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g ‘ TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX: KINGSHILL ) CASES NOS. 606/92; 611/92; 632/92; 636/92; 644/92; 648/92; 653/92; 657/92; 662/92; 672/92; 685/92; 694/92; 700/92; IN RE: ST. CROIX SEAMEN’S ASBESTOS CASES ee et ae ee ee et ee ee ee THOMAS ALKON, ESQUIRE 2115 Queen Street Christiansted, St. Croix 00820 (809) 773-3305 (ATTORNEY FOR PLAINTIFFS) LEONARD JAQUES, ESQUIRE The Maritime Asbestosis Legal Clinic Division of the Jaques Admiralty Law firm 1570 Penobscot Building Detroit, MI 48226 (ATTORNEY FOR PLAINTIFFS) RICHARD E. DALEY, ESQUIRE Law Offices of Pattie and Daley 1104 Strand Street Christiansted, St. Croix 00820 (809) 773-6650 (ATTORNEY FOR COMBUSTION ENGINEERING, INC. & ZAPATA BULK TRANSFER CORP. (IMC) ) GERALD T. GRONER, ESQUIRE 52A/Company Street, Suite 2 Christiansted, St. Croix 00820 (809) 773-3660 (ATTORNEY FOR GAF CORP., FLEXITALLIC GASKET, CO., UNION CARBIDE, ARMSTRONG WORLD INDUSTRIES, INC., A.P. GREEN INDUSTRIES, INC., CERTAINTEED CORPORATION, NATIONAL GYPSUM COMPANY & UNITED STATES GYPSUM COMPANY) 608/92; 615/92; 633/92; 638/92; 645/92; 649/92; 654/92; 658/92; 665/92} 680/92; 687/92; 697/92; 701/92: 609/92 629/92 634/92 642/92 646/92 650/92 656/92 661/92 666/92 681/92 688/92 699/92 703/92 IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION BRITAIN H. BRYANT, ESQUIRE Bryant, White & Associates, P.C. 47 King Street Christiansted, St. Croix 00820 (809) 773-2785 (ATTORNEY FOR HOVIC, AMERADA HESS & ST. CROIX PETROCHEMICAL CORP.) STACY L. WHITE, ESQUIRE Bryant, White & Associates, P.C. 47 King Street Christiansted, St. Croix 00820 (809) 773-2785) (ATTORNEY FOR WESTINGHOUSE ELECTRIC CORP.) EDGAR A. CHRISTENSEN, ESQUIRE Law Offices of R. Eric Moore 54AB Company Street Christiansted, St. Croix 00820 (809) 773-4150 (ATTORNEY FOR GENERAL ELECTRIC CORP.) JEAN-ROBERT ALFRED, ESQUIRE 46B-47 King Street Christiansted, St. Croix 00820 (809) 773-2156 (ATTORNEY FOR BETHLEHEM STEEL CORP.) TODD NEWMAN, ESQUIRE Nichols, Newman & Silverlight 1131 King Street, Suite 204 Christiansted, St. Croix 00820 (809) 773-3200 (ATTORNEY FOR ALABAMA DRY DOCK SHIPYARD) JOHN R. COON, ESQUIRE 6 Chandler’s Wharf, Suite 202 Christiansted, St. Croix 00820 (809) 773-3681 (ATTORNEY FOR KEENE CORP. AND GARLOCK INC.) IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER || LACK OF PERSONAL JURISDICTION ||PAGE 3 ||GEORGE H. LOGAN, ESQUIRE |;Logan & Logan '6 Chandler’s Wharf [Christiansted, St. Croix 00820 | (809) 773-2705 | (ATTORNEY FOR OWENS-ILLINOIS, INC. & ACandS, INC.) |RICHARD H. HUNTER, ESQUIRE Hunter, Colianni, Cole & Turner 1138 King Street Christiansted, St. Croix 00820 (809) 773-3535 (ATTORNEY FOR FIBREBOARD CORP., PITTSBURGH CORNING CORP., PPG INDUSTRIES, INC.) ‘MICHAEL C. DUNSTON, ESQUIRE |\Corporate Place Royal Dane Mall St. Thomas, V.I. 00802 (809) 776-1049 (ATTORNEY FOR CROWN CORK & SEAL CO.) JAMES L. HYMES, ESQUIRE ''P.O. Box 990 ‘St. Thomas, V.I. 00804 (809) 776-3470 (ATTORNEY FOR JOHN CRANE, INC.) MARY FAITH CARPENTER, ESQUIRE Law Offices of Dudley & Clark 19 Estate Thomas Havensight Mall Executive Tower St. Thomas, Virgin Islands 00802 (809) 776-7474 (ATTORNEY FOR OWENS-CORNING FIBERGLAS CORP.) JOHN R. REPCHECK, ESQUIRE Sharlock, Repcheck & Mahler 3280 USX Tower 600 Grant Street Pittsburgh, PA 15219 (ATTORNEY FOR ANCHOR PACKING CO.) IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION FREDERICK G. WATTS, ESQUIRE Watts & Streibich 14 Norre Gade St. Thomas, Virgin Islands 00801 (809) 774-0673 (ATTORNEY FOR FOSTER WHEELER CORP. & PLIBRICO CO.) MARK L. MILLIGAN, ESQUIRE 28A King Street Christiansted, St. Croix 00820 (809) 773-7121 (ATTORNEY FOR MYSTIC STEAMSHIP CORP. ANNDEP STEAMSHIP CORP., AVON STEAMSHIP CORP., CLTA INC., FORMERLY KNOWN AS CLEVELAND TANKERS, INC., MARINE NAVIGATION CO., MARINE TRANSPORT LINES INC., HESS TANKSHIP CO., AMERADA HESS CORP., ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST BY MERGER TO HESS OIL & CHEMICAL CORP., HESS INC., AND HESS OIL CO., AMERICA FOREIGN STEAMSHIP CORP., ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST TO AMERICAN EAGLE TANKER CORP., CHEVRON U.S.A. INC., SUCCESSOR IN INTEREST TO CALIFORNIA TANKERS INC., BLACK SHIPS INC., GULF OIL CO., GULF OIL TRADING CO., GULF TRADING & TRANSPORT, GULF REFINING & MARKETING CO. (GORAM), GULF OIL PRODUCTS CO., VICTORY REAL ESTATE DEVELOPMENT CORP., AS SUCCESSOR BY MERGER TO VICTORY CARRIERS, INC., MONTPELIER TANKER CO., MONTICELLO TANKER CO., MOUNT WASHINGTON TANKER CO., MOUNT VERNON TANKER CO., A.L. BURBANK & CO. LTD., BALDBUTTE SHIPPING CO., CHAS KURZ & CO., INC., KEYSTONE SHIPPING CO., MARGATE SHIPPING CcO., KEYSTONE TANKSHIP CORP., SHIPCO 669 INC., UNION OIL COMPANY OF CALIFORNIA ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST TO PURE OIL COMPANY, AMERICAN MARITIME TRANSPORT INC., ATTRANSCO INC., f£/k/a AMERICAN TRADING TRANSPORTATION CO. INC., CONOCO INC., f/k/a CONTINENTAL OIL COMPANY, CROWLEY CARIBBEAN TRANSPORT INC., DELTA STEAMSHIP LINES INC. ON ITS OWN BEHALF AND AS SUCCESSOR IN TRUST TO MISSISSIPPI SHIPPING CO., INTEROCEAN MANAGEMENT CORP., ISBRANDTSEN CO. INC., PUGET ‘IN RE: SEAMEN‘S “ASBESTOS LITIGATION ‘CASES’ CIVIL NOS. 604-703/1992 || MEMORANDUM OPINION AND ORDER... - LACK OF’. PERSONAL JURISDICTION -. PAGE 5° SOUND TUG & BARGE COMPANY, STEUART TRANSPORTATION CO. SUCCESSOR IN INTEREST TO STEUART TANKERS CO., TEXAS CITY REFINING INC. ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST BY MERGER TO TEXAS CITY CORP., TRANSOCEANIC CABLE SHIP CO. INC., WATERMAN STEAMSHIP CORP., ARCO MARINE, INC., AS SUCCESSOR IN INTEREST TO SINCLAIR REFINING CO., AND RICHFIELD OIL CO., CENTRAL GULF LINES STEAMSHIP, CONNECTICUT TRANSPORT, INC., ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST TO MOHAWK SHIPPING INC., ISCO INC., SUCCESSOR IN INTEREST TO. ISTHMIAN LINES: INC., AND ISTHMIAN STEAMSHIP CO., LYKES BROS. STEAMSHIP CO. .INC., MERRIMAC TRANSPORT INC., OMI BULK TRANSPORT, INC. AS SUCCESSOR IN INTEREST TO PECOS TRANSPORT INC., OGDEN SEA TRANSPORT INC. AND PLATTE TRANSPORT INC., OMI CHALLENGER TRANSPORT, INC., OMI CORP., ON ITS BEHALF AND AS SUCCESSOR IN INTEREST TO OGDEN MARINE/OMI CORP., a/k/a OGDEN MARINE INC., WABASH TRANSPORT, INC., AND ALBANY RIVER TRANSPORT INC., OMI HUDSON TRANSPORT INC., OMI MISSOURI TRANSPORT INC., OMI ROVER TRANSPORT INC., AS SUCCESSOR IN INTEREST TO PENN TANKER CORP., POTOMAC TRANSPORT INC., PUERTO RICO MARINE MANAGEMENT INC. ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST TO PUERTO RICO MARINE OPERATING COMPANY INC., AND RIO GRANDE TRANSPORT INC.) DOUGLAS L. CAPDEVILLE, ESQUIRE 2191 Church Street, Suite 2 Christiansted, St. Croix 00822 (809) 773-7275 (ATTORNEY FOR TEXACO, INC., AMERICAN OIL CO. & AMOCO SHIPPING, COASTWISE TRADING CO., AMOCO MARINE (SIC) CONSTRUCTION AGGREGATES CORP., NATALIE TANKSHIP CORPORATION, OVERSEAS MARITIME CORP., OVERSEAS BULKTANK CORP., VALDEZ TANKSHIP CORP., FIRST SHIPMOR ASSOCIATES, INTERCONTINENTAL BULKTANK CORP., VIVIAN TANKSHIP CORP., SEQUOIA TANKERS, INC. & SEA-LAND SERVICES, INC.) PETERSEN, Senior Sitting Judge IN. RE: “SEAMEN’S “KSBESTOS. ‘Lpbreatron’ CASES” CIVIL NOS. 604-703/1992 3 ‘MEMORANDUM OPINION AND: ORDER . Yami eM a TA MES LACK OF : PERSONAL’ JURISDICTION ae ie pee Te Ba 8? PAGE 6 ~ - MEMORANDUM OPINION AND ORDER (JUNE / 9 , 1993) This Matter is before this Court on Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction. For the reasons stated herein, the Motion to Dismiss is Granted as to the '|following named defendants: AMERADA HESS CORPORATION, AMERICAN | FOREIGN STEAMSHIP’ COMPANY, AMERICAN MAIL LINES, AMERICAN PRESIDENT LINES, LTD., AMERICAN TRADING TRANSPORTATION, INC., || ANNDEP STEAMSHIP CORPORATION, CENTRAL GULF LINES, INC., CHARLES | KURZ & COMPANY, INC., FARRELL LINES, INC., INTEROCEAN MANAGEMENT CORPORATION, INTERNATIONAL OCEAN TRANSPORT CORPORATION, KEYSTONE || SHIPPING COMPANY, KEYSTONE TANKSHIP CORPORATION, MYSTIC STEAMSHIP CORPORATION, NATIONAL BULK CARRIER, INC., TEXACO, INC., TRANSOCEANIC CABLE SHIP COMPANY INC., UNION OIL COMPANY OF CALIFORNIA, ON ITS OWN BEHALF AND AS SUCCESSOR IN INTEREST TO | PURE OIL COMPANY AND VICTORY REAL ESTATE DEVELOPMENT ||CORPORATION, AS SUCCESSOR BY MERGER TO MONTPELIER TANKER | COMPANY, MONTICELLO TANKER COMPANY AND MOUNT VERNON TANKER COMPANY. FACTS On June 30, 1992, Plaintiffs filed 100 Complaints in the Virgin Islands Territorial Court on St. Croix on behalf of J, EXPORT LINES, INC; , -AMERICAN EAGLE. ‘TANKER CORPORATION, AMERICAN: -IN RE: SEAMEN‘ S ASBESTOS + LITIGATION CASES ‘a Haale at) CIVIL NOS. '604+703/1992 sO “||MEMORANDUM OPINION AND ORDER... ... at sa ns me tc dilation x. “|| LACK OF. PERSONAL’ JURISDICTION: we. Re Pete ME ee ae PAGE 7 . oO living and deceased Merchant Mariners. These complaints allege I ‘that the seamen were exposed to asbestos during their careers as ! sailors on American ships. Plaintiffs further allege that they | 2 . |suffer from numerous anatomical disorders, structural changes, erious forms of cancer, various pulmonary 8 diseases, 4a \| cancerphobia, traumatic stressful fear of affliction and \\ ‘worsening of pneumoconiosis, as well as exacerbation of existing i Z diseases. ' : The Defendants in these cases can be classified in three | categories. The first category are the Shipowner Defendants | (hereinafter "Shipowner Defendants"). Plaintiffs claim that | the Shipowner Defendants maintained their vessels in an unsafe i and unseaworthy condition. The second category of Defendants are the Shipbuilders (hereinafter "Shipbuilder Defendants") and Manufacturers of boilers, generators and other machinery ‘installed in these vessels (hereinafter "Machinery Manufacturer '| Defendants") . Plaintiffs allege that the Shipbuilder and || Machinery Manufacturer Defendants used asbestos insulation and ! asbestos products in their respective work on the vessels. The third category of Defendants are the Manufacturers of asbestos and asbestos products used on the ships (hereinafter "Asbestos Products Defendants"). Of the 100 actions initially filed here, 61 cases were removed to the United States District Court. These cases are || MEMORANDUM ‘OPINION, AND: ORDER a “IN RE: * SEAMEN’ S ASBESTOS: ‘LITIGATION GASES. CIVIL NOS. 604-703/1992 LACK: OF PERSONAL JURISDICTION ie cans sss PAGE 8 : —_ awaiting a Conditional Transfer Order to be further removed to the Multidistrict Litigation panel where Judge Weiner will decide Plaintiffs’ Motion for Removal and Defendants’ Motion to iSever. Of the 39 cases which remain pending in this Court, there are approximately 52 Motions to. Dismiss for Lack of | Personal Jurisdiction on behalf of the Defendants. These notion’ argue Ne ‘the: Defendants ‘have not’ had continuous and systematic contacts with the Virgin Islands. The Plaintiffs contend that the Defendant Shipowners’ numerous portcalls to the Virgin Islands throughout the years allow this Court to exercise jurisdiction. Upon the Plaintiffs request, the Court held the Defendant shipowners’ motion in abeyance pending discovery of additional jurisdictional facts. All parties have filed excellent supplemental briefs on the issue of jurisdiction. DISCUSSION The Plaintiffs contend that this Court has general jurisdiction over these seamen’s asbestos cases. The Defendants counter that their contacts with the Virgin Islands were neither continuous nor systematic for the purpose of establishing personal jurisdiction. Where the defendant challenges the court’s personal jurisdiction, the plaintiff bears the burden of proof on establishing jurisdiction. Wims v. Beach Terrace Motor Inn, Inc., 759 F.Supp. 264 (E.D. Pa. 1991). If the | IN- RE:: SEAMEN’S'. ASBESTOS. -LtTreAtTroN CASES CIVIL Nos. 604=703/1992 ‘MEMORANDUM OPINION AND ORDER. _,.. : as i ee -LACK -OF PERSONAL JURISDICTION. Rey: a. CHR SE Ba jurisdictional issue is decided on the pleadings before discovery, the plaintiffs need only provide evidence of a prima facie case for jurisdiction. Hvide Marine Intern v. Employers Ins. of WauSau, 724 F.Supp. 180 (S.D.N.Y. 1989). Some courts have held that if the plaintiffs have engaged in substantial discovery of jurisdictional issues, the stricter preponderance lot et idence standard should be applied. Genéral Elec. Credit “vi Scott’s Furniture Warehouse, 699 F.Supp. 907 (N.D. Ga. 1988). Even though Plaintiffs herein have had sufficient opportunity to discover additional jurisdictional facts, the Court will determine whether Plaintiffs have made a prima facie showing as to this Court’s jurisdiction. The issue of personal jurisdiction involves the power of the court to affect legal interests through its adjudicatory authority. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, (3d cir. 1985). The primary consideration in jurisdictional inquiries is that of fundamental fairness to the defendant. De James v. Magnificence Carriers, Inc., 654 F.2d 280 (1981). cert. denied, 454 U.S. 1085 (1985). In the seminal case of International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Supreme Court said that due process requirements are satisfied when the non-resident defendant has "certain minimum contacts with the [forum state] such that the maintenance of the suit does not offend traditional notions of fair play and justice". llyN RE: SEAMEN’S ASBESTOS. LITIGATION ‘CASES * °° CIVIL NOS. 604-703/1992 !MEMQRANDUM OPINION. AND.ORDER’ . (1958) stated that it is essential in each case that there be some act by which the defendant purposefully avails itself of | the privilege of conducting activities within the forum state, | ehus invoking "the benefits and protections of its laws". The it {Supreme Court also indicated that due process requires that a || defendant have a reasonable expectation that the nature of its conduct might result in the defendant being "haled before a court" in the forum state. Shaffer v. Heifner, 433 U.S. 186 (1977); Kulko v. Superior Court, 436 U.S. 84 (1978). Mere it foreseaability on the part of the defendant that its conduct ‘i might affect the forum state is too attenuated to constitute ‘such a reasonable expectation. See World Wide Volkswagen v. "Woodson, 444 U.S. 286 (1980). In deciding whether or not to exercise personal | jurisdiction over a non-resident defendant, the court must first ‘determine whether jurisdiction exists under the forum state’s long-arm jurisdiction statute. Van Buskirk v. Carey Canadian Mines, Ltd. 760 F.2d 481 (3d Cir. 1985). Then, the court must ascertain that this exercise of jurisdiction comports with the Due Process Clause of the Fourteenth Amendment to the Constitution. Id. While constitutional arguments are usually considered only after the court has decided the statutory issues See Hagans v. LACK -OF .PERSONAL JURISDICTION . 9 . io i ie * . 2 I rene, Ean ae ae The Supreme Court in Hanson v. Denckla, 357 U.S. 235 IN RE: “SEAMEN’S ASBESTOS LITIGATION CASES |.“ CIVIL NOS. 604~-703/1992 | | : , .. : |( MEMORANDUM OPINION AND:.ORDER |... -"° , |} LACK OF PERSONAL: JURISDICTION :.-. *. PAGE i1 1 = Lavine, 415 U.S. 528 (1974), the language of the long-arm statute is deemed critical. Some state legislatures have | expressly provided that the jurisdiction of the courts of the State extends to the limits of the Constitution. (See e.g. 42 Pa. Const. Stat. Ann. 5322(b) which permits the exercise of ‘ i "personal jurisdiction to the fullest extent allowed under the ‘Constitution of the United States and may be based on’ the most | a . ‘minimum contact with Pennsylvania"). Where the state’s long-arm Statute is broadly written, courts focus directly upon the ‘constitutional due process requirements and not the precise | | ‘statutory language. See e.g., Reliance Steel Prod. Co. v. | waston, Ess, Marshall and Engass, 675 F.2d 587, 588 (3d Cir. '1982). In a similar fashion, where a state judiciary has interpreted its long-arm statute to reach the full breadth of the Constitution, the statutory and constitutional inquiries | merge into a constitutional analysis. Helicopteros Nacionales De colombia, S.A. v. Hall, 466 U.S. 408 (1984); De James v. [| Magnificence Carriers Inc., 654 F.2d 280 (1981), cert. denied, | 454 U.S. 1085 (1985) ! While some local cases have construed the Virgin Islands Long-Arm Statute, 5 V.I.C. § 4903, to reach the full breadth of the constitution, ee Norman’s on the Water Front v. West ‘Indies Corp., 10 V.I. 495 (D.V.I. 1974) ("The spirit of equality represented by Congress’ decision to have the federal rules CIVIL NOS. 604-703/1992 . MEMORANDUM, OPINION, AND..ORDER@. 0 ee et Bae LACK’ OF ‘PERSONAL: JURISDICTION *. Get PS toes pS, a eee Be PAGE 12 © ow AN : apply to this Court suggests that those rules should apply to their fullest extent and in the same manner as they would apply in the continental United States"); The Buccaneer Hotel Corp. v. Reliance International Sales Corp., 17 V.I. 249 (Terr. Ct. St.C. 1981); Carson v. Skandia Ins. Co.,Ltd., 19 V.I. 138 { (D.V.1I. cae others have questioned whether the Virgin Islands limitations. See, Carty v. Beech Aircraft Corp., 679 F.2d 1051 (3d Cir. 1982)("it may be that the District Court’s statement that pecrione 4903 is intended to extend the personal | jurisdiction of the Virgin Islands ‘to the widest constitutional | limits’ was intended to mean only that those provisions poreneine to the defendants’ contacts with the forum would he interpreted in that manner. We leave that issue for another day .--"). See also Dennie v. Univ. of Pittsburgh School of r |M edicine, 21 V.I. 51 (D.V.I. 1984) aff'd without opinion, 770 lp .2d 1068 (3d Cir. 1985) ("It has not yet been determined whether | ‘the range of the Virgin Islands long-arm statute is coextensive i! ‘with the farthermost reaches of the due process clause"). | As Dennie is the Third Circuit’s most recent definitive statement on the reach of 5 V.I.Cc. § 4903, this Court will adhere to Dennie’s two step inquiry into the question of long- ‘arm jurisdiction. The Court will first determine whether the | exercise of jurisdiction is authorized by the terms of the |} IN’ RE: SEAMEN’ S' ASBESTOS. LITIGATION “CASES ona ae Ss pest 0 E. f Leng*Arn . statute ‘coalesces with’ maximum constitutional IN RE: “SEAMEN’S ASBESTOS. LITIGATION CASES "-* =~ CIVIL NOS. 604-703/1992 .:|| MEMORANDUM. OPINION .AND .ORDER . g emtheldeaatre coat" Bere ees teas ae 308 “I/ LACK OF PERSONAL JURISDICTION” Pee pe ar, A Seal, |'PAGE 13 : statute, and only if the answer is in the affirmative, then second, whether the exercise of jurisdiction comports with the constitutional requirements of due process. Dennie, supra at 59. The Virgin Islands Long-Arm Statute, 5 V.I.C. § 4903, was ! adopted from the Uniform Interstate and International Procedure Act, 13 Unif. L. Ann. § 1.03. It provides, in relevant part: (a) A Court may exercise personal jurisdiction over a person who-acts directly or by an agent, as to a claim for relief arising from the person’s (1) transacting any business in this territory (2) contracting to supply service or things in this territory (3) causing tortious injury by an act or mission in this territory (4) causing tortious injury in this territory by an act or omission outside this territory if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in this territory.. (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him. 5 V.I.C. §4903(a) (1)-(4). In order to find a factual basis for the assertion of personal jurisdiction based upon section 4903 of the Virgin Islands Long-Arm Statute, the Court must look to the allegations of fact found in Plaintiffs’ complaints. An examination of these allegations demonstrates that Plaintiffs have failed to allege any acts on the part of the Defendants which could At VIN, REF . SEAMEN’ S ASBEStOS. LETIGATION CASES Te .|| MEMORANDUM OPINION .AND, QRDER: sae acetyl Meg y, Bebe trecyds Ee ||LACK. OF PERSONAL | JURISDICTION * TER OV Gs SEP es CIVIL NOS. 604-703/1992 conceivably fall within the scope of the Long-Arm Statute. 4903(a)(1) authorizes the Court to exercise in personam jurisdiction if the defendant transacts any business within the ‘territory. Transacting business requires a defendant to engage in some type of purposeful activity within the territory. See io: Or, Geor e Reiner and Co., Inc. v. Schwartz, 394 N.Y.S. 2d 844 (Ct. App. 1977). ‘The Plaintiffs have not submitted: any evidence that the various classes of Defendants transacted business in this territory. ©The Defendants are not registered to do business in the Virgin Islands. The Defendants have submitted uncontroverted affidavits stating that they have not entered into contracts, maintained an office or employees, or owned real estate in the Virgin Islands. Hence, jurisdiction cannot be supported by 4903(a) (1). 4903(a) (2) requires that the Defendants contract to supply services or things in this territory for the purpose of exercising personal jurisdiction. Norman’s on the Waterfront v. West Indies Corp., supra, stated that this subsection requires (1) that the contract be entered into in the Virgin Islands; (2) that the goods be shipped to this territory; and (3) that the cause of action arise out of the contract. The Plaintiffs have not provided any prima facie evidence to substantiate any allegation that the various classes of Defendants actually supplied services or things to this territory. Thus, 4903(a) (2) IN-RE: SEAMEN‘S ASBESTOS LITIGATION. CASES . CIVIL NOS. 604-703/1992 . __|| MEMORANDUM .OPINION AND‘ ORDER. || LACK OF PERSONAL JURISDICTION: is also inapplicable herein. 4903 (a)(3) allows the Court to exercise jurisdiction over Defendants if they caused tortious injuries by acts or omissions in this territory. In Carty v. Beech Aircraft Corp., ‘supra, the Third Circuit discussed 4903(a)(3)’s “act or ‘brought against the non-resident manufacturers of an aircraft hi || Passengers killed: enroute to Anguilla from St. Maarten. The and its component parts by the personal representatives of \|commuter airline serviced various Caribbean islands including | the Virgin Islands. The District Court noted that it had two '| bases for jurisdiction under 4903(a)(3). First, the District '| court, noting that the airline’s principal place of business was din the Virgin Islands, held that "for the purposes of jurisdiction under a long arm statute, the location of a | manufacturer’ s breach of its duty to warn occurs at the location lor its product’s purchaser". It thus concluded that the manufacturer’s failure to warn was an “act of omission" that i|ioccurred within the territory. The District Court also held | that the requirements of 4903(a)(3) are met by allegations that elements and conduct which significantly related to the injury occurred within the territory. The Third Circuit Court of Appeals, however, reversed. Initially, the Court stated that no "traditional" act or omission" requirement. Carty involved a wrongful death action 1 I | 7 . ; IN RE: ‘SEAMEN? S ASBESTOS Lrrrearrow ASES - || CIVIL NOS. 604-703/1992 5, pieearanon OPINION “AND ORDER. i nate ldeots woke! "LACK. OF” PERSONAL. ‘JURISDICTION. Poaceae: FOTOS TL” Bee | PAGE ‘16 : omission occurred in the territory. It noted that "neither the | aircraft nor its components which were allegedly defective were designed or manufactured in the territory, nor did the defendants repair or inspect them there". The Court of Appeals | sound that an act or omission cannot be based on the mere allegation of a failure to warn. It stated that the decision | ; manufacturer’s or corporation’s headquarters and not at the Place of business of the customer. The Court of Appeals noted that to insist that the failure to warn travels with the product | through countless jurisdictions would be to confuse the separate lissues of personal jurisdiction and liability. i In these cases, Plaintiffs have stated that their exposure to toxic asbestos dust on board Shipowner Defendants’ vessels caused various diseases including. cancer. Plaintiffs have also ‘stated that Shipbuilder Defendants and Machinery Manufacturer ‘Defendants failed to consider that outfitting their equipment (i.e. boilers and generators) with asbestos insulation and asbestos products would result in the seamen’s harmful exposure to asbestos. Plaintiffs have not demonstrated that Defendants’ ships or their component parts were manufactured or designed in the Virgin Islands. Plaintiffs have also not provided any evidence that the manufacturers of asbestos and asbestos products designed, manufactured, or marketed asbestos products whether or not ‘to warn is ordinarily made at the location of the © fae abe Te ~ JSGACK OF- PERSONAL ‘JURISDICTION se aie gee a TEE CBE son? “|| IN RE: - SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1993 ; MEMORANDUM .OPINION. AND: ORDER-:: _ sie og in the Virgin Islands. There is also no evidence that any repairs or inspections were made in this forum. Consequently, ‘there is no prima facie evidence that Shipbuilder, Machinery ‘Manufacturer, and Asbestos Products Manufacturer Defendants’ | alleged acts (or omissions) of negligence occurred in this ] ao ke The Plaintiffs ‘also ‘state that the’ shipewnér Defendants Hl maintained their veeeoe in an unsafe and unseaworthy condition. , Praintif£ts also ‘contend that this Court can exercise || jurisdiction since Defendant Shipowner Defendants’ acts of | | negligence occurred in this territory. The term "tortious act" | | includes the concept of injury. Honeywell, Inc. v. Metz || appairtewerke, 509 F.2d 1137 (7th Cir. 1975). Courts have heid I that the situs of the tort is the place of injury. Honeywell, supra; Gray v. American Radiator and Standard Sanitary Corp., 176 N.E.2d 761 (1961). McBreen v. Beech Aircraft Corp., 543 F.2d 26 (1976). Both Honeywell and McBreen involved tort claims | under the Illinois long-arm statute, Ill. Rev. Stat. Ch. 110. || Section 17 (1) (b) of the Illinois long-arm statute is similar to Section 4903(a)(3) of the Virgin Islands long-arm statute in that it allows the Court to exercise jurisdiction over non- resident defendants who have committed a tortious act within the state. In Honeywell, the court found that the tort of patent infringement was committed at the patent holder’s principal CIVIL NOS. 604-703/1992 ||MEMORANDUM OPINION AND.ORDER . ae ait! ee . | LACK: OF:-PERSONAZ ‘JURISDICTION :* Dae Se ates SE Eg ‘PAGE 18 a ee a place of business in Illinois. The court in McBreen noted that Hi lthe fact that the plaintiff’s reputation was damaged in Illinois settled any ‘dispute’ as to where the libel occurred. As noted \in the court’s discussion on injury, infra, the Plaintiffs have Inot submitted any prima facie evidence that their injuries [occurred in this territory. The Court thus finds that the | Plaintites have not’ established ‘that the: Shipowner: ‘Defendants’ ' alleged acts of negligence in maintaining their vessels occurred Jain the Virgin Islands. iy Similarly, there is no prima facie evidence that the | Defendants’ alleged failure to warn the Plaintiffs of the ‘presence of asbestos on the ships occurred here. As noted in Carty, the traditional locus of the failure to warn the ‘plaintiffs of the presence of the asbestos on the ships is the manufacturer’s or corporation’s headquarters and not the "countless jurisdictions wherein the products travel. accordingly, 4903(a)(3) does not apply here. | 5 V.1I.C. § 4903(a)(4) requires two elements for personal '| jurisdiction. First, there must be an act or omission done outside the Virgin Islands causing injury in the Virgin Islands. Second, the person causing the injury must regularly do business in the Virgin Islands, engage in a persistent course of conduct in the Virgin Islands or derive substantial revenue from goods used or services rendered here. The Commissioners’ comment to ollow RE: _ SEAMEN’ S ASBESTOS LITIGATION: CASES.) © ot BP Ser tate IN -RE: ‘SEAMEN’ S ASBESTOS. LITIGATION. CASES - CIVIL NOS. 604-703/1992 (MEMORANDUM OPINIONAND. ORDER: . ae fs “LACK OF? PERSONAL “JURISBICTION. Seles ree Tk ae te the Uniform Act notes that the ‘regular solicitation of business | or persistent course of conduct’ required by 1.03(a)(4) [the counterpart of section 4903(a)(4) of the Virgin Islands statute] need have no relationship to the act or failure to act that | caused the injury. 13 U.L.A. 1.03 at 468(1980). A defendant’s | | activities, including a course of conduct, soliciting business, and deriving revenue from goods being used in the territory, may ‘be sufficient cumulatively to establish a jurisdictional ipresence, even though no single element would suffice. 1} || Hendrickson v. _Reg OQ Co., 657 F.2d 9 (3d Cir. 1981) (jurisdiction it asserted under 4903(a)(3) where foreign manufacturer derived ‘| substantial revenue and regularly sent catalogues, price sheets | and equipment instructions concerning its products to the Virgin " Islands) . In Noel v. Horn, 19 V.I. 186 (D.V.I. 1982), the plaintiff brought a medical malpractice action against a non-resident || doctor from Puerto Rico. Mr. Noel contended that the doctor’s negligence during the surgery resulted in a post operative infection. The plaintiff argued that the original injury in Puerto Rico continued when he returned to St. Croix and thus satisfied 4903(a)(4)’s injury in the Virgin Islands requirement. The court, however, interpreted §4903(a)(4)’‘s injury in the Virgin Islands requirement to be "the place where the original injury was inflicted or imparted, rather than the | ; |, CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND. ORDER || plaintiff's “attempts to base jurisdiction on remote or consequential injuries which occur in a particular forum, simply because [the] plaintiff lives there". In these cases, Plaintiffs fail to satisfy 4903(a)(4)’s ‘ “tortious injury in this territory" requirement. Plaintiffs’ i i li Legal injuries must’ have occurred in the Virgin’ Islands for If 2 purposes of personal jurisdiction. The complaints allege that t ‘the Defendants exposed the Plaintiffs to asbestos during their careers as merchant marines. However, Plaintiffs have not | demonstrated that the Plaintiffs’ original injuries were || inflicted or imparted in the Virgin Islands. The Court can not | exercise jurisdiction based on remote or consequential injuries “that occurred in this forum. Furthermore, even if the Plaintiffs’ original injuries were inflicted in this forum, the Court can not exercise | jurisdiction over the Shipbuilder, Machinery Manufacturer and | asbestos Products Manufacturer Defendants. The Plaintiffs have (inot provided any evidence that the Shipbuilder, Machinery Manufacturer and Asbestos Products Manufacturer Defendants ever regularly conducted or solicited business, engaged in persistent conduct, or generated substantial revenue from the Virgin Islands. Thus, the Court can not exercise personal jurisdiction over these Defendants under 4903(a) (4). iw. RE: SEAMEN’S ASBESTOS: LITIGATION. cases Pere oh ae ee By Ie [LACK OF ‘PERSONAL - SURISDICTEON as haven we PRE he eed goer eT, VIN’ RE: SEAMEN’ S ASBESTOS " LETIGATION CASES oe: oe he, 2 CIVIL NOS. 604- 703/1992° | | —_ MEMORANDUM OPINION AND ORDER ... . ae +g ute |i PAGE 21 In contrast to the other Defendants, the Shipowner Defendants’ frequent portcalls to the territory may satisfy 4903(a)(4)’s "persistent course of conduct" condition. Again, |assuming that the Plaintiffs injuries were imparted in the i\Virgin Islands, this Court could not assert jurisdiction over fax Shipowner Mt eT Te Pursuant to 4903(b), Plaintiffs’ claims - for’ relief tise arise from the’ Shipowner ‘Defendants’ ' forum activities. Consequently, the Court must find a rr] eae connection between the Plaintiffs’ claims and the | ||Defendants’ forum activities in order to exercise jurisdiction jover non-resident Defendants. See Faherty v. Fender, 572 F.Supp. (142 (S.D.N.Y. 1983), Xedit Corp. v. Harvel Indus. Corp., 456 F.Supp. 725 (S.D.N.Y¥. 1978). ! Both Faherty and Xedit Corp. involved New York’s long-arm statute. Like 5 V.I.C. §4903(b), New York’s long-arm statute, CPLR Section 302(a) requires that the plaintiff’s cause of action arise out of the defendant’s activities in the forum state. In Xedit Corp., the plaintiff sued for misappropriation of trade secrets. Plaintiff had discussed his product with the defendant at a trade show in New York. The court found that the defendant’s alleged tortious activities were significantly different in time, geography, and quality from defendant’s New York activity. While the court found that the defendant’s forum activities were a link in the chain of events leading to “|| LACK: OF PERSONAL JURISDICTION.) 0000 UD ree on a: | {I a, Low’ RE: SEAMEN S - “ASBESTOS * ‘LITIGATION CASES ee SER see ae CIVIL NOS. 604-703/1992 ° , , .|| MEMORANDUM: OPINION AND ORDER_ | ‘LACK OF “PERSONAL | “JURISDICTION | plaintiffs claim, it noted that "something more [was) needed " leo assert jurisdiction over the defendant. In Faherty v.Fender, supra, the plaintiff and defendant | had entered into substantial negotiations in New York over oil and gas exploration agreements involving wells in Texas and | lot ‘contract action against Faherty. ‘Arguing that the “Texas " juagment involved false representations by Fender, Faherty sought a PESTS / judgment in New York that the Texas | judgment was voids Plaintiff also sought damages for abuse of ! process and intentional infliction of emotional distress. The | court found that defendant’s activities in Texas were separated | significantly in time, geography, and quality from his “activities in New York. Noting that the defendant’s New York activities were only a link in the chain of events, the court | found that plaintiff’s cause of action did not bear a | substantial relationship to defendant’s forum activity. ! Herein Plaintiffs have not presented any prima facie evidence that their negligence and unseaworthiness claims arose - grom Shipowner Defendants’ portcalls to the territory. The Shipowner Defendants’ vessels have travelled thousands of miles across the globe over several years. There is no evidence herein indicating that Plaintiffs’ claims arose from the Shipowner Defendants’ ‘forays’ into the territory as opposed to Louisiana. Fender obtained a Texas default judgment in a breach. ' { IN ‘RE: - SEAMEN’ S ASBESTOS LITIGATION CASES. CIVIL NOS. -604-703/1992 MEMORANDUM OPINION AND ORDER | during their travels to other jurisdictions. Thus, it is far from clear that the Shipowner Defendants’ forum activities were even a link in the chain of events leading to Plaintiffs’ claims of negligence and unseaworthiness. In the absence of evidence indicating a substantial relationship between Plaintiffs’ claims and - Shipowner Defendants’ forum activities, this Court cannot exercise -jurisdiction ‘over the -Shipowner Defendants under 4903 (a) (4). i t The Plaintiffs argue that 5 V.I.C. § 4902 permits the Court {to exercise general jurisdiction over the Defendants. 5 V.I.C. | tr § 4902 states: A court may exercise personal jurisdiction over a person domiciled in, organized under | the laws of, or maintaining his or its t principal place of business, in this territory as to any claim for relief. _ As the Defendants do not maintain their principal places of | business in the territory, 5 V.I.C. § 4902 does not apply. | Plaintiffs also contend that the RESTATEMENT (SECOND) OF } CONPLICT OF LAWS §§47 and 52 (1971) allow the Court to exercise | personal jurisdiction over Defendants. Pursuant to 1V.I.C. §4, the RESTATEMENTS OF LAW apply in the absence of local laws to the contrary. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 47 states: "(2) A state has power to exercise judicial jurisdiction over a foreign corporation which does business in the state with -} LACK -OF “PERSONAL JURISDICTION clipe ie we Bs wo 2a als. a Se 1 t t { Lan ‘RE: .SEAMEN’S ASBESTOS -LITIGATION- CASES. (CIVIL NOS. 604-703/1992° . |MEMORANDUM OPINION AND-QRDER. . . 0 dw i| PAGE 24 | | | | | arise from the business done in the state if this business is so continuous and substantial as to make it reasonable" for the state to exercise such jurisdiction. | respect to causes of action that do not | RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 47. F ‘Comment A of Section 47 states that ‘doing business’ is doing a : it | | pecuniary profit: or otherwise accomplishing an ‘object. ' RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 47. See Ketcham v. Charles R. Lester Intern. Inc., 400 A.2d 487 (N.J. Super. 1979) f (court found that defendant’s local newspaper advertising and ? telephone and letter communication on behalf of client in forum | state ones tecced doing business in the forum state); Labbe v. |'Nissen Corp., 404 A.2d 564 (Me. 1979)(court found that the ‘defendants acts of advertising in local newspaper, sending sales literature to schools in the forum state and distributing sales literature to local dealers constituted doing business in the |forum state). Plaintiffs have not provided any evidence indicating that Defendants performed services or regularly and ‘actively solicited business in the territory. As the Plaintiffs have not submitted any evidence indicating that the Defendants transacted business in the territory, the Court finds that § 47 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS does not apply. Plaintiffs refer to Dickson v. Hertz, 559 F.Supp.1169 (D.V.I. 1983) to support their theory that the Court can series of similar acts for the purpose of thereby realizing LACK “OF PERSONAL: JURISDECTION © <7" 80.0 30 8 Se beg te rt SE IN RE: SEAMEN’S. ASBESTOS LITIGATION CASES || CIVIL NOS. 604-703/1992. |MEMORANDUM QPINION AND ORDER ov! ‘¥o0 50. . “|| EACK OF BERSONAL JURISDICTION #98 wees oe PAGE 25° © exercise general jurisdiction over this case under Section 52 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS Section 52 states: | "A state has power to exercise judicial | jurisdiction over a foreign corporation... in ... situations where the foreign corporation has such a relationship to the state that it is reasonable for the state to exercise such jurisdiction". f While Dickson did assert jurisdiction over a foreign | corporation under section 52, it can be distinguished from the | facts here. Dickson involved the court’s assertion of personal || jurisdiction of a foreign corporation based on its dominance and | control of local licensees. With the lone exceptions of Amerada en and Texaco, the Defendants herein do not have any business relationships with any local corporations in the territory. ‘Consequently, Dickson fails to support the Plaintiffs’ argument | for personal jurisdiction. Section 47 of the RESTATEMENT | (=CoH OF CONFLICT OF LAW has generally been applied in the ‘business relationship, See i.e. In re Beck Industries, Inc., 725 | | F.2d 880 (2d Cir. 1984). Bulova Watch Co. Inc. v. K. Hattori context of a parent corporation - subsidiary corporation | | | fi and Co. Ltd., 508 F. Supp. 1322 (E.D. N.Y. 1981). While the Court need not be Limited by the parent- subsidiary context relationship in applying § 52, there must still be a reasonable relationship between Defendants and this ‘IN RE: SEAMEN’S ASBESTOS LITIGATION | “CASES CIVIL NOS. 604-703/1992 MEMORANDUM. OPINION AND ORDER PAGE: .26 forum for the Court to exercise ‘jurisdiction under § 52. Plaintiffs have not demonstrated that Defendants had such a ‘relationship to the territory that it would be reasonable for this Court to assume jurisdiction. Thus, the Court finds that peection 52 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS of does not apply herein. . | As the Virgin Islands: Long-Arm Statute does not authorize | personal jurisdiction over Defendants, the Court need not iaeceemine if the -exercise of jurisdiction comports with the I | constitutional requirements of due process. Nevertheless, even eg the Court determined that the Virgin Islands Long-Arm Statute || permittea it to exercise personal jurisdiction over the | Defendants, the Court would still not be able to assert | jurisdiction over the Defendants under a_= constitutional jurisdictional analysis. Initially, the Plaintiffs sought jurisdiction under the specific jurisdiction doctrine. The complaint contended that the tortious activity occurred in whole or in part within the waters of the Virgin Islands. At the December 21, 1992 hearing, however, Plaintiffs’ counsel stated that he was asserting general jurisdiction. Plaintiffs’ Answers and Objections to Admissions and Interrogatories on behalf of all 39 plaintiffs stated that they were relying upon general jurisdiction. Plaintiffs have not provided the Court with any evidence of LACK“ OF PERSONAE JURISDICTION. « Ma etenetior BME ot At | | ! | lon RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS... 604-703/1992 MEMORANDUM OPINION AND ORDER "|| LACK ‘OF PERSONAL JURISDICTION<*. _- PAGE 27 ~° : forum related contacts that would trigger a specific jurisdiction analysis. Accordingly, the Court will only consider the facts under a general jurisdiction analysis. To establish general jurisdiction, the Plaintiffs must show significantly more than mere minimum contacts. Dollar Sav. Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208 (3d Cir. 1984). Since the forum state has no direct interest in the cause of action, Bearry v. Beech Aircraft Corp., 818 F.2d 370 (5th Cir. fl |\1987), the non-resident’s contacts to the forum must be ; continuous and substantial Gehling v. St. George’s School of |Medicine, Ltd., 773 F.2d 539 (3d Cir. 1985); Compagnie des Bauxites de Guineau v. Ins. Co. of N.Am., 651 F.2d 877 (3d. Cir. 1981) cert. denied 457 U.S. 1105 (1982). The Supreme Court has || noted two important general jurisdiction contacts: substantial business activities and purposeful conduct directed towards the ‘forum state. In Perkins v. Benquet Consol. Mining Co., 342 U.S. 1437 (1952), a mining company conducted a limited portion of its ipasiness in the forum state. Nevertheless, the company |'president drew salary checks, held several director’s meetings and kept company files in the forum state. The Supreme Court found that there was ‘continuous and systematic contacts’ since the mining company president maintained an office and carried on its business affairs in the forum state. The Supreme Court, however, refused to find general IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 - | MEMORANDUM OPINION AND ORDER LACK OF: PERSONAL: JURISDICTION © ‘PAGE 28 , jurisdiction in Helicopteros Nacionales, supra. The plaintiff in Helicopteros brought a wrongful death action in a Texas state court against a Columbian corporation and others. The Colombian | corporation’s contacts with the forum state included the '|acceptance of checks drawn on a Texas bank and purchases of helicopters and equipment from a Texas manufacturer and related training trips. The Supreme Court noted that the bank on which la check is drawn is of little consequence to the payee. It |found that such unilateral activity of another party or third person should not be considered when determining continuous and systematic contacts. The Court also noted that mere purchases '| alone, even if occurring at regular intervals, are not enough to || warrant in personam jurisdiction in a non-forum related matter. Three recent cases have addressed the issue of general iGurieatetion in the context of a maritime law. A deckhand in | Dalton v. R. and W. Marine, Inc., 897 F.2d 1359 (5th Cir. 1990) '| brought a Jones Act and general maritime law action against his | employer and its corporate parent. The plaintiff argued that | the Delaware corporate parent had sufficient contacts with } +4 | Louisiana to warrant personal jurisdiction. He noted that the corporation bareboat chartered its boats to its Louisiana subsidiaries, engaged in advertising that reached Louisiana, and purchased vessels at marshal’s sales within the forum state. The court found that contacts were not continuous and systematic IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION for the purposes of general jurisdiction. The court noted that the bareboat charters evidenced Midland’s ownership of the vessels. Still, the court found that the business activity | involving the charter was conducted in Cincinnati and not the | sorum state. The court found no basis to conclude that the corporate parent “purposely availed itself of contacts of a quality or nature" that would support jurisdiction in the forum ‘state. [3 In Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir. 1990), the poner of cargo which was lost at sea when a vessel | sank brought suit to recover damages against Glenara and Anglo- || Eastern alleging sufficient contacts with the forum state to || support jurisdiction. Anglo-Eastern did not maintain an office, "own property, or employ personnel in the state. Ships managed iby Anglo-Eastern made portcalls to Louisiana for the period | between 1985-1989. Of these 20 calls, two occurred in 1985 nine || in 1986, two in 1987, four in 1988 and three in 1989. The court I! gouna that these contacts were better characterized as sporadic rather than continuous and systematic. The court stated that these contacts were insufficient to cause Anglo-Eastern to reasonably anticipate the possibility of being haled into court in Louisiana. The court also found that Anglo-Eastern, as a result of the time charter, lacked control over where the vessels would make port. Consequently, Anglo-Eastern could not IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER |} LACK OF PERSONAL JURISDICTION act have purposely availed itself of the benefits and 'protections of doing business in Louisiana. The court held that Anglo-Eastern did not have sufficient "continuous and | systematic" contacts with the forum to support general t ‘jurisdiction. ij t In Nicolaisen v. Toei Shipping Co., Ltd, 722 F.Supp. 1162 | (peng. 1989), an admeasurer brought an action for personal 3 I snjury against a Japanese shipowner in New Jersey. The injury occurred while the plaintiff was attempting to board a Japanese vessel in the Panama Canal. Toei owned the vessel. At the time ‘ | } } ! | of the plaintiff’s injury, the vessel was operating under a 7 | 1\2 year time charter with Reefer Express, a Bermudian | Corporation with no office in New Jersey. As the time li charterer, Reefer Express directed where the vessel would t | voyage. From 1980 to 1984, the vessel made 17 port calls to New | Jersey. The court found that the vessel’s portcalls "while || spanning almost four years, were not consistent". After nine |! portealls in 1982, the vessel only made one portcall in each of | 1983 and 1984, and none after January 21, 1984. The court also | noted that Toei’s lack of control over where the vessel would make port "militates against finding that Toei was reasonably put on notice that it might be called upon to defend actions in |New Jersey, especially actions that did not arise in the state". This Court has determined the jurisdictional issue by IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION reviewing the affidavits, interrogatories, depositions and arguments. Washington v. Norton Manufacturing Co., 588 F.2d 441 |(5th Cir. 1979), cert. denied, 442 U.S. 942 (1979). Plaintiffs have not provided any prima facie evidence that the Shipbuilder, Machinery Manufacturer and Asbestos Products Manufacturer {| Defendants had continuous and systematic contacts with the territory. Consequently, this Court cannot assert personal t : ‘jurisdiction over these Defendants under a due process analysis. The focus of the Court’s general jurisdictional analysis, hen, will be on the Shipowner Defendants. The sheer bulk of | | if 1 } t the Plaintiffs’ evidence is in the form of affidavits by || mariners stating that they visited the ports or transited the || waters of the Virgin Islands. The Plaintiffs have compilated | this data into tables that indicate Plaintiffs, Shipowner \|Defendants, the ships and the dates that the ships made | portcalls or transited the waters of the Virgin Islands. The '|Plaintiffs have also submitted depositions of the Shipowner | ‘| Defendants’ claim managers, personnel managers, crewing agents ‘|and other representatives. The Plaintiffs’ attorneys asked i t | these various deponents if they could reject or contradict the compilations. The deponents were only able to refute a small percentage of the data. Nevertheless, the Plaintiffs’ compilations of data are inadequate for purposes of general jurisdiction. The exercise of jurisdiction is more than a IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION numbers game. In order for the Court to exercise personal jurisdiction over the Shipowner Defendants, the Plaintiffs must |prove that the Shipowner Defendants’ contacts with this forum |were continuous and systematic. Plaintiffs have not amply demonstrated that the Shipowner Defendants engaged in commerce and transportation to the Virgin Islands at regular intervals. | At best, the information provided only indicates clusters of = sporadic contacts. Such sporadic contacts would be insufficient to cause the Shipowner Defendants to anticipate the possibility of being “haled into court" in the Virgin Islands. The Plaintiffs cite Huffman v. Island Oil and Transport Co., 424 N.E. 2d 1209 (Ill. App. 1981), cert. denied, 477 N.E. t 1341 (1981) and Williams v. Lawson and Lawson Towing Co., 510 | | N.E. 2€ 1308 (Ill. App. 5th Dist. 1987), cert. denied, 117 Ill. | 2€ 555 (1987), as ‘precedents’ mirroring the facts here. Both | Huftnan and Williams, however, can be factually distinguished | 1 |from the facts in this case. In Huffman, the plaintiff filed an | affidavit that listed the dates of movements, points of origin, {| and points of destination of vessels operated by the defendant. ‘this data was gleaned from the records of the Corps of Engineers with respect to the waterway traffic. Another affidavit based on discussions with boat store employees set forth that defendant’s crew members frequently purchased supplies, merchandise and services from the store. The court found that ‘IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOS. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION lene defendant submitted to jurisdiction through its business || activities in Illinois. In this case, the Plaintiffs did not ' submit any evidence of the Shipowner Defendants’ routes and ‘trades. Similarly, the Plaintiffs have not presented any ll affidavits by local store owners attesting to frequent purchases ‘by crewmembers or as to other services or business activities. t , | | In Williams, the defendant purchased food, fuel and | | | | (:made in Illinois marine shipyards. Crewmen occasionally boarded supplies form businesses in Illinois. The defendant had repairs l che defendant's boats within Illinois. The court found that the defendant regularly and continuously carried on business in |Illinois and exercised jurisdiction. Again, Plaintiffs have not carried their burden of establishing that the Shipowner Defendants purchased food, fuel, or any other supplies in the Virgin Islands. Finally, several of the Shipowner Defendants, such _ as AMERICAN FOREIGN STEAMSHIP COMPANY, AMERICAN EAGLE TANKER CORPORATION, CHARLES KURZ & COMPANY, INC., INTEROCEAN MANAGEMENT CORPORATION and KEYSTONE TANKSHIP CORPORATION, have provided evidence indicating that their ships were time chartered. Under the terms of a time charter agreement, the charterer, and not the owner, directs where the vessels will voyage and at what ports the vessel will call. Nicolaisen, supra; Moore v. Phillips Petroleum Co. , 912 F.2d 789 (5th Cir. 1990). The shipowner IN RE: SEAMEN’S ASBESTOS LITIGATION CASES CIVIL NOs. 604-703/1992 MEMORANDUM OPINION AND ORDER LACK OF PERSONAL JURISDICTION only furnishes the crew and officer required to operate the vessel. Nicolaisen, supra. The Shipowner Defendants’ resulting lack of control over where their vessels make port militates against finding that the Shipowner Defendants were reasonably put on notice that they might be called to defend their actions in the Virgin Islands. See, Nicolaisen, supra, at 1165. Moreover, this same lack of control counsels against finding that the Shipowner Defendants purposely availed themselves of contacts of a quality or nature that will support jurisdiction in the Virgin Telands. See, Hansen, supra. Under these facts, the exercise of jurisdiction over the Shipowner Defendants by this Court waar clearly offend constitutional standards of fair play and justice. This Court concludes that Plaintiffs have failed to establish that the Territorial Court of the Virgin Islands may exercise personal jurisdiction over the Defendants named herein pursuant to the Virgin Islands Long-Arm Statute and the Due Process Clause of the Constitution Fourth Amendment to the Accordingly, the Motion to Dismiss filed by the Defendants named herein will be Granted. EILEEN R. PETERSEN