221 F.Supp. 680 (S.D.N.Y. 1963), Cargo & Tankship Management Corp. v. India Supply Mission

Citation221 F.Supp. 680
Party NameCARGO & TANKSHIP MANAGEMENT CORPORATION, as agents for American Tramp Shipping Development Corporation, bareboat owners of the S.S. MOUNT EVANS, Libelant, v. INDIA SUPPLY MISSION and the President of India, Respondents, v. UNITED STATES of America, Respondent-Impleaded.
Case DateSeptember 24, 1963
CourtUnited States District Courts, 2nd Circuit, United States District Courts. 2nd Circuit. Southern District of New York

Page 680

221 F.Supp. 680 (S.D.N.Y. 1963)

CARGO & TANKSHIP MANAGEMENT CORPORATION, as agents for American Tramp Shipping Development Corporation, bareboat owners of the S.S. MOUNT EVANS, Libelant,

v.

INDIA SUPPLY MISSION and the President of India, Respondents, v. UNITED STATES of America, Respondent-Impleaded.

United States District Court, S.D. New York

Sept. 24, 1963

Healy, Baillie & Burke, New York City, for libelant.

Baker, Nelson, Williams & Mitchell, New York City, for respondents; Robert M. Atkinson, New York City, of counsel.

Robert M. Morgenthau, U.S. Atty., for respondent-impleaded, the United States; Louis E. Greco, Atty. in Charge, William H. Postner, Atty. Admiralty and Shipping Section, Dept. of Justice, of counsel.

WYATT, District Judge.

This controversy arises out of the ocean transportation of wheat from this country to India. The importation of the wheat into India, and its transportation there, were being financed by the United States under the authority of Congress granted in Title I of the Agricultural

Page 681

Trade Development and Assistance Act of 1954 ('the Act'), specifically Sections 101-109 thereof (7 U.S.C. §§ 1701-1709; the Act, passed in 1954 by the 83d Congress, is often referred to as Title I, Public Law 480). The Congressional policy, speaking broadly, was to use sales for foreign currencies of surplus agricultural commodities to expand trade with friendly nations, make efficient use of the commodities, facilitate currency convertibility, etc.

The functions of the President under the Act were by him delegated to the Secretary of Agriculture, who then made Regulations governing procedure (7 CFR 1.1 and following).

Libelant Cargo & Tankship Management Corporation ('Management' or 'owner') is the owner (or agent of the owner) of a United States-flag vessel, the 'Mount Evans', and is here suing for freight and demurrage. Respondent is for all practical purposes the Government of India, here represented by respondent India Supply Mission (the 'Mission'). India made an agreement with the United States for wheat under the Act and the Mission made a voyage charter of the Mount Evans to carry a cargo of such wheat to India.

After this suit was commenced, India, claiming that the United States is obligated to reimburse it for the cost of transportation of the wheat, impleaded the United States and the United States is now a party to the suit as Respondent-Impleaded.

Libelant owner moves under Admiralty Rule 58 for summary judgment directing the Mission to pay it $287,377.50 as freight and demurrage under the voyage charter of the Mount Evans. Respondent Mission opposes this motion for summary judgment and at the same time makes a companion motion (also under Admiralty Rule 58) for a summary judgment against the United States for any amount which the Mission may be required to pay as freight (not demurrage) in any summary judgment in favor of the owner.

The agreement between India and the United States for purchase by India of wheat under the Act was dated May 4, 1960.

The Regulations (7 CFR 11.3, 11.4) require that under such an agreement 'purchase authorizations' (PA) be obtained by the importing country.

India obtained from the Foreign Agricultural Service ('FAS', a division of the Department of Agriculture administering this program under the Act) two such purchase authorizations:

a. No. 10-58 (by assignment from Turkey), dated January 5, 1962, for $1,282,000 or about 20,000 tons of wheat; and

b. No. 39-65, dated January 29, 1962 (amended March 27, 1962) for $49,800,000 (as increased by the amendment) or about 800,000 tons of wheat.

Each PA contained a special provision that at least 50% Of the wheat had to be shipped in United States bottoms, that advance approval of charters must be secured, and that for each vessel approved an 'Advice of Vessel Approval' would be issued which would indicate whether Commodity Credit Corporation ('CCC', an agency of the United States within the Department of Agriculture, 15 U.S.C.§ 714 and following) would finance ocean transportation and whether a 'notice of arrival' would be required.

The Regulations provide (7 CFR 11.4(d)(8)(vi)) that every PA is 'deemed' to include a provision that when a 'notice of arrival' is required, it must be furnished promptly by the importing country or its agent and must give the vessel name, the PA number, the first discharge port and the date of arrival. The Regulations further provide (7 CFR 11.9(b)(2)) that 'if required by the related CCC Form 106-2' there must be furnished to the CCC 'a notice of arrival at the first port of discharge of the vessel named in the CCC Form 106-2'. The same part of the Regulations makes a limited exception to this, however, in that a notice of arrival will not be required if

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a vessel is 'lost or unable to proceed to destination * * * because of damage caused by perils of the sea * * * (and other force majeure conditions) * * * without the fault of the supplier of the ocean transportation * * * provided the owner * * * supplies evidence satisfactory' to CCC.

India also obtained from FAS two 'ocean transportation authorizations', each dated the same day as, and numbered to correspond with, the PAs. These authorized the procurement of ocean transportation 'subject to the Regulations'. They further stated that CCC would reimburse India for the cost of transportation of wheat covered by 'Forms CCC-106' and 'which is shipped on the vessels named in such forms'. Reimbursement was to be made upon submission of the documents required by the Regulations plus an 'Additional Documentation', namely, a certificated by the 'supplier' of transportation as follows:

'The undersigned hereby certifies that the vessel named herein and for which the cost of ocean freight is claimed, qualifies as a privately owned United States flag commercial vessel within the requirements of Public Law 87-266 and is an eligible U.S. flag vessel for the purpose of Public Law 664'.

Public Law 664 (of the 83d Congress) added to Section 901 of the Merchant Marine Act, 1936 (46 U.S.C. § 1241) a provision, in relevant part, that whenever the United States shall advance funds or credits in connection with furnishing commodities to a foreign nation, at least 50% Of the tonnage thereof must be carried on 'privately owned United States-flag commercial vessels' (46 U.S.C. § 1241(b)). Public Law 87-266 is an amendment to 46 U.S.C.§ 1241(b) and in relevant part deals with requirements for inclusion within the term 'privately owned United States-flag commercial vessels'.

Having obtained the authorizations in January 1962 as described, India then made a voyage charter party, dated March 2, 1962, with Management for a voyage of the Mount Evans ('owner's option substitute Roxanne') to India with approximately 10,000 tons of wheat for freight of $28 per ton 'to be payable on the vessel's arrival at the first port of discharge'. The vessel is stated to be 'tight, staunch and strong, and in every way fitted for...

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6 practice notes
  • 588 F.Supp. 574 (D.Del. 1984), Civ. A. 84-41, Greenstone Shipping Co., S.A. v. Transworld Oil, Ltd. of Hamilton, Bermuda
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Court (Delaware)
    • 29 Febrero 1984
    ...assume that Shipowner's recovery of freight should be on the basis of quantum meruit. [12] The trial court, in its opinion reported at 221 F.Supp. 680, 684 That the vessel was unseaworthy may be some defense to a general average claim if asserted by the owner, but seems irrelevant to a clai......
  • 547 S.W.2d 220 (Mo.App. 1977), 37658, Cantor v. Union Mut. Life Ins. Co.
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 8 Febrero 1977
    ...v. An-Son Offshore Drilling Co., 194 F.Supp. 396, 397 (S.D.N.Y.1961); Cargo & Tankship Management Corp. v. India Supply Mission, 221 F.Supp. 680, 685 (S.D.N.Y.1963); Frensdorf v. Stumpf, Sup., 30 N.Y.S.2d 211, 217 (S.Ct.1941) likened to a pledge; Kelley v. Bluff Creek Oil Company, 158 T......
  • 325 F.Supp. 474 (S.D.N.Y. 1971), 70 Civ. 3466, Trans-Oceanic Peace Corp. v. India Supply Mission
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 1 Abril 1971
    ...Co. v. Monongahela & Ohio Dredging Co., 407 F.2d 1170 (3d Cir. 1969); Cargo & Tankship Management Corp. v. India Supply Mission, 221 F.Supp. 680 (S.D.N.Y.), aff'd, 336 F.2d 416 (2d Cir. 1964); American Foreign S.S. Corp. v. 9,000 Tons of Manganese Ore, 109 F.Supp. 765 (D.N.J.1952). ......
  • 336 F.2d 416 (2nd Cir. 1964), 475, Cargo & Tankship Management Corp. v. India Supply Mission
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 28 Agosto 1964
    ...judgment against the impleaded respondent for an indemnification, and the respondents have appealed. The opinion below is reported at 221 F.Supp. 680. 1 We affirm the lower court's grant of summary judgment in favor of the libelant, but we reverse the denial of the respondents' motion for s......
  • Request a trial to view additional results
6 cases
  • 588 F.Supp. 574 (D.Del. 1984), Civ. A. 84-41, Greenstone Shipping Co., S.A. v. Transworld Oil, Ltd. of Hamilton, Bermuda
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Court (Delaware)
    • 29 Febrero 1984
    ...assume that Shipowner's recovery of freight should be on the basis of quantum meruit. [12] The trial court, in its opinion reported at 221 F.Supp. 680, 684 That the vessel was unseaworthy may be some defense to a general average claim if asserted by the owner, but seems irrelevant to a clai......
  • 547 S.W.2d 220 (Mo.App. 1977), 37658, Cantor v. Union Mut. Life Ins. Co.
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 8 Febrero 1977
    ...v. An-Son Offshore Drilling Co., 194 F.Supp. 396, 397 (S.D.N.Y.1961); Cargo & Tankship Management Corp. v. India Supply Mission, 221 F.Supp. 680, 685 (S.D.N.Y.1963); Frensdorf v. Stumpf, Sup., 30 N.Y.S.2d 211, 217 (S.Ct.1941) likened to a pledge; Kelley v. Bluff Creek Oil Company, 158 T......
  • 325 F.Supp. 474 (S.D.N.Y. 1971), 70 Civ. 3466, Trans-Oceanic Peace Corp. v. India Supply Mission
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 1 Abril 1971
    ...Co. v. Monongahela & Ohio Dredging Co., 407 F.2d 1170 (3d Cir. 1969); Cargo & Tankship Management Corp. v. India Supply Mission, 221 F.Supp. 680 (S.D.N.Y.), aff'd, 336 F.2d 416 (2d Cir. 1964); American Foreign S.S. Corp. v. 9,000 Tons of Manganese Ore, 109 F.Supp. 765 (D.N.J.1952). ......
  • 336 F.2d 416 (2nd Cir. 1964), 475, Cargo & Tankship Management Corp. v. India Supply Mission
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 28 Agosto 1964
    ...judgment against the impleaded respondent for an indemnification, and the respondents have appealed. The opinion below is reported at 221 F.Supp. 680. 1 We affirm the lower court's grant of summary judgment in favor of the libelant, but we reverse the denial of the respondents' motion for s......
  • Request a trial to view additional results