Penny v. United Fruit Co.

• Decision Date: 28 November 1994
• Docket Number: and CV-87-1815(RJD).,CV-88-1435(RJD),No. CV-87-2732(RJD),CV-87-2732(RJD)
• Citation: 869 F. Supp. 122
• Parties: Amelia B. PENNY, as Administratrix of the Estate of Sidney J.R. Penny, deceased, and Amelia B. Penny, individually, Plaintiff, v. UNITED FRUIT COMPANY, United Brands Company, Elders & Fyffes Ltd., Royal Mail Lines, Furness Withy Group, and/or Furness Withy & Co., Ltd., C.Y. Tung, Shaw Savill & Albion Co. Ltd., British Royal Navy c/o Secretary of the Admiralty, London, England, Union Castle Lines, Defendants. Amelia B. PENNY, as Administratrix of the Estate of Sidney J.R. Penny, deceased, and Amelia B. Penny, individually, Plaintiff, v. CUNARD S.S. CO., LTD., a/k/a and/or Cunard Steamship Co., Ltd., Defendant.
• Court: U.S. District Court — Eastern District of New York

869 F. Supp. 122

Amelia B. PENNY, as Administratrix of the Estate of Sidney J.R. Penny, deceased, and Amelia B. Penny, individually, Plaintiff, v. UNITED FRUIT COMPANY, United Brands Company, Elders & Fyffes Ltd., Royal Mail Lines, Furness Withy Group, and/or Furness Withy & Co., Ltd., C.Y. Tung, Shaw Savill & Albion Co. Ltd., British Royal Navy c/o Secretary of the Admiralty, London, England, Union Castle Lines, Defendants.

Amelia B. PENNY, as Administratrix of the Estate of Sidney J.R. Penny, deceased, and Amelia B. Penny, individually, Plaintiff, v. CUNARD S.S. CO., LTD., a/k/a and/or Cunard Steamship Co., Ltd., Defendant.

Nos. CV-87-2732(RJD), CV-88-1435(RJD), and CV-87-1815(RJD).

United States District Court, E.D. New York.

November 28, 1994.

COPYRIGHT MATERIAL OMITTED

Edward Vesel, Baron and Vesel, P.C., Kew Gardens, NY, for plaintiff.

Cary R. Wiener, Kirlin Cambell & Keating, New York City, John F. Ingram, Burlingham Underwood & Lord, New York City, for defendants.

MEMORANDUM AND ORDER

DEARIE, District Judge.

These two asbestos actions raise complex issues involving the interplay of admiralty and maritime law and long-arm jurisdiction. Plaintiff, the administratrix and widow, alleges that her late husband, Sidney J.R. Penny, was exposed to asbestos while working aboard ships owned by the defendants. Claiming that the exposure caused Mr. Penny's mesothelioma and subsequently his death, plaintiff seeks damages under the Jones Act, 46 U.S.C.App. § 688 et seq., the general maritime law, and the New York Estates, Power and Trusts Law.

Defendants Cunard Steam-Ship Company, ("Cunard Steam"), Elders & Fyffes, Ltd. ("Elders"), Royal Mail Lines ("Royal Mail"), and Shaw Savill & Albion Co. Ltd. ("Shaw Savill") have moved to dismiss for lack of personal and subject matter jurisdiction or, alternatively, on forum non conveniens grounds. Defendants United Fruit Company ("United Fruit"), United Brands Company ("United Brands"), Furness Withy Group, and Furness Withy & Co., Ltd. ("Furness Withy") have moved for summary judgment on the grounds that they (i) did not own the ships on which the decedent worked and (ii) did not employ the decedent.¹ For the reasons stated below, defendants' motions are granted.

BACKGROUND

From 1958 to 1962, Sidney J.R. Penny, then a citizen of the United Kingdom, was employed as a chef or caterer on various oceangoing vessels owned by defendants.² In 1962, Mr. Penny retired from service and emigrated to the United States. Twelve years later, Mr. Penny was naturalized as a United States citizen. Some time thereafter, he developed mesothelioma and in 1986, at the age of 44, he succumbed to the disease.

IN PERSONAM JURISDICTION

The Court will address the jurisdictional issues first. Defendants Cunard Steam, Elders, Royal Mail, and Shaw Savill³ argue that they fall outside the reach of New York's jurisdictional statutes, New York Civil Practice Law & Rules ("CPLR") 301 and 302, and, if not, that the exercise of jurisdiction over them would be violative of due process under the constitutional standards laid down in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Since the Court finds that there is no long-arm jurisdiction over any of these defendants, there is no need to reach the constitutional issue.

Plaintiff has the burden of making a prima facie showing of jurisdiction. In cases brought under the Jones Act, personal jurisdiction is proper only if the defendant has both national contacts and is subject to the jurisdiction of the state in which the district court sits. Loberiza v. Calluna Maritime Corp., 781 F.Supp. 1028, 1030 (S.D.N.Y.1992) (citing Gazis v. John S. Latsis Inc., 729 F.Supp. 979, 991 (S.D.N.Y.1990)). Accordingly, jurisdiction in these cases must be determined with reference to the only possible bases of jurisdiction under New York law, CPLR 301 and 302. Loberiza, 781 F.Supp. at 1030.

CPLR 301: Doing Business

CPLR 301, which tersely states that a New York court "may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore," incorporates into statute all bases of jurisdiction previously recognized at common law. CPLR 301 provides, among other things, for personal jurisdiction over a foreign corporation present or "doing business" in New York. A corporation's activity rises to the level of doing business when it is engaged in "such a continuous and systematic course of activity that it can be deemed to be present in the state of New York." Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 50-51 (2d Cir.1991) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458, 434 N.E.2d 692, 694 (1982)) (other citations omitted). Under CPLR 301, whether a corporation is present in New York is determined based on the time the lawsuit was filed, not when the claim arose. Aaacon Auto Transport, Inc. v. Barnes, 603 F.Supp. 1347, 1351 (S.D.N.Y.1985) (citations omitted); Darby v. Compagnie Nat'l Air France, 735 F.Supp. 555, 560 (S.D.N.Y.1990). See also Weinstein, Korn, Miller, New York Civil Practice, Section 301.16 (1986). It is quite clear that, at the time the suits were brought, none of the defendants was `doing business' in New York, as that term has been consistently interpreted.⁴ (See Aff. of Brian Norman Barlow (Cunard); Aff. of Allan Ditchfield (Elders); Aff. of Herbert Suffield (Royal Mail); Aff. of Maurice William Hulbert (Shaw Savill).) Accordingly, since none of the defendants was doing business in New York at the time these actions were commenced, CPLR 301 does not provide a basis for jurisdiction over the defendants.

CPLR 302: Long-Arm Jurisdiction

Plaintiff attempts to support long-arm jurisdiction over defendants by the quirky and uncertain path of CPLR 302. CPLR 302 allows, under certain conditions, jurisdiction over non-residents for tortious acts occurring outside New York. The section was "not intended to reach the limits of long arm jurisdiction allowed under the federal constitution." In re DES Cases, 789 F.Supp. 552, 569 (E.D.N.Y.1992), (citing Banco Ambrosiano v. Artoc Bank & Trust, Ltd., 62 N.Y.2d 65, 476 N.Y.S.2d 64, 464 N.E.2d 432 (1984)), appeal dismissed, 7 F.3d 20 (2d Cir.1993). See also Siegel, New York Practice, 122 (1991) ("CPLR 302 does not go as far as due process permits.")

CPLR 302 states in pertinent part:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state ...; or

3. commits a tortious act without the state causing injury to person or property within the state ... if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.

Plaintiff's principal contention is that jurisdiction may be asserted under CPLR 302(a)(3).

CPLR 302(a)(3)

Plaintiff contends, in substance, that by exposing Mr. Penny to asbestos, defendants committed "a tortious act without the state causing injury to person ... within the state," the injury being Mr. Penny's mesothelioma, only apparent after he had taken up residence in New York. Defendants assert that Mr. Penny's injury took place at the point of exposure, not in New York, thereby precluding reliance on CPLR 302(a)(3) as a basis for jurisdiction. The Court resolves this threshold issue in favor of plaintiff.

Defendants argue that any injury to Mr. Penny occurred outside New York at some unknown place and time during his years of service at sea. They embrace certain cases that do distinguish between the injury and resulting damages and other marginally valuable precedents involving business torts that stand for the unremarkable proposition that the situs of the injury is not controlled merely by the plaintiff's domicile. See, e.g., Trafalgar Capital Corp. v. Oil Producers Equipment, 555 F.Supp. 305 (S.D.N.Y.1983); Spectacular Productions, Inc. v. Radio Station WING, 272 F.Supp. 734 (E.D.N.Y.1967). Two New York Court of Appeals cases relied upon by defendants, Steinhardt and its forbear Schmidt, are of little assistance since both address the issue of when a cause of action accrues for statute of limitations purposes. See Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied, Rosenberg v. Johns Manville Corp., 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982); Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824 (1936). Those and similar authorities — since "overruled" by the New York Legislature — add little, if anything, to the discussion of whether Mr. Penny suffered injury in New York.

More relevant authorities address the issue directly. The Appellate Division in Askey v. Occidental Chemical Corp. held that plaintiffs who had been exposed to toxic substances had a claim for injuries not yet present, but restricted the rule to cases where the "probability of their occurrence amounted to a reasonable certainty." 102 A.D.2d 130, 477 N.Y.S.2d 242, 247 (4th Dep't 1984). As Judge Freedman recognized in a later case,

to meet this reasonably certain standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the expected consequences will occur.

Fusaro v. Porter-Hayden Co., 145 Misc.2d 911, 548 N.Y.S.2d 856, 859 (Sup.Ct. N.Y. County 1989) (quoting Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982)). In Fusaro, as here, the...