United States Court of Appeals

for the Fifth Circuit

____________

No. 22-30808

____________

Conti 11. Container Schiffarts-GMBH & Co. KG M.S., 

MSC Flaminia, 

Plaintiff—Appellee,

versus

MSC Mediterranean Shipping Company S.A., 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:22-CV-1114

______________________________

Before Jones, Stewart, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Conti chartered its cargo vessel, the M/V FLAMINIA, to the 

Mediterranean Shipping Company (“MSC”). During one voyage, the 

FLAMINIA received three chemical tanks from the Port of New Orleans. 

The tanks exploded during Atlantic transit, causing extensive damage and 

three deaths. After a London arbitration panel awarded Conti $200 million, 

Conti sued to confirm the award in the Eastern District of Louisiana. The 

district court, ruling it had personal jurisdiction over MSC because the tanks 

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2024

Lyle W. Cayce

Clerk

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had been loaded in New Orleans, confirmed the award. MSC appealed, 

arguing the court lacked personal jurisdiction.

While agreeing with much of the district court’s well-stated decision, 

we must reverse because we conclude the court lacked personal jurisdiction 

over MSC. We agree with the district court that, when assessing personal 

jurisdiction to confirm an award under the New York Convention, a court 

should consider contacts related to the underlying dispute—not only 

contacts related to the arbitration itself. That holding aligns us with every 

other circuit to have considered the issue. But we disagree with the district 

court that MSC waived its personal jurisdiction defense through its insurer’s 

issuance of a letter of understanding that was expressly conditioned on 

MSC’s reserving all litigation defenses. We also disagree that the sole forum 

contact, the loading of the tanks in New Orleans, conferred specific personal 

jurisdiction over MSC. That contact arose from the unilateral activities of 

other parties whose actions are not attributable to MSC.

Accordingly, we REVERSE and REMAND with instructions to 

dismiss the case for lack of personal jurisdiction.

I.

A.

Conti, a German corporation based in Hamburg, owns the

FLAMINIA. In November 2000, Conti chartered the FLAMINIA to

MSC, a Swiss corporation based in Geneva. The charterparty required all 

disputes arising out of the agreement to be arbitrated in London. For the next 

12 years, the FLAMINIA carried thousands of cargo containers to and from

ports around the world, including the Port of New Orleans.

In June 2012, an employee in the Houston office of MSC (USA)—a 

wholly-owned New York subsidiary of the Swiss MSC—received a request 

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from Deltech, an American chemical manufacturer, to ship three tank 

containers of 80% divinylbenzene (“DVB”) out of New Orleans. The MSC 

(USA) employee booked the DVB for carriage onboard the FLAMINIA

via the Port of New Orleans. MSC’s office in Antwerp, Belgium approved 

the booking.

On June 30, 2012, the FLAMINIA arrived at the New Orleans 

Terminal. The DVB tanks had already been at the terminal nine days, stored 

outdoors. DVB must be kept at or below 80F or it will undergo 

“autopolymerization,” resulting in rapid temperature increase and emission 

of flammable vapors. On July 1, 2012, New Orleans Terminal LLC loaded 

the DVB onto the FLAMINIA, which departed the next day. Thirteen days 

later, while transiting the Atlantic Ocean, the DVB tanks exploded. The

explosion and ensuing fire killed three crewmembers, damaged the cargo 

onboard, and caused over $100 million in damages.

B.

Conti brought an arbitration proceeding against MSC in London as 

required by the charterparty.

1 The arbitration panel ruled that MSC

breached the charterparty by failing to comply with the International 

Maritime Dangerous Goods Code. It awarded Conti about $200 million in 

total damages.

Conti then sued MSC in the Eastern District of Louisiana seeking to

confirm the award pursuant to the New York Convention on the Recognition 

and Enforcement of Foreign Arbitral Awards (the “New York 

Convention”). See 9 U.S.C. § 207. MSC moved to dismiss for lack of 

_____________________

1 Litigation also ensued in the Southern District of New York. MSC and Conti 

were both found to be free of fault, which was affirmed on appeal. In re M/V MSC Flaminia, 

72 F.4th 430, 438 (2d Cir. 2023).

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personal jurisdiction, arguing that the only forum contact alleged by Conti—

approval of the DVB for shipment out of New Orleans—did not arise out of 

or relate to Conti’s confirmation claim.

While that motion was pending, MSC’s insurer issued a letter of 

undertaking (“LOU”) to Conti. The LOU promised to pay Conti up to 

$220 million on any final judgment entered by the Eastern District of 

Louisiana, provided that Conti did not interfere with MSC’s property or 

bring a separate action in another jurisdiction. The LOU was “given without 

prejudice to any and all rights or defenses MSC, its agents or affiliates have 

or may have” in the Eastern District of Louisiana proceedings. It also 

permitted Conti to return the LOU if Conti decided to discontinue those

proceedings or if the court concluded Conti was not entitled to enforce the 

award in full.

The district court denied MSC’s motion to dismiss. It rejected 

MSC’s argument that, for purposes of personal jurisdiction, the only 

relevant contacts were those relating to the London arbitration. Instead, the 

court considered MSC’s contacts relating to the underlying dispute that led 

to the arbitration. In reaching that conclusion, the court relied primarily on 

decisions from four of our sister circuits. See Compañía de Inversiones 

Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 

1269, 1287 (10th Cir. 2020) (considering “the defendant’s forum activities 

in connection with the claim that led to the arbitration, as opposed 

to . . . activities in connection with the arbitration proceeding itself”); see also 

Telcordia Tech Inv. v. Telkom S.A. Ltd., 458 F.3d 172, 178 (3d Cir. 2006); Solé

Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 104 (2d Cir. 

2006); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 

F.3d 1114, 1123–24 (9th Cir. 2002). The court also rejected MSC’s argument 

that the Supreme Court’s decision in Badgerow v. Walters forbids “looking 

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through” the arbitration petition to the underlying dispute to assess personal 

jurisdiction. See 596 U.S. 1 (2022).

Applying this analysis, the court concluded it had personal jurisdiction

over MSC. It reasoned that the underlying claim—breach of the 

charterparty—related to MSC’s forum contacts because “[the DVB] could 

not have been on the FLAMINIA, and subsequently caused the explosion, 

if it was not loaded and shipped in New Orleans.” Thus, “[t]he loading and 

eventual shipping of the [DVB] out of New Orleans by MSC constitutes a 

relationship among the defendant (MSC), the forum (Louisiana), and the 

litigation (breach of clause 78 [of the charterparty]).” Alternatively, the court 

concluded that MSC waived its personal jurisdiction defense by entering the

LOU.

The court therefore granted Conti’s motion for judgment on the 

pleadings and confirmed the arbitral award. MSC now appeals, arguing the 

court lacked personal jurisdiction over it.

II.

“[W]hether personal jurisdiction can be exercised over a defendant is 

a question of law and subject to de novo review.” E. Concrete Materials, Inc. v. 

ACE Am. Ins. Co., 948 F.3d 289, 295 (5th Cir. 2020) (quotation omitted). 

III.

To confirm the arbitral award, the district court needed personal 

jurisdiction over MSC. See First Inv. Corp. of Marshall Islands v. Fujian Mawei 

Shipbuilding, Ltd., 703 F.3d 742, 748 (5th Cir. 2012) (due process requires 

personal jurisdiction to confirm award under the New York Convention). 

Only specific personal jurisdiction is at issue. See, e.g., Goodyear Dunlop Tires 

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (distinguishing “general 

or all-purpose jurisdiction, and specific or case-linked jurisdiction” (citation 

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omitted)).

2 Conti, then, had to show that MSC “purposefully avail[ed] itself 

of the privilege of conducting activities within the forum State.” Ford Motor 

Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (quoting 

Hanson v. Denckla, 357 U.S. 235, 253 (1958)). MSC’s forum contacts must 

be its “own choice and not ‘random, isolated, or fortuitous.’” Id. at 1025 

(quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984)). And, 

crucially, Conti’s claim against MSC “must arise out of or relate to” those 

contacts. Ibid. (citation omitted). In other words, for specific personal 

jurisdiction to exist over MSC, “there must be ‘an affiliation between the 

forum and the underlying controversy.’” Ibid. (quoting Bristol-Myers Squibb 

Co. v. Superior Ct. of Cal., San Francisco Cnty., 582 U.S. 255, 262 (2017)).

MSC challenges the district court’s personal jurisdictional ruling on 

several grounds. First, MSC contends that, because an action to confirm an

arbitral award is distinct from the underlying dispute, the only relevant 

contacts concern MSC’s refusal to pay the award and not the DVB’s 

shipping from New Orleans. Second, MSC argues that Badgerow forbids 

“looking through” to the underlying dispute to assess personal jurisdiction.

Third, MSC argues it did not waive its personal jurisdiction defense by 

entering the LOU. And, finally, MSC argues that—even considering the 

underlying dispute—the forum contacts resulted from the unilateral activity 

of others, not MSC. We address each argument in turn.

A.

We first address MSC’s argument that the district court erred by 

basing its personal jurisdiction analysis on contacts related to the underlying 

dispute—i.e., the storage, loading, and shipping of the DVB at the Port of 

New Orleans. MSC contends the court should have limited its analysis to 

_____________________

2 Conti concedes MSC is not subject to general personal jurisdiction in Louisiana.

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contacts related only to MSC’s refusal to pay the arbitral award. That award, 

argues MSC, “is no more than a contractual resolution of the parties’ 

dispute,” and so any enforcement of the award is distinct from that dispute.

This argument has been rejected by every circuit to have considered 

it. The Tenth Circuit’s decision in Compañía de Inversiones Mercantiles, 

quoted by the district court, is emblematic. See 970 F.3d 1269. That case 

asked whether a Colorado federal court had personal jurisdiction to confirm 

a Bolivian arbitral award against a group of Mexican companies. Id. at 1275–

76. The defendants argued that “the only contacts that matter” in a 

confirmation action “are those relating to the arbitration.” Id. at 1285. The 

Tenth Circuit disagreed, concluding that “contracts relating to the 

underlying claim (i.e., the formation and alleged violation of the [contract at 

issue]) are pertinent.” Id. at 1285–86 (emphasis added). More specifically, 

the court explained that the “proper jurisdictional inquiry” in an action to 

confirm a foreign arbitral award is whether the award beneficiary was injured 

“by the defendant’s forum activities in connection with the claim that led to 

the arbitration, as opposed to the defendant’s forum activities in connection 

with the arbitration proceeding itself.” Id. at 1287.

Also instructive is the Second Circuit’s decision in Solé Resort, which 

involved a petition asking a New York federal court to vacate a Florida 

arbitral award involving two foreign companies. 450 F.3d at 101–02.3 The 

defendant resisted personal jurisdiction on the ground that the plaintiff’s 

claim was only “about the actions of the arbitrators, not about the facts 

underlying the dispute that led to the arbitration.” Id. at 105. The Second 

Circuit disagreed. “Any arbitration proceeding,” the court reasoned, 

_____________________

3 A petition to vacate an arbitral award involves the same personal jurisdiction 

analysis as a petition to confirm an award. See Solé Resort, 450 F.3d at 101.

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“is . . . an extension of the parties’ contract with one another,” and 

“[w]ithout the contract, the arbitration, and its resultant judgment, a 

subsequent challenge to that judgment never could exist.” Id. at 104. 

Accordingly, the court found “a substantial relationship between a challenge 

to the arbitrators’ decision and the contract that provided for the 

arbitration.” Ibid. “[W]hile the arbitrators’ actions themselves took place 

outside New York,” the court concluded, “those actions necessarily bear a 

substantial relationship to the events underlying the contract that created the 

arbitration.” Id. at 105.4

Six other circuits follow an approach similar to the Tenth and Second 

Circuits with respect to evaluating personal jurisdiction over actions to 

confirm arbitral awards. That is, they consider a defendant’s contacts related 

to the underlying dispute that led to the arbitral award, and not only contacts 

related to the arbitration proceeding itself.5 While our circuit has not 

_____________________

4 The Solé Resort analysis has been adopted by the pertinent Restatement. The 

authors explain that “[i]n determining whether the requirement of minimum contacts is 

met, account is not taken only of the arbitration but also of the underlying transaction.”

Restatement (Third) of U.S. Law of Int’l Com. Arb. § 4.25 note (a)(ii) 

(citing Solé Resort, 450 F.3d 100). Accordingly, “[a]ctions to enforce international arbitral 

awards do not call for any special personal jurisdictional rules. The adequacy of any 

particular exercise of personal jurisdiction is determined according to the generally 

applicable statutory and constitutional standards for the exercise of personal jurisdiction.” 

Id. at § 5.19 cmt. (a).

5 See Telcordia Tech, 458 F.3d at 178 (analyzing contacts between defendant and 

forum relevant to underlying dispute before finding personal jurisdiction to confirm a 

foreign arbitral award); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum 

Factory”, 283 F.3d 208, 215–16 (4th Cir. 2002) (considering lack of regular shipments 

between the two companies and contact with the United States to deny personal 

jurisdiction to confirm foreign arbitral award); Reynolds v. Int’l Amateur Athletic Fed’n, 23 

F.3d 1110, 1116–17 (6th Cir. 1994) (considering state law tort and contract claims when 

determining personal jurisdiction to confirm a domestic arbitral award); Glencore Grain, 

284 F.3d at 1123–24 (analyzing the sale of rice to California distributors in evaluating 

personal jurisdiction to confirm a foreign arbitral award); Greenfield Advisors LLC v. Salas, 

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addressed this issue head-on, we have cited four of those sister circuit 

decisions approvingly. See First Inv. Corp., 703 F.3d at 750, 752 n.6 (citing the 

D.C., Ninth, Fourth, and Third Circuit decisions).

B.

Instead of engaging with the circuit decisions discussed above, MSC

claims they have been overridden by the Supreme Court’s recent decision in 

Badgerow. We disagree. Badgerow addressed subject matter jurisdiction, not 

personal jurisdiction. And Badgerow dealt with domestic arbitration, which is 

governed by Federal Arbitration Act (“FAA”) provisions distinct from the 

ones applicable to this New York Convention case.

Badgerow examined when federal courts have subject matter 

jurisdiction to confirm or vacate domestic awards under FAA §§ 9 and 10.

See 596 U.S. at 4. The Court had ruled previously in Vaden that, to evaluate 

subject matter jurisdiction to compel arbitration under FAA § 4, courts must

“look through” the agreement to the underlying dispute. See Vaden v. 

Discover Bank, 556 U.S. 49, 53 (2009). Vaden turned on § 4’s “save for” 

clause, which told courts to disregard the agreement and look to the parties’ 

controversy. Id. at 62; see 9 U.S.C. § 4 (federal court may compel arbitration 

if, “save for such [arbitration] agreement, it would have jurisdiction . . . of the 

subject matter of a suit arising out the controversy between the parties” 

_____________________

733 F. App’x 364, 366–67 (9th Cir. 2018) (considering personal contacts between the 

appellant and state of Washington to find personal jurisdiction to enforce a foreign arbitral

award); S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1304–05 (11th Cir. 2000) 

(considering contacts regarding contractual breach to find personal jurisdiction to enforce 

a foreign arbitral award); Creighton, Ltd. v. Gov’t of Qatar, 181 F.3d 118, 127–28 (D.C. Cir. 

1999) (considering phone calls, ongoing business, and other communications between 

Qatar and Tennessee in the underlying dispute to find no personal jurisdiction to confirm 

foreign arbitral award); GSS Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 817 (D.C. Cir. 

2012) (finding no contacts between defendant and forum as to underlying dispute and thus 

dismissing for lack of personal jurisdiction).

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(emphasis added)). Unlike Vaden, however, Badgerow involved an action to 

confirm an award, not compel arbitration, and the pertinent provisions—

§§ 9 and 10—“contain[ed] none of the statutory language on which Vaden

turned.” Badgerow, 596 U.S. at 11.6 “Most notably,” the Court explained, 

“those provisions do not have Section 4’s ‘save for’ clause.” Ibid.

Accordingly, Badgerow held that subject matter jurisdiction to confirm a 

domestic arbitral award depends, not on the parties’ dispute, but only on 

“the application actually submitted to [the court].” Id. at 5.

Badgerow does not support MSC’s argument. Most fundamentally, 

Badgerow addressed subject matter jurisdiction, not personal jurisdiction. 

Congress must furnish an independent basis for federal courts to exercise 

subject matter jurisdiction over FAA cases. See Badgerow, 596 U.S. at 8 

(citing Hall Street Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 582 (2008)).

7

That is why Badgerow had to ferret out the differences between § 4 (which 

tied subject matter jurisdiction to the underlying controversy) and 

§§ 9 and 10 (which did not). See Badgerow, 596 U.S. at 10–11; cf. Vaden, 556 

U.S. at 62–63. Personal jurisdiction is a different matter, however. Federal 

courts have personal jurisdiction so long as defendants may be served under 

_____________________

6 Section 9 provides that any party to an arbitration may, within a year of the award, 

apply “to the court so specified [in the agreement] for an order confirming the award,” or, 

if no court is specified, “to the United States court in and for the district within which such 

award was made.” 9 U.S.C. § 9. Section 10 specifies grounds on which an award may be 

vacated upon application to “the United States court in and for the district wherein the 

award was made.” Id. § 10(a).

7 See also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 

(1983) (explaining that the FAA, though “creat[ing] a body of federal substantive law” on 

arbitration, “yet . . . does not create any independent federal-question jurisdiction under 

28 U.S.C. § 1331”); Lower Co. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 922–

23 (5th Cir. 2017) (explaining that the FAA “‘bestow[s] no federal jurisdiction but rather 

requir[es] for [access to a federal forum] an independent jurisdictional basis’ over the 

parties’ dispute” (quoting Vaden, 556 U.S. at 59)).

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the state’s long-arm statute and due process is satisfied. See, e.g., Pervasive 

Software Inc. v. Lexware GmbH & Co. Kg, 688 F.3d 214, 220 (5th Cir. 2012).

8

So, Badgerow answered a question different from the one before us—one that 

required examining whether Congress had granted subject matter 

jurisdiction over FAA proceedings. The question here, by contrast, is 

whether exercising personal jurisdiction over MSC is “‘reasonable, in the 

context of our federal system of government,’ and ‘does not offend 

traditional notions of fair play and substantial justice.’” Ford Motor Co., 141 

S. Ct. at 1024 (quoting Int’l Shoe Co. v. Wash. Off. of Unemployment Comp. & 

Placement, 326 U.S. 310, 316–17 (1945)). Answering that question does not 

turn on parsing different provisions of the FAA.

Second, even if such an interpretive exercise were called for, the FAA

provisions at issue here are meaningfully distinct from those in Badgerow. 

Keep in mind that Badgerow involved domestic arbitration governed by FAA

Chapter One, see 9 U.S.C. §§ 1–16, whereas this case involves foreign 

arbitration under the New York Convention, governed by FAA Chapter 

Two, see id. §§ 201–208. As the district court carefully explained, Chapter 

Two lacks any textual indication that forbids looking to the underlying 

dispute in assessing personal jurisdiction to confirm an award under the 

Convention.

Start with the basic Chapter Two confirmation provisions. Chapter 

Two “deem[s]” any Convention-related proceeding to arise under federal 

law, id. § 203, and, in turn, permits a party to file for confirmation in “any 

court having jurisdiction under [Chapter Two],” id. § 207. In other words, 

Chapter Two broadly confers federal subject matter jurisdiction over 

_____________________

8 The reach of Louisiana’s long-arm statute is not at issue here because it permits 

service up to the limits of due process. See, e.g., Jackson v. Tanfoglio Giuseppe, S.R.L., 615 

F.3d 579, 584 (5th Cir. 2010). Both parties concede this point.

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confirmation actions involving the Convention. See id. § 203 (providing 

“[t]he district courts of the United States . . . shall have original jurisdiction 

over such an action or proceeding [under the Convention], regardless of the 

amount in controversy”). Contrast this with Chapter One’s narrower grant. 

It permits a party to seek confirmation only in the court “specified” in the 

agreement or, if none is specified, in the federal court “in and for the district 

within which such award was made.” Id. § 9. As the district court correctly 

observed, these provisions are “drastically different.” The Chapter One 

provision is, as Badgerow explained, narrowly confined to the agreement. 

Chapter Two’s broader provision suggests no such limitation.

Even more telling is Chapter Two’s venue provision. An action to 

confirm a Convention-related award

may be brought in any [district] court in which save for the 

arbitration agreement an action or proceeding with respect to the 

controversy between the parties could be brought, or in such court 

for the district and division which embraces the place 

designated in the agreement as the place of arbitration if such 

place is within the United States.

Id. § 204 (emphasis added). This provision contains the same “save for” 

language as the analogous domestic provision addressed in Vaden (§ 4), 

which the Supreme Court held requires looking to the underlying dispute. 

See Vaden, 556 U.S. at 62–63. True, § 204 addresses venue, not personal 

jurisdiction. But, as the district court pointed out, “it would only make sense 

for the personal jurisdiction analysis under the Convention to follow that of 

venue because [otherwise] it would lead to irrational results”—namely, 

being able to consider the underlying dispute for venue purposes but not for

personal jurisdiction. This is another strong clue that Chapter Two, unlike 

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the Chapter One provisions in Badgerow, does not forbid considering the 

parties’ dispute for purposes of assessing jurisdiction.9

Finally, MSC cites one line from Badgerow, which, it contends,

supports its argument. MSC quotes Badgerow’s statement that “[an arbitral] 

award is no more than a contractual resolution of the parties’ dispute—a way 

of settling legal claims.” Badgerow, 596 U.S. at 9 (citing Vaden, 556 U.S., at 

63). MSC takes this statement out of context, however. As the next sentence 

clarifies, the Court was discussing subject matter jurisdiction: “And quarrels 

about legal settlements—even settlements of federal claims—typically 

involve only state law, like disagreements about other contracts.” Ibid. (citing 

Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 378–82 (1994)). 

Badgerow’s statement, then, has no bearing on this case. The quarrel here 

involves an arbitral award under the New York Convention—not state law—

over which the FAA extends federal subject matter jurisdiction. 

See 9 U.S.C. § 203. Moreover, Badgerow was not even addressing personal 

jurisdiction.10

_____________________

9 MSC argues that the district court’s analysis of § 204 conflated venue and 

personal jurisdiction. We disagree. The court plainly recognized that § 204 is “the 

Convention’s venue statute” and does not address personal jurisdiction. The court’s point, 

rather, was that the Chapter Two provisions (especially § 204) show no intent to foreclose 

looking to the underlying dispute to assess personal jurisdiction, as did the distinct Chapter 

One provisions regarding subject matter jurisdiction over confirmation actions. 

10 MSC also relies on an unpublished district court opinion from outside our 

circuit. See Balan v. Tesla Motors Inc., No. C-19-67 MJP, 2022 WL 2192872, at *3–4 (W.D. 

Wash. June 16, 2022). After successfully arbitrating an employee defamation claim in San 

Francisco, Tesla and Elon Musk sued there to confirm the award. Id. at *1. The employee 

sued to vacate the award in a Washington federal court. Ibid. The Washington court ruled

it lacked personal jurisdiction over Musk because “nothing about the arbitration relate[d] 

to Washington” and because Musk had not “performed any type of conduct related to the 

arbitration that promotes business within the State.” Id. at *3. It is unclear whether the 

district court’s analysis was limited to the arbitration itself or also considered Musk’s 

underlying contacts with Washington. Furthermore, the arbitration did not implicate the 

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In sum, we disagree with MSC’s argument that Badgerow prohibits

looking to the parties’ underlying dispute to determine whether the court had 

personal jurisdiction over Conti’s confirmation action.

C.

Next, we turn to the district court’s ruling that MSC waived any 

challenge to personal jurisdiction when its insurer issued the LOU. Recall 

that the LOU promised to pay Conti up to $220 million on any final 

judgment and was “given without prejudice to any and all rights or defenses 

MSC, its agents or affiliates have or may have.” MSC argues the district 

court erred because the LOU plainly reserved its defenses to Conti’s suit, 

including lack of personal jurisdiction. We agree.

“Louisiana law recognizes broad freedom to contract” and 

“[c]ontractual intent is determined by the words of the contract.” Luv N’ 

Care, Ltd. v. Groupo Rimar, 844 F.3d 442, 447 (5th Cir. 2016); see also La. 

Civ. Code art. 1971 (“Parties are free to contract for any object that is 

lawful, possible, and determined or determinable.”). Contractual provisions 

like the ones here may be “relevant” to a personal jurisdiction analysis, “but 

they are not dispositive.” See Haliburton Energy Servs., Inc. v. Ironshore 

Specialty Ins. Co., 921 F.3d 522, 542 (5th Cir. 2019) (considering relevance of 

“[c]hoice-of-law provisions and forum-selection clauses” to personal 

jurisdiction analysis). When a party contractually submits to the court’s 

power for a “limited purpose,” it does “not waive its personal jurisdiction 

defense” for issues falling outside that purpose. Id. at 541. 

The district court ruled that MSC waived its personal jurisdiction 

defense by entering into the LOU for two reasons. First, the court relied on 

_____________________

New York Convention. So, Balan does not clearly support MSC’s position and, in any 

event, is not binding on us.

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our decision in Trafigura Beheer B.V. v. M/T PROBO ELK, 266 F. App’x 309 

(5th Cir. 2007) to find that entering an LOU constitutes consent to 

jurisdiction. Second, it found that, despite the reservation of defenses, the 

LOU “implicitly” consented to the Eastern District’s jurisdiction by, for 

instance, agreeing to pay Conti if it refrained from suing MSC anywhere else 

and stipulating the Eastern District has “exclusive jurisdiction” over LOUrelated disputes. We respectfully disagree.

First, Trafigura is distinguishable. In that case, “the ship’s 

underwriters entered into a letter of undertaking . . . agreeing to appear as 

claimants in the suit and pay any final judgment.” Id. at 310 (emphasis added).

In other words, Trafigura’s LOU explicitly waived personal jurisdiction. 

MSC’s does not. Its LOU contains conditional language pertaining to the 

district court’s jurisdiction. For example, it states it will pay the $220 million 

“unless and until the Proceedings [the dispute over personal jurisdiction and 

the confirmation action] are finally determined.” And MSC agreed to pay 

only “after all appeals (if any).” The LOU also states that “[i]n the event that 

the United States District Court, Eastern District of Louisiana concludes (in 

the Proceedings) that you are not entitled to enforce the Awards in 

full . . . you are at liberty to . . . seek to enforce the Awards in another 

jurisdiction.” This language is quite different from Trafigura’s express 

agreement to “appear as claimants in the suit.” 266 F. App’x at 311.

Second, the LOU has no implicit waiver. To the contrary, it states it 

was “given without prejudice to any and all rights or defenses MSC, its agents 

or affiliates have or may have in the Proceedings.” This includes the defense 

of lack of personal jurisdiction, which MSC was litigating when the LOU

issued. That should end the waiver inquiry. See La. Civ. Code art. 2046 

(“When the words of the contract are clear and explicit and lead to no absurd 

consequences, no further interpretation may be made in search of the parties’ 

intent.”). Putting that aside, however, the parts of the LOU the district court 

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relied on do not implicitly waive personal jurisdiction. Everything MSC

consented to—payment, not suing elsewhere, jurisdiction over LOU-related 

matters, etc.—was expressly conditioned on the outcome of ongoing 

litigation over the district court’s personal jurisdiction.

In sum, the district court erred by finding that MSC waived its 

personal jurisdiction defense in the LOU.

D.

Finally, MSC argues that, even if it is proper to consider contacts 

related to the underlying dispute, the district court erred in finding personal 

jurisdiction based only on the fact that the DVB shipped from the Port of 

New Orleans.11 We agree with MSC because that contact with New Orleans

resulted not from MSC’s activity but rather that of its subsidiary, MSC 

(USA), and third parties. 

“Generally, a foreign parent corporation is not subject to the 

jurisdiction of a forum state merely because its subsidiary is present or doing 

business there[.]” Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir. 

1983) (citing 2 J. Moore & J. Lucas, Moore’s Federal Practice

¶ 4.25[6], at 4–272 (2d ed. 1982)).12 “This presumption of institutional 

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11MSC raised this alternative argument in the district court in its motion to dismiss 

for lack of personal jurisdiction.

12 See also, e.g., Diece-Lisa Indus., Inc. v. Disney Enters., Inc., 943 F.3d 239, 251 (5th 

Cir. 2019) (“Generally, ‘the proper exercise of personal jurisdiction over a nonresident 

corporation may not be based solely upon the contacts with the forum state of another 

corporate entity with which the defendant may be affiliated.’” (quoting Freudensprung v. 

Offshore Tech. Servs., Inc., 379 F.3d 327, 346 (5th Cir. 2004))); Access Telecom, Inc. v. MCI 

Telecomms. Corp., 197 F.3d 694, 717 (5th Cir. 1999) (“[T]ypically, the corporate 

independence of companies defeats the assertion of jurisdiction over one by using contacts 

with the other.”); Dickson Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir. 1999) 

(“Courts have long presumed the institutional independence of related corporations, such 

as parent and subsidiary, when determining if one corporation’s contacts with a forum can 

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independence . . . may be rebutted, however, by clear evidence” that the two 

corporations are “fused . . . for jurisdictional purposes.” Diece-Lisa, 943 F.3d 

at 251 (quoting Freudensprung, 379 F.3d at 346) (cleaned up); see also 

Hargrave, 710 F.2d at 1161 (explaining, “so long as a parent and subsidiary 

maintain separate and distinct corporate entities, the presence of one in a 

forum state may not be attributed to the other”). In this inquiry, we consider

the following factors: “(1) the amount of stock owned by the parent of the 

subsidiary; (2) whether the entities have separate headquarters, directors, 

and officers; (3) whether corporate formalities are observed; (4) whether the 

entities maintain separate accounting systems; and (5) whether the parent 

exercises complete control over the subsidiary’s general policies or daily 

activities.” Diece-Lisa, 943 F.3d at 251 (citation omitted); see also Hargrave, 

710 F.2d at 1160 (discussing factors).

As the party invoking jurisdiction, Conti bore the burden of showing, 

by clear evidence, that MSC and its subsidiary are not distinct corporate 

entities. See Diece-Lisa, 943 F.3d at 251; Hargrave, 710 F.2d at 1159. It failed 

to do so, both in the district court and before us.13 Indeed, Conti’s appellate 

briefing treats MSC (USA)’s contacts with Louisiana as if they were

_____________________

be the basis of a related corporation’s contacts.” (citing Cannon Mfg. Co. v. Cudahy Packing 

Co., 267 U.S. 333 (1925))); Southmark Corp. v. Life Invs., Inc., 851 F.2d 763, 773–74 (5th 

Cir. 1988) (“[I]t is well-settled that where . . . a wholly owned subsidiary is operated as a 

distinct corporation, its contacts with the forum cannot be imputed to the parent.”). 

13 In the district court, Conti argued that MSC (USA) is MSC’s general agent 

whose contacts can be imputed to MSC. It does not press that argument here and has 

forfeited it. In any event, Conti presented no evidence to support the claim. It merely cited 

a finding by the arbitration panel that MSC (USA) owned 60% of the stock in its own 

subsidiary, the New Orleans Terminal LLC. That tells us nothing about the relationship 

between MSC and MSC (USA). Furthermore, based on uncontroverted record evidence

MSC has never had a registered agent for service of process in Louisiana.

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MSC’s without presenting any argument concerning the lack of corporate 

distinctness. That is insufficient.

Furthermore, the record suggests MSC and MSC (USA) are in fact

distinct entities. While MSC (USA) is wholly owned by MSC,

14 the two 

corporations have different headquarters—MSC (USA) in New York and 

MSC in Geneva. They have different officers and directors. And the record

does not show that MSC and MSC (USA) failed to observe corporate 

formalities. To the contrary, the only evidence on that score is the arbitration 

panel’s finding that MSC (USA) followed corporate formalities with its own 

subsidiary, the New Orleans Terminal LLC. Nor does any evidence show

MSC’s exercising complete authority over MSC (USA)’s operations. This 

evidence cannot overcome the presumption of separateness between MSC

(USA) and MSC for personal jurisdiction purposes.

15

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14 A parent’s ownership of a subsidiary’s stock, even 100% of it, does not ipso facto

impute the subsidiary’s contacts to the parent for personal jurisdiction purposes. See, e.g., 

Consol. Textile Corp. v. Gregory, 289 U.S. 85, 88 (1933) (declining to attribute Wisconsin 

contacts of wholly-owned subsidiary to New York-based parent company); Cannon Mfg., 

267 U.S. at 338 (declining to attribute North Carolina contacts of wholly-owned Alabama 

subsidiary to Maine parent company because the “existence of the Alabama company as a 

distinct corporate entity [wa]s . . . in all respects observed”); People’s Tobacco Co. v. Am.

Tobacco Co., 246 U.S. 79, 87 (1918) (“The fact that the company owned stock in the local 

subsidiary companies did not bring it into the State in the sense of transacting its own 

business there.”); Peterson v. Chi., R.I. & P.R. Co., 205 U.S. 364, 390–94 (1907) (court 

lacked personal jurisdiction over parent company because the wholly-owned subsidiary 

controlled its day-to-day operations and personnel decisions).

15 Additionally, MSC has declared under penalty of perjury that

it has never had any corporate or operating records in Louisiana; [it] has 

never had a bank account in Louisiana; [it] has never had a telephone 

listing, facsimile listing, business listing or post office box in Louisiana; [it] 

has never exercised any executive, management or corporate functions in 

Louisiana; [it] has never owned, leased or purchased any immovable 

property in Louisiana; [it] does not have a registered agent for service of 

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This means that the dispute’s sole contact with the forum—the 

DVB’s shipping from the Port of New Orleans—did not occur as a result of 

MSC’s “own choice.” Ford Motor Co., 141 S. Ct. at 1025 (citation omitted). 

That choice was made by others. The manufacturer, Deltech, chose to ship 

the DVB out of New Orleans. A Houston-based MSC (USA) employee 

received the order and booked carriage on the FLAMINIA via New 

Orleans. A Charleston-based MSC (USA) employee created the stowage 

plan. And New Orleans Terminal LLC received, stored, and loaded the 

DVB onto the FLAMINIA. The only putative “contact” involving MSC

itself occurred when its Antwerp, Belgium office approved the booking. That 

action, however, merely screened the booking for conformance with MSC’s

internal policies and the policies of any port of call.

So, the fact that the DVB was loaded onto the FLAMINIA in New 

Orleans wasthe result of “the unilateral activity” of other parties, not MSC. 

See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (explaining the 

“‘purposeful availment’ requirement ensures that a defendant will not be 

haled into a jurisdiction solely as a result . . . of the ‘unilateral activity of 

another party or a third person’” (quoting Hanson, 357 U.S. at 253;

Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 417 (1984))). 

The district court thus lacked personal jurisdiction to confirm the London

award.

IV.

We agree with much of the district court’s well-stated opinion. When 

assessing personal jurisdiction in a confirmation action under the New York 

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process in Louisiana and has not appointed the Louisiana Secretary of 

State as its agent for service of process in Louisiana.

Conti contests none of these statements. 

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Convention, a federal court should consider contacts related to the parties’ 

underlying dispute and not only contacts related to the arbitration proceeding 

itself. That holding aligns our court with every other circuit to address this 

issue. Nonetheless, we must ultimately reverse the district court’s judgment

because (1) MSC did not waive its personal jurisdiction defense by entering 

into the LOU, and (2) the sole contact with the forum arose, not from 

MSC’s own deliberate activities, but rather from the unilateral activities of 

others that cannot be attributed to MSC.

Accordingly, we REVERSE the district court’s judgment and

REMAND with instructions to dismiss for lack of personal jurisdiction.

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