The circuit court of the United States, held within one state,
has jurisdiction of an action brought by a citizen and resident of
another state against a foreign corporation doing business in the
first state through its regularly appointed agents, upon whom the
summons is there served for a cause of action arising in a foreign
country, although the statutes of the state confer no authority
upon any court to issue process against a foreign corporation at
the suit of a person not residing within the state, and for a cause
of action not arising therein.
This was an action brought November 1, 1894, in the Circuit
Court of the United States for the Southern District of New York by
Michael Kane against the Barrow Steamship Company, Limited.
Page 170 U. S. 101
The complaint alleged that the plaintiff was a citizen of New
Jersey and resided at Newark in that state, and that
"the defendant is a corporation organized and incorporated under
the laws of the kingdom of Great Britain, and is the owner of a
certain steamship, known as the
Devonia, and is and was at
the time hereinafter mentioned a common carrier of passengers, and
engaged in the business of transportation of freight and passengers
upon said steamship
Devonia and other steamers, among
other places, from Londonderry, Ireland, to the City of New York,
and has offices and property in the said City of New York, and its
general agents therein, managing the affairs of the said company
within said city, and is a resident and inhabitant of the City of
New York, and the Southern District of New York, within the meaning
of the statute in such case made and provided;"
that
"the said defendant operates its business, or part thereof, in
and under the name and as part of the Anchor Line, and its said
business is in whole or in part done under that name, and its
steamers, including the said
Devonia, belong to what is
known as the 'Anchor Line Steamships;' that the general managers of
said business in the City of New York are the firm of Henderson
Brothers, who are the general agents of said defendant, and the
officers of said defendant company and said agents are at No. 7
Bowling Green, and pier 54 North River, in said city; that on or
about September 13, 1893, the plaintiff purchased and paid for a
ticket as a passenger for transportation by defendant from
Londonderry, in Ireland, Kingdom of Great Britain, to the City of
New York, on the steamship
Devonia, belonging to said
defendant, and the said defendant received the said plaintiff as a
passenger, and undertook and promised to transport the said
plaintiff from said Londonderry to New York with due care, and to
do all those things necessary and required for the safe
transportation of the said plaintiff to and from said points, and
it became and was its duty, and it became bound, to protect and
save harmless the said plaintiff from any injury or harm from its
agents or servants employed in its business;"
and that,
"for the purpose of transporting passengers over part of the
voyage,
viz., from Londonderry to
Page 170 U. S. 102
the steamship
Devonia, lying in the harbor, the said
defendant used a certain tender; that said plaintiff, being a
passenger on said tender in pursuance of the obligation and promise
aforesaid, the same being part of the transportation to New York,
was violently, on or about September 14, 1893, assaulted and
maltreated, without just cause or excuse, and wrongfully and
unlawfully, by servants or agents of said defendant on said
tender,"
as particularly stated in the complaint, and thereby suffered
damages to the extent of $20,000.
To this complaint the defendant filed the following appearance
and demurrer:
"The defendant above named, appearing specially by Henry T. Wing
and Harrington Putnam, as its attorneys, specially, only for the
purpose hereof, as stated in its special appearance, noted herein,
demurs to the complaint herein for the special purpose, and no
other, until the questions herein raised have been decided, of
objecting to the jurisdiction of this Court, demurring and
excepting to the complaint, because it appears upon the face
thereof of that the court has not jurisdiction of the person of the
defendant, nor of the subject matter of the action, for the reason
that neither the defendant nor the plaintiff is an inhabitant or
resident of the Southern District of New York, and the action
therefore cannot be maintained therein, and that the defendant is a
foreign corporation, and the cause of action did not arise within
the State of New York. Wherefore defendant prays judgment whether
this court has jurisdiction, and asks that the complaint be
dismissed with costs, but should the court overrule this demurrer
and exception, the defendant then asks time and leave to answer to
the merits, though excepting to the action of the court in
overruling said demurrer."
The court overruled the demurrer with liberty to answer the
complaint. The defendant thereupon answered, and the case went to
trial.
When the plaintiff's counsel had opened the case to the jury,
the defendant's counsel moved to dismiss the suit upon the
ground
"that it appeared upon the face of the complaint that the court
had not jurisdiction thereof, that it had no
Page 170 U. S. 103
jurisdiction of the person of the defendant, and that it had no
jurisdiction of the subject matter of the action,"
and presented as grounds of the motion the same reasons that had
been urged at the hearing on the demurrer. The court denied the
motion, and the defendant duly excepted to the denial.
At the close of the testimony, the defendant again moved the
court to dismiss the proceedings on the ground of want of
jurisdiction, both of the subject matter and of the person of the
defendant. The motion was denied, and an exception reserved.
The trial resulted in a verdict for the plaintiff for $7,500,
upon which judgment was rendered.
The defendant took the case by writ of error to the circuit
court of appeals, which requested the instruction of this Court
upon a question of law, and embodied in its certificate the
provisions of the New York Code of Civil Procedure, which are
copied in the margin,
* the foregoing
pleadings and proceedings in the case, and this statement of
facts:
Page 170 U. S. 104
"The cause of action is for damages alleged to have been
sustained in consequence of an assault upon the plaintiff, a
passenger by the defendant's steamship, while the plaintiff was in
transit under a contract of transportation, by a person for whose
acts it is alleged the defendant was responsible. The alleged
assault took place in the port of Londonderry, Ireland. The
plaintiff is a citizen and resident of the State of New Jersey. The
defendant is a corporation organized and incorporated under the
laws of the United Kingdom of Great Britain and Ireland. It is a
common carrier operating a line of steamships from ports in that
kingdom to the port of New York. It does business in the State of
New York through the firm of Henderson Brothers, its regularly
appointed agents, and has property therein. There is no proof of
any written designation by the defendant of anyone within the State
of New York upon whom service of process may be made. Service of
the summons was made on a member of the firm of Henderson Brothers,
as agents for the defendant."
The question of law certified was: "Had the circuit court
Page 170 U. S. 105
jurisdiction to try the action and render judgment therein
against the defendant?"
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This action was brought in the Circuit Court of the United
States for the Southern District of New York against the Barrow
Steamship Company, by a passenger on one of its steamships on a
voyage from Londonderry, in Ireland, to the City of New York, for
an assault upon him by its agents in the port of Londonderry. The
certificate of the circuit court of appeals shows that the
plaintiff is a citizen and resident of the State of New Jersey;
that the defendant is a corporation organized and incorporated
under the laws of the United Kingdom of Great Britain and Ireland,
and a common carrier running a line of steamships from ports in
that kingdom to the port of New York, and does business in the
State of New York, through a mercantile firm, its regularly
appointed agents, and upon whom the summons in this action was
served.
It was contended in behalf of the steamship company that, being
a foreign corporation, no suit could be maintained against it
in personam in this country without its consent, express
or implied; that, by doing business in the State of New York, it
consented to be sued only as authorized by the statutes of the
state; that the jurisdiction of the courts of the United States
held within the state depended on the authority given by those
statutes; that the statutes of New York conferred no authority upon
any court to issue process against a foreign corporation in an
action by a nonresident, and for a cause not arising within the
state, and therefore that the circuit court acquired no
jurisdiction of this action brought against a British corporation
by a citizen and resident of New Jersey.
Page 170 U. S. 106
The constant tendency of judicial decisions in modern times has
been in the direction of putting corporations upon the same footing
as natural persons in regard to the jurisdiction of suits by or
against them.
By the Constitution of the United States, the judicial power, so
far as depending upon citizenship of parties, was declared to
extend to controversies "between citizens of different states," and
to those between "citizens" of a state and foreign "citizens or
subjects." And Congress, by the Judiciary Act of 1789, in defining
the original jurisdiction of the circuit courts of the United
States, described each party to such a controversy either as "a
citizen" of a state, or as "an alien." Act of September 24, 1789,
c. 20, § 11, 1 Stat. 78; Rev.Stat. § 629. Yet the words "citizens"
and "aliens" in these provisions of the Constitution and of the
Judiciary Act have always been held by this Court to include
corporations.
The jurisdiction of the circuit courts over suits between a
citizen of one state and a corporation of another state was at
first maintained upon the theory that the persons composing the
corporation were suing or being sued in its name, and upon the
presumption of fact that all those persons were citizens of the
state by which the corporation had been created, but that this
presumption might be rebutted by plea and proof and the
jurisdiction thereby defeated.
Bank of United States v.
Deveaux, 5 Cranch 61,
9 U. S. 87-88;
Hope Insurance Co. v.
Boardman, 5 Cranch 57;
Commercial
Bank v. Slocomb, 14 Pet. 60.
But the earlier cases were afterwards overruled, and it has
become the settled law of this Court that, for the purposes of
suing and being sued in the courts of the United States, a
corporation created by, and doing business in, a state is, although
an artificial person, to be considered as a citizen of the state as
much as a natural person, and there is a conclusive presumption of
law that the persons composing the corporation are citizens of the
same state with the corporation.
Louisville
&c. Railroad Co. v. Letson, 2 How. 497,
43 U. S. 558;
Marshall v. Baltimore &
Ohio Railroad, 16 How. 314,
57 U. S. 329;
Muller v. Dows, 94 U. S. 444;
Steamship Co. v. Tugman, 106 U. S. 118
Page 170 U. S. 107
St. Louis & San Francisco Railway v. James,
161 U. S. 545,
161 U. S.
555-559.
In
Bank of Augusta v.
Earle, 13 Pet. 519, decided before the case of
Bank v. Deveaux, above cited, had been overruled, and
while that case was still recognized as authority for the principle
that in a question of jurisdiction, the court might look to the
character of the persons composing a corporation, Chief Justice
Taney, in delivering judgment, said that the principle had "never
been supposed to extend to contracts made by a corporation,
especially in another sovereignty," but that,
"whenever a corporation makes a contract, it is the contract of
the legal entity, of the artificial being created by the charter,
and not the contract of the individual members."
13 Pet.
38 U. S.
586-587.
In
Bank of Augusta v. Earle, it was adjudged that a
corporation created by one state, and acting within the scope of
its charter, might do business and make contracts in another state
when permitted to do so by the laws thereof, and might sue upon
such contracts in the courts of that state. As was said in the
opinion:
"It is sufficient that its existence as an artificial person in
the State of its creation is acknowledged and recognized by the law
of the nation where the dealing takes place, and that it is
permitted by the laws of that place to exercise there the powers
with which it is endowed."
13 Pet.
38 U. S. 589.
And it was declared to be well settled that, by the law of comity
among nations prevailing among the several states of the Union, "a
corporation created by one sovereignty is permitted to make
contracts in another, and to sue in its courts," except as to
contracts repugnant to its own policy.
Id., 38 U. S.
592.
The manifest injustice which would ensue if a foreign
corporation, permitted by a state to do business therein and to
bring suits in its courts, could not be sued in those courts, and
thus, while allowed the benefits, be exempt from the burdens, of
the laws of the state has induced many states to provide by statute
that a foreign corporation making contracts within the state shall
appoint an agent residing therein, upon whom process may be served
in actions upon such contracts. This
Page 170 U. S. 108
Court has often held that wherever such a statute exists,
service upon an agent so appointed is sufficient to support
jurisdiction of an action against the foreign corporation, either
in the courts of the state or, when consistent with the acts of
Congress, in the courts of the United States held within the state,
but it has never held the existence of such a statute to be
essential to the jurisdiction of the circuit courts of the United
States.
Lafayette Ins. Co. v.
French, 18 How. 404;
Ex Parte
Schollenberger, 96 U. S. 369;
New England Ins. Co. v. Woodworth, 111 U.
S. 138,
111 U. S. 146;
Shaw v. Quincy Mining Co., 145 U.
S. 444,
145 U. S.
452.
In
Lafayette Ins. Co. v. French, the Court said:
"We limit our decision to the case of a corporation acting in a
state foreign to its creation, under a law of that state which
recognized its existence, for the purposes of making contracts
there and being sued on them, through notice to its contracting
agents."
But it was cautiously added:
"The case of natural persons, or of other foreign corporations,
is attended with other considerations, which might or might not
distinguish it. Upon this we give no opinion."
18 How.
59 U. S.
408-409.
The liability of a foreign corporation to be sued in a
particular jurisdiction need not be distinctly expressed in the
statutes of that jurisdiction, but may be implied from a grant of
authority in those statutes to carry on its business there.
Accordingly, in
Railroad Co. v.
Harris, 12 Wall. 65, the Baltimore and Ohio
Railroad Company, a corporation chartered by the State of Maryland
and authorized by the statutes of the State of Virginia to extend
its railroad into that state, and also by the Act of Congress of
March 2, 1831, c. 85, 4 Stat. 476, to extend, construct, and use a
lateral branch of its railroad into and within the District of
Columbia, and to exercise the same powers, rights, and privileges,
and be subject to the same restrictions in regard thereto, as
provided in its charter, was held, by reason of the act of
Congress, and of service upon its president in the District of
Columbia, to be liable to an action in the District by a passenger
for an injury happening in the State of Virginia although the
railroad company was a corporation of the State of Maryland
only,
Page 170 U. S. 109
and neither the act of Congress authorizing it to construct and
use a branch railroad in the District of Columbia nor any other act
of Congress had made any provision for bringing suits against
foreign corporations, the action having been brought before the
passage of the Act of February 22, 1867, c. 64, § 11, 14 Stat. 404;
Rev.Stat.D.C. § 790. Mr. Justice Swayne, in delivering judgment,
said:
"If the theory maintained by the counsel for the plaintiff in
error be correct, however large or small the cause of action, and
whether it were a proper one for legal or equitable cognizance,
there could be no legal redress short of the seat of the company in
another state. In many instances, the cost of the remedy would have
largely exceeded the value of its fruits. In suits local in their
character, both at law and in equity, there could be no relief. The
result would be, to a large extent, immunity from all legal
responsibility. It is not be supposed that Congress intended that
the important powers and privileges granted should be followed by
such results. But, turning our attention from this view of the
subject and looking at the statute alone, and reading it by its own
light, we entertain no doubt that it made the company liable to
suit, where this suit was brought, in all respects as if it had
been an independent corporation of the same locality."
Id., 79 U. S.
83-84.
In that case, it is to be observed, the cause of action arose
neither in the State of Maryland, where the defendant was
incorporated, nor in the District of Columbia, where the action was
brought, but in the State of Virginia. The decision, in principle
and in effect, recognizes that a corporation of one state, lawfully
doing business in another state and summoned in an action in the
latter state by service upon its principal officer therein, is
subject to the jurisdiction of the court in which the action is
brought.
In England, the right of a foreign corporation doing business in
England to sue in the English courts was long ago recognized, and
its liability to be subjected to suit in those courts, by service
made upon one of its principal officers residing and representing
it within the realm, has been fully established by recent
decisions.
Newby v. Von Oppen, L.R.
Page 170 U. S. 110
7 Q.B. 293;
Haggin v. Comptoir d'Escompte de Paris, 23
Q.B.F. 519.
In the courts of several states of the Union, the like view has
prevailed.
Libbey v. Hodgdon, 9 N.H. 394;
March v.
Eastern Railroad Co., 40 N.H. 548, 579;
Day v. Essex
County Bank, 13 Vt. 97;
Moulin v. Trenton Ins. Co.,
25 N.J.L. 57;
Bushel v. Commonwealth Ins. Co., 15 S. &
R. 173;
North Missouri Railroad v. Akers, 4 Kan. 453, 469;
Council Bluffs Co. v. Omaha Co., 49 Neb. 537. The courts
of New York and Massachusetts, indeed, have declined to take
jurisdiction of suits against foreign corporations, except so far
as it has been expressly conferred by statutes of the state.
McQueen v. Middletown Mfg. Co., 16 Johns. 5;
Robinson
v. Oceanic Steam Navigation Co., 112 N.Y. 315;
Desper v.
Continental Water Meter Co., 137 Mass. 252. But the
jurisdiction of the circuit courts of the United States is not
created by, and does not depend upon, the statutes of the several
states.
In the circuit courts of the United States, there have been
conflicting opinions, but the most satisfactory ones are those of
Judge Drummond and Judge Lowell, in favor of the liability of
foreign corporations to be sued.
Wilson Packing Co. v.
Hunter, 8 Bissell 429;
Hayden v. Androscoggin Mills,
1 F. 93.
In
Lafayette Ins. Co. v. French, above cited, this
Court, speaking by Mr. Justice Curtis, after saying that a
corporation created by one state could transact business in another
state only with the consent, express or implied, of the latter
state, and that this consent might be accompanied by such
conditions as the latter state might think fit to impose, defined
the limits of its power in this respect by adding,
"and these conditions must be deemed valid and effectual by
other states, and by this Court, provided they are not repugnant to
the Constitution or laws of the United States or inconsistent with
those rules of public law which secure the jurisdiction and
authority of each state from encroachment by all others, or that
principle of natural justice which forbids condemnation without
opportunity for defense."
18 How.
59 U. S.
407.
Page 170 U. S. 111
The object of the provisions of the Constitution and statutes of
the United States in conferring upon the circuit courts of the
United States jurisdiction of controversies between citizens of
different states of the Union, or between citizens of one of the
states and aliens, was to secure a tribunal presumed to be more
impartial than a court of the state in which one of the litigants
resides.
The jurisdiction so conferred upon the national courts cannot be
abridged or impaired by any statute of a state.
Hyde v.
Stone, 20 How. 170,
61 U. S. 175;
Smyth v. Ames, 169 U. S. 466,
169 U. S. 516.
It has therefore been decided that a statute which requires all
actions against a county to be brought in the county court does not
prevent the circuit court of the United States from taking
jurisdiction of such an action, Chief Justice Chase saying that "no
statute limitation of suability can defeat a jurisdiction given by
the Constitution."
Cowles v. Mercer
County, 7 Wall. 118,
74 U. S. 122;
Lincoln County v. Luning, 133 U.
S. 529;
Chicot County v. Sherwood, 148 U.
S. 529. So statutes requiring foreign corporations, as a
condition of being permitted to do business within the state, to
stipulate not to remove into the courts of the United States suits
brought against them in the courts of the state have been adjudged
to be unconstitutional and void.
Home Ins.
Co. v. Morse, 20 Wall. 445;
Barron v.
Burnside, 121 U. S. 186;
Southern Pacific Co. v. Denton, 146 U.
S. 202.
On the other hand, upon the fundamental principle that no one
shall be condemned unheard, it is well settled that, in a suit
against a corporation of one state brought in a court of the United
States held within another state in which the corporation neither
does business nor has authorized any person to represent it,
service upon one of its officers or employees found within the
state will not support the jurisdiction, notwithstanding that such
service is recognized as sufficient by the statutes or the judicial
decisions of the state.
St. Clair v. Cox, 106 U.
S. 350;
Fitzgerald Co. v. Fitzgerald,
137 U. S. 98,
137 U. S. 106;
Goldey v. Morning News, 156 U. S. 518.
See also Mexican Central Railway v. Pinkney, 149 U.
S. 194.
By the existing act of Congress defining the general
jurisdiction
Page 170 U. S. 112
of the circuit courts of the United States, those courts
"shall have original cognizance, concurrent with the courts of
the several states, of all suits of a civil nature at common law or
in equity when the matter in dispute exceeds, exclusive of interest
and costs, the sum or value of two thousand dollars, . . . in which
there shall be a controversy between citizens of different states,
. . . or a controversy between citizens of a state and foreign
states, citizens or subjects,"
and, as has been adjudged by this Court, the subsequent
provisions of the act as to the district in which suits must be
brought have no application to a suit against an alien or a foreign
corporation, but such a person or corporation may be sued by a
citizen of a state of the Union in any district in which valid
service can be made upon the defendant. Act March 3, 1887, c. 373,
§ 1, as corrected by Act Aug. 13, 1888, c. 866, § 1, 24 Stat. 552;
25 Stat. 434;
Shaw v. Quincy Mining Co., 145 U.
S. 444,
145 U. S. 453;
In re Hohorst, 150 U. S. 653;
Galveston &c. Railway v. Gonzales, 151 U.
S. 496,
151 U. S. 503;
In re Keasbey & Mattison Co., 160 U.
S. 221,
160 U. S.
229-230.
The present action was brought by a citizen and resident of the
State of New Jersey in a circuit court of the United States held
within the State of New York against a foreign corporation doing
business in the latter state. It was for a personal tort committed
abroad, such as would have been actionable if committed in the
State of New York, or elsewhere in this country, and an action for
which might be maintained in any circuit court of the United States
which acquired jurisdiction of the defendant.
Railroad Co. v.
Harris, above cited;
Dennick v. Railroad Co.,
103 U. S. 11;
Huntington v. Attrill, 146 U. S. 657,
146 U. S. 670,
146 U. S. 675;
Stewart v. Baltimore & Ohio Railroad, 168 U.
S. 445. The summons was duly served upon the regularly
appointed agents of the corporation in New York.
In re
Hohorst, above cited. The action was within the general
jurisdiction conferred by Congress upon the circuit courts of the
United States. The fact that the Legislature of the State of New
York has not seen fit to authorize like suits to be brought in its
own courts by citizens and residents of other states cannot deprive
such citizens
Page 170 U. S. 113
of their right to invoke the jurisdiction of the national courts
under the Constitution and laws of the United States.
The necessary conclusion is that the circuit court had
jurisdiction to try the action, and to render judgment therein
against the defendant, and that the
Question certified must be answered in the
affirmative.
*
"SEC 432 (amended 1877, c. 416).
How Personal Service of
Summons Made upon a Foreign Corporation. Personal service of a
summons upon a defendant, being a foreign corporation, must be made
by delivering a copy thereof, within the state, as follows:"
"1. To the President, treasurer or secretary, or, if the
corporation lacks either of those officers, to the officer
performing corresponding functions, under another name."
"2. To a person designated for the purpose by a writing, under
the seal of the corporation, and the signature of its President,
vice-President, or other acting head, accompanied with the written
consent of the person designated, and filed in the office of the
Secretary of State. The designation must specify a place within the
state as the office or residence of the person designated, and if
it is within a city, the street, and the street number, if any, or
other suitable designation of the particular locality. It remains
in force until the filing in the same office of a written
revocation thereof, or of the consent, executed in like manner, but
the person designated may from time to time change the place
specified as his office or residence to some other place within the
state by a writing, executed by him and filed in like manner. The
Secretary of State may require the execution of any instrument,
specified in this section, to be authenticated as he deems proper,
and he may refuse to file it without such an authentication. An
exemplified copy of a designation so filed, accompanied with a
certificate that it has not been revoked, is presumptive evidence
of the execution thereof, and conclusive evidence of the authority
of the officer executing it."
"3. If such a designation is not in force, or if neither the
person designated, nor an officer specified in subdivision first of
this section, can be found with due diligence, and the corporation
has property within the state, or the cause of action arose
therein, to the cashier, a director, or a managing agent of the
corporation within the state."
"SEC. 1780.
When Foreign Corporations may be Sued. An
action against a foreign corporation may be maintained by a
resident of the state, or by a domestic corporation, for any cause
of action. An action against a foreign corporation may be
maintained by another foreign corporation, or by a nonresident, in
one of the following cases only:"
"1. Where the action is brought to recover damages for the
breach of a contract made within the state, or relating to property
situated within the state at the time of the making thereof."
"2. Where it is brought to recover real property situated within
the state, or a chattel, which is replevied within the state."
"3. Where the cause of action arose within the state, except
where the object of the action is to affect the title to real
property situated without the state."
