Moore-McCormack Lines, Inc. v. Bunge Corporation

• Decision Date: 08 September 1962
• Docket Number: No. 8628.,8628.
• Citation: 307 F.2d 910
• Parties: MOORE-McCORMACK LINES, INC., and Old Dominion Stevedoring Corporation, Appellants, v. BUNGE CORPORATION, and H. J. Baker & Bro., Inc., Appellees (two cases). In the Matter of Willie ALSTON et al., Plaintiffs, v. MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff, v. OLD DOMINION STEVEDORING CORPORATION et al., Third-Party Defendants. Civil Action No. 3285. In the Matter of Solomon BLOW et al., Plaintiffs, v. MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff, v. OLD DOMINION STEVEDORING CORPORATION et al., Third-Party Defendants. Civil Action No. 3317.
• Court: U.S. Court of Appeals — Fourth Circuit

307 F.2d 910 (1962)

MOORE-McCORMACK LINES, INC., and Old Dominion Stevedoring Corporation, Appellants, v. BUNGE CORPORATION, and H. J. Baker & Bro., Inc., Appellees (two cases).

In the Matter of Willie ALSTON et al., Plaintiffs, v. MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff, v. OLD DOMINION STEVEDORING CORPORATION et al., Third-Party Defendants. Civil Action No. 3285.

In the Matter of Solomon BLOW et al., Plaintiffs, v. MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff, v. OLD DOMINION STEVEDORING CORPORATION et al., Third-Party Defendants. Civil Action No. 3317.

No. 8628.

United States Court of Appeals Fourth Circuit.

Argued June 15, 1962.

Decided September 8, 1962.

David P. L. Berry and Harry E. McCoy, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellant Moore-McCormack Lines, Inc.

J. Carrol Fears, Jr., Norfolk, Va. (Parsons, Stant & Parsons and Wolcott, Wolcott & Payne, Norfolk, Va., on brief), for appellant Old Dominion Stevedoring Corp.

William T. Prince, Norfolk, Va. (Jack E. Greer, and Williams, Cocke, Worrell & Kelly, Norfolk, Va., on brief), for appellee Bunge Corp.

Harvey E. White, Jr., Norfolk, Va. (White, Ryan & Reynolds, Norfolk, Va., on brief), for appellee H. J. Baker & Bro., Inc.

Before SOPER, HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

SOPER, Circuit Judge.

These companion cases raise the question whether two New York corporations were subject to process in third-party suits brought against them in the United States District Court for the Eastern District of Virginia at Norfolk. Jurisdiction of the original suits was based on diversity of citizenship. Service of process was made upon the third-party defendants under Title 8-60 and Title 13.1-119 of the Virginia Code of 1950, as amended, which provide in effect that if a foreign corporation transacts business in the state without a certificate of authority process may be served on any director, officer, or agent of the corporation or if none can be found, on the Clerk of the State Corporation Commission. On motion of the third-party defendants the District Judge quashed the service of process and dismissed the cases on the ground that they had done no business in the Commonwealth of Virginia. Interlocutory appeals by the third-party plaintiffs were allowed in accordance with the terms of the statutes.

The litigation was begun on August 3, 1960 by the institution of two suits by numerous longshoremen against Moore-McCormack Lines, Inc., the owner and operator of the Steamship MORMACTEAL. It was alleged in the complaints that on January 12, 1959 each of the plaintiffs suffered injuries and damages in excess of $10,000 from inhaling the dust of castor bean pomace from burlap bags in which the cargo of the ship they were discharging had been improperly stowed and contained. Moore-McCormack impleaded the Old Dominion Stevedoring Corporation which undertook to discharge the ship and employed the plaintiff stevedores for this purpose. Moore-McCormack also impleaded the Bunge Corporation and H. J. Baker and Brother, Inc., New York corporations, as third-party defendants. It was alleged in the third-party complaints that Bunge was the owner and shipper of the cargo and that Baker was the consignee and that they failed to have the cargo properly packaged and to give warning of its dangerous character; and it was also alleged that Old Dominion failed to protect its employees in the discharge of the ship. Old Dominion also impleaded Bunge and Baker. The question for decision is whether Bunge and Baker were actually transacting business in Virginia and, therefore, amenable to process in that state, in view of the facts now to be recited which were brought out in answers to interrogatories and in depositions taken upon the motions to quash.

BUNGE'S ACTIVITIES

Bunge was engaged in the importation and exportation of merchandise at the port of Norfolk. In order to handle its importations it employed Cavalier Shipping Company, a Virginia corporation, which represented a number of firms in the importation and exportation of cargo at that port. Cavalier acted for Bunge under power of attorney and cleared the imports through the Customs under a bond filed by Bunge at Norfolk as required by the Custom Service to insure collection of deficiencies.

Under this arrangement Bunge imported at Norfolk 184 cargoes of burlap consisting of 49 cargoes in 1957, 39 cargoes in 1958, 46 cargoes in 1959, 24 cargoes in 1960 and 26 cargoes through June 1961. The annual value of these shipments exceeded $100,000 per year. These goods were sold by Bunge, landed in Norfolk duty paid. Title passed when they were paid for on arrival. Some of them it would seem were owned by Bunge and some, as in the case of the cargo of pomace, by a foreign shipper for whom Bunge acted as broker.

Bunge's exportations at Norfolk included cargoes of grain and tallow. Records of its grain shipments prior to 1959 were not available, but in that year it exported 3 cargoes of peanut meal and in 1960 2 cargoes of wheat and 1 of corn. In addition, it exported 15 million pounds of tallow in nineteen shipments, comprising one shipment in 1956, one in 1958, three in 1959, eight in 1960 and six through June 1961. These exports were owned by Bunge and sold abroad.

In respect to the export of tallow, Cavalier performed services as freight forwarder for Universal Transport of New York City, which had been appointed by Bunge to handle the shipments. The shipments of grain were handled for Bunge by one R. B. Rogers, a freight forwarder in Norfolk.

These exportations comprised merchandise which had been purchased by Bunge in the United States and transported to Norfolk where they were loaded for Bunge into vessels to be carried to its foreign customers.

Bunge owns no real estate in Virginia and has no mailing address or telephone listing in the state. It has no salesmen or employees in the state.

BAKER'S ACTIVITIES

Baker was engaged in the importation of goods at the port of Norfolk and in forwarding them to purchasers in the United States. It used National Shipping Company, a Virginia corporation, to clear its imports through the Customs and as freight forwarding agent in the transportation of the merchandise to buyers in the United States. In the course of this business Baker caused to be imported and forwarded merchandise of the value of $6800 in 1959, $69,264 in April, 1960, $63,992 in July, 1960, $108,863 in September, 1960, $176,094 in February, 1961, and $189,060 in April, 1961. Baker was the buyer of these goods and secured possession when it paid for them upon delivery in Norfolk. It sold the goods to purchasers in the United States to whom they were forwarded in its behalf by the National Shipping Company.

The importation in 1959 was the cargo of pomace which gave rise to this suit. After it was discharged it was forwarded under Baker's instructions in four separate lots to buyers in Virginia and North Carolina — one in Virginia and three in North Carolina. In 1960 there were 17 forwardings of imported merchandise — 14 in Virginia and 3 in North Carolina. In 1961 there were 13 forwardings — 9 in Virginia and 4 in North Carolina. All of these shipments were invoiced in New York.

Baker sent employees into Virginia to inspect cargo on two occasions in 1960 and one in 1961. This procedure had occurred two or three times a year for the previous five years. Baker also sent salesmen into the state to solicit orders for fertilizer.

The importation of the cargo of pomace and the manner in which it was distributed to buyers in the United States illustrates the kind of transactions in which Bunge and Baker were engaged in Virginia. The cargo was placed on board the MORMACTEAL in Brazil and a bill of lading was delivered to a Brazilian corporation, which was the owner and shipper of the goods and for brevity has been called Sanbra in this case. Sanbra instructed Bunge, its agent in the United States, to sell the cargo and suggested Baker as the buyer. Accordingly, Bunge sold the cargo to Baker for Sanbra's account at actual cost and freight to Norfolk to which port it directed the shipment to be sent as instructed by Baker. The ship arrived on January 12, 1959 and during the discharge of the cargo the stevedores suffered the injuries of which they complain. The bill of lading was forwarded to Bunge for collection, and upon payment of the purchase price by Baker the bill of lading was submitted to Moore-McCormack in New York and it authorized its agents to turn over the goods to Baker. Samples of the goods were taken in Norfolk and forwarded to Bunge and Baker in New York and to chemists in Baltimore. The National Shipping Company cleared the goods through the Customs on behalf of Baker, and transshipped them in accordance with Baker's instructions to its customers.

Our problem on this appeal is to decide whether these activities of Bunge and Baker constituted the doing of business or the transaction of business in the state of Virginia so that they may be brought into court as ...