Opposition Brief — Succession of Ricord v. Energy Transportation Co.

(4)

Vv

no. 94-483

ee

In the

Supreme Court of the United States

OCTOBER TERM, 1994

SUCCESSION OF FABIOUS M. RICORD, JR.

Petitioner,

versus

ENERGY TRANSPORTATION COMPANY

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Alexander N. Breckinridge, IV

O’NEIL, EICHIN, MILLER,

BRECKINRIDGE & SAPORITO

One Poydras Plaza, 22nd Floor

639 Loyola Avenue

New Orleans, Louisiana 70113

(504)525-3200

Attorney for Defendant-Respondent

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A B Letter Service, Inc., 327 Chartres Si., New Orleans, La. (504) 581-5555

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QUESTIONS PRESENTED FOR REVIEW

QUESTION NO. 1

WHETHER PETITIONER HAS’ DEMON-

STRATED SPECIAL AND IMPORTANT REASONS

WHICH WOULD JUSTIFY DISCRETIONARY

REVIEW UNDER SUPREME COURT RULE 10.

QUESTION NO. 2

WHETHER THE COURT OF APPEALS COR-

RECTLY DETERMINED THAT PLAINTIFF/PETI-

TIONER DID NOT MEET HIS BURDEN OF

ESTABLISHING A PRIMA FACIE CASE OF PER-

SONAL JURISDICTION.

QUESTION NO. 3

WHETHER THE COURT OF APPEALS COR-

RECTLY APPLIED LOUISIANA’S LONG-ARM

STATUTE AS INTERPRETED BY LOUISIANA

COURTS.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW .......... i

TABLE OF CONTENTS.......... sachin ane Senn ii

TABLE OF AUTHORITIES ...................... iii

STATUTES APPLICABLE TO THE CASE ......... Vv

STATEMENT OF THE CASE..................... 1

SUMMARY OF THE ARGUMENT ................ 4

GEES, occ cvivtaccdisicusPeueee ee 6

GPP gobo bs 4 cos weno edn eee 12

APPENDIX

A. Affidavit of Kendall G. Chen ................ A-1

B. Affidavits of Steven M. Nielsen .............. A-5

C. District Court Judgment and Opinion ........ A-18

D. Fifth Cireult Opinion ...............2-cs.. A-30

. Domlal af Reales ois ooo os hoa A-35

TABLE OF AUTHORITIES

CASES: PAGE NO.

Asahi Metal Industry Company v. Superior Court of

California, 480 U.S. 102, 107 S.Ct. 1026 (1987) .. .9-10

Bullion v. Gillespie, 895 F.2d 213 (5th Cir. 1990) ..... 7

International Shoe Co. v. Washington, 326 U.S. 310,

Om mar LOO OES). ........................ .7,10

Jones v. Petty-Ray Geophysical Geosource, Inc.,

954 F.2d 1061 (5th Cir. 1992)................ ae

Layne & Bowler Corp v. Western Well Works, Inc.,

261 U.S. 387, 43 S.Ct. 422 (1923) .............. ..6

Marullo v. Zuppardo, 454 So.2d 268 (La.App. 4 Cir.

1984) writ denied, 458 So.2d 477 ............... 5,10

Pedalahore v. Astro Park, Inc., 745 F.2d 346 (5th

se ne kw bn kc daecvcecccucs 10

Powell v. Nevada, ____ U.S. , 114 S.Ct. 1280

(1994) (J.Thomas, dissenting)..................... 7

Rice v. Sioux City Memorial Park Cemetery, 349

Wa 00, 10 O.Ct. 614 (1964) ...................... 6

iv

TABLE OF AUTHORITIES (continued)

PAGE NO.

STATUTES

OF TRE HE 9 6 oho he ck oe idea eee 1

i Wes, MI Sioa a ke eo ee 8

Rules of the Supreme Court, Rule 10................ 6

Louisiana Revised Statute 13:3201 (B)............ .10

TREATISES

1B Benedict on Admiralty (1993) § 62, et. seq....... 8-9

Vv

STATUTES APPLICABLE TO THE CASE

46 U.S.C. $688 (a):

Any seaman who shall suffer personal injury in

the course of his employment may, at his election,

maintain an action for damages at law, with the

right of trial by jury, and in such action all

statutes of the United States modifying or exten-

ding the common-law right or remedy in cases of

personal injury to railway employees shall apply;

and in case of death of any seaman as a result of

any such personal injury the personal represen-

tative of such seaman may maintain an action for

damages at law with the right to trial by jury, and

in such action all statutes of the United States

conferring or regulating the right of action for

death in the case of railway employees shall be ap-

plicable. Jurisdiction in such action shall be under

the court of the district in which the defendant

employer resides or in which his principal office is

located. 46 USC §10302.

Louisiana Revised Statute 13:3201(B):

B. In addition to the provisions of subsection A,

the court of the state may exercise personal

jurisdiction over a non-resident on any basis con-

sistent with the constitution of this state and the

Constitution of the United States.

1

STATEMENT OF THE CASE

Petitioner, Fabious M. Ricord, Jr. (‘‘Ricord’’), in-

stituted this suit against Energy Transportation Corpora-

tion (““ETC”’) in the United States District Court for the

Eastern District of Louisiana alleging admiralty and

maritime claims pursuant to the Jones Act, 46 U.S.C. §688,

and the general maritime law, for an injury he allegedly

sustained while serving as a crew member aboard several

ETC vessels, including the LNG CAPRICORN and LNG

LEO. Defendant-Respondent, ETC, is incorporated under

the laws of the state of Delaware with its principal place of

business in New York, New York. ETC operates and

manages eight liquid natural gas carriers, each of which

sails exclusively between Indonesia and Japan. [Appendix

at A 1-2]. Ricord alleges that he was injured as a result of

ETC’s “continuing conduct’’ from February 1989 through

November 1989 while serving aboard ETC’s LNG

CAPRICORN and LNG LEO. These vessels, like all ETC

vessels, were operating in Asian waters. None of ETC’s

ships, including the LNG CAPRICORN and LNG LEO,

have ever travelled to or from or within Louisiana waters.

[Appendix at A 2].

ETC is a closely held corporation which has no Loui-

siana resident shareholders and it is not, nor has it ever

been, incorporated in the state of Louisiana. [Appendix at

A 2]. ETC has never had an office in the State of Louisiana

nor has it ever been subjected to the jurisdiction of any

state or federal court in Louisiana. [Appendix at A 2]. ETC

has no sales representatives, employees or agents in the

State of Louisiana nor does it own any real or personal pro-

perty in the state. [Appendix at A 3]. In sum, ETC is not

2

authorized to do business in Louisiana nor has it ever

sought authorization to do business in Louisiana.

ETC has not and does not solicit or advertise for

business or any other purpose in Louisiana nor has it ever

placed employment advertisements or conducted employee

searches in Louisiana. [Appendix at A 3]. Specifically, ETC

does not solicit or recruit employees out of the Seafarers In-

ternational Union Hall in New Orleans, Louisiana. ETC in-

stead hires all unlicensed crew members through the Man-

power Coordinator at the Seafarers International Union

(“SIU”) headquarters located in Piney Point, Maryland.

[Appendix at A 3-5]. ETC did not travel to Louisiana to

solicit and/or recruit Ricord or any other employee, nor did

it negotiate or finalize any employment contracts in Loui-

siana [Appendix at A 3-4].

As shown in the Affidavit of Steven M. Nielsen,

ETC’s marine personnel manager [Appendix at A 5-11],

Ricord was hired to work as an unlicensed crew member of

the defendant’s vessels pursuant to Article III, Section 1

of ETC’s collective bargaining agreement with the SIU

which provides in Subsection ‘‘A’’ that:

The union agrees to furnish the company with

qualified, physically fit unlicensed personnel hav-

ing the required rating, when and where they are

required by the Company (ETC). [Appendix at A

13]

In his affidavit, Mr. Nielsen thoroughly explains the hiring

procedure routinely employed by ETC pursuant to its col-

lective bargaining agreement with the SIU. [Appendix at

3

A 7-11}. Mr. Nielsen states that unlicensed personnel

aboard ETC’s ships serve in the ordinary case for four

months whereupon they are relieved. The crew’s tour of du-

ty is staggered to avoid a situation where more than a few

crew members are replaced at one time. The eight ETC

vessels maintain a close schedule and, as a result, certain

crew members aboard a particular ship are repatriated at a

port in Japan on each occasion that the ship returns to that

country. Because of this schedule the SIU typically has a

full month supply of replacements, this being the approx-

imate period of time that elapses from Mr. Neilsen’s re-

quest to the SIU for replacement to the time when, in the

ordinary course of crew rotation, such scheduled

replacements are needed. Thirty days before a scheduled

replacement in Japan of an unlicensed SIU seaman, Mr.

Nielsen personally calls the Manpower Pool of SIU’s na-

tional headquarters in Piney Point, Maryland, at which

time he identifies the ratings needed, e.g., two able-bodied

seaman, one ordinary seaman, and one steward’s assistant.

He also gives the Manpower Pool the ETC’s ship’s name,

the port in Japan where the vessel is expected approx-

imately a month hence, and the approximate date of its ar-

rival. An SIU employee in Piney Point, Maryland, Carol

Johnson, then contacts SIU seamen through the country to

solicit their willingness to accept the assignment. Which

union member is called on a particular occasion is a matter

that is strictly within the union’s discretion. It was

through this procedure that Ricord became designated by

the union to accept employment with ETC. ETC played no

part in that designation. ETC never directly contacted

Ricord or any other SIU seamen for the purpose of asking

them either to apply to the SIU for work aboard ETC’s

vessels or to offer them such employment. Instead, Mr.

4

Nielsen makes it clear that employment is offered to the

SIU member by the SIU Manpower Pool in Piney Point,

Maryland and, in turn, seaman/replacements are offered by

the Manpower Pool to ETC. [Appendix at A 7-11].

Based on these undisputed facts, ETC moved to

dismiss for lack of in personam jurisdiction pursuant to

Fed. R. Civ. P. 12 (b)(2). The district court granted ETC’s

motion to dismiss in a judgment entered November 3,

1992, holding that ETC’s contacts with Louisiana were in-

sufficient to confer personal jurisdiction . [Appendix at A

15]. The Court of Appeals for the Fifth Circuit affirmed the

judgment of the district court. [Appendix at 26]. Plaintiff’s

Petition for Rehearing was denied on June 16, 1994. [Ap-

pendix at A 31].

SUMMARY OF ARGUMENT

A. No Special and Important Reasons Can be Shown

for This Court to Grant Discretionary Review.

Petitioners have not and cannot show “special and

important reasons” which would warrant this Court exer-

cising discretionary review. This case involves the applica-

tion of well-settled principles to a familiar factual situation

that has little significance except to the parties themselves.

B. The Fifth Circuit’s Ruling that Mr. Ricord Did

Not Meet His Burden of Establishing a Prima

Facie Case of Personal Jurisdiction Should Be

Affirmed.

The burden falls on the plaintiff to make a prima

5

facie showing that personal jurisdiction exists. Plaintiff

has not met this burden. ETC simply does not have the re-

quisite minimum contacts with the state of Louisiana in

order for a Louisiana court to exercise personal jurisdic-

tion. ETC conducts no business in Louisiana, ETC ships do

not, and have never, called in any Louisiana ports. ETC has

not and does not solicit or advertise for business or

employees or for any other purpose in Louisiana, and

Ricord was not hired in Louisiana. Accordingly, it is clear

that ETC has not purposely availed itself of the rights and

privileges of Louisiana and did not purposely direct its ac-

tivities towards Louisiana.

C. The Fifth Circuit Correctly Applied Louisiana’s

Long-Arm Statute as Interpreted by Louisiana

Courts.

The 1987 amendment to the Louisiana Long-Arm

Statute extends Long-Arm jurisdiction of a Louisiana

court to the limits allowed by due process. Accordingly, the

Fifth Circuit correctly applied federal constitutional stan-

dards when considering whether a Louisiana court could

exercise personal jurisdiction over ETC.

Additionally, Petitioner’s argument that the Fifth

Circuit failed to follow Louisiana jurisprudence is simply

incorrect. Marullo v. Zuppardo, 454 So.2d 268 (La.App. 4

Cir. 1984) writ denied, 458 So.2d 477 is readily

distinguishable from the issues before this Court and is

therefore not controlling.

6

ARGUMENT

A. No Special and Important Reasons Can Be

Shown for This Court to Grant Discre-

tionary Review.

Petitioners have shown no special circumstances

which would warrant this Court’s review.

Supreme Court Rule 10 states:

A petition for a writ of certiorari will be granted

only where there are special and important

reasons therefor.

This Court in Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70, 74, 75 S.Ct. 614, 616 (1954) held that certiorari

should not be granted except in cases involving principals

the settlement of which is important to the public, as

distinguished from that of the parties, and in cases where

there is a real and embarrassing conflict of opinion and

authority between the circuit courts of appeals. Jd. at 79,

75 S.Ct. at 620. (Citing Layne & Bowler Corp v. Western

Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423

(1923)). This case does not involve any inter-circuit conflict,

and its only significance is to the parties themselves. It has

been ordered that the Fifth Circuit opinion not be publish-

ed, an indication of the unimportance of this case to the

public.! [Appendix at A 26]. It would be a “poor use of

1 Page 1 of the opinion states that:

‘The publication of opinions that have no precedential value

and merely decide particular cases on the basis of well-

settled principles of law imposes needless expense on the

7

judicial resources when, as here, [this Court] takes [this]

case merely to reaffirm (without revisiting) settled law.’’

Powell v. Nevada, ___, U.S. ___, 114 S.Ct. 1280, 1285

(1994)(J. Thomas, dissenting).

B. The Fifth Circuit Correctly Concluded that Mr.

Ricord Did Not Meet His Burden of Establishing

a Prima Facie Case of Personal Jurisdiction

The party who seeks to invoke a district court’s

jurisdiction must make a prima facie showing of facts suffi-

cient to establish jurisdiction over a non-resident defen-

dant. Jones v. Petty-Ray Geophysical Geosource, Inc., 954

F.2d 1061 (5th Cir. 1992); Bullion v. Gillespie, 895 F.2d 213

(5th Cir. 1990); WNS, Inc. v. Farro, 884 F.2d 200 (5th Cir.

1989). The party must prove that the defendant is engaged

in certain minimum contacts with the forum such that the

maintenance of the suit does not offend traditional notions

of fair play and substantial justice. International Shoe Co.

v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945).

As the district court in this matter recognized, uncon-

troverted jurisdictional allegations in the plaintiff’s com-

plaint must be taken as true and any conflicts contained in

the parties’ affidavits must be resolved in favor of the

plaintiff. [Appendix at A 71]. In the present case, however,

there are no disputed facts. It is undisputed that ETC has

no offices or operations in Louisiana. ETC vessels do not

call on Louisiana ports. On each and every occasion upon

which Ricord worked for ETC it was as a result of ETC con-

tacting the SIU’s headquarters in Piney Point, Maryland

footnote 1 continued

public and burdens on the legal profession. Pursuant to (Local Rule 47.5)

the Court has determined that this opinion should be not published.”

8

and the SIU in turn contacting Ricord through the SIU

Hall in New Orleans. Finally, Ricord’s alleged injuries oc-

curred on ETC vessels sailing in Asian waters. Under these

factual circumstances, it is clear that the Fifth Circuit was

correct in holding that plaintiff has not carried the burden

of proof in demonstrating that ETC has minimum contacts

sufficient to subject it to the personal jurisdiction of a

Louisiana court.

Petitioner bases his claim that he has established a

prima facie case on the flimsy allegation that Ricord was

engaged for employment as a seaman by ETC in Louisiana.

Plaintiff argues that Ricord was hired by ETC in Louisiana

by referring to ETC’s “individual crew information card”

which indicates “‘port engaged’’ as New Orleans. This argu-

ment was correctly rejected by both the Fifth Circuit and

the district court. [Appendix at A 23, 29]. As the sup-

plemental affidavit of ETC’s Steven M. Nielsen makes

clear, the term “port of engagement” to which the in-

dividual crew information form refers is simply the location

in the United States from which the seaman who has been

contacted through the SIU at its national headquarters in

Maryland departs for the vessel in Japan. The seaman is

not “hired” for employment at this American location.

Rather, like any blue-water seaman, the seaman does not

become employed by the vessel owner until he signs ship-

ping articles. As Mr. Nielsen’s affidavit explains, these

shipping articles constitute the contract of employment be-

tween the seaman and ETC and they are not signed by the

seaman until he has reached his vessel. Ricord, on each oc-

casion on which he worked for ETC, signed the shipping ar-

ticles in Japan, and accordingly was not employed by ETC

until he reached Japan. See 46 U.S.C. $10302, et.seq.; 1 B

9

Benedict on Admiralty (1993), §62, et. seg. Plaintiff does

not dispute that Ricord always signed shipping articles in

Japan. Instead, Plaintiff argues that the term “port engag-

ed”’ is the port in which the employee is hired, employed or

retained. This argument was summarily rejected by both

the district court and the Fifth Circuit which properly con-

cluded that Ricord was not employed by ETC until he sign-

ed articles in Japan. [Appendix at A 23, 29].

The SIU’s Mr. Peth’s affidavit certainly suggests

nothing to the contrary. Indeed, the affidavit makes it clear

that it is the SIU, not ETC, that contacted Ricord through

the union’s New Orleans hiring hall. [Appendix at A 16]. It

remains undisputed that ETC’s only contact with the SIU

in connection with Ricord’s hiring occurred at the union’s

National Manpower Coordinating Center in Piney Point,

Maryland.

C. The Fifth Circuit Correctly Applied Louisiana’s

Long-Arm Statute.

The analysis used to determine whether a court may

assert jurisdiction over a non-resident defendant has two

components:

1. The defendant must be amenable to service of

process under the forum state’s jurisdicitonal

Long-Arm Statute.

2. The exercise of jurisdiction under this statute

must comport with norms imposed by the due

process clause of the Fourteenth Amendment.

Asahi Metal Industry Company v. Superior Court of

10

California, 480 U.S. 102, 107 S.Ct. 1026 (1987).

The 1987 amendment to the Louisiana Long-Arm

Statute extends long-arm jurisdiction of a Louisiana court

to the limits allowed by due process. La. R.S. 13:32.01 (b);

Pedalahore v. Astro Park, Inc., 745 F.2d 346 (5th Cir. 1984).

Therefore, the two-part test cited above is, in Louisiana, ac-

tually a one-part test, meaning that a non-resident defen-

dant is subject to the personal jurisdiction and service of

process only after the constitutional due process inquiry is

satisfied. The due process clause of the Fourteenth Amend-

ment limits the court’s power to assert personal jurisdic-

tion over non-resident defendants to situations in which

they engage in certain ‘minimum contacts” with the forum

such that the maintenance of the suit does not offend tradi-

tional notions of fair play and substantial justice. Interna-

tional Shoe Company v. Washington, 326 U.S. 310, 316, 66

S.Ct. 154, 158 (1945). The Fifth Circuit correctly applied

the minimum contacts test in its determination that the

Louisiana Long-Arm Statute does not extend long-arm

jurisdiction of a Louisiana court over ETC.

Petitioner argues that the Fifth Circuit erred in

declining to follow Marullo v. Zuppardo, 454 So.2d 268

(La.App. 4 Cir. 1984) writ denied 458 So.2d 477 which held

that a non-resident defendant acting directly through an

agent is subject to personal jurisdiction. Marullo is both

factually and legally distinguishable from the present case.

It is plaintiff's suggestion that SIU is an agent of ETC.

However, plaintiff cites no authority, because none exists,

for his theory that a union is the employer's agent in a

situation where the union provides employees under the

terms of a collective bargaining agreement. It is nowhere

11

suggested, for indeed it is not the case, that ETC could con-

trol the SIU or that SIU had the right to make representa-

tions on behalf of ETC or to bind ETC. Further, even if the

SIU was an “agent” of ETC, ETC only requested seaman

through the SIU’s Piney Point, Maryland location and did

not instruct the SIU to directly solicit employers in Loui-

siana. For these reasons, it is clear that the Fifth Circuit

did not err in finding that the Louisiana Long-Arm Statute

did not extend long-arm jurisdiciton over ETC.

12

CONCLUSION

The Fifth Circuit was correct in ruling that Peti-

tioner did not meet his burden of establishing a prima facie

case of personal jurisdiction and in its application of the

Louisiana Long-Arm Statute as interpreted by Louisiana

courts. Further, Petitioner has not shown special and im-

portant reasons which would warrant discretionary review

of this matter.

For these reasons, Respondent respectfully asks this

Court to deny the petition for writ of certiorari.

Respectfully submitted

O’NEIL, EICHIN, MILLER,

BRECKINRIDGE & SAPORITO

Alexander N. Breckinridge, IV

One Poydras Plaza, 22nd Floor

639 Loyola Avenue

New Orleans, Louisiana 70113

(504)525-3200

Attorney for Defendant-Respondent

A-1

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

X

FABIOUS M. RICORD, JR.,

Plaintiff,

Civil Action

-against- No. 92-3797

ENERGY TRANSPORTATION CORPORATION,

Defendant.

AFFADAVIT SECTION “A”

X

STATE OF NEW YORK )

) ss:

COUNTY OF NEW YORK )

BEFORE ME the undersigned authority, personally

came and appeared:

KENDALL G. CHEN who, after being duly sworn,

did depose and state as follows:

1. I have personal knowledge of the matters contain-

ed herein and am competent to testify thereto.

2. I am the President of Energy Transportation

Corp. (“ETC”). This affidavit is submitted on behalf of

ETC in support of ET. s Motion to Dismiss plaintiff's

summons and complaint in the above-captioned complaint

for lack of personal jurisdiction.

A-2

3. ETC operates and manages eight liquid natural

gas carriers, each of which sails between Indonesia and

Japan. These ships, including the LNG CAPRICORN and

the LNG LEO (the vessels on which plaintiff was a crew

member), do not travel to or from the State of Louisiana.

None of ETC’s ships, including the LNG CAPRICORN

and the LNG LEO, have ever been in the state of Louisiana

for any purposes.

4. ETC is incorporated under the laws of the State of

Delaware. It is not, nor has it ever been, incorporated in the

State of Louisiana.

5. ETC’s principal place of business and sole United

States office is located in the State of New York. ETC does

not have, nor has ETC ever had, offices in the State of Loui-

siana or in any state other than New York.

6. With the exception of the above-entitled action.

ETC has never been subjected to the jurisdiction of, nor

has it brought suit in, any state or federal court in Loui-

siana. ETC has never authorized an agent to accept service

of process or for any other. purpose in Louisiana.

7. ETC neither operates nor manages any ships in

Louisiana. It is not authorized to do business in Louisiana,

nor has it ever sought authorization to do business in the

State of Louisiana.

8. ETC has no sales representatives, employees, or

agents in the State of Louisiana.

9. ETC owns no real or personal property in the State

of Louisiana.

10. ETC maintains no telephone listings in the State

of Louisiana.

11. ETC has no bank accounts of any kind in the

State of Louisiana.

12. ETC has never been assessed or paid any taxes to

the State of Louisiana.

13. ETC has not and does not solicit business or

advertise for business or any other purpose in the State of

Louisiana.

14. ETC has not and does not solicit business or

advertise for business or any other purpose in the State of

Louisiana.

15. ETC does not, nor has it ever, placed employment

ads or conducted employee searches in the State of Loui-

siana. ETC hires all crew members through the Manpower

Coordinator at Piney Point, Maryland. All crew members

are members of the Seafarer’s International Union. Crew

members are hired on a basis determined by the applicable

union policies and procedures. Mr. Ricord, plaintiff herein,

was hired accordingly.

16. ETC is a closely held corporation and has no resi-

dent Louisiana shareholders.

/s/ Kendall G. Chen

KENDALL G. CHEN

A-4

Sworn to and subscribed

before me this (illegible) day

of (illegible), 1993

/s/ Kathleen Michetti

NOTARY PUBLIC

Kathieen Michetti

Notary Public, State of New York

No. 43-4756945

Qualified in Richmond County

Certificate filed in New York County

Term expires 01/31/94

A-5

APPENDIX B

STATE OF NEW YORK

COUNTY OF NEW YORK

BEFORE ME, the undersigned authority, personally

came and appeared:

STEVEN M. NIELSEN

who, after being duly sworn, did depose and state as

follows:

(1) I have personal knowledge of the matters contain-

ed herein and am competent to testify thereto.

(2) I am the personnel manager of Energy Transpor-

tation Corporation (““ETC’’) and in that capacity

have previously submitted an affidavit of this

matter, the contents of which are adopted herein

as if the same were copied in extenso.

(3) As explained in my initial affidavit, ETC obtains

unlicensed personnel such as Fabious M. Ricord,

Jr. to crew its ships by referra! from the ‘“‘man-

power pool” at Piney Point, Maryland, ETC is

obligated by contract with the SIU to obtain its

unrated seaman through the SIU and ETC

always does so through this ‘‘manpower pool.”’

ETC does not hire seamen through the SIU Hall

in New Orleans, Louisiana and, specifically, did

not hire Fabious M. Ricord, Jr. through the SIU

Hall in New Orleans, Louisiana.

(4)

(5)

(6)

(7)

A-6

An unrated seaman such as Fabious M. Ricord,

Jr. does not become employed by ETC until the

seaman signs shipping articles which constitutes

a contract of employment between the seaman

and ETC. Shipping articles are not signed until

the seaman reaches the particular ETC vessel

aboard which he is to serve at the port in Japan

where the seaman meets the vessel.

On each occasion on which Fabious M. Ricord, Jr.

was employed by ETC he did not become

employed until he signed shipping articles and

this was always done at the port in Japan where

he met the ETC vessel.

The ‘‘port of engagement” to which the In-

dividual Crew Information Form refers is simply

the location in the United States from which the

seaman departs for Japan. The seaman is not

“engaged’”’ for employment at this American loca-

tion. He only becomes employed by ETC upon

reaching the ETC vessel in Japan and signing

shipping articles. ETC accordingly did not hire

Ricord in Louisiana.

ETC does not regularly ‘‘retain’”’ a physician for

examining seamen. Rather, when a sezraan who

happens to live in Louisiana submits a claim for

cure benefits, ETC, through its attorneys, may

have the seaman examined by a New Orleans

physician. This is done strictly as a convenience

to the seaman.

A-7

/s/ Steven M. Nielson

STEVEN M. NIELSON

SWORN TO AND SUBSCRIBED BEFORE

ME, THIS 15th DAY OF OCTOBER, 1993.

ls! Jessica Morelli

NOTARY PUBLIC, My Commission Expires

At: Oct. 31, 1993

JESSICA MORELLI

Notary Public State of New York

No 4699388

Qualified in New York County

Term Expires Oct 31, 1993

inane it

A-8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FABIOUS M. RICORD, JR..,

Plaintiff,

Civil Action

-against- No. 92-3797

ENERGY TRANSPORTATION CORPORATION,

Defendant.

AFFADAVIT SECTION “A”

X

STATE OF NEW YORK )

, 2

COUNTY OF NEW YORK _)

BEFORE ME the undersigned authority, personally

came and appeared:

STEVEN M. NIELSEN who, after being duly

sworn, did depose and state as follows:

1. I have personal knowledge of the matters contain-

ed herein and am competent to testify thereto.

2. I am the Personnel Manager of Energy Transpor-

tation Corporation (““ETC’’). I have been so employed since

April, 1984. Since that time, my office has been in the of-

fices of ETC in New York City, which, during the time of

my employment, have always been in New York City. I

replaced Mr. Joseph Caiola, who was Marine Personnel

ne

A-9

Manager until leaving ETC’s employment in March, 1984,

a fact represented to me to be true by the ETC personnel

department based on non-marine personnel company

records. At the time I began employment with ETC, Phillip

Lameck was also employed by the company in a person-

nel/claim handling capacity. Mr. Lameck died very sudden-

ly soon after I became employed, his last day of employ-

ment having been July 13, 1984, again a fact reported to

me by the ETC non-marine personnel department.

3. Since April, 1984, I have been very frequently in-

volved with the Seafarer’s International Union (‘‘SIU’’)

with respect to hiring replacement unlicensed personnel on

the eight ETC vessels, each one of which trades exclusively

between Indonesia and Japan. ETC has a collective

bargaining agreement with the SIU, by virtue of which the

SIU supplies all unlicensed ratings, i.e., crew members

who, like plaintiff, are not ships offices. The agreement in

force in February, 1989, when Mr. Ricord was hired to work

as an unlicensed member of the crew of ETC’s LNG

CAPRICORN and LNG-LEO, in Article III Employment,

Section 1 Hirings, provides in subsection (a) that: ‘“‘[t]he

Union agrees to furnish the company with qualified,

physically fit Unlicensed Personnel having the required

ratings, when and where they are required by the Company

[ETC].”’ This subsection also provides that ETC can

employ seamen directly ‘‘...if the Union is unable to furnish

such personnel.’’ Since April, 1984, this, to my knowledge,

has never occurred. The collective bargaining agreement, in

Section 3 of Article III, provides for the company’s ‘‘Rejec-

tion of Employment’’ of a particular seaman. Copies of the

face page and referred to as part of Article III of the

ETC/SIU Collective Bargaining Agreement covering the

ELF STA Sa ee ee en ee

A-10

July 1, 1985 - June 15, 1987 period are annexed hereto as

Exhibit “‘A.”’

4. Unlicensed personnel aboard ETC ships serve in

the ordinary case for four months whereupon they are

relieved. The crew’s tours of duty are, of course, staggered

to avoid a situation where more than a few crew members

are replaced at any one time. The eight vessels maintain a

quite close schedule and, as a result, certain crew members

aboard a particular ship are repatriated at a port in Japan

on each occasion that ship returns to that country. The up-

shot of all this is that the SIU has typically a full month

to supply replacements, this being the approximate period

of time from my request to the SIU for replacement to

when, in the ordinary course of crew rotation, such schedul-

ed replacements are needed.

§. About 30 days before scheduled replacement in

Japan of unlicensed SIU seamen aboard ETC vessels, I call

the so-called “‘manpower pool’ at the SIU Piney Point,

Maryland, plaintiff’s union’s national headquarters. At

that time, I identify the ratings needed, e.g., two able-

bodied seamen, one ordinary seaman and one steward’s

assistant. I also give the manpower pool the ship’s name,

the port in Japan where the vessel is expected about a

month hence, and the approximate date. The manpower

pool at Piney Point is, for all practical purposes a lady |

whose name is Carol Johnson. It is my understanding that |

Ms. Johnson calls SIU seamen to solicit their willingness |

to accept assignment; and that who is called on a particular

occasion is a matter of union decision. After, to my

understanding, these calls are made, in the usual case less

than one week later, Ms. Johnson calls back with name and

A-11

rating. This was done in this case. Plaintiff, Fabious M.

Ricord, Jr. was designated by the union; and ETC did not

object to that designation.

6. By union contract, ETC is obliged to provide

transportation for SIU seamen from the United States to

Japan. Since I was employed by ETC in April, 1984, this

was done by ETC’s travel agent. Most recently, this travel

agent has done business under that name VTS Travel En-

terprises, Inc./Woodside. The travel agent’s offices are at

880 Third Avenue, Third Avenue, New York, New York.

VTS Travel arranges transportation for the SIU

replacements. It is they, and not ETC Marine Personnel,

which contracts the replacement SIU seamen regarding

travel to Japan.

7. SIU seamen living in the various states of the

United States are, of course, supplied as ETC crew

replacements. Accordingly, VTS Travel needs certain per-

sonnel information to arrange tickets for various places of

departure in the United States. This information is

generated by ETC Marine Personnel initially; by telephone

contacts between me or my office and the SIU seamen prior

to the first occasions the seamen sails for ETC. A special

endorsement, or LNG ‘“‘ticket’’ is needed to serve on ETC

vessels; and frequently the first occasion on which an SIU

seaman sails for us is soon after he or she obtains this en-

dorsement after a period of schooling at the SIU’s Harry

Lundberg School of Seamanship, which is also located in

Piney Point. This typically is the first and last direct con-

tact between ETC and SIU unlicensed personnel, who

serve on our vessels. To my recollection, I have never

spoken to plaintiff Fabious M. Ricord, Jr. Marine personnel

A-12

never calls SIU seamen for purposes of asking them either

to apply to the SIU for work aboard our vessels, or to offer

them such employment. Instead, employment is offered to

the SIU member by the SIU manpower pool, and, in turn,

seaman/replacements are offered by the manpower pool, to

ETC.

8. As mentioned, ETC’s travel agent VTS arranges

transportation for SIU replacement crew members. Prior

to being called VTS, this travel agent was called ‘‘City

Travel” and ‘‘Hickory Travel.’’ Since about 1987, I have

dealt with Viola Collins at VTS.

/s/ Steven M. Nielsen

STEVEN M. NIELSEN

Sworn to and subscribed :

before me this (illegible) day :

of (illegible), 1993 |

/s/ Kathleen Michetti

NOTARY PUBLIC

Kathleen Michetti

Notary Public, State of New York

No. 43-4756945

Qualified in Richmond County

Certificate filed in New York County

Term expires 01/31/94

A-13

EXHIBIT “A”

to

NEILSEN AFFIDAVIT

Energy Transportation Corporation

and

Seafarers International Union of North America,

Atlantic, Guif, Lakes and Inland Waters

District, AFL-CIO

June 16, 1987 - June 15, 1990

ae

A-14

(j) The Impartial Arbitrator shall have the authority

to apply or utilize past practices only insofar as they may

aid in determining the Parties intentions with respect to

any provision specifically addressed in this Agreement.

(k) The final award of the Impartial Arbitrator shall

be in writing and shall be issued with opinion and shall be

served by Certified Mail, Return Receipt Requested

directed to the Company at Stevens Tower, 1185 Avenue of

the Americas, 24th Floor, New York 10036 and the Union

at 5201 Auth Way, Camp Springs, Maryland 20746.

(l) The agreed fee and reasonable expense incurred by

the Impartial Arbitrator in executing his responsibilities,

including expenses of stenographic transcripts, shall be

borne by the losing party.

(mn) The above Sections 3, 4 and 5 of this Article II

shall remain in full force and effect from the date of execu-

tion of this Agreement to its expiration, including any

period when this Agreement is subject to be reopened or is

reopened for any purpose.

Section 6. Severability. This Agreement shall be sub-

ject to all valid applicable laws, orders, rules and regula-

tions of governmental authorities in the United States of

America having jurisdiction; and either Party hereto shall

have the right to contest the validity of any such law,

order, rule or regulation, and the acquiescence therein or

compliance therewith for any period of time which shall not

be construed as a waiver of such right; provided, however,

if any part of this Agreement is in conflict therewith, such

part shall be deemed inapplicable, and to the extent

* : |

- ; ; ~

Se ae ee ea Am eR ih Lith iy the

A-15

thereof, shall be deemed severed from this Agreement, and

the remainder of this Agreement shall remain in full force

and effect.

ARTICLE III

EMPLOYMENT

Section 1. Hiring. (a) The Union agrees to furnish the

Company with qualified, physically fit Unlicensed Person-

nel having the required ratings, when and where they are

required and requested by the Company, who shall possess

the ratings required to fill the Company’s employment re-

quirements; and if possible, such persons shall be obtained

through Hiring Halls established by the Union and ad-

ministered by the Union. However, if the Union is unable

to furnish such personnel to fill vacancies within the time

required to insure the LNG carrier’s scheduled sailing, the

Company may, from whatever source, hire such persons as

required to permit the LNG carrier to sail.

A-16

AFFIDAVIT OF CARL PETH

STATE OF MARYLAND )

)

COUNTY OF ST MARY’S )

BEFORE ME, the undersigned authority in and for

said County and state, personally came and appeared

CARL PETH, who deposes and says as follows:

1. I am the Director of the Manpower Office of the

Seafarers International Union, Atlantic, Gulf, Lakes and

Inland Waters District (‘‘Union” or ‘‘SIU’’). This office is

located in Piney Point, Maryland.

2. The Manpower Office is responsible for dis-

patching job orders for positions on board SIU-contracted

vessels to Union-affiliated hiring halls located in port cities

throughout the United States, including a hiring hall in

New Orleans, Louisiana.

3. During the past five years, Energy Transportation

Corporation (ETC) had a collective bargaining agreement

with the SIU. Pursuant to this agreement, ETC filled posi-

tions on board its vessels through the Manpower Office.

4. During the past five years, the SIU has filled jobs

on board ETC vessels at its hiring hall in New Orleans,

Louisiana.

/s/ Carl Peth

Carl Peth

A-17

SWORN to before me this 28th day of October, 1993.

/s/_ Sharon L. Farr

Notary Public

My commission expires: 11/1/96

SHARON L. FARR

NOTARY PUBLIC STATE OF MARYLAND

My Commission Expires on November 1, 1996

EXHIBIT

“—

A-18

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FABIOUS M. RICORD, JR. CIVIL ACTION

VERSUS NO. 92-3797

ENERGY TRANSPORTATION CO. SECTION “A”

RECEIVED ., FILED

BY (Illegible) NOV 3 ’93

JUDGMENT

Considering the written Order of the Court on file

herein, accordingly;

IT IS ORDERED, ADJUDGED, AND DECREED,

that there be judgment in favor of defendant Energy

Transportation Co. and against plaintiff Succession of

Fabious M. Ricord, Jr., dismissing without prejudice the

plaintiff’s claims.

New Orleans, Louisiana, this 3rd day of November,

1993.

/s/ Loretta G. Whyte

LORETTA G. WHYTE, CLERK

APPROVED AS TO FORM:

/si Charles Schwartz, Jr.

UNITED STATES DISTRICT JUDGE

DATE OF ENTRY NOV 4 1993

A-19

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FABIOUS M. RICORD, JR. CIVIL ACTION

VERSUS NO. 92-3797

ENERGY TRANSPORTATION CO. SECTION ‘A”’

Before the Court is defendant Energy Transporta-

tion Co. (““ETC’s’’) Motion to Dismiss for Lack of Personal

Jurisdiction. Plaintiff, the Succession of Fabious M.

Ricord, Jr. (‘‘Ricord’’) filed formal opposition. The matter

was set for oral hearing on October 13, 1993 but was sub-

mitted on the briefs on October 29, 1993. Considering all of

the submissions of the parties, and for the reasons

hereinafter stated, the Court grants ETC’s Motion to

Dismiss for Lack of Personal Jurisdiction.

BACKGROUND:

Ricord brought this admiralty and maritime suit pur-

suant to the Jones Act, 46 U.S.C. § 688 and the general

maritime law against ETC for injuries he sustained while

serving as a crew member aboard several vessels owned

and operated by ETC in Asian waters. Ricord died on April

1, 1993, and his succession was substituted as the proper

party plaintiff in this action. At the time of the alleged in-

juries, plaintiff was stationed aboard the defendant’s

vesseis including the LNG-CAPRICORN and the LNG-

LEO which were operating in Asian waters at all pertinent

times.

DATE OF ENTRY NOV 2 1993

A-20

ETC operates and manages eight liquid natural gas

carriers, each of which sails exclusively between Indonesia

and Japan. It is undisputed that none of the defendant’s

vessels on which the plaintiff was allegedly injured travel

to or from or anywhere near Louisiana waters.!

ETC is a closely held corporation incorporated under

the laws of the state of Delaware and its principal place of

business is New York, New York. It has no Louisiana resi-

dent shareholders. ETC has and has never had any offices

located in the state of Louisiana or any state other than

New York and it has no agent to accept service of process

in Louisiana. It is further undisputed that ETC has no

sales representatives, employees or agents in Louisiana,

owns no real or personal property in Louisiana, and has

never been assessed or paid taxes in Louisiana. ETC is not

authorized to do business and has never sought authoriza-

tion to do business in the State of Louisiana.”

ETC does not solicit or advertise for business or any

other purpose in Louisiana and has never placed employ-

ment advertisements or conducted employee searches in

Louisiana. Instead, ETC hires all crew members through

the Manpower Coordinator at Seafarers International

Union (““SIU’’) Headquarters located in Piney Point,

Maryland. It is undisputed that ETC did not travel to

Louisiana and/or recruit the plaintiff or any other

employees, nor did it negotiate or finalize any employment

contracts in Louisiana.

1 Affidavit of Kendal G. Chen (ETC Exhibit ‘‘1”).

2 Id.

A-21

Plaintiff was hired to work as an unlicensed crew

member on the defendant’s vessels pursuant to Article 3,

Section 1 of ETC’s collective bargaining agreement with

SIU which provides:

The union agrees to furnish the company with

qualified, physically fit, unlicensed personnel hav-

ing the required rating, when and where they are

required by the company (ETC).3

ETC’s Marine Personnel Manager Steven Nielsen explain-

ed the hiring procedure routinely employed by ETC pur-

suant to its collective bargaining agreement with SIU as

follows:

About 30 days before scheduled replacement

in Japan of unlicensed SIU seaman aboard ETC

vessels, I call the so-called ‘‘manpower pool’’ at

the SIU Piney Point, Maryland, plaintiff’s

union’s national headquarters. At that time, I

identify the ratings needed, e.g., two able-bodied

seamen, one ordinary seaman, and one steward’s

assistant. I also give the manpower pool the

ship’s name, the port in Japan where the vessel is

expected about a month hence, and the approx-

imate date. The manpower pool at Piney Point is,

for all practical purposes a lady whose name is

Carol Johnson. It is my understanding that Ms.

Johnson calls SIU seaman to solicit their will-

ingness to accept assignment; and that who is

called on a particular occasion is a matter of union

3 See Exhibit “A” to Neilsen Affidavit.

A-22

decision. After, to my understanding, these calls

are made, in the usual case less than one week

later, Ms. Johnson calls back with name and

rating. This was done in this case. Plaintiff,

Fabious M. Ricord, Jr. was designated by the

union; and ETC did not object to that

designation.

By union contract, ETC is obliged to pro-

vide transportation for SIU seaman from the

United States to Japan. Since I was employed by

ETC in April, 1984, this was done by ETC’s

travel agent. Most recently, this travel agent has

done business under the name VTS Travel Enter-

prises, Inc./Woodside. The travel agent’s offices

are at 880 Third Avenue, New York, New York.

VTS Travel arranges the transportation for SIU

replacements. It is they, and not ETC Marine

Personnel, which contact the replacement SIU

seaman regarding travel to Japan.

... A special endorsement, or LNG ‘“‘ticket”’ is

needed to serve on ETC vessels; and frequently

the first occasion on which an SIU seaman sails

for us is soon after he or she obtains this endorse-

ment after a period of schooling at the SIU’s

Harry Lundberg School of Seamanship, which is

also located in Piney Point. This typically is the

first and last direct contact between ETC and the

SIU unlicensed personnel, who serve on our

vessels. To my recollection, I have never spoken

to plaintiff Fabious M. Ricord, Jr. Marine Person-

nel never calls SIU seaman for purposes of asking

them either to apply to the SIU for work aboard

our vessels, or to offer them such employment. In-

A-23

stead, employment is offered to the SIU member

by the SIU manpower pool, and, in turn,

seaman/replacements are offered by the man-

power pool to ETC.4

In summary and based upon the aforementioned un-

disputed facts, ETC contends that because it transacts no

business in Louisiana, has no contacts whatsoever with

Louisiana, did not solicit employees in Louisiana and in-

stead hired through SIU’s headquarters in Piney Point,

Maryland pursuant to a collective bargaining agreement, it

lacks sufficient contacts with Louisiana to support the in-

vocation of personal jurisdiction under the Louisiana long-

arm statute.

Plaintiff does not contest any of the facts set forth in

the affidavits of ETC’s Kendall Chen or Steven Nielsen.

There is no dispute that: (1) ETC conducts no business in

Louisiana and never has; (2) ETC’s vessels have never plied

Louisiana waters nor visited Louisiana ports; (3) ETC does

not solicit or advertise for business or employees in Loui-

siana; (4) Ricord was hired pursuant ETC’s collective

bargaining agreement with SIU at Piney Point, Maryland,

the union’s national headquarters; (5) the shipping articles

executed in Japan by Ricord constitute the contract of his

employment with ETC. In short the only contact that ETC

has with Louisiana was the fortuitous hiring of plaintiff

through the union.

Plaintiff argues, however, that ETC has sufficient

contacts with the Louisiana to support this Court’s exer-

4 Affidavit of Steven M. Nielsen.

A-24

cise of jurisdiction based on the following: (1) ETC engaged

Ricord for employment in New Orleans, Louisiana® on fif-

teen occasions between 1981 and 1991 as shown by ETC’s

personnel record on Ricord; (2) ETC retains a New Orleans

physician for examining seaman for claims, who submits

bills to the ETC for payment and makes maintenance and

cure payments to Louisiana seaman; and (3) ETC

employee’s paychecks are mailed to Louisiana upon the

employee’s request. Via supplemental memorandum in op-

position plaintiff submits that the fact that ETC was aware

that SIU filled positions through SIU’s New Orleans hiring

hall ETC creates sufficient contacts with Louisiana for this

Court to exercise personal jurisdiction.

Plaintiff served the defendant in this case pursuant

to the Louisiana long-arm statute, La.Rev.Stat. § 13:3201,

which provides that ‘‘a court of this state may exercise per-

sonal jurisdiction over a nonresident on any basis consis-

tent with the constitution of this state or the Constitution

of the United States.” Jd.

ANALYSIS

When a challange is made to the court’s in personam

jurisdiction, the party seeks to invoke the district court’s

jurisdiction bears the burden of making a prima facie show-

ing of sufficient facts to establish jurisdiction over the

1 As the defendant points out in its reply brief, the shipping articles con-

stitute the contract of employment between Ricord (seaman) and the

ETC, which were not signed until the Ricord reached the vessel in

Japan. In orther words, on each occasion plaintiff worked for ETC, he

signed the shipping articles in Japan, and thus, was not employed by

ETC until he reached Japan.

A-25

nonresident defendant.§ In determining whether the plain-

tiff has established a prima facie case of personal jurisdic-

tion, uncontroverted allegations in the complaint must be

taken as true.’ Moreover, all conflicts between the facts

contained in the parties’ affidavits must be resolved in

favor of the plaintiff.®

A federal court may exercise jurisdiction over a

nonresident defendant provided state law confers such

jurisdiction and its exercise comports with due process

under the Constitution.? Because the Louisiana long-arm

statute as amended in 1987 extends to the limits of due pro-

cess, this Court need only consider whether personal

jurisdiction over ETC satisfies federal constitutional

requirements. 10

In Asahi Metal Industry Co. v. Superior Court of

California, 480 U.S. 102, 107 S.Ct. 1026, 1029, 94 L.Ed.2d

92 (1987), the Supreme Court set forth the two-step test for

determining whether a nonresident defendant is subject to

a district court’s jurisdiction, to wit: first, the district court

must determine whether the nonresident defendant pur-

posefully established “‘minimun contacts” with the forum

6 Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067

(5th Cir. 1992); Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990);

WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989).

7 Bullion, 895 F.2d at 217; WNS, Inc., 884 F.2d at 204.

8 Id.

9 I.

10 Simmons v. SeaTide International, Inc., 693 F.Supp. 510, 513

(E.D.La. 1988) (Schwartz, J.).

A-26

state such that maintenance of suit does not offend tradi-

tional notions of fair play and substantial justice; and se-

cond, even where minimum contacts exist, the court must

consider whether requiring the defendant to litigate in the

forum state would be unfair.

A defendant’s contacts with a forum may suppoort

general or specific jurisdiction. General jurisdiction refers

to a suit that does not arise from the nonresident’s contact

with the forum, and is asserted only over defendants who

maintain continuous and systematic contacts in a par-

ticular forum.!! Specific jurisdiction concerns a suit aris-

ing out of or related to a defendant’s contacts with the

forum state.!2

Plaintiff argues that defendant’s employ-

ment/recruitment contacts with Louisiana and that defen-

dant retains a physician in Louisiana are sufficient to sub-

ject it to both the general and specific jurisdiction of this

court. At the outset the Court notes the undisputed pauci-

ty of contacts ETC has with this forum. Considering that

plaintiff's injuries do not arise out of or relate to any con-

tact the defendant ETC has had with Louisiana, specific

jurisdiction is unavailable to the plaintiff in the captioned

matter. It cannot be seriously argued that any relationship

ETC had with SIU or that ETC had retained a physician

in Louisiana has any bearing on whether ETC was at fault

or remiss in connection with plaintiff's alleged injuries.

11 Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 415,

104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984).

12 104 S.Ct. at 1872 n.8.

SNA VA Cae ALR ire et kN etal > . -

A-27

Now turning to general jurisdiction, the record

reflects that the ETC does not maintain continuous and

systematic contacts with this forum. As previously stated,

it is undisputed that ETC is incorporated in Delaware and

has its principal place of business in New York. It is not

registered to do business in Louisiana. It does not transact

or solicit business, maintain offices, employ represen-

tatives, or advertise in Louisiana and does not have an

agent for service of process in Louisiana. On balance,

ETC’s only contact with Louisiana is that it notified SIU,

which utilizes its Louisiana hiring hall among others to fill

positions, that it had a job.

The Court considers it wholly irrelevant that: (1)

ETC’s attorney’s have engaged physicians in Louisiana to

examine Louisiana seamen who have asserted claims

against the company; (2) Ricord chose to instruct ETC to

send his paychecks to his Louisiana residence, and (3) plain-

tiff’s crew information card incorrectly reflects his ‘‘port of

engagement”’ as New Orleans.

Notwithstanding the foregoing determination that

ETC lacks sufficient contacts with this state, the Court ad-

dresses the second prong of the test, ie, the

reasonableness of asserting jurisdiction over ETC. The

Supreme Court in Asahi, supra, has listed several factors

that must be considered in the reasonableness equation.1!3

A court must consider the burden on the defendant,

the interests of the forum State, and the plaintiff’s interest

in obtaining relief. It must also weigh in its deter-

13 Asahi, 107 S.Ct. 1026 (1987).

A-28

mination ‘‘the interstate judicial system’s interest in ob-

taining the most efficient resolution of controversies; and

the shared interest of the several States in furthering fun-

damental substantive social policies.’’14

Thus, only if this Court has specific jurisdiction over

ETC, which it does not, will it have personal jurisdiction

over ETC. The contacts cited by plaintiff in the case at bar

which have been reiterated herein above simply do not sup-

port an inference that the ETC purposefully availed itself

of the benefits of the forum state. The defendant’s contacts

must be deliberate, rather than fortuitous, so that the need

to invoke the benefits and protection of the forum’s laws

was reasonable and foreseeable.

The complete absence of purposeful contact with the

state of Louisiana by ETC leads to no other conclusion

than that it would offend the traditional notions of fair play

to require it to defend the instant lawsuit in this forum.

Thus, this Court lacks personal jurisidiction over ETC.15

Accordingly, and for all of the above and foregoing reasons,

14 7d. at 1033.

15 See Carter v. Ocean Ships, Inc., C_A., No. 90-2132, 1990 LEXIS 11440

(E.D.La.) (Carr, J.) (holding that a Louisiana plaintiff who was hired by

the vessel owner through the SIU’s Manpower Coordinator in Maryland

and who was injured in international waters could not invoke a Loui-

siana court’s jurisdiction over his employer who had no contacts with

Louisiana other than the fortuitous hiring of the plaintiff through the

union hall); and Jones v. Maritime Overseas Corp., No. 91-3266, 1992

LEXIS 1887 (E.D.La.) (Sear, J.) (holding that in the absence of

systematic and continuous contacts, only if the court has specific

jurisdiction will it also have personal jurisdiction and where the nonresi-

dent defendant’s only contact with Louisiana is that it notified SIU that

it had a job, it was not reasonable to subject it to a suit in this state

since it would offend traditional notions of fair play and substantial

justice).

A-29

IT IS ORDERED that the defendant’s motion to

dismiss is hereby GRANTED and the plaintiff’s claims

against it are hereby DISMISSED WITHOUT

PREJUDICE.

The Clerk of Court is directed to enter judgment in

accordance herewith.

New Orleans, Louisiana, this 2nd day of November,

1993.

/s/ Charles Schwartz, Jr.

UNITED STATES DISTRICT JUDGE

ee

A-30

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3798

Summary Calendar

FILED

MAY 17 1994

FABIOUS M. RICORD,

(Succession of Fabious M. Ricord, Jr.,

substituted as plaintiff in place of

Fabious M. Ricord, Jr.

Plaintiff-Appellant,

versus

ENERGY TRANSPORTATION COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

( CA-92-3797-A )

Before REAVLEY, HIGGINBOTHAM and EMILIO M.

GARZA, Circuit Judges.

PER CURAIM:*

* Local Rule 47.5 provides: ‘The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

A-31

BACKGROUND

Appellant Fabious Ricord instituted this suit

against Energy Transportation Corporation (“ETC”’) in the

Eastern District of Louisiana, alleging admiralty and

maritime claims for an injury he obtained while working as

a crewmember aboard ETC vessels.! The district court

granted ETC’s motion to dismiss for lack of personal

jurisdiction. We affirm.

ETC is a closely held corporation incorporated under

the laws of Delaware. Its principal place of business is New

York, New York. ETC is not authorized to do business in

Louisiana and does not advertise or solicit business in

Louisiana. ETC’s vessels were operating in Asian waters at

the time of the alleged injury; it is undisputed that they did

not travel to or from Louisiana.

ETC hires all crew members through the Manpower

Coordinator at Seafarers International Union Head-

quarters (““SIU”’) located in Piney Point, Maryland. Ricord

was hired to work as an unlicensed crew member on ETC

vessels through the SIU on fifteen different occasions be-

tween 1981 and 1991.2 When ETC needed seamen, it would

footnote * continued

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.” Pursuant to that Rule, the Court has

determined that this opinior should not be published.

1 Ricord died in 1993, and his succession was substituted as a plaintiff

in this suit.

2 Article III, § I of ETC’s collective bargaining agreement with the SIU

provides: ‘The union agrees to furnish the company with qualified,

A-32

contact the SIU in Maryland. Ricord was hired by this pro-

cess when the SIU, to fill the hiring needs of ETC, con-

tacted Ricord through a hiring hall in Louisiana. Ricord’s

contract of employment with ETC consisted of shipping ar-

ticles which were signed and executed in Japan; no contract

of employment was signed or negotiated in Louisiana. All

travel arrangements for seamen such as Ricord were made

through ETC’s travel agent in New York. The only other

peripheral ‘‘contacts’’ ETC had with Louisiana are as

follows: 1) ETC pays the costs incurred by hired seamen in

Louisiana when they are examined by a doctor there for

claims and, 2) ETC employees’ paychecks are mailed to

Louisiana upon the employees’ requests. Ricord argues

that this creates sufficient contacts with Louisiana to con-

fer personal jurisdiction. We agree with the district court

that these limited ‘‘contacts”’ are insufficient.

DISCUSSION

The burden of establishing the district court’s per-

sonal jurisdiction over ETC rests with Ricord. Jones v.

Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061,

1067 (5th Cir.), cert. denied, 113 S. Ct. 193 (1992). Only a

prima facie case must be established and any genuine

material conflicts must be resolved in Ricord’s favor. Id.

As we stated in Jones:

[t}wo preconditions generally must be satisfied to

allow personal jurisdiction over nonresident

footnote 2 continued

physically fit unlicensed personnel having the required rating, when and

where they are required by the company.”’

A-33

defendants served out of state: (1) the nonresident

must be amenable to sevice of process under the

forum state’s long-arm statute (an issue that is

governed by the law of the forum state); and (2) if

the state jurisdictional test is met, the assertion

of jurisdiction over the non-resident must be con-

sistent with the Fourteenth Amendment due pro-

cess clause.

Id.

The Louisiana Long-Arm Statute, as amended, ex-

tends long-arm jurisdiction of Louisiana courts to the

limits allowed by due process. LA. REV. STAT. ANN. §

13:3201(B) (West 1991). Accordingly, we need only con-

sider whether personal jurisdiction over ETC satisfies

federal constitutional standards. The “constitutional

touchstone” of the Due Process Clause requires that the

defendant purposefully established minimum contacts in

the forum state so that maintenance of the suit does not of-

fend “traditional notions of fair play and substantial

justice.” Asahi Metal Indus. Co. v. Superior Court of Cal.

107 S. Ct. 1026, 1030, 1033 (1987) (citations omitted).

Because Ricord’s cause of action did not arise out of or

relate to ETC’s activities in Louisiana in order to meet

specific jurisdiction, the question ‘s whether general

jurisdiction exists. See Helicopteros Nacionales De Colom-

bia v. Hall, 104 S. Ct. 1868. 1872-73 (1984).

To satisfy general jurisdiction, ETC’s contacts with

Louisiana must be “continous and systematic.”’ Jd. The

fact that injured ETC seamen occasionally are given

medical services by Louisiana doctors who are paid by

A-34

ETC, and that employees are permitted to have their

paychecks sent to Louisiana cannot be deemed the “‘con-

tinuous and systematic’’ contacts by which ETC would ex-

pect to submit to Louisiana jurisdiction. The crew informa-

tion card proffered by Ricord, which states that Ricord’s

“port engaged’’ was New Orleans, also does not

demonstrate sufficient contact with Louisiana. According

to the personnel manager of ETC, “port engaged”’ refers

only to the location in the United States from which the

hired seamen, who are initially contacted through the SIU

headquarters in Maryland, departs for the vessel to travel

to Japan. In short, employment is offered to SIU union

members by the SIU manpower pool in Maryland, and

seamen are then offered to ETC. For all practical purposes,

Ricord was located through the union in Maryland and was

‘‘hired’’ when he signed his shipping papers in Japan; the

fact that he embarked from Louisiana is not significant.

Ricord argues that according to Louisiana law as set

forth in Marullo v. Zuppardo, 454 So.2d 268, 270 (La. Ct.

App. 1984), a nonresident defendant acting directly

through an agent is subject to personal jurisdiction. But

Marullo is distinguishable from the present case. Even if

the union was an “‘agent’’ or contractor of ETC, ETC only

requested seamen through the Maryland location and did

not direct the union to achieve a purpose in Louisiana. That

personal jurisdiction in Maryland might exist is arguable,?

but juridiction cannot be extended to every location that

the SIU contacted from Maryland, without any involve-

ment on the part of ETC.

AFFIRMED.

3 See Bass v. Energy Transp. Corp., 787 F.Supp. 530, 536-37 (D. Md.

1992) (finding personal jurisdiction existed over ETC in Maryland

because SIU trained, brokered, and consistently had contact with ETC

employees in Maryland).

PA eB GN ROCs aay tl

A-35

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

" FOR THE FIFTH CIRCUIT

No. 93-3798

FILED

JUN 16 1994

FABIOUS M. RICORD,

(Succession of Fabious M. Ricord, Jr.,

substituted as plaintiff in place of

Fabious M. Ricord, Jr.

Plaintiff-Appellant,

versus

ENERGY TRANSPORTATION COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING

( June 16, 1994 )

Before REAVLEY, HIGGINBOTHAM and EMILIO M.

GARZA, Circuit Judges.

PER CURIAM:

A-36

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF

THE MANDATE