Leith v. Oil Transport Company

• Decision Date: 07 November 1962
• Docket Number: Civ. A. No. 62-701.
• Citation: 210 F. Supp. 877
• Parties: William W. LEITH, Plaintiff, v. OIL TRANSPORT COMPANY, Inc., and American Marine Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

210 F. Supp. 877

William W. LEITH, Plaintiff, v. OIL TRANSPORT COMPANY, Inc., and American Marine Corporation, Defendants.

Civ. A. No. 62-701.

United States District Court W. D. Pennsylvania.

November 7, 1962.

Harry Alan Sherman, Pittsburgh, Pa., S. Eldridge Sampliner, Cleveland, Ohio, for plaintiff.

Campbell, Thomas & Burke, Pittsburgh, Pa., for defendants.

DUMBAULD, District Judge.

Plaintiff, a citizen of Tennessee, claims under the Jones Act, for unseaworthiness, and maintenance and cure, claiming over $10,000 and diversity in each action, against a foreign corporation in Louisiana. The accident occurred in Kentucky. A vessel of defendant was attached as on foreign attachment in our waters. This gave only security for ultimate payment of any judgment obtained, but did not constitute a basis for jurisdiction. Rule 64 F.R.Civ.P. Posting a bond for value does not confer jurisdiction. Branic v. Wheeling Steel Corp., 152 F.2d 887, 889 (C.C.A.3, 1945). The ship attached is not the ship where the accident occurred and there is thus no jurisdiction in rem.

But summons in personam was also served within the District upon the master of the vessel. Was this sufficient to secure jurisdiction of defendant corporation? Defendant's president's affidavit states it does not do business in Pennsylvania. However, it undoubtedly does engage in navigation or commerce within our waters to and from the port of Pittsburgh, or the vessel could not have been attached. Does such transient interstate operation constitute sufficient contact with Pennsylvania to enable the Commonwealth, consistently with due process, to confer upon its courts (and derivatively through Rule 4(d) (7) F.R. Civ.P. upon the federal courts here) power to try a transitory cause of action against defendant arising out of transactions other than those in which defendant engaged within Pennsylvania? And if so, has Pennsylvania exercised such power?

The first question is governed by International Shoe Co. v. Washington, 326 U.S. 310, 317-319, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and Perkins v. Benguet Mining Co., 342 U.S. 437, 444, 72 S.Ct. 413, 96 L.Ed. 485 (1952). The rule is there stated that "if an authorized representative of a foreign corporation be physically present in the state of the forum and be there engaged in activities appropriate to accepting service or receiving notice on its behalf" there is "no unfairness in subjecting that corporation to the jurisdiction of the courts of that state through such service of process upon that representative." International Shoe states that the activities within the State must be so continuous and substantial as to constitute what was expressed in the earlier cases as the fiction of corporate "presence" within the State.

The question therefore is whether the master of a ship engaged in interstate navigation touching Pennsylvania ports is engaged in an activity "appropriate to accepting service" of process on behalf of the corporation.

In our opinion the master of a ship should be considered as agent of its owners only with respect to matters affecting the operation, cargo, and other matters connected with the voyage. A transient call at a port cannot be regarded as equivalent to the "presence" of the corporation. The cases sustaining service on a...