Nolan v. Jensen
| Decision Date | 17 March 1959 |
| Docket Number | No. 7719.,7719. |
| Citation | 171 F. Supp. 351 |
| Parties | Joseph W. NOLAN et al., Libellants, v. Leo JENSEN et al., Respondents. |
| Court | U.S. District Court — Eastern District of Virginia |
Jett, Sykes & Howell, Henry E. Howell, Jr., Norfolk, Va., for libellants.
Seawell, Johnston, McCoy & Winston, John W. Winston, Norfolk, Va., for respondents.
This is a salvage action, civil and maritime, instituted by libellants against the respondents, Leo Jensen, Arvid Hetland Basse and Tormod Hetland Basse, partners trading as Basse & Company, and A. H. Basse Rederi Aktieselskab, in personam. Libellants are the master and crew members of the tug "L.T.-1953", owned by the United States Army, and on August 19, 1953, performed salvage operations off the coast of Newfoundland in salvaging the SS Else Basse owned by the respondent Danish joint stock company.
A companion action involving salvage claims against the cargo only was heard and determined by the United States District Court for the Eastern District of Pennsylvania. Nolan v. A. H. Basse Rederi Aktieselskab, D.C., 164 F.Supp. 774, 1958 A.M.C. 1462. The facts are sufficiently stated therein. Undeniably, if in personam jurisdiction has been obtained or waived in this action, libellants are entitled to a salvage award for their efforts in salvaging the hull of the SS Else Basse.
The original libel filed on May 16, 1955, named A. H. Basse Rederi Aktieselskab, owners or bareboat charterers of the SS Else Basse, as respondents. The marshal attached the SS Paris as the property of the respondent. On the following day, May 17, 1955, an amended libel was filed against the respondents hereinabove mentioned, and the SS Paris was reattached. In the interim proctors for respondents notified proctors for libellants that a wrongful attachment had been effected at the instance of libellants, and that respondents would look to libellants' proctors for damages. At the request of proctors for libellants a hearing was held on May 18, 1955, to determine whether probable cause existed for the issuance of the attachment. Proctors for respondents appeared specially for the owners of the SS Paris. After considering such evidence as was available at the time, the Court concluded that reasonable cause existed for the issuance of the monitions. The master of the SS Paris then filed his claim in behalf of the owners and, upon the posting of a release bond in the sum of $50,000, the vessel sailed. The SS Else Basse has not been within the jurisdiction of this court.
On June 3, 1955, respondents, appearing specially, filed exceptions to the jurisdiction and motions to quash the service of process, alleging in substance that (1) no personal service had been obtained upon any respondent or upon any respondent's corporate officer or agent; (2) the attachment had not been levied upon any property owned by any respondent, individually or collectively; nor upon property operated or controlled by the corporate respondent; (3) the respondents did not own, operate or control the Danish SS Paris but, on the contrary, the Paris was solely owned, operated and controlled by Dampskibsselskabet Pacific A/S, a Danish corporation; (4) none of the individual respondents owned a controlling interest in Dampskibsselskabet Pacific A/S, and the corporate respondent neither owned nor controlled any interest in said corporation, designated for brevity as "Pacific", nor did Pacific own any interest in the corporate respondent.
By reason of libellants' contention that respondents have waived the in personam jurisdiction, it is necessary to relate the events subsequent to the filing of said exceptions and motions to quash. On July 8, 1955, a pre-trial conference was conducted at which time, due to the congestion of the court docket and the fact that proctors advised the court of the necessity of taking testimony abroad and through the medium of depositions, the hearing on the exceptions and motions to quash was scheduled for December 23, 1955. At the same time the Court fixed a conditional date for the trial of the merits on April 16, 1956. By stipulation dated December 9, 1955, but filed on December 12, 1955, it was agreed that certain depositions, taken in New York for use in an identical proceeding then pending in the Southern District of New York, could be introduced in evidence at the trial of this action on its merits. The stipulation further provided:
Having been advised of respondents' intention to proceed by way of Letters Rogatory in Denmark, where respondents' evidence on the exceptions and motions to quash would be taken, Letters Rogatory were issued by the Court on December 12, 1955, upon interrogatories propounded and filed by proctors for respondents on December 12, 1955, and cross-interrogatories thereafter propounded by proctors for libellants on January 30, 1956. The cumbersome procedure of obtaining translations into the Danish language through the Danish Embassy, and forwarding same to Denmark through the United States Department of State, was most time-consuming. As the trial date of April 16, 1956, approached, proctors for the parties met with the Court at respondents' request for a continuance of the trial date due to the fact that no answers to the interrogatories had been received.
On April 12, 1956, the Court entered an order granting a continuance of the trial date from April 16 to July 3, and upon further condition "that both libellants and respondents shall procure any testimony desired to be taken by deposition, or in any written form, on or before June 1, 1956, and any testimony that is to be taken by deposition, or any other written form, may not be tendered after that date, this condition being created so as to afford both parties ample time to be informed as to the deposition testimony in advance of trial."
It will thus appear that the Court, being unaware of the merits of respondents' exceptions and motions to quash previously filed, required the parties to proceed with the preparation of the case on its merits. While undoubtedly proctors for respondents were not especially prompt in attending to the Letters Rogatory, the delays are not considered unreasonable in light of the difficulties presented.
Thereafter, on May 17, 1956, proctors for respondents gave notice of the taking of depositions of witnesses in New York on May 23. At the commencement of said depositions, proctors for respondents stated for the record that the depositions were being taken by respondents subject to the special appearance noted, and as required by the Court's order of April 12, 1956. Proctors for libellants replied that the question of waiver of privilege constituted a matter of law; it being the first intimation that libellants were contending that jurisdiction had been waived.
On May 28, 1956, libellants filed a motion requiring the production of documents and, on the following day, an order was entered requiring respondents to produce said documents for inspection on or before June 20, 1956.
On May 31, 1956, the respondents, appearing specially and without waiving their exceptions to jurisdiction and motions to quash the service of process, filed their answers to the libel and amended libel.
When the trial date of July 3, 1956, arrived, the answers to the interrogatories had not yet been received from Denmark. Proctors for respondents exhibited to the Court a cablegram indicating that depositions of witnesses had been taken before The Maritime and Commercial Court of Copenhagen on June 20, 1956, June 21, 1956, and June 27, 1956, with the hearing then adjourned to July 4, 1956. Faced with this situation, the Court proceeded to hear the case on its merits on July 3, 1956. On July 9, 1956, libellants filed a request for admission of facts pursuant to Rule 32B of the General Admiralty Rules, 28 U.S. C.A., to which respondents, without waiving exceptions to jurisdiction and motion to quash service, moved to quash the request filed under Rule 32B. Again on July 25, 1956, libellants filed an additional request for admissions under Rule 32B, and once again respondents moved to quash without waiving their prior exceptions and motions filed. However, on September 17, 1956, respondents answered this latter request for admissions, reserving their rights under the exceptions previously filed.
The Letters Rogatory were received by the Clerk on or about August 29, 1956. As they were in Danish, the Court directed, on September 6, 1956, that they be transmitted to the Danish Embassy for translation. The Letters Rogatory were translated and returned to the Clerk on October 18, 1956. On October 29, 1956, in a communication to proctors, the Court stated in part:
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...appearance made in obedience of the trial court's direction to 'the parties to proceed with the taking of testimony.' In Nolan v. Jensen, D.C., 171 F.Supp. 351, 359, affirmed in 4 Cir., 272 F.2d 630, the court stated: 'We think it a safe rule to follow that a party appearing specially may n......
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