the record does not indicate the status or relationship of States Marine Corporation of Delaware to any of the other parties. On October 26, 1958, the time charter of Dreyfus terminated and the vessel was redelivered to Aeolian.
On November 13, 1958, the date of service on Isthmian, neither defendant had an office or place of business within this district; neither had any business relationship with Isthmian; neither was conducting business of any character within this district; neither had constituted Isthmian as its agent for service of process.
In passing upon whether the service on Isthmian constituted service on either of the defendants, the Court notes that the plaintiff has the burden of proving that he has properly acquired jurisdiction over the parties. Specifically, the plaintiff has the burden of establishing that on November 13, 1958, Isthmian was the agent of the defendants for the purpose of accepting service of process. Further, the plaintiff must establish that each of the defendants, being foreign corporations, were doing business within this district. Wade v. Romano, supra; Higgins v. California Tanker Co., D.C.E.D.Pa.1957, 166 F.Supp. 569; Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F.Supp. 971; Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471.
The plaintiff has totally failed in meeting this burden. Except for the marshal's return of November 28, 1958, the record is devoid of any facts which would indicate the relationship of Isthmian with either of the two defendants. The marshal's return noted that service had been made on 'Isthmian Agency Inc.' as 'agents for both defendants.' Aside from the incorrect designation of the business entity actually served (States Marine-Isthmian Agency, Inc.), the agency notation is not conclusive in view of the uncontradicted affidavits denying the agency relationship. Zhemeck v. J. H. Winchester & Co., D.C.E.D.Pa.1958, 23 F.R.D. 8; Metropolitan Theatre Co. v. Warner Bros. Pictures, D.C.S.D.N.Y.1954, 16 F.R.D. 391.
There being a complete lack of any showing of a nexus between Isthmian and either of the defendants, the tenuous argument presented by the plaintiff in regard to the effect of the Liens on Vessels Act, 46 U.S.C.A. § 971 et seq., need not be considered. From what appears in the record, Isthmian might well be a total stranger to this entire transaction. In this posture of the case, the Court has no alternative but to grant the defendants' motion to set aside service of the summons and complaint. Further, even if the plaintiff had established an agency relationship, the facts in this case clearly indicate that neither defendant was doing business within this district on the date of service. The record shows that Aeolian indirectly as owner of the vessel engaged in but one activity in this district within the past five years. During the same period the activity of Dreyfus has been limited to its interest as time charterer of vessels which made five calls to this district. On each of these calls the vessel was operating under voyage charter to another party. Under these circumstances neither defendant was doing business within the Eastern District of Pennsylvania when service was made on November 13, 1958. Wade v. Romano, supra; Higgins v. California Tanker Co., supra; Novitski v. Lykes Steamship Co., supra.
While defendants' motion to set aside service of the summons and complaint will be granted, their motion to dismiss the action will be denied. Plaintiff informed the Court both in his brief and at oral argument that he would attempt to acquire jurisdiction over the defendants by employing the provisions of the recently enacted Pennsylvania Nonresident Vessel Act. Under these conditions the action will not be dismissed. See Thompson v. Trent Maritime Co., D.C.E.D.Pa.1957, 149 F.Supp. 468; Zhemeck v. J. H. Winchester & Co., supra. No opinion is expressed as to the efficacy of this new Act as a means by which the present defendants might be properly served with process.
For the foregoing reasons, it is hereby Ordered, Adjudged, and Decreed that defendants' motion to set aside service of the summons and complaint is Granted, and defendants' motion to dismiss the action is Denied.
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