           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 13, 2008

                                     No. 07-40829                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




OLGA DE LEON; DAURYS BLADIMIL DE LEON; RAFAELA DE LEON;
FRANKLIN ROA; JOSE GUERRERO MARTE; CRISTIAN ENCARNACION

                                                  Plaintiffs-Appellants
v.

SHIH WEI NAVIGATION COMPANY LTD; DONG LIEN MARITIME SA
PANAMA

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:05-CV-579



Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Five citizens of the Dominican Republic—William De Leon, Franklin De
Leon, Franklin Roa, Jose Guerrero Marte, and Cristian Encarnacion (the
“Stowaways”)—surreptitiously boarded the M/V WELL PESCADORES in an ill-
fated attempt to enter the United States illegally. Plaintiffs-Appellants Olga De


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-40829

Leon, Daurys Bladimil De Leon, Rafaela De Leon, Franklin Roa, Jose Guerrero
Marte, and Cristian Encarnacion (“Plaintiffs-Appellants”) are either surviving
stowaways or heirs of the decedent stowaways. They initiated this admiralty
and maritime tort action seeking damages for personal injuries allegedly
suffered by the Stowaways. Shih Wei Navigation Company, Limited (“Shih
Wei”) and Dong Lien Maritime S.A., Panama (“Dong Lien”) (collectively
“Defendants-Appellees”) are the only remaining defendants in this action. They
are alleged to represent the owner’s interest of the M/V WELL PESCADORES.
Plaintiffs-Appellants appeal the district court’s dismissal of their action for lack
of personal jurisdiction over Defendants-Appellees. Convinced that the district
court correctly determined that Defendants-Appellees lack the requisite
minimum contacts with the United States to confer general personal jurisdiction
on the courts of this country, we affirm.
       In   March     2003,    the   Stowaways       covertly    boarded     the    WELL
PESCADORES—a Panama-flagged cargo ship whose master was from Taiwan
and whose crew was from the People’s Republic of China—while it was calling
on Santo Domingo, Dominican Republic; their apparent intent being to stow
away aboard the ship until it reached its destination, Houston, Texas. While the
vessel was in international waters en route to Houston, the Stowaways were
discovered by the vessel’s crew and then either left voluntarily on a raft or were
forcibly thrown overboard by the crew, depending on whose version of the story
is true. Two of the Stowaways, William De Leon and Franklin De Leon, died.1




       1
          Plaintiffs-Appellants allege that the two men were thrown overboard but never made
it to the raft because they could not swim.

                                             2
                                       No. 07-40829

                                              I
       Plaintiffs-Appellants filed this suit against the vessel’s owners and
charterers.2 They allege that Defendants-Appellees represent the vessel owner’s
interest, and as such were responsible for the actions of the vessel’s crew under
the charter party.3 Shih Wei was indisputably the manager of the vessel for the
voyage that gave rise to this action, and Dong Lien, a wholly-owned subsidiary
of Shih Wei, acted as Shih Wei’s agent and executed the charter party as owner
with the charterer, BHBP.4
       Both Defendants-Appellees are foreign corporations: Dong Lien was
incorporated under the laws of Panama, and Shih Wei was incorporated under
the laws of Taiwan. Each corporation has its principal place of business in
Taipei, Taiwan. Defendants-Appellees filed a Federal Rule of Civil Procedure
12(b)(2) motion to dismiss, asserting that the district court lacked personal
jurisdiction over them. The district court granted the motion, concluding that
it could not exercise either specific jurisdiction or general jurisdiction over Shih
Wei or Dong Lien. Plaintiffs-Appellants timely filed a notice of appeal. On
appeal, they insist that Defendants-Appellees had sufficient contacts with the
United States to support the district court’s exercise of general personal
jurisdiction over them.




       2
         As is common, the owners of the WELL PESCADORES had chartered the ship for the
voyage to another entity, BHP Billiton Transport and Logistics Pty., Ltd. (“BHBP”), a
corporation incorporated under the laws of Australia. BHBP had, in fact, sub-chartered the
vessel to Pegasus Shipping, a corporation incorporated under the laws of Turkey.
       3
        The charter party provided that the owners of the WELL PESCADORES remained
responsible for the vessel’s crew.
       4
         Dong Lien claims that the owner of the WELL PESCADORES was Man Shipping, a
limited partnership existing under the laws of the Isle of Man. Dong Lien, though, is defined
as the “Owner” in the charter party, so any responsibilities assigned to the “owner” under that
agreement were assigned to Dong Lien.

                                              3
                                         No. 07-40829

                                                II
       We review de novo the question whether personal jurisdiction may be
exercised over a defendant.5             When the basis for personal jurisdiction is
challenged and the district court grants the defendant’s motion to dismiss
without holding an evidentiary hearing, the plaintiff need only make a “prima
facie showing of the facts on which jurisdiction is predicated” on appeal.6
       “Personal jurisdiction over a nonresident defendant attaches only when a
defendant is amenable to service of process under the forum state’s long-arm
statute and the exercise of jurisdiction comports with the due process clause of
the [F]ourteenth [A]mendment.”7 Alternatively, when a claim arises under
federal law, as is the case here, personal jurisdiction may be exercised only if
doing so would be proper under the due process clause of the Fifth Amendment.8
       “The due process inquiry likewise has two parts. For personal jurisdiction
to exist the nonresident defendant purposefully must have established
‘minimum contacts’ with the forum state such that he invoked the benefits and
protections of the forum’s laws and thus reasonably could anticipate being haled
into court there. In addition, circumstances must be such that the exercise of
personal jurisdiction does not offend ‘traditional notions of fair play and
substantial justice.’”9 The “minimum contacts” inquiry may be further
subdivided into contacts that give rise to either specific jurisdiction or general
jurisdiction. “When a cause of action arises out of a defendant’s purposeful


       5
           Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 335 (5th Cir. 1999).
       6
           Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002).
       7
           Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 786 (5th Cir. 1990).
       8
        See FED. R. CIV. P. 4(k)(2); World Tankers Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d
717, 723 (5th Cir. 1996).
       9
           Asarco, 912 F.2d at 786 (citations omitted).

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                                            No. 07-40829

contacts with the forum, minimum contacts are found to exist and the court may
exercise its ‘specific’ jurisdiction. Even a single, substantial act directed toward
the forum can support specific jurisdiction. Where a cause of action does not
arise out of a foreign defendant’s purposeful contacts with the forum, however,
due process requires that the defendant have engaged in ‘continuous and
systematic contacts’ in the forum to support the exercise of ‘general’ jurisdiction
over that defendant . . . [C]ontacts of a more extensive quality and nature are
required.”10
       Plaintiffs-Appellants do not contest the district court’s conclusion that it
could not exercise specific jurisdiction over Defendants-Appellees; instead, they
assert that the 43 to 45 calls11 made on U.S. ports by vessels owned or managed
by Defendants-Appellees during the three years preceding the incident in
question support that court’s exercise of general jurisdiction under Federal Rule
of Civil Procedure 4(k)(2).12 Specifically, Plaintiffs-Appellants insist that if the
district court had properly applied our precedent in Asarco, Inc. v. Glenara,
Ltd.13 in the Rule 4(k)(2) context by considering Defendants-Appellees’ contacts
with the United States as a whole, it would have recognized that Defendants-
Appellees had “continuous and systematic” contacts with the forum, based on



       10
            Id.
       11
          Plaintiffs-Appellants allege that Defendants-Appellees called on U.S. ports 96 times
in the three years preceding the incident at issue. The district court, however, recognizing that
it could only consider the calls made prior to the filing of the action, see id. at 787 n.1 (noting
that “the relevant time for determining jurisdiction is the filing of the complaint”), determined
that vessels owned, operated, or managed by Shih Wei made between 43 to 45 calls on U.S.
ports during the relevant time frame.
       12
         See FED. R. CIV. P. 4(k)(2) (“For a claim that arises under federal law, serving a
summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A)
the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B)
exercising jurisdiction is consistent with the United States Constitution and laws.”).
       13
            912 F.2d 784 (5th Cir. 1990).

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                                       No. 07-40829

their repeated calls on U.S. ports. Having reviewed the record on appeal, the
parties’ briefs, and the applicable case law, we are convinced that the district
court properly considered and applied Asarco in light of Rule 4(k)(2). Moreover,
we agree with the district court that the requisite “minimum contacts” to
support the exercise of general personal jurisdiction are lacking.
       In Asarco, ASARCO, Inc. (“ASARCO”) sought to recover damages for cargo
lost when the vessel carrying the cargo sank by filing suit in federal district
court in Louisiana against the owner of the vessel, Glenara, Ltd., as well as the
manager of the vessel, Anglo-Eastern Management Services Limited (“Anglo-
Eastern”).14 ASARCO insisted that Anglo-Eastern had sufficient contacts with
Louisiana to support the exercise of general personal jurisdiction based solely on
20 calls made by Anglo-Eastern-managed vessels to various ports in the State
of Louisiana in the five years preceding the accident.15 We concluded that such
contacts were “better characterized as sporadic than continuous and systematic,”
and that they were “insufficient to cause Anglo-Eastern reasonably to anticipate
the possibility of being haled into court in Louisiana.”16 Furthermore, we
emphasized that Anglo-Eastern’s vessels were under charter when they called
on Louisiana ports, and that the respective charterers controlled the vessels’
destinations and dictated the ports on which the vessels called. Accordingly, we
concluded that Anglo-Eastern could not “be held to have availed itself of the
benefits and protections of doing business in Louisiana by virtue of its sporadic
operational management of vessels sent to Louisiana by others.”17


       14
            Id. at 785.
       15
          Id. at 787. We observed in Asarco that “Anglo-Eastern was not licensed to do
business in Louisiana; did not solicit business there; did not maintain an office there; and did
not own property or employ personnel in the state.” Id.
       16
            Id.
       17
            Id.

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                                       No. 07-40829

        Similar to Anglo-Eastern, Defendants-Appellees’ sole contacts with the
forum were calls made on forum ports in the years preceding the incident at
issue.18 Defendants-Appellees are not licensed or authorized to do business in
the United States; they have never advertised or solicited any business in the
United States; they do not maintain a place of business or office in the United
States; they have no employees or agents located in the United States; they have
never maintained a telephone number or mailing address in the United States;
and they have never owned, leased, or possessed any interest in property in the
United States.
       At the time of the voyage at issue, Dong Lien owned three vessels and Shih
Wei managed 22 vessels, which in combination made between 43 to 45 calls to
various ports around the United States during the three years at issue.19 Thus,
on average, each vessel called on a U.S. port about 0.68 times per year, or
roughly twice every three years. Neither is there any discernable pattern with
respect to the timing and location of these calls: Defendants-Appellees’ vessels
did not call on the same U.S. ports with any regularity or consistency. In
addition, almost every time one of the vessels did call on a U.S. port, it was
under charter; and, pursuant to these charter parties, each vessel was under the
commercial direction and control of its charterer. Accordingly, the charterers
directed the vessels’ movements, and Defendants-Appellees had no control over
the vessels’ destinations or the ports on which they called.20

       18
         We recognize, and indeed the district court did as well, that the relevant forum for
analyzing Defendants-Appellees’ contacts is the United States, whereas, in Asarco, the relevant
forum was the State of Louisiana.
       19
         Shih Wei-owned vessels called on U.S. ports nine times in 2003, fourteen times in
2004, and twenty to twenty-two times in 2005 prior to the filing of this action.
       20
          See, e.g., Griner Co. v. M/V Conti Blue, 1996 U.S. Dist. LEXIS 21561 *4-5 (S.D. Tex.
1996) (holding that “[u]nder Fifth Circuit law, it is clear that the owner of a vessel is not
subject to personal jurisdiction merely because his vessel was used to transport goods into the
forum state”); Saudi v. S/T Marine Atlantic, 159 F. Supp. 2d 469, 482 n.8 (S.D. Tex. 2000)

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                                       No. 07-40829

       We reject Plaintiffs-Appellants’ assertion that the crew’s discovery of the
Stowaways returned operational control of the WELL PESCADORES and its
destination to Defendants-Appellees in accordance with Clause 40(b)(I) of the
charter party.      Plaintiffs-Appellants’ contention is based on an incorrect
interpretation of the term “off-hire.” Accordingly, we conclude that the charterer
or sub-charterer retained operational control of the WELL PESCADORES at all
relevant times.
                                             III
       When we consider the isolated and sporadic nature of the calls made on
U.S. ports by Defendants-Appellees’ vessels, the lack of control Defendants-
Appellees’ possessed over these calls, and the absence of any other contacts with
the United States in the framework of Asarco, we conclude that Defendants-
Appellees lack the requisite “continuous and systematic” contacts with the forum
to support the exercise of general personal jurisdiction. The district court’s
dismissal of this action for lack of personal jurisdiction is
AFFIRMED.




(noting that “where the non-resident defendant does not direct and control the destination of
the vessel, there is no personal jurisdiction over that defendant because that defendant cannot
purposely avail itself of the benefits and protections of the forum port”); Sibrian v. Chapel
Navigation, 1997 U.S. Dist. LEXIS 19616 *4 (E.D. La. 1997) (holding that “because the [vessel]
owner did not choose the ports, the owner cannot be held to have availed itself of the benefits
and protections of doing business in Louisiana by virtue of the contacts”) (internal quotations
omitted); Mutualidad Seguros del Instituto Nacional de Industria v. M/V Luber, 1998 U.S.
Dist. LEXIS 23165 *5-7 (S.D.N.Y. 1998) (“explaining that “[w]here the vessel’s owner has
ceded authority to the charterer, the choices of the latter cannot be imputed to the former”);
Nicolaisen v. Toei Shipping Co., 722 F. Supp. 1162, 1165 (D. N.J. 1989) (noting that the vessel
owner’s lack of control over where the vessel would make port “militates against finding that
[the vessel owner] was reasonably put on notice that it might be called upon to defend actions
in [the forum]”). Compare these cases with Walter v. Sealift, Inc., 35 F. Supp. 2d 532, 534-35
(identifying that defendants remained in operational control of their vessels and generally
knew the precise itinerary of the voyages undertaken was an important factor in satisfying the
requisite “minimum contacts”).

                                              8
