Thyssen Steel Corp. v. Federal Commerce & Navigation Co.

• Decision Date: 07 August 1967
• Docket Number: No. 67 Civ. 2857.,67 Civ. 2857.
• Citation: 274 F. Supp. 18
• Parties: THYSSEN STEEL CORPORATION, Plaintiff, v. FEDERAL COMMERCE & NAVIGATION CO., Ltd., "Carbogas" Societa Di Navigazione S.p.A., Penelope Shipping Co. and "John" Niarchos, Defendants.
• Court: U.S. District Court — Southern District of New York

274 F. Supp. 18

THYSSEN STEEL CORPORATION, Plaintiff, v. FEDERAL COMMERCE & NAVIGATION CO., Ltd., "Carbogas" Societa Di Navigazione S.p.A., Penelope Shipping Co. and "John" Niarchos, Defendants.

No. 67 Civ. 2857.

United States District Court S. D. New York.

August 7, 1967.

Yorkston W. Grist, New York City, for plaintiff.

Cichanowicz & Callan, New York City, appearing specially for defendant Penelope Shipping Co.

William P. Larsen, New York City, of counsel.

MANSFIELD, District Judge.

Plaintiff, Thyssen Steel Corporation ("Thyssen" herein) seeks, among other relief, an injunction compelling the defendant Federal Commerce & Navigation Co., Ltd. ("Commerce" herein), "Carbogas" Societa Di Navigazione S. p. A. ("Carbogas" herein), Penelope Shipping Company ("Penelope" herein), and Stavros Niarchos, to bring the S. S. World Mermaid into the port of Halifax, Nova Scotia, so that plaintiff may attain a security interest in the vessel.¹ The World Mermaid, which is owned and operated by defendants Penelope and Niarchos, collided on July 23, 1967 in international waters with the S. S. Giacinto Motta, which was carrying plaintiff's cargo and which is owned and operated by Commerce and Carbogas. As a result of the collision, the S. S. Giacinto Motta sank. The S. S. Mermaid, although damaged, presently is in international waters off Nova Scotia, or en route to Europe.

The original contention of defendant Penelope² is that this Court has never acquired personal jurisdiction over it. On July 28, 1967 a summons, complaint and order to show cause were served on Transoceanic Marine, Inc. which has admittedly served in the past as "husbanding agent" for Penelope. This agency entailed Transoceanic's arranging for berths, supplies and incidentals on the five occasions the S. S. Mermaid entered United States ports. While, on occasion, service on a "husbanding agent" has been held to be effective, Murphy v. Arrow S. S. Co., 124 F.Supp. 199 (E.D.Pa.1954); Jenkins v. Lykes Bros. S. S. Co., 48 F.Supp. 848 (E.D.Pa.1943); see Murphy v. International Freighting Corp., 182 F.Supp. 636 (D.Mass.1960), no court has ever so held on a record as bare as this. Granite Chemical Corp. v. Northeast Coal & Dock Corp., 249 F.Supp. 597 (D. Me.1966); see George H. McFadden & Bros. v. The M. S. Sunoak, 167 F.Supp. 132 (E.D.Va.1958). Plaintiff cannot show that the S. S. Mermaid made regular stops in the United States; or that the ship ever stopped in this District; or that Transoceanic was performing any service for Penelope at the time of service of process. See Granite Chemical Corp. v. Northeast Coal & Dock Corp., supra. Plaintiff contends, however, that, if given the opportunity to indulge in discovery, he would be able to establish such facts. Possibly he could. See River Plate Corp. v. Forestal Land, Timber & Ry. Co., Ltd., 185 F.Supp. 832 (S.D.N.Y. 1960); 4 Moore's Federal Practice ¶ 26.161. For the purposes of this motion, however, the Court must on the record presently before it find that it lacks jurisdiction over Penelope. If plaintiff desires to pursue discovery for the purpose of establishing the existence of personal jurisdiction, it should do so by regular notice rather than by emergency order, in the absence of facts indicating the likelihood of success, which so far do not appear.

Even if there were jurisdiction over the person of Penelope, the motion must be denied on its merits for lack of jurisdiction over the subject matter, which is the S. S. World Mermaid, and it would be both unrealistic and unreasonable for a court to assume the existence of the power to grant such drastic preliminary relief before the plaintiff has even established its claim. On the contrary, existing authority is to the effect that the court cannot order a shipowner to harbor his ship, which is in international waters, in order that it might provide security for a plaintiff's unproven claim.³ In Impala Trading Corp. v. Hawthorne Lumber Co., 200 F.Supp. 261 (S.D.N.Y.1961), Judge Feinberg, in holding that he could not compel the sale of cargo aboard a ship in Puerto Cortez, Honduras, which plaintiff claimed to be subject to its maritime lien and sought in order to "conserve the assets involved" as security to satisfy its claim, stated:

"The basic issue on consideration of the petition for sale is the Court's jurisdiction to grant the relief sought. On this point, it appears that Hawthorne's contention that this Court has no jurisdiction over the cargo is correct. The cargo has never been seized and brought into the custody of the Court in accordance with Admiralty Rule 10.

* * * * * * "In the present case, since neither the vessel nor the cargo are within the district, I conclude that the Court is without jurisdiction to enter an order authorizing the sale of the lumber."

Processes in rem and of maritime attachment represent an exception to the general rule that in the absence of statutory authorization a plaintiff may not have security for his claim until it is established and reduced to judgment. But these exceptions are predicated on the basis that the res, i. e., the ship, is within the court's territorial jurisdiction at the time of seizure.⁴ Here the ship is outside of this Court's...