom matters and to obtain custom clearances. Kurz also makes disbursements on behalf of Lykes for the towage and pilotage, for laundry, dockage, stevedore expense, and sometimes for advances to a master. Kurz is notified by Lykes when a ship is expected to arrive and its representatives are then on hand to render the above services and generally to do "anything else that might be necessary to turn the ship around."

The first contention of the defendant Lykes is that it is not doing business in Pennsylvania. It is conceded that if it is doing business, the fact that such business is purely interstate commerce does not render it immune to suit. International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479. In support of its contention Lykes relies principally on Green v. Chicago, B. & Q. R. Co., 205 U. S. 530, 27 S.Ct. 595, 51 L.Ed. 916, and Shambe v. Delaware & H. R. Co., 288 Pa. 240, ...