Societe Com. de Transp. Transatl. v. SS" African Mercury"

• Decision Date: 11 October 1973
• Docket Number: No. 73 Civ. 1261.,73 Civ. 1261.
• Citation: 366 F. Supp. 1347
• Parties: SOCIETE COMMERCIALE de TRANSPORTS TRANSATLANTIQUES (S.C.T.T.), Plaintiff, v. S.S. "AFRICAN MERCURY", her engines, boilers, etc. FARRELL LINES, INCORPORATED, Defendants and Third-Party Plaintiffs, v. SOUTHEASTERN MARITIME CO., INC., Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

366 F. Supp. 1347

SOCIETE COMMERCIALE de TRANSPORTS TRANSATLANTIQUES (S.C.T.T.), Plaintiff, v. S.S. "AFRICAN MERCURY", her engines, boilers, etc.

FARRELL LINES, INCORPORATED, Defendants and Third-Party Plaintiffs, v. SOUTHEASTERN MARITIME CO., INC., Third-Party Defendant.

No. 73 Civ. 1261.

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

October 11, 1973.

Hill, Rivkins, Warburton, McGowan & Carey, New York City, for plaintiff; Martin B. Mulroy, New York City, of counsel.

Lilly, Sullivan & Purcell, New York City, for defendants and third-party plaintiffs; George W. Sullivan, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for 3rd party defendant; James McMahon, New York City, of counsel.

Bouhan, Williams, & Levy, Savannah, Ga., local counsel for Southeastern Maritime.

MEMORANDUM

TENNEY, District Judge.

The third-party defendant in this action, Southeastern Maritime Co., Inc. ("Southeastern"), has moved pursuant to 28 U.S.C. § 1404(a) to transfer this action to the United States District Court for the Southern District of Georgia. For the reasons stated hereinafter, the motion is granted.

Briefly, the facts are as follows. Plaintiff, a French corporation with its principal place of business in Paris, brought an action under 28 U.S.C. § 1333 against defendant S.S. African Mercury, a United States merchant vessel owned and operated by defendant Farrell Lines, Inc. ("Farrell") for breach of contract of carriage. Plaintiff claims that certain cargo, for which it was consignee, was delivered for shipment to the S.S. African Mercury in the port of Savannah in good order and condition; that the cargo arrived at the port of destination in damaged condition; and that plaintiff has sustained damages in the amount of $410,000.

Shortly after the action was instituted, both defendants impleaded Southeastern, claiming that the damage to the cargo was caused by Southeastern's carelessness in loading and securing it before it left Savannah. In addition to their claim for indemnification, both defendants allege a second claim for relief against Southeastern for damage to the vessel and for damage due to the delay caused by Southeastern's faulty work in loading and securing the cargo. Southeastern, which had been engaged by defendants to perform stevedoring, carpentry and securing operations in Savannah, claims that its employees duly loaded the cargo but that they were ordered from the vessel before the cargo could be secured properly.

Defendant Farrell is a New York corporation with its principal place of business in New York. Southeastern is incorporated in Georgia and has its principal place of business in Savannah but it is not licensed to, nor does it, do any business here. In order to obtain jurisdiction over Southeastern, therefore, Farrell obtained an order of attachment under Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966), upon an insurance policy issued to Southeastern by a company which is licensed to do business in New York.

Southeastern moved to transfer the case upon the grounds that (1) retention of this case in New York will cause it great hardship because it does no business in New York and because all of its witnesses live in or near Savannah; (2) the sole contact that Southeastern has with New York is the fact that its insurer is located here; (3) the only connection that this case has with New York is the fact that Farrell is located here; (4) most of the relevant events occurred in or near the port of Savannah; and (5) plaintiff, a foreign entity which apparently does no business in New York, can have no real interest in the venue of the action. Both plaintiff and Farrell oppose this motion upon the grounds that the plaintiff's choice of venue is entitled to great weight, their witnesses are located in or near New York and all of their records are located in New York.

The applicable statute, 28 U.S.C. § 1404(a), states that:

"(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

Therefore, in order to determine whether this action is transferable, the Court must first decide whether plaintiff could have instituted its action in the Southern District of Georgia.

Because this is an admiralty or maritime action, venue is proper in any district where valid service of process could have been made upon Farrell. Fluor Corporation, Ltd. v. S/S President Coolidge, 52 F.R.D. 538, 539 (S.D.N.Y. 1971); 1 Moore's Federal Practice ¶ 0.144 13.-1 (2d Ed. 1972). No admiralty rule governs the place where a corporation may be served with process but admiralty practice is substantially similar to that existing under Fed.R. Civ.P. 4. Patel Cotton Co. v. The Steel Traveler, 107 F.Supp. 191, 193 (S.D.N. Y.1952). Under Fed.R.Civ.P. 4(e), "Whenever a statute . . . of the state in which the district court is held provides (1) for service of a summons . . . upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the statute . . .." The issue is, therefore, whether Farrell is subject to the jurisdiction of the Georgia state courts.

Farrell claims that it does not maintain an office in Savannah, Georgia However, it is clear that Farrell is doing business in Georgia, both directly and through its agent, Southeastern. See Griffin v. Air South, Inc., 324 F.Supp. 1284 (N.D.Ga.1971). Farrell's vessels make port visits to Savannah on a continuing basis; Farrell's port captains personally supervise loading and discharge operations in Savannah on approximately 50% of the port calls; and Farrell is listed in the Savannah telephone directory and its name appears on the door of Southeastern's office. The telephone listing indicates that Southeastern acts as Farrell's agent. As agent, Southeastern arranges for the docking, berths, pilots and tugs for all of Farrell's vessels in Savannah. An employee of Southeastern is the Line Manager for Farrell and spends approximately 50% of his time on Farrell matters.

In addition, Farrell would have been amenable to service of process under Georgia's "long arm statute", Ga.Code Ann. § 24-113.1, which provides in pertinent part that:

"A court of this State may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts . . . enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he:

(a) Transacts any business within the State . . .."

Plaintiff's cause of action against Farrell arose out of its transaction of business in Savannah, Georgia, to wit: the loading of the cargo on board the S.S. African...