Torres v. Steamship Rosario

Decision Date18 October 1954
Citation125 F. Supp. 496
PartiesNatalie Ortiz TORRES, Libelant, v. STEAMSHIP ROSARIO, her engines, boilers, etc., and A. H. Bull Steamship Company, Respondent.
CourtU.S. District Court — Southern District of New York

Golenbock & Komoroff, New York City, Donald S. Sherwood, Freeport, N. Y., of counsel, for libelant.

Kirlin, Campbell & Keating, New York City, Roland C. Radice, New York City, of counsel, for respondent-claimant, A. H. Bull Steamship Co.

WALSH, District Judge.

This is a libel in rem against the Steamship "Rosario" and in personam against the A. H. Bull Steamship Company. The vessel was arrested in this district and subsequently released upon the posting of a letter of undertaking in lieu of bond.

Respondent A. H. Bull Steamship Company now moves to transfer the action to the District Court for Puerto Rico under 28 U.S.C. § 1404(a). The motion is granted.

The convenience of the parties and the interest of justice will be served by the transfer. Plaintiff is a resident of Puerto Rico; the injury occurred there; the doctors by whom he was treated reside there; the vessel plies regularly between Puerto Rico and New York and the members of her crew, who are witnesses, are as readily available to Puerto Rico as to New York; the Puerto Rican witnesses are beyond the distance within which this Court could compel their attendance for trial. Fed. Rules Civ.Proc. rule 45, 28 U.S.C.A.

Libelant opposes the transfer on the ground that this statute is inapplicable to an admiralty action in rem and therefore the Court is without power to order it.

Section 1404(a) permits the transfer of an action to any other district "where it might have been brought." It has been established in this circuit that there are two requirements for transfer under this statute. The transferee court must be one in which proper venue can be laid and one which will have jurisdiction over the defendant. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949. To establish jurisdiction the defendant must either be amenable to the service of process in the transferee district or he must consent to enter a general appearance there. Anthony v. Kaufman, 2 Cir., 193 F.2d 85. It is not sufficient for this purpose that the defendant could be served there should he ever come to that district. Foster-Milburn Co. v. Knight, supra.

As long as a decree in rem can be entered by the court to which transfer is sought, the difference in the nature of an in rem proceeding does not prevent giving full effect to the policy of the statute.

In the present case the ship could have been arrested as easily in Puerto Rico as in this district. Since it was not it can be made subject to the jurisdiction of the...

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6 cases
  • US v. Various Articles of Obscene Merchandise
    • United States
    • U.S. District Court — Southern District of New York
    • August 25, 1976
    ...question as to whether an in rem action may be transferred to another district under 28 U.S.C. § 1404(a), compare Torres v. The Rosario, 125 F.Supp. 496 (S.D.N.Y.1954) (in rem action can be transferred), mandamus denied, 221 F.2d 319 (2d Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L......
  • Hausfeld v. Love Funding Corp.
    • United States
    • U.S. District Court — District of Maryland
    • April 18, 2014
    ...Warlick, 232 F.2d 699, 700–701 (4th Cir.1956) ; Polaroid Corp. v. Casselman, 213 F.Supp. 379, 383 (S.D.N.Y.1962) ; Torres v. S.S. Rosario, 125 F.Supp. 496, 497 (S.D.N.Y.1954). That is not the case here. Plaintiff lives in Maryland and some of the events at issue occurred in Maryland. Furthe......
  • Hercules Company v. s/s Aramis, 6222.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • February 20, 1964
    ...actions. Medich v. American Oil Co., D.C., 177 F.Supp. 682; Higgins v. California Tanker Co., D.C., 166 F. Supp. 42; Torres v. The Rosario, D.C., 125 F.Supp. 496, mandamus denied Torres v. Walsh, 2 Cir., 221 F.2d 319, cert. den. 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 746; National Tea Co. v. ......
  • Petition of National Bulk Carriers
    • United States
    • U.S. District Court — Southern District of New York
    • July 18, 1956
    ...the interest of justice. The courts in this district have held that Section 1404(a) also applies to admiralty. Torres v. Steamship Rosario, D.C.S.D.N.Y.1954, 125 F.Supp. 496, affirmed Torres v. Walsh, 2 Cir., 221 F.2d 319; Texas Company v. United States, D.C.S.D.N.Y. 1953, 116 F.Supp. 915, ......
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