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April 6, 1978


The opinion of the court was delivered by: BEEKS

In this action plaintiff Grand Bahama Petroleum Company (Grand Bahama), a Bahamian corporation, seeks to recover the value of fuel oil and other incidental services supplied to the Soviet flag vessel M/V KUIBSHEVGES, while allegedly under charter to defendants, citizens of Canada. (Defendant Munsen may also be a citizen of Norway). Jurisdiction is based upon Supplemental Rule B(1) of the Federal Rules of Civil Procedure *fn1" and the garnishment of a bank account in the amount of $8,851.38 on deposit with garnishee defendant in the name of Pacific Seatrans, but allegedly the property of all defendants. Defendants seek dismissal alleging lack of jurisdiction upon the ground that both the remedy and procedure prescribed in Rule B(1) violate the due process clause of the fifth amendment of the U.S. Constitution. They contend that the recent case of Shaffer v. Heitner2 indicates that jurisdiction based on attachment is no longer permissible without the presence of minimum contacts. They further contend that the procedure used to seize their bank account was improper since it provided them no protection against mistaken deprivation of property as required by the Sniadach v. Friendly Finance Corp.3 line of cases. *fn4"

 Plaintiff maintains a fueling facility in Freeport, Grand Bahama Island. In early July, 1977, KUIBSHEVGES, allegedly owned by Murmansk Shipping Company (not involved herein) and under charter to defendants, called at Grand Bahama's facility to take on bunkers. Plaintiff avers that it agreed to provide approximately 330 metric tons at a specified price plus barge fees (presumably hire) upon the promise of defendants to contemporaneously deposit $45,000.00 with plaintiff, any excess to be refunded. Grand Bahama supplied the vessel with 2,296 barrels of fuel on or about July 6 and charged defendants $40,363.68 plus barge fees of $600.00 therefor. Defendants apparently failed to make the required deposit and have not paid the amount due, or any part thereof.

 Grand Bahama filed suit in this district August 3, 1977 to recover this debt from defendants. Since none of the defendants could be found within this district, Grand Bahama sought to attach any of their property which could be so found pursuant to Rule B(1). Remedies provided by state law are not involved. Plaintiff filed an amended complaint on August 9, 1977 and defendants filed an appearance on September 6. On November 28, 1977 defendants filed a motion to dismiss the action for lack of jurisdiction.

 Before proceeding to the merits of the motion, it is necessary to consider a contention advanced that a federal district court lacks the power to declare a rule of the Supreme Court unconstitutional. *fn5" It is argued that should a district court strike a rule, it is tantamount to ordering the Supreme Court to rewrite it, which is, of course, improper since Congress specifically conferred that power upon the Supreme Court pursuant to 28 U.S.C. ยง 2072. *fn6" It is also noted that no rule of court can enlarge or restrict jurisdiction, *fn7" nor can a rule abrogate or modify the substantive law. *fn8" It is apparently inferred that a rule promulgated by the Supreme Court, by definition, cannot violate the Constitution.

 I do not agree. The Supreme Court does not promulgate rules in the same manner it decides questions of law. When engaged in rule-making, the Court acts only in an administrative and not a judicial capacity. The federal rules of procedure "are the work of very capable advisory committees. Those committees, not the Court, wrote the rules." *fn9" While the Court certainly considers the constitutionality of a rule recommended by a committee, it is not possible for its members to anticipate every constitutional objection. The Court itself has recognized this. "The fact that this Court promulgated the rules as formulated and recommended by the Advisory Committee does not foreclose consideration of their validity, meaning or consistency." *fn10"

 While institutional propriety must be considered whenever a district court undertakes an examination of the federal rules, such considerations may not take precedence over this court's constitutional obligations. Issues of constitutional dimension must be determined by the courts. "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them." *fn11"

 It has long been the law that the rule-making power delegated by Congress to the Supreme Court is limited in scope to those which Congress could have rightfully exercised. *fn12" If Congress had promulgated Rule B(1), there is no question that this Court could consider a properly presented constitutional challenge to it. This fact is not altered simply because the Supreme Court promulgated Rule B(1) under powers delegated by Congress. "[A] constitutional prohibition cannot be transgressed indirectly . . . any more than it can be violated by direct enactment." *fn13"

 Furthermore, the fact that Rule B(1) may be a rule of substance rather than procedure is immaterial. I am "aware of no principle which protects a longstanding axiom of law from being invalidated when it is antiquated and offends some portion of the Constitution as currently interpreted by the Supreme Court." *fn14"

 Finally, it is argued that federal rules should not be changed by case law. Rather, changes should be left to the Supreme Court pursuant to its rule-making powers. This contention is without merit. The question at issue is not merely whether Rule B(1) should be amended, but whether it is constitutionally valid.

 Since I may properly consider a constitutional challenge to a rule promulgated by the Supreme Court, it is now appropriate to consider the merits of defendants' motion. Defendants contend, on the basis of Shaffer v. Heitner, that Rule B(1) violates the due process clause of the fifth amendment because it permits this federal court "to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and [this district]." *fn15" Because there are superficial similarities between Shaffer and this action, Shaffer will be explored at length.

 Shaffer holds, of course, that in cases involving a non-resident defendant, the jurisdiction of the state court is to be measured by the minimum contacts standard enunciated in International Shoe Co. v. Washington.16 In other words, where a non-resident defendant is involved, in rem and quasi-in-rem jurisdiction are merged into in personam jurisdiction.

 The facts of Shaffer are as follows: Heitner owned one share of stock in Greyhound Corporation which was incorporated in Delaware with its principal place of business in Arizona. He filed a shareholder's derivative suit in Delaware against Greyhound, its wholly owned subsidiary Greyhound Lines, and twenty-eight present or former officers or directors of one or both of the corporations, alleging that defendants had breached their duties to Greyhound by conducting unlawful activities in the State of Oregon. Pursuant to Delaware's sequestration statute, Heitner had 82,000 shares of Greyhound common stock belonging to nineteen of the individual defendants sequestered as well as options belonging to another two defendants. The purpose of the sequestration was to compel defendants to answer and defend the suit. Defendants challenged the sequestration on constitutional grounds. The Delaware courts upheld the validity of the statutes but the Supreme Court of the United States reversed:

The Delaware courts rejected [defendants'] jurisdictional challenge by noting that suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered [defendants'] claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565. *fn17"

 The Court reexamined Pennoyer v. Neff. It determined that the jurisdictional parameters developed in Pennoyer were based on concepts of sovereignty. Pennoyer limited the jurisdiction of a state court to the persons or property found within the state's borders. Even out of state service was ineffectual. *fn18" The Court then traced the in personam wing of Pennoyer to the present and determined that it had "collapsed" upon the formulation of the minimum contacts standard of International Shoe.19 Similarly, upon tracing the in rem20 wing of Pennoyer to the present, the Supreme Court found that it had been sufficiently eroded to merit a reconsideration of its validity. *fn21"

 Just as the in personam wing of Pennoyer collapsed under the weight of International Shoe, the Court, in section III of its opinion, used International Shoe to collapse the in rem wing of Pennoyer. It was persuaded to do so by the following argument:

 In balancing this argument against those advanced in support of in rem jurisdiction, the Court specifically considered

the significance of the long history of jurisdiction based solely on the presence of property in a State . . . This history must be considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process [cite omitted] but it is not decisive . . . The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendant. *fn23"

 Thus, the Supreme Court relegated the presence of property within a state to a mere indication of the presence of minimum contacts. It overruled its prior decisions to the extent that they are inconsistent with the standard of minimum contacts. *fn24" The Court went on to hold that Delaware did not have sufficient contacts to maintain jurisdiction over the defendants.

 It is clear that this action bears some similarity to Shaffer. The primary purpose of the Delaware sequestration statute and Supplemental Rule B(1) is to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him through the seizure of any property which might be found in the geographical area over which the court has jurisdiction. *fn25" Similarly, I am asked to consider the constitutionality of an ancient form analogous to sequestration, the writ of "maritime" foreign attachment. *fn26" Finally, the only contacts which the defendants in this case appear to have with this district is the existence of a bank account in a local Seattle bank. This may be more substantial than the contacts the Shaffer defendants had with Delaware, but it is a limited contact nonetheless.

 The test of due process is one of flexibility. It calls for "such procedural protections as the particular situation demands." *fn27" In Shaffer the Supreme Court essentially struck a new balance between competing aspects of jurisdiction, in personam "contacts" vis a vis "state sovereignty." It is now clear that "contacts" outweigh "sovereignty" when a state court seeks to compel a non-resident defendant to answer and defend a lawsuit. But in admiralty these interests have never been in substantial conflict; the action against property is the keystone of admiralty jurisprudence. Thus, the ...

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