United States District Court, Northern District of Illinois, E.D
October 23, 1957
NILS NILSSON, PLAINTIFF,
CLEVELAND TANKERS, INC., DEFENDANT.
The opinion of the court was delivered by: Perry, District Judge.
This cause came on to be heard on the motion of the defendant
to dismiss the amended libel in personam and other alternate
This court has carefully examined and considered all pleadings
as well as the briefs of counsel.
On July 24, 1957, this court dismissed the complaint for
improper venue in accordance with the decision in Olberding v.
Illinois Central Railroad Co., Inc., 346 U.S. 338, 74 S.Ct. 83,
98 L.Ed. 39. Pursuant to leave of court, the plaintiff amended
his action and now brings it in admiralty. The defendant once
again attacks, among other things, the question of venue. This
court now rules solely on the question of venue.
The plaintiff has expressly conceded that the defendant is not
a resident of this district and that it is not doing business
here. Purported service upon the defendant was made pursuant to
the Illinois Non-Resident Watercraft Act, Ill. Rev.Stat. 1957, c.
110, § 263a et seq. which provides that the use and operation by
any person of a watercraft in the waters of this State shall be
deemed an appointment of the Secretary of State to be his true
and lawful attorney upon whom may be served all legal process in
an action or proceeding against him growing out of such use or
resulting in damage or loss to persons or property. It is clear
from the record that at no time has the defendant been licensed
to do business within this district or that it has ever
designated any agent within this district for service. There is
no showing that it is actually doing business within this
district. Since jurisdiction of this court is not founded upon
diversity of citizenship, it would seem that the venue
requirements of 28 U.S.C.A. § 1391(b) and § 1391(c) must be
fulfilled. In the absence of any designation of an agent for
service by the defendant or the doing of business by the
defendant within this district, venue must be founded upon some
implied consent by the defendant to be sued within this district
by virtue of the Illinois Non-Resident Watercraft Act. In its
consideration of an analogous statute, the Supreme Court of the
United States in Olberding v. Illinois Central Railroad Company
expressly held that no such consent could be implied.
It is, therefore, ordered that the amended libel in personam be
and it is hereby dismissed for improper venue.
© 1992-2003 VersusLaw Inc.