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NUOVO PIGNONE, SPA v. STORMAN ASIA M/V
310 F.3d 374 (2002)
NUOVO PIGNONE, SpA, Plaintiff-Appellee,
v.
STORMAN ASIA M/V, etc., et al., Defendants,
Fagioli SpA, In Personam, Defendant-Appellant.
No. 01-31486.
United States Court of Appeals, Fifth Circuit.
October 31, 2002.
John Francis Fay, Jr., William K. Terrill, II (argued), Deutsch, Kerrigan & Stiles, New Orleans, LA, for Plaintiff-Appellee.
James J. Sentner, Jr., Kimberly R. Phillips (argued), Gardere Wynne Sewell, Houston, TX, for Defendant-Appellant.
Before SMITH and BENAVIDES, Circuit Judges, and FITZWATER,* District Judge.
JERRY E. SMITH, Circuit Judge: Fagioli, S.A. ("Fagioli"), agreed to furnish a ship for the maritime transport of Nuovo Pignone, SpA's ("Nuovo Pignone's") 771,000 kilogram reactor from Italy to Louisiana. The reactor was damaged after arrival at the Port of New Orleans, and Nuovo Pignone sued. The district court found that Fagioli, an Italian company, was subject to personal jurisdiction in Louisiana and that Nuovo Pignone properly had effected service of process by mail. We affirm the assertion of personal jurisdiction but reverse the determination that article 10(a) of the Hague Convention permits service of process by mail. I.Fagioli is an Italian corporation providing worldwide transportation and logistical services necessary to transport heavy-lift cargo. Nuovo Pignone, also an Italian company, contracted with Fagioli for the transport of a large EO reactor from Italy to Louisiana. Under the terms of the contract, Fagioli was responsible for selecting a vessel for the transit. The contract required that Fagioli furnish a ship possessing specified performance capabilities. Fagioli agreed to furnish a ship that "[h]as its own shears and winches and hoisting means, including swingletrees and cables for safe, autonomous hoisting operations and/or unloading in connection with the weight of the objects to be transported...." The contract required that the ship be seaworthy, equipped with appropriate engines for navigation, and capable of entering the pre-selected port of discharge. Fagioli entered into a secondary contract with Blau Shipping & Trading, Ltd. ("Blau Shipping"). This contract, known as a conlinebooking note, specified that the vessel M/V STORMAN ASIA ("STORMAN ASIA") would be used to transport the reactor and that Geismar or New Orleans was the port of discharge. Blau Shipping then entered into a secondary conlinebooking note with Key Largo Transportes Maritimos ("Key Largo"), the owner and operator of the STORMAN ASIA. Nuovo Pignone's Louisiana client and Key Largo were responsible for unloading the reactor at the point of destination. The reactor was loaded on board the STORMAN ASIA in Italy and transported across the Atlantic Ocean without incident. While the reactor was being transferred to a barge at the Port of New Orleans, one of the cables of the vessel's onboard shipping crane broke, causing the reactor to fall. The reactor and the deck of the barge were damaged. Nuovo Pignone alleges that the accident resulted from Fagioli's failure to provide a vessel with a satisfactory onboard shipping crane, as required by the original contract.
* District Judge of the Northern District of Texas, sitting by designation. 1. Federal Rule of Civil Procedure 4(k)(2) permits personal jurisdiction over foreign defendants for claims arising under federal law where the defendant has sufficient contacts with the nation as a whole, but insufficient contacts to satisfy the due process concerns of the long-arm statute of any particular state. World Tanker Carriers Corp. v. MV Ya Mawlaya,99 F.3d 717, 720 (5th Cir.1996). In World Tanker, we held that rule 4(k)(2) is applicable to admiralty claims. Nevertheless, neither party nor the district court addressed the issue of whether personal jurisdiction exists over Fagioli pursuant to rule 4(k)(2), so we will not discuss this possibility. See United States v. Thibodeaux,211 F.3d 910, 912 (5th Cir.2000). 2. For example, suppose that Fagioli had agreed to transport the reactor from Italy to Mexico, but because of bad weather, the STORMAN ASIA unexpectedly was forced to dock in the Port of New Orleans, where the accident occurred. In that case, Fagioli could not have reasonably foreseen being haled into a Louisiana court. Here, by contrast, Fagioli contracted with Nuovo Pignone to transport the reactor specifically to Louisiana. 3. In arguing that it has insufficient contacts with Louisiana, Fagioli also relies on the fact that it is neither authorized to conduct business in Louisiana, nor does it maintain an office or employees there. Certainly, these facts cut against permitting general jurisdiction over Fagioli. But Fagioli's argument ignores the fact that personal jurisdiction may be established by either general jurisdiction or specific jurisdiction. Alpine View, 205 F.3d at 215. Nuovo Pignone argues only for specific jurisdiction. Burger King, 471 U.S. at 472, 105 S.Ct. 2174 (stating that specific jurisdiction exists where the "litigation results from the alleged injuries that arise out of or relate to" the defendant's activities in the forum state) (internal quotations omitted). 4. Fagioli relies on Charia v. Cigarette Racing Team, Inc.,583 F.2d 184 (5th Cir.1978), in which we found that a Florida boatbuilder who sent a completed boat to Louisiana via a third party carrier had insufficient contacts with Louisiana to effect personal jurisdiction. Id. at 189. Because Charia dealt with jurisdiction over a boatbuilder, and not a carrier such as Fagioli whose line of business requires that it regularly cross geographical boundaries, the case is inapposite. In any event, Charia was decided before several important Supreme Court cases, including World-Wide Volkswagen,444 U.S. 286, 100 S.Ct. 559, and Burger King,471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528, had been decided. 5. In its brief, Fagioli makes a passing reference to the use of the incoterm "CFR" in the Nuovo Pignone-Fagioli contract. Incoterms are standard trade definitions used in international sales contracts. E.g., Texful Textile Ltd. v. Cotton Exp. Textile, Inc.,891 F.Supp. 1381, 1388 n. 6 (C.D.Cal.1995). Importantly, incoterms are used only to allocate risk between buyers and sellers. William V. Roth, Jr. & William V. Roth III, Incoterms: Facilitating Trade in the Asian Pacific, 18 U. PA. J. INT'L ECON. L. 731, 733 n. 5 (1997). They do not apply to contracts between merchants and carriers, such as those in this case. Id. 6. See CompuServe, Inc. v. Patterson,89 F.3d 1257, 1266 (6th Cir.1996) (stating that "it could be unfair to allow individuals who purposefully engage in interstate activities for profit to escape having to account in other states for the proximate consequences of those activities"); Dakota Indus. v. Ever Best Ltd.,28 F.3d 910, 915 (8th Cir.1994) ("A seller in a distribution network that realizes economic benefit from multiple sales in a distant fora purposely avails itself to the fora states' jurisdiction."). 7. E.g., Ruston Gas Turbines v. Donaldson, Co.,9 F.3d 415, 420-21 (5th Cir.1993); Bean Dredging Corp. v. Dredge Tech. Corp.,744 F.2d 1081, 1083-84 (5th Cir.1984). 8. This court has taken a relatively expansive view of the stream-of-commerce principle by requiring only "mere foreseeability" that a defendant might be haled into court because it has purposely availed itself of the privileges of conducting business in the home forum; we have not required that a defendant "purposely direct" its activities toward the forum. Ruston Gas Turbines, 9 F.3d at 419 (citations omitted). 9. See Alpine View, 205 F.3d at 217 (declining to apply stream-of-commerce principle because the plaintiffs had "failed to make a prima facie showing that the litigation results from alleged injuries that arise out of or relate to" defendant's contacts with the forum) (internal quotation omitted); Ham v. La Cienega Music Co.,4 F.3d 413, 416 (5th Cir.1993) (finding that defendant's activities, though connecting them to Texas within the meaning of the stream-of-commerce principle, were insufficient to support jurisdiction given the "highly attenuated" relationship between the litigation and those activities). 10. See Access Telecom, Inc. v. MCI Telecomm. Corp.,197 F.3d 694, 716 (5th Cir.1999) (rejecting Mexican company's claim that subjecting it to suit in the United States would be overly burdensome where the company had engaged in "numerous business dealings in the United States"). 11. See Petroleum Helicopters, 804 F.2d at 1371 (noting that the "location of the accident affects Louisiana's interest in adjudicating the dispute"). 12. Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 362 T.I.A.S. No. 6638, reprinted in 28 U.S.C.A. FED.R.CIV.P. 4, note, at 210 (1992). 13. In addition, Article 11 allows two signatories to agree to other methods not specified in the Convention. 15. Bankston v. Toyota Motor Corp.,889 F.2d 172, 173-74 (8th Cir.1989); see also Postal v. Princess Cruises, Inc., 163 F.R.D. 497, 500 (N.D.Tex.1995); Pennebaker v. Kawasaki Motors Corp., 155 F.R.D. 153, 157 (S.D.Miss. 1994). 16. In Russello v. United States,464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983), the Court noted that where a legislative body "includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that the [legislative body] acts intentionally and purposely in the disparate inclusion or exclusion." 17. Indeed, the advisory committee notes to the 1963 amendments to FED.R.CIV.P. 4 recognize that "[s]ervice of process beyond the territorial limits of the United States may involve difficulties not encountered in the case of domestic service."
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