United States Court of Appeals,

Fifth Circuit.

No. 96-30095.

WORLD TANKER CARRIERS CORP., Plaintiff-Appellant,

v.

MV YA MAWLAYA, her engines, boilers, tackle, furniture, apparel, etc., in rem, et al.,

Defendants.

Kara Mara Shipping Company Limited; Holbud Ship Management, Ltd.; Holbud Ltd.; Hydery

( P ) Ltd., in personam; Vestman Shipping Co., Sperex Shipping Company, Limited; SNP Ship

Management and Consultation Bureau of Bombay; SNP Shipping Service Private Limited;

Roshanali Merali Roshanali Rajabali Dewji; Hasnain Merali; Shaukat A. Merali, DefendantsAppellees.

CIRPRIANO B., Plaintiff,

v.

NEW WORLD MT, her engines, boilers, tackle, furniture, apparel, etc., in rem, et al.,

Defendants.

CEREOL ITALIA SRL, Plaintiff-Appellant,

v.

MV YA MAWLAYA, her engines, boilers, tackle, etc., et al., Defendants.

Salome de Guia ENRIQUEZ; Marisusa A. Recana, individually, as widow and administratrix of

the succession of Solito S. Recana and as guardian/natu ral t ut rix o f the minor children, April A.

Recana, Jenny-Lynn A. Recana and Caroline A. Recana; Corazon C. Amulong, individually, as

widow and administratrix of the succession of Felix C. Amulong and as guardian/natural tutri x of the

minor children Alexander Amulong & Alexis Amulong; Conrado A. Mendoza, individually and as

administrator of the succession of his son, Edmundo Mendoza; Felicidad A. Mendoza, mother of

Edmundo Mendoza; Arlene Manzanida, individually, as widow and administratrix of the succession

of Noli Manzanida and as guardian/natural tutri x of the minor children, Krishna Manzanida, Krishtian

Ace Manzanida & Krizhzar Manzanida, Plaintiffs-Appellants,

v.

WORLD TANKER CARRIERS CORP., et al., Defendants.

Arlene MANZANIDA, individually, as widow and administratrix of the succession of Noli

Manzanida, and as guardian/natural tutri x of the minor children, Krishna Manzanida, Krishtian Ace

Manzanida and Krizhzar Manzanida, et al., Claimants,

Cereol Italia, SRL, Claimant-Appellant,

Cipriano B. Dela Cruz, Claimant-Appellant,1 These additional defendants-appellees include Holbud Ship Management Ltd., Holbud Ltd.,

Hydery (P) Ltd., Sperex Shipping Co., Ltd., SNP Ship Management & Consultation Bureau of

Bombay; SNP Shipping Service Private Ltd., Roshanali Merali Roshanali Rajabali Dewji, Hasnain

Merali, and Shaukat A. Merali. Herein, all Ya Mawlaya interests will be collectively referred to as

"Kara Mara" or "Appellees."

2 Cereol Italia Srl.'s motion for voluntary partial dismissal of its appeal as to Appellee Kara

Mara Shipping Company, Ltd. in its suit (Civil Action 95-511) has been granted pursuant to Local

Rule 42.1, without prejudice to Cereol's appeal as to the remaining Appellees. Kara Mara Shipping Company, Ltd., as Disponent Owner of the M/V Ya Mawlaya, Petitioner.

Lorena A. SUMBI, individually as widow and administratrix of the succession of Emilio V.

Sumbi, and as guardian/natural tutri x of the minor children, Ramil A. Sumbi and Emmanuel A. Sumbi,

Plaintiff-Appellant,

v.

WORLD TANKER CARRIERS CORP., et al., Defendants.

Nov. 14, 1996.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, DUHÉ and BENAVIDES, Circuit Judges.

DUHÉ, Circuit Judge:

Plaintiff-Appellant World Tanker Carriers Corp. appeals the district court's dismissal of its

marit ime law claim against Defendants-Appellees M/V Ya Maw laya, et al. 1 for want of personal

jurisdiction. The court held that Appellant could not assert personal jurisdiction over Appellees

pursuant to either the Louisiana long-arm statute or Fed.R.Civ.P. 4(k)(2). Because we conclude that

the district court erred in its interpretation of Rule 4(k)(2), we reverse and remand.

I. FACTUAL BACKGROUND

Two vessels, the M/V Ya Maw laya (" Ya Maw laya ") and the M/V New World (" New World "),

colli ded in international waters off the coast of Portugal. The N ew World, an ocean-going tanker

registered under the l aws o f Hong Kong and owned by Appellant World Tanker Carriers Corp.

("World Tanker") of Liberia, was proceeding from Gabon t o France. The Y a Maw laya, an

ocean-going bulk carrier registered under the laws of Cyprus, was proceeding to Italy with a cargo

of soybeans, owned by Cereol Italia Srl. 2 and loaded in Destrahan, Louisiana, within the port of New

Orlean s. The ownershi p of the Y a Maw laya is unclear; World Tanker alleges that the ship's3 Kara Mara Shipping Company, Ltd., however, did not move to dismiss its limitation action,

which is consolidated with the other actions. That action, therefore, is still pending before the

district court. Pursuant to Fed.R.Civ.P. 54(b), however, the instant appeal is properly certified to

us. registered owner is Kara Mara Shipping Company, Ltd., of Cyprus, while Appellees claim that the

owner is Vestman Shipping Company, Ltd., also of Cyprus. Both have been named as defendants

along with others, as individuals and as companies, all foreign, who allegedly have ownership or

management interests in the Ya Maw laya, Vestman Shipping Company , Ltd., and/or Kara Mara

Shipping Company, Ltd.

The collision caused an explosion and fire, resulting in t he deaths of eight crew members,

personal injury to others, and property damage to the vessel s and their cargoes. Several lawsuits

were filed as a result: World Tanker sued Kara Mara under the general marit ime law for damages

arising from the collision (Civil Action number 94-4190); Cereol Italia Srl., the owner of the Y a

Maw laya 's cargo, sued both Kara Mara and World Tanker under the Carriage of Goods at Sea Act

(COGSA), 14 U.S.C. 1300 et seq., for the loss of its cargo (95-511); New World crewmen or their

survivors sued World Tanker and Kara Mara for injuries and deaths (95-396, 95-1151, and 95-3295).

In response to these suits, Kara Mara Shipping Company, Ltd. filed a limitation action (95

- 1948).

All suits were consolidated.

Appellees moved to dismiss all proc eedings against them, asserting as a defense lack of

p ersonal jurisdiction. 3 World Tanker, the lead plaintiff, opposed this motion, advancing t wo

jurisdictional theories. First, World Tanker asserts that Appellees are subject to jurisdiction in the

Eastern District of Louisiana under the Louisiana long-arm statute; this claim depends on the extent

of Appellee's "minimum contacts" with Louisiana. Second, World Tanker argues that even if the

court finds that minimum contacts have not been established, Appellees are nonetheless subject to the

long-arm jurisdiction of the district court pursuant to Fed.R.Civ.P. 4(k)(2) based on their contacts

with the nation as a whole.

The district court disagreed, granting Appellees' motion to dismiss and holding that neither

the state long-arm statute nor Rule 4(k)(2) provides a basis for personal jurisdiction over Appellees.4 Because we remand for further proceedings consistent with this opinion, we need not reach

the merits of World Tanker's claim under the Louisiana long-arm statute. The court first found that World Tanker failed to establish a prima faci e case of jurisdiction

demonstrating Appellees' minimum contacts with Louisiana sufficient to satisfy the due process

requirements of the state long-arm statute. The court then dismissed the case for lack of jurisdiction

on the theory that it could not order the requested ad dit io nal jurisdictional discovery under Rule

4 (k)(2) because the consolidated cases did not present a claim "arising under federal law," the

jurisdictional predicate of Rule 4(k)(2). The court interpreted this phrase as a reference to "federal

question cases" and therefore found the rule inapposite insofar as World Tanker had not raised a

federal question claim against Kara Mara. Because we disagree with the court's interpretation of Rule

4(k)(2), we cannot today hold that World Tanker cannot establish a prima facie showing of personal

jurisdiction. We therefore reverse and remand for additional jurisdictional discovery pursuant to Rule

4(k)(2). 4

II. STANDARD OF REVIEW

"When the facts are not in dispute, we review de novo a district court's determination that

its exercise of personal jurisdiction over a nonresident defendant is proper." W ilson v. Belin, 20 F.3d

644, 647-48 (5th Cir.1994); s ee also Felch v. Transportes Lar-Mex Sa De CV et al., 92 F.3d 320,

324 (5th Cir.1996).

III. DISCUSSION

A. National Contacts Pursuant to Rule 4(k)(2)

1. Scope of Rule 4(k)(2)

Fed.R.Civ.P. 4(k)(2) provides:

If the exercise of jurisdiction is consistent with the Constitution and laws of the United States,

serving a summons or filing a waiver of service is also effective, with respect to claims arising

under federal law, to establish personal jurisdiction over the person of any defendant who is

not subject to the jurisdiction of the courts of general jurisdiction of any state.

Rule 4(k)(2) thus sanctions personal jurisdi ct io n o ver foreign defendants for claims a rising under

federal la w when the defendant has sufficient contacts with the nation as a whole to justify the

imposition of United States' law but without sufficient contacts to satisfy the due process concernsof the long-arm statute of any particular state. S ee Pacific Employers Ins. Co. v. M/T Iver Champion

et al, No. 91-0911, 1995 WL 295293, at *5 (E.D.La. May 11, 1995); 4 Charles A. Wright & Arthur

R. Miller, Federal Practice & Procedure § 1069 (Supp.1996).

At the core of this case is whether admiralty actions arise under federal law, an issue of first

impression for this Court. Before we determine whether admiralty claims fall under Rule 4(k)(2), we

must first consider the meaning of "arising under federal law." World Tanker argues that the district

court improperly reads the jurisdictional predicate of Fed.R.Civ.P . 4(k)(2) narrowl y as to

circumscribe solely federal question cases. Several arguments rooted in text and legislative history

support World Tanker's proposition.

The text of Rule 4(k)(2) does not, by its terms, limit itself solely to federal question cases.

Instead, the rule states that it applies to "claims arising under federal law," the plain meaning of which

incorporates all substantive federal law claims. The Advisory Co mmittee Notes following Rule

4(k)(2) buttress this argument. Throughout its discussion of the Rule, the Advisory Committee refers

to federal law broadly as substantive law, not narrowly as a jurisdictional requirement pursuant to 28

U.S.C. § 133 1. Fo r example, the Advisory Committee states that Rule 4(k)(2) "authorizes the

exercise of territorial jurisdiction over the person of any defendant against who m is made a claim

arising under any federal law if that person is subject to personal jurisdiction in no state." (emphasis

added). The use of the word "any" to qualify "federal law" strongly suggests that the Advisory

Committee intended Rule 4(k)(2) to reach not just federal question cases under § 1331 but all claims

arising under substantive federal law. As the court in U nited Trading Company S.A. v. M.V. Sakura

Reefer et al. points out, had the Advisory C o mmittee meant to limit the scope of Rule 4(k)(2) to

federa l quest io n claims, it clearly could have done so. No. 95-2846, 1996 WL 374154, at *4

(S.D.N.Y. July 2, 1996) (holding that Rule 4(k)(2) does apply to admiralty cases). Instead, it chose

to describe the rule with the phrase "any federal law."

The Advisory Committee concludes its discussion by distinguishing federal law as substantive

law distinct from state law, stating that "[t]his narrow extension of the federal reach applies only if

a claim is made against the defendant under federal law. It does not establish personal jurisdiction5 In their discussion of Rule 4, commentators Wright and Miller define "federal question" as

follows:

The subject matter jurisdiction of the federal courts ordinarily is divided into

jurisdiction based on diversity of citizenship, as set out in 28 U.S.C.A. § 1331

[sic], and federal question jurisdiction, which encompasses 28 U.S.C.A. §§ 1332-

1364 [sic]. The term "federal question jurisdiction" sometimes is used more

narrowly to refer only to subject matter jurisdiction based on a claim arising under

the Constitution, laws, or treaties of the United States as provided in 28 U.S.C.A.

§ 1332 [sic]. The term is used in this section for its broader meaning.

4 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1067.1 n. 8

(1987 and Supp.1996) (incorporating this explanation in their discussion of Rule 4(k)(2)).

References to "federal question jurisdiction" are thus to be used interchangeably with

descriptions of non-diversity federal claims.

6 484 U.S. 97, 108-10, 108 S.Ct. 404, 411-13, 98 L.Ed.2d 415 (1987). Speaking for a

unanimous Court, Justice Brennan called upon Congress to fill the gap: if the only claims are those arising under state law or the law of another country ...." Had the

Adviso ry Co mmittee intended to narrowly define "federal law" to refer only to subject matter

jurisdiction pursuant to § 1331, it would have compared "ari sing under" jurisdiction to diversity

jurisdiction, the other basis for federal court subject matter jurisdiction. Instead, it chose to compare

federal law with state law, suggesting that "federal law" is meant to be used in its broader, substantive

law sense. 5

The Rule's legislative history lends support to this argument. Rule 4(k)(2) was adopted not

as an adjunct to § 1331 but to correct an anomaly in the federal courts' in personam jurisdiction of

alien defendants. The Advisory Committee explained the purpose of the Rule:

Under the former rule, a problem was presented when the defendant was a non-resident of

the United States having contacts with the United States sufficient to justify the application

of United States law and to satisfy federal standards of forum selection, but having insufficient

contact with any single state to support jurisdiction under state long-arm legislation or meet

the requirements of the Fourteenth Amendment limitation on state court territorial

jurisdiction.

Thus, there was a gap in the courts' jurisdiction: while a defendant may have sufficient contacts with

the United States as a whole to satisfy due process concerns, if she had insufficient contacts with any

single state, she would not be amenable to service by a federal court sitting in that state. Although

the Supreme Court recognized this problem in Omni Capital International v. Rudolf Wolff & Co.,

it dec lined t o co rrect it by decisional rule. 6 "In O mni Capital, the Court determined that theWe would consider it unwise for a court to make its own rules authorizing service

of summons.... First, since Congress concededly has the power to limit service of

process, circumspection is called for in going beyond what Congress has

authorized. Second, as statutes and rules have always provided the measures for

service, courts are inappropriate forums for deciding whether to extend them.

Legislative rulemaking better ensures proper consideration of a service rule's

ramifications within the preexisting structure and is more likely to lead to

consistent application.

Id. at 109-10, 108 S.Ct. at 412-13.

7 The district court cited Omni Capital in support of its proposition that "arising under federal

law" encompassed only federal question cases. In Omni Capital, the Supreme Court urged a

modest expansion of extraterritorial service of process in federal-question cases, unanimously

observing that:

A narrowly tailored service of process provision, authorizing service on an alien in

a federal-question case when the alien is not amenable to service under the

applicable state long-arm statute, might well serve the ends of the [Commodity

Exchange Act] and other federal statutes.

Omni Capital, 484 U.S. at 111, 108 S.Ct. at 413 (emphasis added). This recommendation

is considered the direct impetus behind Rule 4(k)(2). But nothing in this recommendation

limits the federal long-arm provision solely to federal question cases in the narrow sense of

the term as employed in § 1331. In fact, the Advisory Committee Notes following the rule

state that because of the gap left open by the former rule, "the defendant was shielded

from the enforcement of federal law by the fortuity of a favorable limitation on the power

of state courts.... In this respect, the revision responds to the suggestion of the Supreme

Court made in Omni Capital Int'l v. Rudolf Wolff & Co., Ltd. ...." (emphasis added). Rule

4(k)(2), while responding to the suggestion of the Supreme Court, went further by

including all claims arising under any federal law. Neither the language of Omni Capital

nor the text or legislative history of Rule 4(k)(2) forecloses the possibility that cases

"arising under federal law" may include admiralty cases. See United Trading Co., 1996

WL 374154, at *4. jurisdiction of a federal court, even in federal question cases, in the absence of a statutory provision

for service, was limit

ed by the forum state's long-arm statute as a result of the incorporation by Rule

4(e), and not by the Due Process Clause." 4 Charles A. Wright & Arthur R. Miller, F ederal Practice

and Procedure § 1069, at 88 (Supp.1996). Rule 4(k)(2) was adopted in response to this problem

of a gap in the courts' jurisdiction; there is no suggestion in the Notes discussing Rule 4(k)(2) that

the Rule was meant as a companion to 28 U.S.C.A. § 1331. 7 For these reasons, we hol d, f or

purposes of Rule 4(k)(2), "arising under federal law" refers no t only to federal question cases as

understood in § 1331 but to all substantive federal law claims.

2. Applicability of Rule 4(k)(2) to Admiralty CasesConcluding that Rule 4(k)(2) does indeed encompass claims arising under federal law, the

issue becomes whether federal law incorporates admiralty law. In reaching its conclusion, the district

court may have re lied erro neously on the Supreme Court's opinion in R omero v. International

Terminal Operati ng Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), in which the Court

rejected the argument that all cases arising under the admiralty "common law" necessarily arise under

the federal question jurisdiction of federal courts under § 1331. The R omero principle has had

procedural importance in the context of removal jurisdiction, see e.g., In re Dutile, 935 F.2d 61, 63

(5th Cir.1991) (citing Romero to explain that cases of admiralty and general marit ime claims are not

removable under § 1441(a)), and the right to jury trial, see e.g., Rachal v. Ingram Corp., 795 F.2d

1210, 1216 (5th Cir.1986) (citing Romero for proposition that admiralty jurisdiction does not give

right to jury trial). But even Justice Frankfurter's opinion in R omero, referring repeatedly to "federal

maritime law," accepted uncritically the idea that the general marit ime law constitutes our national

law. In fact, the Supreme Court has long recognized the federal nature o f maritime law. S ee

Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 528-29, 61 L.Ed. 1086 (1917).

Article III, § 2, cl. 3 of the United States Constitution extends the judicial power of the federal

sovereign to "all Cases of admiralty and marit ime Jurisdiction." Congress first conferred the judicial

power upon federal courts to hear marit ime cases in the Judiciary Act of 1789. Today, that allocation

of judicial competence over marit ime claims is contained in 28 U.S.C. § 1333, which provides in part:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases

all other remedies to which they are otherwise entitled.

The first clause thus allocates to federal courts the power to hear any matter which is in admiralty,

regardless of the existence of a federal statute creating the marit ime right, diversity of citizenship, or

the minimum amount in controversy. S ee Frank L. Maraist, Admiralty 10 (3d ed. 1996). The second

clause grants state courts subject matter jurisdiction, concurrent with fede r al courts, over most

marit ime matters. S ee id. at 10-11. Significantly, the second clause does not "grant[ ] states the right

to apply their own substantive law to marit ime matt ers pending in their courts...." I d. at 11.

Application of the substantive law of that state with the most significant relationship to thecontroversy is appropriate only when the "mariti me but local" doctrine applies; that is, when the

matter is marit ime in nature but there is neither an applicable federal statute governing the claim nor

a perceived need for uniformity of marit ime law. S ee id. at 12; s e e also 14 Charles A. Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3671 (1985).

The substantive marit ime law of the United States is thus federal law, except in the limited

circumstances where the "maritime but local" doctrine applies. Policy concerns support a federal

admiralty law. The Supreme Court has long recognized the necessity of a uniform national maritime

law. S ee Southern Pacific, 244 U.S. at 217, 37 S.Ct. at 529 (stating that Constitution was designed

to establish uniformity in marit ime matters). This maritime law encompasses numerous statutes and

a substantial body of judge-made law. S ee Maraist, supra, at 6 ("[T]he federal judiciary, fashioning

a "federal admiralty common law.' has provided much of the substantive law of admiralty."); s ee also

14 Char les A. Wright, Arthur R. Miller & Edward H. Cooper, F ederal Practice and Procedure §

3671, at 419 (1985) (stating that constitutional grant of federal court jurisdiction over admiralty cases

"has assumed the existence of a uniform body of substantive marit ime law applicable throughout the

country.").

Indeed, courts have observed repeatedly that marit ime law is federal law. S ee e.g. Yamaha

Motor Corp., U.S.A. v. Calhoun, --- U.S. ----, ---- n. 8, 116 S.Ct. 619, 626 n. 8, 133 L.Ed.2d 578

(1996) (referring to "[t]he federal cast of admiralty law"); T ullier v. Halliburton Geophysical Svcs.,

Inc. et al., 81 F.3d 552, 553 n. 1 (5th Cir.1996) (referring to "federal marit ime law"); G uevara v.

Maritime Overseas Corp., 59 F.3d 1496, 1513 (5th Cir.1995) (referring to need for uniformity within

"federal admiralty law"). Moreover, since the enactment of Rule 4(k)(2), several district courts have

recognized its applicability to admiralty cases. See e.g. United Trading Co., 1996 WL 374154, at

*3-*4 (holding that claims arising under admir alt y law do fall within Rule 4(k)(2) rubric and

criticizing district court in World Tanker for its narrow reading of Rule 4(k)(2)); N issho Iwai Corp.

v. M/V Star Sapphire et al., No. 94-1599, 19 95 WL 847172, at *3 (S.D.Tex. Aug. 24, 1995)

(applying Rule 4(k)(2) to admiralty claim); E skofot A/S v. E.I. Du Pont De Nemours & Co. et al.,

872 F.Supp. 81, 87 (S.D.N.Y.1995) (same). For the reasons stated above, we conclude that federallaw includes admiralty cases for the purposes of Rule 4(k)(2).

3. Jurisdictional Analysis Under Rule 4(k)(2)

Concluding that Rule 4(k)(2) applies to cas es o f admiralty, we have satisfied the first

prerequisite to its employ ment . We must now consider whether the Rule provides a basis for

personal juri sdict io n o ver Appellees in the instant case. That is, we must determine whether

Appellees have contacts with the nation as a whole sufficient to satisfy due process concerns. The

now familiar minimum contac t s analysis is used to determine whether the assertion of personal

jurisdiction would offend "traditional notions of fair play and substantial justice." E skofot A/S, 872

F.Supp. at 87, c iting Asahi Metal Indus. Co., Ltd. v. Superior Ct., 480 U.S. 102, 113, 107 S .Ct.

1026, 1032-33, 94 L.Ed.2d 92 (1987); see also Felch v. Transportes Lar-Mex Sa De CV et al., 92

F.3d 320, 323-24 (5th Cir.1996); P acific Employers Ins. Co. v. M/T Iver Champion et al., No. 91-

0911, 1995 WL 295293, at *5 (E.D.La. May 11, 1995). The burden of persuasion remains with the

plaintiff to make a prima facie showing of defendant's nationwide minimum contacts. S ee Ham v.

La Cienega Music Co. et al., 4 F.3d 413, 415 (5th Cir.1993).

Based on the record before us, we conclude that World Tanker has not carried its burden.

We are persuaded by World Tanker's argument, however, that the distr i ct court foreclosed World

Tanke r's abilit y to make its p rima facie showing when it dismissed the jurisdictional claim. The

court's finding was premised on its conclusion that Rule 4(k)(2) did not apply to admiralty cases, and

thus, an analysis of Appellees' nati o nwide co nt acts would be irrelevant. We determine that this

conclusion is erroneous. Accordingly, we reverse and remand this case to the district court for

additional jurisdictional discovery as to Ap pellees' nationwide contacts and further proceedings

consistent with this opinion.

B. World Tanker's Other Claims

World Tanker also claims that either by way of sanction for failing to comply with discovery

rules, or by waiver for filing a 46 U.S.C. § 103 action for limitation of damages, Kara Mara Shipping

Company, Ltd. should be declared subject to the personal jurisdiction of the district court. In light

of our decision today which requires the district court to revisit the personal jurisdiction issue andwhich calls for additional discovery, we decline at this time a review of these other complaints bearing

on the personal jurisdiction issue.

IV. CONCLUSION

For the foregoing reasons, we REVERSE AND REMAND.