     06-5397-cv
     Porina v. Marward Shipping Co., Ltd.


 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3                                ____________________________________
 4
 5                                           August Term, 2007
 6
 7   (Argued: December 17, 2007                                                Decided: April 1, 2008 )
 8
 9                                         Docket No. 06-5397-cv
10                                ____________________________________
11
12                    VICTORIJA PORINA, as personal representative of Arnis Porins,
13                    deceased, LUBOVA BOILOVICA, as personal representative of
14                    Victor Boilovic, deceased, JEKARETINA JEMELIGANOVA, as
15                    personal representative of Vladimir Lisenko, deceased, KARLIS
16                      PUKITIS, as personal representative Ignus Pukitis, deceased,
17                     MARTIN ZAKALOVSKIS, as personal representative of Janis
18                      Zakalovskis, deceased, TAMARA NAZAROVA, as personal
19                      representative of Igors Nazarovs, deceased and SIA “BUTE”,
20                                          Plaintiffs-Appellants,
21
22                                                    v.
23
24                                     MARWARD SHIPPING CO., LTD.,
25                                           Defendant-Appellee.
26
27                                ____________________________________

28               Before: JACOBS, Chief Judge, CALABRESI, and RAGGI, Circuit Judges.
29                                ____________________________________
30

31           Appeal from an August 24, 2006 order of Judge Patterson in the United States District Court
32   for the Southern District of New York, dismissing the complaint for lack of personal jurisdiction.

33           Affirmed.




                                                     -1-
 1                                                  MEGAN BENETT (Paul S. Edelman, on the brief),
 2                                                  Kreindler & Kreindler, New York, N.Y., for
 3                                                  Plaintiffs-Appellants.
 4
 5                                                  JOHN D. KIMBALL, Blank Rome LLP, New York,
 6                                                  N.Y., for Defendant-Appellee.
 7
 8                                  ____________________________________
 9

10   CALABRESI, Circuit Judge:

11          In May 2004, a Latvian fishing vessel called the Astrida sank in Swedish waters; the vessel

12   was lost and its six crew members perished. Plaintiffs, the owner of the Astrida and representatives

13   of the deceased fishermen, brought suit in the Southern District of New York against Marward

14   Shipping Co. (“Marward”), the owner of a ship called the Vladimir. Plaintiffs assert that the

15   Vladimir struck the Astrida, and that the collision resulted from the negligence of those operating

16   the Vladimir. Marward, instead, maintains that the Vladimir had nothing to do with the accident.

17   We do not, however, consider that question, because we hold that the federal district court could not,

18   consistently with the Constitution’s guarantee of due process, exercise personal jurisdiction over

19   Marward.

20                                              BACKGROUND


21   I. Facts

22          The M/V Vladimir is a cargo ship.1 Before Marward purchased the Vladimir, the vessel was

23   owned by a Cypriot company called Florani Shipping Co. (“Florani”). On September 20, 2002,

24   Florani time-chartered the Vladimir to a Maltese company called Ambery Maritime Ltd.


     1
      Until May 12, 2004, the Vladimir was named M/V Salvador. For simplicity, we refer to the ship
     as the Vladimir throughout.


                                                      -2-
 1   (“Ambery”). The charter gave Ambery the use of the Vladimir’s cargo-carrying capacity, and the

 2   right to direct the ship’s course “for worldwide trading in Charterers’ option via good, safe,

 3   berth(s)/good, safe port(s).” The contract listed the intended area of service as: “U.S. Gulf,

 4   Carribbian [sic] Sea, U.S. East Coast/Canada, North Continent, United Kingdom and Baltic ports

 5   including Gulf of Finland and St. Petersburg, Russia.” While subject to the 2002 charter, the

 6   Vladimir sailed as one of seven “specialized multipurpose vessels dedicated to U.S. trade”; these

 7   vessels comprised a carrier fleet advertised as “the only direct non-stop liner service to Russia from

 8   USA.” The Vladimir docked over sixty times in the United States between April 2000 and March

 9   2004.

10           Marward has its sole place of business in Limassol, Cyprus, and is incorporated under

11   Cypriot law. On March 29, 2004, six weeks before the Astrida sank, Marward bought the Vladimir

12   from Florani. The purchase was subject to the 2002 charter with Ambery, which remained in effect

13   until June 2004. When ownership was transferred to Marward, the Vladimir was in port at St.

14   Petersburg. The ship continued its transatlantic service three days later and again set off for the

15   United States. After calling at Baltimore between April 16, 2004, and April 27, 2004, the Vladimir

16   sailed back across the Atlantic to Russia, via Denmark.

17           On May 10, 2004, during the Vladimir’s first return voyage to Russia under Marward’s

18   ownership, the Astrida sank on the Baltic Sea. After the alleged collision, the Vladimir arrived as

19   scheduled at St. Petersburg. The Maritime Administration of Latvia (“MAL”), suspecting that the

20   Vladimir was involved in the accident, asked the St. Petersburg Port State Control Inspectorate to

21   examine the ship’s hull. Having done so, the Russian investigators stated that they saw no evidence

22   of a recent collision. The Latvian authorities, not satisfied with this answer, then asked if they could


                                                       -3-
 1   come to St. Petersburg themselves to conduct a second inspection. This request was denied by the

 2   Harbormaster of St. Petersburg because “a repeated inspection of the hull of m/v V[LA]DIMIR

 3   would cause the vessel’s demurrage and losses to its owner since the vessel had already received

 4   permission to leave the port, and, therefore, it was offered to the representatives of the MAL to

 5   perform the inspection at the next port of call.”

 6          The next port of call was Baltimore. There, the MAL, accompanied by representatives of

 7   Marward, the United States Coast Guard, and divers from private companies, conducted a full

 8   investigation. The Vladimir’s master produced no course records for the period relevant to the

 9   alleged collision, declaring that “the course recorder did not operate due to technical reasons.”

10   Nevertheless, the inspectors concluded that the Vladimir and the Astrida had, in fact, collided. The

11   report noted hull damage that was consistent with impact against the port side of the Astrida,

12   including “[m]aroon dashes” that “could only be left by a foreign body” and were “visually the same

13   colour” as the Astrida’s hull.

14          After the inspection, the Vladimir continued its transatlantic journeys. When, in June 2004,

15   the Ambery charter expired, Marward entered into a similar arrangement with another charterer.

16   While under Marward’s ownership, but always at the direction of its charterers, the vessel called at

17   United States ports at least sixteen times between March 29, 2004, and September 22, 2005.2

18


     2
      The Vladimir called at Baltimore, Maryland on April 16 and June 3, 2004; at Charleston, South
     Carolina on June 9, 2004; at Miami, Florida on June 14, 2004; at Houston, Texas on June 18, August
     14, October 21, December 28, 2004, March 9, May 22, 2005; at Mobile, Alabama on December 19,
     2004, and March 5, 2005; at New Orleans, Louisiana on May 11, 2005; at Newport News, Virginia
     on July 30, 2005; at Fairless Hills, Pennsylvania, on August 17, 2005; and at Philadelphia,
     Pennsylvania on August 22, 2005.


                                                         -4-
 1   II. Procedural Background

 2          Seeking damages for wrongful death and for the loss of the Astrida, plaintiffs brought suit

 3   in the Southern District of New York on June 16, 2005 against various parties; they did not at first

 4   include Marward. On September 22, the plaintiffs filed a motion to amend the complaint to add

 5   Marward. The motion was granted with Marward’s consent, and the other parties were subsequently

 6   dropped from the case.

 7          Marward then moved to dismiss the complaint for lack of personal jurisdiction.3 Judge

 8   Patterson granted the motion, concluding that plaintiffs had failed to make a prima facie showing

 9   that Marward had sufficient contacts with the United States to justify the assertion of personal

10   jurisdiction.4 Porina v. Marward Shipping Co., Ltd., No. 05 CIV. 5621, 2006 WL 2465819

11   (S.D.N.Y. Aug. 24, 2006). This appeal followed.

12

13                                               DISCUSSION


14          We review de novo a district court’s decision to dismiss a complaint for lack of personal

15   jurisdiction. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). Where, as here, a

16   district court relies on the pleadings and affidavits, and chooses not to conduct a “full-blown

17   evidentiary hearing,” plaintiffs need only make a prima facie showing of personal jurisdiction over


     3
       In the alternative, Marward moved before the district court to dismiss the complaint pursuant to
     the doctrine of forum non conveniens, asserting that Cyprus was a more appropriate forum for the
     suit. The district court did not find it necessary to rule on this motion.
     4
       The district court initially rendered its decision based solely on the pleadings and affidavits, but
     afforded plaintiffs sixty days to conduct jurisdictional discovery. The court then reviewed letters
     from counsel setting out the fruits of this discovery. Finding that plaintiffs had not adduced adequate
     grounds for the court to change its decision, Judge Patterson granted the motion to dismiss.


                                                       -5-
 1   the defendant. Id. (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).

 2   In reviewing the dismissal, we construe the pleadings and affidavits in the light most favorable to

 3   plaintiffs, resolving all doubts in their favor. Id.

 4           Plaintiffs do not assert that Marward has sufficient contacts with the state of New York to

 5   fall within the purview of that state’s long-arm statute. Instead, plaintiffs rely on Federal Rule of

 6   Civil Procedure 4(k)(2):5

 7                   For a claim that arises under federal law, serving a summons or filing
 8                   a waiver of service establishes personal jurisdiction over a defendant
 9                   if:
10                           (A) the defendant is not subject to jurisdiction in any state's
11                           courts of general jurisdiction; and
12                           (B) exercising jurisdiction is consistent with the United States
13                           Constitution and laws.
14   Rule 4(k)(2) was specifically designed to “correct[] a gap” in the enforcement of federal law in

15   international cases. Fed R. Civ. P. 4 advisory committee’s note, 1993 Amendments. The gap arose

16   from the general rule that a federal district court’s personal jurisdiction extends only as far as that

17   of a state court in the state where the federal court sits. Before the 1993 amendments, even where

18   a state’s long-arm statute would have permitted jurisdiction, the majority of courts to consider the

19   question took the view that former Federal Rule of Civil Procedure 4(e) required a “lockstep”

20   approach to the question of whether a federal court could, consistently with due process, exercise

21   personal jurisdiction over a non-resident defendant. See United Rope Distribs., Inc. v. Seatriumph

22   Marine Corp., 930 F.2d 532, 535 (7th Cir. 1991). On the “lockstep” view, federal district courts

     5
      The text of Rule 4(k)(2) was amended, effective December 1, 2007, “as part of the general restyling
     of the Civil Rules to make them more easily understood and to make style and terminology
     consistent throughout the rules.” Fed. Civ. P. 4 advisory committee’s note, 2007 amendment.
     Because these changes “are intended to be stylistic only,”id., we refer solely to the new version.


                                                        -6-
 1   could look only to the defendant’s contacts with the individual state where the federal court was

 2   located, and not to any other contacts with the United States. See, e.g,, DeMelo v. Toche Marine,

 3   Inc., 711 F.2d 1260, 1264-69 (5th Cir. 1983). The pre-1993 Rules, the Advisory Committee noted,

 4   left a significant lacuna “when the defendant was a non-resident of the United States having contacts

 5   with the United States sufficient to justify the application of United States law and to satisfy federal

 6   standards of forum selection, but having insufficient contact with any single state to support

 7   jurisdiction under state long-arm legislation or meet the requirements of the Fourteenth Amendment

 8   limitation on state court territorial jurisdiction.” Fed R. Civ. P. 4 advisory committee’s note, 1993

 9   Amendments.

10           Accordingly, Rule 4(k)(2) now allows the exercise of personal jurisdiction by a federal

11   district court when three requirements are met: (1) the claim must arise under federal law; (2) the

12   defendant must not be “subject to jurisdiction in any state’s courts of general jurisdiction”; and (3)

13   the exercise of jurisdiction must be “consistent with the United States Constitution and laws.”

14   Plaintiffs’ suit relies on general maritime law; their claim, therefore, is one that “arises under federal

15   law” for the purposes of Rule 4(k)(2).6 World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d

16   717, 723 (5th Cir. 1996); Norvel Ltd. v. Ulstein Propeller AS, 161 F. Supp. 2d 190, 200 (S.D.N.Y.

17   2001). But defendant contends, and the district court concluded, that the Fifth Amendment’s due

18   process clause bars the exercise of personal jurisdiction. See Dardana Ltd. v. Yuganskneftegaz, 317

19   F.3d 202, 207 (2d Cir. 2003) (“Rule 4(k)(2) confers personal jurisdiction over a defendant so long

20   as the exercise of jurisdiction comports with the Due Process Clause of the Fifth Amendment.”).

     6
       Marward contends that plaintiffs have failed to show that Marward is not subject to personal
     jurisdiction in any of the fifty states. Given our conclusion on the due process issue, we do not find
     it necessary to decide whether the second requirement for Rule 4(k)(2) jurisdiction is met.


                                                        -7-
 1           Due process permits a court to exercise personal jurisdiction over a non-resident where the

 2   maintenance of the suit would not “offend ‘traditional notions of fair play and substantial justice.’”

 3   International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311

 4   U.S. 457, 463 (1940)). To determine whether this is so, we apply a two-step analysis in any given

 5   personal jurisdiction case. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68

 6   (2d Cir. 1996). First, we ask whether the defendant has sufficient minimum contacts with the forum

 7   to justify the court’s exercise of personal jurisdiction. See id. In the case before us, the question is

 8   whether Marward has sufficient affiliating contacts with the United States in general, rather than

 9   with New York in particular, with which it has none. See Dardana, 317 F.3d at 207; Chew v.

10   Dietrich, 143 F.3d 24, 28 n.4 (2d Cir. 1998). If the defendant has sufficient minimum contacts, we

11   proceed to the second stage of the due process inquiry, and consider whether the assertion of

12   personal jurisdiction “is reasonable under the circumstances of the particular case.” Metro. Life, 84

13   F.3d. at 568. A defendant’s contacts with the particular federal district in which the suit was filed,

14   or lack thereof, may be relevant in determining, at the second stage of the analysis, whether it would

15   be reasonable, in all the circumstances, to exercise personal jurisdiction. See Fed. R. Civ. P. 4

16   advisory committee’s note, 1993 Amendments.

17           The constitutional minimum contacts inquiry for personal jurisdiction requires us to

18   distinguish between two forms of jurisdiction. See Arthur T. von Mehren & Donald T. Trautman,

19   Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966). Specific

20   jurisdiction exists where a forum exercises personal jurisdiction over a defendant “in a suit arising

21   out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia,

22   S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). A court’s general jurisdiction over a non-resident, on


                                                       -8-
 1   the other hand, is based on a defendant’s general business contacts with the forum, and “permits a

 2   court to exercise its power in a case where the subject matter of the suit is unrelated to those

 3   contacts.” Metro. Life, 84 F.3d at 568.

 4           Plaintiffs make no serious attempt to show that their suit either arises out of, or is related to,

 5   Marward’s contacts with the United States. Accordingly, plaintiffs must satisfy the “more stringent

 6   minimum contacts test” for general jurisdiction cases, by showing that Marward had “‘continuous

 7   and systematic general business contacts’” with the United States. Id. (quoting Helicopteros, 466

 8   U.S. at 416); see also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-46 (1952).

 9           In general jurisdiction cases, we “examine a defendant’s contacts with the forum state over

10   a period that is reasonable under the circumstances––up to and including the date the suit was filed.”

11   Metro. Life, 84 F.3d at 569. In building their case that Marward had continuous and systematic

12   contacts with the United States, plaintiffs rely primarily on the Vladimir’s repeated visits to various

13   ports on the Eastern Seaboard and the Gulf Coast, both before and after the Astrida sank. But the

14   Supreme Court has read the Constitution to require, as a minimum prerequisite to the assertion of

15   jurisdiction, “some act by which the defendant purposefully avails itself of the privilege of

16   conducting activities within the forum.” Hanson v. Denckla, 357 U.S. 235, 253 (1958) (emphasis

17   added); see also International Shoe, 326 U.S. at 320 (recognizing general jurisdiction where

18   availment is “systematic and continuous.”). The difficulty with plaintiffs’ reliance on the Vladimir’s

19   American port visits is that none of the visits were made at Marward’s direction. The decision to

20   bring the Vladimir to the United States was made, in each case, by the ship’s charterers, who were

21   free under the charters to take the ship to any safe port in the world. The unilateral activities of third




                                                        -9-
 1   parties — here, the charterers — cannot, in themselves, satisfy the requirement of contact with the

 2   forum. Id.

 3           While conceding that the visits were made at the charterers’ direction, plaintiffs nevertheless

 4   maintain that Marward purposefully availed itself of the advantages of doing business in the United

 5   States, thus invoking the benefits and protections of its laws. Marward, plaintiffs say, bought the

 6   Vladimir in the knowledge that the ship had visited, and was likely to continue visiting, the United

 7   States. Thus, plaintiffs have certainly shown that Marward could reasonably expect that its ship

 8   would have repeated contacts with the United States. But “‘foreseeability’ alone has never been a

 9   sufficient benchmark for personal jurisdiction under the Due Process Clause.” World-Wide

10   Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980). That Marward foresaw that the Vladimir

11   would visit the United States does not, without more, establish that Marward purposefully engaged

12   in the continuous and systematic business contacts with this country that are needed to support

13   general personal jurisdiction. And, significantly, the ship’s contacts with the United States could

14   transpire, or not, at the charterers’ sole discretion.

15           In a similar vein, plaintiffs note that the financial benefits of the charterers’ course of

16   business in the United States accrued to the ship’s owner. By the terms of the charters, however,

17   Marward was entitled to receive the same financial benefit regardless of where the charterers

18   directed the vessel. The fact that the ship’s charterers repeatedly made money from business in the

19   United States does not suffice as a basis for a finding of continuous and systematic contacts on

20   Marward’s part. See id. at 299 (“[F]inancial benefits accruing to the defendant from a collateral

21   relation to the forum State will not support jurisdiction if they do not stem from a constitutionally

22   cognizable contact with that State.”).


                                                       -10-
 1            The Sixth Circuit’s decision in Fortis Corporate Ins. v. Viken Ship Mgmt., 450 F.3d 214 (6th

 2   Cir. 2006), is easily distinguishable. There, the court held that personal jurisdiction was proper

 3   under Rule 4(k)(2) over the Norwegian owners of a chartered vessel, on a claim for cargo damaged

 4   on Lake Erie and delivered to Toledo, Ohio. But the defendants in that case had manifested their

 5   intent to serve and to profit from the United States in particular, by confirming in the charter

 6   agreement that “‘the vessel is suitable for Toledo,’” and by outfitting and rigging the ship for the

 7   fresh water of the Great Lakes. Id. at 221. These facts were deemed sufficient to show that the

 8   Fortis defendants, unlike Marward, had purposefully availed themselves of the benefits of doing

 9   business in the forum. Moreover, Fortis involved a claim that arose out of the ship’s contacts with

10   the United States, and hence entailed the application of the less stringent test applicable to assertions

11   of specific jurisdiction. Id. at 223. The plaintiff in Fortis was not required to show, as plaintiffs are

12   in this case, that the ship owner engaged in continuous and systematic business contacts with the

13   forum.

14            To resolve the case before us, we need not determine whether, and in what circumstances,

15   a court might assert specific jurisdiction over the owner of a ship whose charterer directs it to the

16   United States. We hold, however, that the owner of a vessel may not constitutionally be subjected

17   to personal jurisdiction with respect to an unrelated suit merely because, as the owner may have

18   expected, the vessel has repeatedly visited the forum’s ports at the sole direction of its charterers.

19            In addition to the Vladimir’s stops in the United States, plaintiffs also point to the Baltimore

20   hull inspection, in which Marward itself participated. This isolated incident, we conclude, is

21   inadequate to support a finding of continuous and systematic general business contacts with the

22   United States. Marward, moreover, did not purposefully avail itself of the benefits of conducting


                                                       -11-
 1   activities in the United States when it sent representatives to Baltimore. Baltimore simply happened

 2   to be the vessel’s next charterer-directed port of call. Because Marward’s visit to Baltimore was

 3   born, not of a voluntary decision to do business in America, but of the necessity of defending itself

 4   in this dispute, the inspection provides no basis for a finding of the requisite contacts.

 5          We conclude that Marward’s contacts with the United States do not satisfy the heightened

 6   minimum contacts requirement for general jurisdiction over a non-resident. As a result, we need not

 7   consider whether personal jurisdiction would be “reasonable” in the particular circumstances of the

 8   case. See Metro. Life, 84 F.3d at 568 (“[I]f the constitutionally necessary first-tier minimum is

 9   lacking, the inquiry ends.”).

10

11                                               CONCLUSION


12          The assertion of personal jurisdiction over Marward with respect to this suit would not be

13   “consistent with the United States Constitution.” See Fed. R. Civ. P. 4(k)(2)(B). Accordingly, we

14   AFFIRM Judge Patterson’s decision to dismiss the complaint.




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