UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
December 31, 1957
Thomas G. HIGGINS
CALIFORNIA TANKER CO.
The opinion of the court was delivered by: DUSEN
This case (filed in July 1957) comes before the court on defendant's Motion To Set Aside Service and Dismiss the Complaint (Document No. 4 in Clerk's file). The Complaint alleges that plaintiff (an oiler) received in 1955 personal injuries at sea aboard the S. S. Kettle Creek due to unseaworthiness of this vessel, then owned by defendant, and to the negligence of defendant. The record discloses that defendant is a Delaware corporation, having a place of business in Perth Amboy, New Jersey, and no business or property in this jurisdiction at the time service was made on Texas Transport & Terminal Co., Inc., steamship agents (hereinafter called 'Texas'). During the period since January 11, 1955, defendant has operated no more than four vessels, chiefly for its own account (at which time the vessels never entered this district), and occasionally chartered them to outside interests for single voyages. One such vessel under charter discharged cargo once in this district in 1955, another such vessel under charter discharged cargo once in the district in 1956, and a third such vessel under charter discharged cargo twice in this district in 1957. Texas in not authorized to accept service of process for defendant, has only acted for defendant when its vessels were in the port of Philadelphia, and was not acting for defendant when service was made.
Under these facts, it is clear that the defendant's occasional and sporadic activity in this district is not sufficient to subject it to service of process. See Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F.Supp. 971. Also, it is clear that the service on Texas was ineffective under F.R.Civ.P. 4(d), 28 U.S.C.A., even if defendant was doing business here, under the decisions of this court since Texas was not acting as agent for defendant at the time of service. See Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471, 472-473.
The undersigned believes that defendant is entitled to the dismissal of a civil action in a case such as this, brought by a non-resident plaintiff involving an alleged injury on the high seas, where defendant was not doing business in this district at the time the Complaint was filed, at the time the service was made, or at the time of the argument on defendant's Motion to Dismiss.
Philadelphia & Reading Railway Co. v. McKibbin, 1917, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; James-Dickinson Farm Mortg. Co. v. Harry, 1927, 273 U.S. 119, 47 S. Ct. 308, 71 L. Ed. 569; Cannon Mfg. Co. v. Cudahy Co., 1925, 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, 875.