STATEMENT OF FACTS
Prepared by Counsel.
On the morning of November 19, 1952, the Tug KEVIN MORAN was inbound for the port of Pascagoula, Mississippi. In Pascagoula she was to pick up a larger vessel and take her in tow, which in fact she did. While within Mississippi Sound, within the coastal waters of Mississippi, the Oil Screw A. OLIVEIRA approached the tug for the purpose of putting aboard a pilot to aid the tug in coming into Pascagoula. In the course of the maneuvers which followed, the vessels came into collision, the A. OLIVEIRA was so damaged that she sank and became a constructive total loss. The libelants as owners of the A. OLIVEIRA have filed a libel seeking to recover damages for that loss.
Service was attempted upon the respondents by serving the Secretary of State of Mississippi under Mississippi Code Section 1437.
Respondent Moran Towing and Transportation Co., Inc., filed a motion to quash service and the parties stipulated as follows:
STIPULATION
"1. Moran Towing and Transportation Co., Inc., (hereinafter called Moran) was the charterer and operator of Tug KEVIN MORAN at the time of the collision, November 19, 1952, and appears specially in this suit for the purpose of testing jurisdiction without any further efforts of obtaining service of process through the Secretary of State.
"2. On November 19, 1952, the Tug KEVIN MORAN was bound for Pascagoula where she was to pick up and take into tow a section of the SS McKEE SONS to tow it from Pascagoula, Mississippi, to Baltimore, Maryland. This is the nature
of the business, or the type of service, that the Tug KEVIN MORAN ordinarily does or performs. It was while the Tug KEVIN MORAN was in Mississippi Sound, within the coastal waters of the State of Mississippi, and inbound for Pascagoula for the purpose above stated, that the matters complained of in the libel occurred.
"3. Moran is a New York corporation with its sole office and place of business in New York. It has not qualified to do business in Mississippi under the laws of that state.
"4. Service of process is sought under Mississippi Code, Section 1437.
"5. On November 19, 1952, the Tug KEVIN MORAN had no tow and was not earning any money for Moran. She was enroute from Charleston, South Carolina, bound for Pascagoula, where she was to commence performance of a contract, entered into in the State of New York, providing for the towage of a section of SS McKEE SONS from Pascagoula, Mississippi, to Baltimore, Maryland. This was the only contract entered into by Moran in 1952 which required the presence of any personnel of Moran to be within the State of Mississippi during the year 1952 and no vessel, equipment, property or personnel of Moran was in Mississippi on any other occasion in that year. The last occasion prior to the incident in suit when a Moran operated tug was in Mississippi was in September, 1951, when Tug CODRINGTON towed a derrick from Jacksonville, Florida to Gulfport and the first such occasion after the incident in suit was in April 1957 when Tug JULIA C. MORAN towed SS BADGER MARINER from Hoboken, New Jersey to Pascagoula. Each of these tows was in interstate commerce and was performed pursuant to contracts made in New York, and the tugs engaged in no activities in Mississippi except what was necessary in order to deliver or pick up said tows. In 1952, Moran made 22,107 tows which were neither to nor from points in Mississippi."
Libelants in opposition to the motion also urged the Mississippi Boating Act of 1960:
"The acceptance by a nonresident of the right and privileges of operating a vessel or motorboat on any of the waters of this state, as evidenced by his operating, either in person or by agent or employee, a vessel or motorboat upon any of the navigable waters of this state, shall be deemed equivalent to an appointment by such nonresident of the Secretary of State of the State of Mississippi to be his true and lawful attorney, upon whom may be served all lawful processes or summonses in any action or proceeding against him, growing out of a violation of the provisions of this act, or of any accident in which said nonresident may be involved while operating the vessel or motorboat on the navigable waters of the state, and such service of process may be had in the same manner as is provided by chapter 262, laws of 1958 (§ 9352-61), for the service of process on nonresidents operating motor vehicles upon the highways of this state, and shall have the same effect." Code Miss. 1942, § 8496-27.
The matter was heard on the motion and stipulation.
MIZE, Chief Judge.
I have considered carefully the stipulation in the above styled case and the briefs thereon and have reached the conclusion that this Court does not have jurisdiction over the person of the defendants and that the service of process upon the Secretary of State under and by virtue of Section 1437 of the Mississippi Code of 1942 should be quashed, and that the libel must be dismissed.
I think the case of Mississippi Wood Preserving Company v. Rothschild, 5 Cir., 201 F.2d 233 is conclusive. Judge Hutcheson, after discussing several authorities, particularly discussing the question of Davis-Wood Lumber Company v. Ladner, 210 Miss. 863, 50 So.2d 615, and after holding that each case does depend on its own facts and referring to the decision of the Supreme Court of Mississippi, concluded as follows: "On the contrary, it has made it plain that it does not construe it literally and as conferring jurisdiction on a single act or acts, but construes it as requiring a series of acts amounting to a continuity before it can be held under the statute, that there is a doing of business in the state" (emphasis supplied).
It is not necessary to refer to other authorities as I see the question. There was in the present case no series of acts amounting to a continuity of business and, therefore the statute as construed by the State of Mississippi in this Circuit does not embrace jurisdiction on the facts set out in the present libel.
The most serious question arising, in my judgment, is the construction of the Mississippi Boating Act of 1960, being Sections 8496-27, which provides that the acceptance by a non-resident of the right to operate a vessel in the waters of Mississippi thereby appoints the Secretary of State as his attorney to receive process. However, this Act appears to me to be intended for future operations since the passage of this Act. There is nothing in the Act to indicate that it was intended as retroactive, but the language used indicates it is intended for future operations after passage of the Act. I think this Act is constitutional, but must be applied to occurrences that take place after its passage and does not apply to a tort that was committed in 1952.
The McGEE case (McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223) was based upon a statute passed before the cause of action arose. The policy was issued prior to the passage of the Act but the death did not occur until after the Act had been passed, and therefore this case is not controlling in the instant cause of action.
An order may be drawn in accord herewith.