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CARABALLO v. LYKES BROS. S.S. CO.

December 20, 1962

Antulio CARABALLO
v.
LYKES BROS. STEAMSHIP CO.



The opinion of the court was delivered by: LORD, JR.

This case is now before the Court on Respondent's motion to vacate and set aside the service of citation and libel. Notice is taken that the correct name of Respondent is Lykes Bros. Steamship Co., Inc., and that it is the same corporation which was defendant in Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950, Bard, J.). Respondent is called Lykes hereafter.

The libellant makes claims for injuries sustained on May 8, 1962, aboard a Lykes vessel on which he was employed, on the high seas between Balboa, Panama, and the Island of Guam. The first count claims for maintenance and cure; the second is a claim for damages for negligence; and the third is an unseaworthiness count.

 The second paragraph of the libel says:

 'Respondent's principal place of business is New Orleans, Louisiana, and employs Chas. Kurz Co., 115 Chestnut Street, Philadelphia, Pennsylvania, as a general agent.'

 The return on service of the writ, filed July 24, 1962, shows that the citation and libel were served on an unnamed person at the office of Chas. Kurz Co., at the stated Philadelphia address, on July 16, 1962.

 The docket shows that on July 23, 1962, present counsel for Lykes filed a paper entitled Entry of Appearance, directed to the Clerk, which said simply 'Please enter our Appearance on behalf of the Respondent in the above captioned matter.'

 The next docket entry is the stipulation of the respective counsel, dated July 24, 1962, approved by a judge of this Court July 25, 1962,

 '* * * that Respondent shall have an extension of time to and including August 23, 1962, within which to file an Answer, Motion to Vacate Service or otherwise plead to the Libel herein.'

 The order of another judge of this Court, dated and filed August 29, 1962, reads:

 '* * * Ordered that Respondent shall have an extension of time, nunc pro tunc, to and including September 7, 1962, within which to file an Answer, Motion to Vacate Service, or otherwise plead to the Libel herein.'

 The foregoing comprise the first five docket entries in the case. The last mentioned, No. 5, is accompanied by Respondent's Motion for Extension of Time, supported by affidavit, and includes the following statements:

 '1. The Libel herein, setting forth a seaman's claim for damages and maintenance and cure, was served on July 16, 1962 at the office of a Philadelphia steamship agent who has not acted as agent for the Respondent at any time within the past 12 years.

 '2. The claims set forth in the Libel relate to a voyage of the SS. DOCTOR LYKES which did not begin, end or include any visit to a port within this jurisdiction.

 '3. Respondent has not had any office or agent and has not done any business in this jurisdiction for more than 12 years.

 '5. Anticipating that it might wish to file a Motion to Vacate Service, Respondent authorized counsel to enter an Appearance either preliminary to obtaining a non-specific extension of time or preliminary to filing a Motion to Vacate Service.'

 The next significant docket entry, No. 7, filed September 7, 1962, is the motion at hand. The motion sets forth the following claims and matters in addition to those already recited herein:

 '4. The voyage of the SS. DOCTOR LYKES, during which the claims set forth in the Libel are alleged to have arisen, did not begin, end or include any visit to any port or place within the jurisdiction of the Court.

 '5. Petitioner is not registered to carry on business in the Commonwealth of Pennsylvania and is not engaged in the conduct of ...


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