6 Fla. L. Weekly Supp. 489a
Jurisdiction — Nonresidents — Contracts — Marine insurance — Foreign association which provided policies of insurance with respect to vessel owned by plaintiff, a foreign shipping company, lacks requisite minimum contacts to justify exercise of personal jurisdiction and is not engaged in “substantial and not isolated” business activity which would provide basis for exercise of general jurisdiction — Section 626.906, Florida Statutes, which is part of Florida’s Unauthorized Insurers Process Law, cannot provide basis for jurisdiction because it only applies to policies issued for delivery to Florida residents, a circumstance not present in instant case — Defendant’s use of correspondents in several of Florida’s ports and act of sending surveyors to examine damage after vessel was brought into Florida port following casualty not sufficient to establish specific jurisdiction over defendant — Contacts by insurer resulting from issuing of letters of undertaking when casualty may have arisen in Florida or elsewhere in the United States to stand in place of vessel on behalf of owner not sufficient to establish minimum contacts — Venue — Even if jurisdiction existed, action would be dismissed for lack of proper venue given venue provision in foreign maritime code which was incorporated into hull and machinery policy and which mandates that venue for resolution of dispute is in Sweden, the country where defendant is located and where insurance was issued
Reversed and remanded at 26 Fla. L. Weekly D140a
GLOVEGOLD SHIPPING LIMITED, Plaintiff, v. SVERIGES ANGFARTYGS ASSURANS FORENING d/b/a THE SWEDISH CLUB, Defendant. 4th Judicial Circuit in and for Duval County. Case No. 98-04487-CA, Division CV-D. April 27, 1999. L.P. Haddock, Judge. Counsel: Courtney W. Stanton, Jacksonville, for Plaintiff. George D. Gabel, Jr., and Timothy J. Conner, Holland & Knight, LLP, Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND TO QUASH SERVICE
This cause came before the Court for hearing on the motion of defendant, SVERIGES ANGFARTYGS ASSURANS FORENING d/b/a The Swedish Club (“The Swedish Club”), to dismiss this action and to quash service of process, inter alia, supported by the affidavit of Mr. Lars Rhodin, The Swedish Club’s Director of Claims & Legal Support Department. The Swedish Club requests that this action be dismissed for lack of venue, and lack of personal jurisdiction. Plaintiff, Glovegold Shipping Ltd., (“Glovegold”), opposes the motion and has filed numerous affidavits in support of its opposition. After having heard the arguments of counsel, and considering the affidavits and other filings of the parties, the Court determines that The Swedish Club’s motion should be granted.
This case involves a dispute over coverage under a contract of marine insurance between two foreign companies. Glovegold, plaintiff, is a Maltese company which owned and operated the M/V ANTHENOR EXPRESS (the “ANTHENOR EXPRESS” or “vessel”), and with a principal place of business in Piraeus, the Hellenic Republic. The Swedish Club is an association organized under the laws of Sweden for the purpose of conducting insurance for its members, and having its principal place of business in G”teborg, Sweden. It provided policies of insurance to Glovegold for Hull & Machinery (“H&M”), Protection & Indemnity (“P&I”), and Freight Demurrage and Defence (“FD&D”), with respect to the ANTHENOR EXPRESS.
The Swedish Club issued those policies in G”teborg, Sweden. Glovegold was owned by a London holding company, Glovegold Ltd., the ANTHENOR EXPRESS was one of many vessels managed by Denholm Ship Management (UK) Ltd. based in Glasgow, Scotland, and the insurance was placed by the management company through brokers in London. Thus, with respect to both the placement and issuance of the insurance in this case, there was no connection with the state of Florida or the United States.
It has been established that The Swedish Club is neither incorporated in nor authorized to transact business in Florida; has no agents, employees, agency or offices in Florida; and does not in any manner transact, operate, conduct, engage in or carry on business or any business venture in Florida. The Swedish Club does not sell, consign, or lease by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers, or distributors, to any person, firm or corporation in Florida. The Swedish Club’s contacts with this state since 1991 at least have been extremely limited.
The Swedish Club has raised the issue of lack of personal jurisdiction over it. There are two kinds of personal jurisdiction that a court may properly exercise over a nonresident defendant: General jurisdiction and specific jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984). Specific jurisdiction exists when a state exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum. For general jurisdiction to exist, the defendant must be found to have maintained continuous and systematic general business contacts with the forum, so that it can properly be considered to be “present” in the forum. American Overseas Marine Corp. v. Patterson, 632 So.2d 1124 (Fla. 1st DCA 1994). Glovegold has not pled which statute it relies on for personal jurisdiction, but it appears from paragraphs 4, 5, 6, and 12 of the amended complaint it is relying on either §626.906, part of Florida’s Unauthorized Insurers Process Law (“UIPL”), or §48.193(1)(d). The Court finds that neither of these provisions, nor any other portion of the “long-arm” statute, provide a basis for personal jurisdiction here.
The Court finds that The Swedish Club lacks the requisite minimum contacts to justify the exercise of personal jurisdiction over it as well. Furthermore, the Court finds that The Swedish Club is not engaged in “substantial and not isolated” business activity so that there is no basis for the exercise of general jurisdiction in this case.
In addition, §626.906 cannot provide a basis for jurisdiction since it only applies to policies issued for delivery to Florida residents, which was not the case here. Also, §626.906 requires a finding of minimum contacts, which the Court finds are lacking in this case.
In Florida, to establish specific jurisdiction, a plaintiff must show that a defendant has committed one or more of the acts enumerated in §48.193(1), Florida Statutes, and, in addition thereto, has sufficient “minimum contacts” with Florida in order for a court to exercise personal jurisdiction. Price v. Point Marine, Inc., 610 So.2d 1339 (Fla. 1st DCA 1992).
The act which plaintiff has alleged here is described in §48.193(1)(d), as “contracting to insure any person, property, or risk located within this state at the time of contracting.” Plaintiff has filed an affidavit from one of the managing directors of Glovegold Shipping Ltd. in which he says that the vessel may well have been in Florida at the time the contract of insurance was entered into, although the affidavit describes a scheduled visit and not a specific time that the vessel was in Florida. The affidavit does not show where the vessel was at the time the risk actually commenced.
Even if §48.193 were applicable, plaintiff must also show minimum contacts with the state of Florida. The First District Court of Appeal has made itself quite clear in shipping matters the type of contacts which are not sufficient for jurisdiction, and it is those contacts which I find here. For example, in the case of Ocean Chemical Transport, Inc. v. Cotton, 1998 A.M.C. 38, 702 So.2d 1272 (Fla. 1st DCA 1997), the acts of the defendant shipping company consisted of the defendant’s recruitment of 47 employees, including plaintiff, 22 of whom were listed as Florida residents, the calling of defendant’s vessels in Florida ports 21 times between 1991 and 1996, and defendant’s hiring of Florida-based shipping companies as husbanding agents who arranged for supplies, paid dockage fees, assisted with arranging crew and recruitment changes, and facilitated payroll delivery to the ship. The defendant had engaged the services of at least four husbanding agents in the state of Florida, who also had authority to sign bills of lading. The defendant shipping company also maintained an escrow account with the state of Florida in order to be able to ship pollutants in the jurisdiction. The District Court of Appeal held that those acts were insufficient to establish specific personal jurisdiction.
In this case the only facts to establish specific jurisdiction as set forth by the plaintiff are that The Swedish Club has correspondents in several of the ports of Florida and sent surveyors to examine the damage after the vessel was brought into the port of Jacksonville following the casualty. Plaintiff has propounded some discovery to which the defendant has objected seeking information concerning the activities of those correspondents in the state of Florida. Defendant has objected on the grounds that the information is irrelevant. The Court agrees. If the employment of husbanding agents every time a ship comes to Florida is not sufficient to establish specific or general jurisdiction then certainly the use of law firms to handle any legal matters which may occasionally arise is insufficient.
Plaintiff has made inquiry in its discovery about letters of undertaking which may have been issued by The Swedish Club when a casualty may have arisen in Florida or elsewhere in the United States to stand in place of the vessel on behalf of the owner. Defendant has also objected to that inquiry as irrelevant, based upon the case of Hassneh Insurance Co. of Israel, Ltd. v. Plastigone Technologies Inc., 623 So.2d 1223 (Fla. 3rd DCA 1993). Contacts by the insurer must be the result of deliberate and purposeful action, not something over which the insurer had no control, and the providing of an indemnity agreement by an Israeli insurance company in Florida was not sufficient to establish minimum contacts. See, Bookman v. KAH Incorporated, Inc., 614 So.2d 1180, 1182 (Fla. 1st DCA 1993).
The Court has examined the other discovery requested of plaintiff by defendant on the issue of jurisdiction and finds that it is irrelevant as well. The First District Court of Appeal has made it clear that where a vessel is brought to Florida by a charterer or through other circumstances not within the control of the defendant, there are no minimum contacts to satisfy specific or general jurisdiction. See, American Overseas Marine Corp. v. Patterson.
The Swedish Club also raises lack of venue because of the incorporation of Swedish Law into the insurance contract. The provisions of the insurance at issue specifically provide that Swedish law governs. This is made clear on page 1 of the H&M policy as follows:
This insurance is subject to Institute Time Clauses — Hulls 1-10-83, current circulars, the Articles of Association and Swedish law.
The Swedish Maritime Code, the Swedish law which is applicable here, requires the venue of any dispute involving maritime insurance be placed with the Swedish Average Adjuster located in Sweden. Chapter 17 of the Swedish Maritime Code provides in relevant part:
Section 2 . . . In Sweden, adjustments are made by an Average Adjuster. The Average Adjuster shall be appointed by the Government. He shall be learned in law….
Section 9 Disputes in the liability of an insurer on account of marine insurance shall be referred to investigation and decision by adjustment (Particular Average Statement). Unless otherwise agreed, the investigation shall be conducted at the place where the insurance contract was made or where such adjustment is usually conducted in that area ….
Even if there were jurisdiction over the defendant, this Court would decline to exercise that jurisdiction. These provisions of the Swedish Maritime Code are an integral part of the insurance contract between the parties since they have been incorporated by reference to Swedish law. There is only one Average Adjuster, and that person is based in G”teborg, Sweden, acting as a semi-judge in marine insurance disputes, among other things. The use of an Average Adjuster for the purposes of resolving disputes is a very old institution in Sweden and Norway. Any order of the Adjuster is binding unless it is appealed to the District Court as provided in Chapter 21, Section 6 of the Swedish Maritime Code. The use of the word “shall” indicates that the clause is mandatory, not permissive.
It is well settled that parties to a contract have the right to chose the forum or venue in which disputes arising out a contract will be resolved. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Manrique v. Fabbri, 493 So.2d 437 (Fla. 1986).
This court finds that the choice of venue provision in the Swedish Maritime Code, and as incorporated into the H&M policy, is binding on the parties and mandates that venue for the resolution of this dispute is in Sweden. The current dispute, i.e., whether there is insurance coverage for a casualty, is well within the parameters of the venue provision. Moreover, the Court finds that Sweden as a choice of forum is reasonable. It is where The Swedish Club is located and where the insurance was issued. It is not a remote alien forum. Furthermore, it is clear that the dispute involved here is not an inherently local one. There is no evidence that the incorporation of the venue provision was intended to discourage the pursuit of legitimate claims, or the inclusion was accomplished by fraud or overreaching.
The Court finds that there is no personal jurisdiction of The Swedish Club in this case, and in any event the action would be dismissed for lack of proper venue. The Court need not reach the other grounds for dismissal raised by The Swedish Club given these findings.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The motion to dismiss of The Swedish Club for lack of personal jurisdiction over it is GRANTED, and service of process herein is QUASHED.
2. The motion to dismiss of The Swedish Club for lack of venue in this case is GRANTED.
3. Accordingly, this action is hereby DISMISSED for the reasons stated.
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