Vivian Tankships Corp. v. Castro
| Decision Date | 26 October 1998 |
| Docket Number | No. Civ.A. 98-1671.,Civ.A. 98-1671. |
| Citation | 24 F.Supp.2d 650 |
| Parties | VIVIAN TANKSHIPS CORPORATION v. Candido CASTRO and I.F. Hingle, Civil Sheriff of Plaquemines Parish. |
| Court | U.S. District Court — Eastern District of Louisiana |
David B. Lawton, Gerald M. Baca, Terriberry, Carroll & Yancey, New Orleans, LA, for Vivian Tankships Corp.
Stephen P. Bruno, Bruno & Bruno, New Orleans, LA, Richard J. Dodson, Kenneth H. Hooks, III, Dodson & Vidrine, Baton Rouge, LA, for Candido Castro.
George Pivach, II, Timothy Thriffiley, Pivach & Pivach, Belle Chasse, LA, I.F. Hingle.
ORDER AND REASONS
Before the Court is defendant's Motion for Partial Summary Judgment pursuant to Federal Rules of Civil Procedure 56 and 57. The parties submitted several memoranda to support their positions and oral argument was heard on September 17, 1998. After review of the parties' written and oral arguments and the relevant law, the Court submits the following order and reasons.
Vivian Tankships Corporation employed Candido Castro during a period of time in 1997 in which Castro claims to have suffered a hernia resulting from his service on the M/V OVERSEAS VIVIAN, a U.S. flagged vessel owned by Vivian Tankships. In March 1998, Castro filed suit against Maritime Overseas Corporation.1 The same month, the 25th Judicial District Court for the Parish of Plaquemines, pursuant to La. C.Civ.Pro. Art. 3541(5),2 et seq., issued a writ of attachment against the M/V OVERSEAS VIVIAN to secure judgement satisfaction.
In June 1998, Vivian Tankships filed this suit seeking to restrain the further attachment of its vessel in state court proceedings, seeking to declare Louisiana's nonresident attachment statute unconstitutional as applied to vessels engaged in interstate or foreign commerce, seeking declaratory judgment with respect to maintenance and cure, and seeking damages for the wrongful attachment of the vessel. In July 1998, plaintiff filed a motion for partial summary judgment solely on the Constitutionality of the Louisiana nonresident attachment statute. Specifically, plaintiff objects to the use of federal maritime in rem jurisdiction as a vehicle for obtaining state in personam jurisdiction over a nonresident company — i.e., U.S. Flag carriers. Plaintiff claims that Louisiana's nonresident attachment statute is unconstitutional because (1) statutorily inequitable bond requirements unduly burden the free flow of interstate commerce and thus, violate the Commerce Clause; (2) lack of a preattachment hearing and the delay in obtaining a postattachment hearing violates the Due Process Clause; and (3) requiring owners to register to do business in Louisiana or suffer vessel attachment in the alternative is a forced licensure of a U.S. flag vessel and violates the Supremacy Clause.
Defendants3 assert that there is no case or controversy because the ship is no longer being held and because Castro agreed not to attempt to seize the ship again. The defendants further argue that plaintiff's complaint is purely conjectural because plaintiff uses language in its complaint such as "anticipated," and "will call sometime in the next 30 days," and "in the event." Thus, Castro claims, the case is moot, nonjusticiable and should be dismissed summarily.4
Plaintiff maintains that it has standing to raise the issue of constitutionality because the M/V OVERSEAS VIVIAN remains under an immediate threat of nonresident attachment should it not be registered to do business in Louisiana.5 Plaintiff argues that because seamen are not entitled to workman's compensation, but must sue his employer for compensation resulting from injuries on the job and because the M/V OVERSEAS VIVIAN is an U.S. flag vessel, the risk of suit is substantial. It is plaintiff' position that at any time, individuals may entreat Sheriff Hingle to seize the vessel despite the fact that there has been no meaningful hearing.
A showing of an immediate of definite threat of governmental action or policy that will adversely or continues to adversely affect a present interest is sufficient to maintain the suit. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). When the question raised is "capable of repetition, yet evading review," the courts have maintained jurisdiction. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). See also, Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Int'l Organization of Masters, Mates & Pilots v. Brown, 498 U.S. 466, 111 S.Ct. 880, 112 L.Ed.2d 991 (1991).
Given that the M/V OVERSEAS VIVIAN is an U.S. flag vessel that will likely visit a Louisiana port again in the future, and given the fact that the Louisiana maintains the current system for nonresident attachment, the issue of constitutionality is not moot and will be reviewed by this court.
Defendants also assert that this Court lacks jurisdiction because there is a pending state court action. It is defendants' position that this Court is required to dismiss this case because all parties are competently represented, all issues can be competently addressed in the state court forum, and plaintiff filed suit in anticipation of another suit being filed in state court.
"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. This case presents a constitutional challenge to Louisiana's nonresident attachment statute, La.C.Civ. Pro. 3501, et seq. under the United States Constitution. Thus, pursuant to 28 U.S.C. § 1331, this court has federal question jurisdiction.
A moving party must show that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must then go beyond the pleadings and through depositions or admissions on file show that there is a genuine issue for trial as to the material facts that entitle the moving party to a judgment as a matter of law. Fed.R.Civ.P. 56(c).
The court now turns to the merits of the arguments with these standards in mind.
Plaintiff argues that the free flow of interstate commerce is unduly burdened because Louisiana law requires nonresident companies to register in Louisiana to avoid attachment of property. Registering as a foreign company within Louisiana, plaintiff asserts, would subject the company to suit for all transactions regardless of whether such suit arose or had any connection with the state resulting in considerable costs to the vessel and owner. Additionally, plaintiff argues that the prejudgment attachment bond requirement is discriminatory and burdensome on interstate commerce. Should a resident defendant be subject to prejudgment attachment, the statute requires plaintiff to post bond equal to his demand.6 La.C.Civ.Pro. Art. 3544. On the other hand, should a nonresident defendant's property be attached, the plaintiff's bond requirement does not exceed $250 without further showing. Id.
Defendant claims that Louisiana attachment procedure is not an effort to regulate commerce and are therefore, not violative of the commerce clause. Also, defendant asserts that the commerce clause creates no individual rights,7 and that this claim should more be appropriately made under the due process and equal protection ambits.8
On its face the commerce clause enables Congress to regulate interstate commerce, however, it has also been interpreted to limit the states from directly discriminating against interstate commerce. This limiting affect, known as the dormant commerce clause, creates a "virtually per se rule of invalidity" applicable to state regulations that directly discriminate against interstate commerce. City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). The dormant commerce clause also invalidates state regulations that indirectly discriminate if the regulation imposes an undue burden on interstate commerce. Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). Nonetheless, "the fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) () Additionally, a discriminatory state law that is "demonstrably justified by a valid factor unrelated to economic protectionism," New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988), will be upheld if the State law "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives," id., 486 U.S. at 278, 108 S.Ct. at 1810. See, Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997), Scalia, J. dissenting.
By its very nature, shipping transcends state lines and international boundaries and is international in its scope and importance. Because of this, a plaintiff could have some difficulty when attempting to effect service of process on the potential defendant. The Louisiana Supreme Court recently examined the problem and found:
In the maritime context, the shipowner, often in a foreign land was usually not subject to the court's jurisdiction. "Quasi in rem" jurisdiction rectifies this scenario. Pursuant to quasi in rem, if a defendant cannot be served within the territory, the court derives its authority to adjudicate...
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