Mamiye Bros. v. Barber Steamship Lines, Inc.

Citation241 F. Supp. 99
PartiesMAMIYE BROS., et al., Libelants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents, v. ATLANTIC STEVEDORING CO., Inc., et al., Impleaded-Respondents. GELMART KNITTING MILLS, INC., et al., Libelants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents, v. ATLANTIC STEVEDORING CO., Inc., et al., Impleaded-Respondents. ISAAC COHEN & SONS CORP., et al., Libelants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents, v. ATLANTIC STEVEDORING CO., Inc., et al., Impleaded-Respondents.
Decision Date05 May 1965
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

COPYRIGHT MATERIAL OMITTED

Bigham, Englar, Jones & Houston, New York City, Vincent L. Leibell, Jr., Charles W. Harvey, Christopher R. Knauth, New York City, of counsel, for libelants.

Haight, Gardner, Poor & Havens, New York City, Tallman Bissell, Thomas R. H. Howarth, Philip V. Moyles, New York City, of counsel, for respondents.

Hill, Betts, Yamaoka, Freehill & Longcope, New York City, Eli Ellis, Robert H. Peterson, Robert W. Mullen, New York City, of counsel, for impleaded-respondents.

WYATT, District Judge.

These are three admiralty suits in personam, consolidated for trial by a pre-trial order of Judge Sugarman filed April 3, 1963 (Rule 13 of Admiralty Rules of this Court). They are to recover for damage caused to cargo goods by high water which on September 12, 1960, flooded Pier 5 in Brooklyn where the goods were being held. The high water was associated with Hurricane Donna which passed New York Harbor on the date given. There is no dispute as to the fact of water damage nor as to the reason therefor.

After trial, the decision is that the libel in each of the three suits must be dismissed on the merits.

1. The three separate libels
a. The Mamiye Bros. suit (61 Ad. 779)

This libel was filed on June 28, 1961. The libelants, thirty-eight in number, are the consignees or owners or both of cargo items which were discharged to Pier 5, Bush Terminal, in Brooklyn prior to September 12, 1960 from M/V Toreador or, as to one of the cargo items, from M/V Turandot. Respondents are Barber Steamship Lines, Inc. ("Barber") and various other corporations, partnerships and individuals engaged as owners and operators of common carrier cargo vessels; some of the respondents owned or operated or both the Toreador and the Turandot. The libel alleged that when delivery of the cargo items was made to libelants by respondents (this delivery would be after September 12, 1960), such cargo items were not in the same good condition as when delivered to respondents for carriage but were damaged in the aggregate amount of $147,460.44 because they were "slack, wet, stained and deteriorated".

In this suit, there are nine named respondents as follows:

Barber A/S Tankfart I Wilh. Wilhelmsen A/S Tankfart IV Dampskibsaktieselskabet A/S Tankfart V Den Norske Afrika-Og Australielinie A/S Tankfart VI Wilhelmsens Dampskibsaktieselskab A/S Tonsberg

All have appeared in the suit.

The bills of lading for the Toreador shipments and the one Turandot shipment show, however, that the named respondents Barber and Wilh. Wilhelmsen had no ownership in either of the two vessels and were not parties to the bills of lading, the contracts of carriage. The libel would on this account be dismissed as against them in any event. The other respondents were owners of the carrying vessels, were parties to the contracts of carriage, and are proper parties respondent. Respondents brought into the suit — as impleaded respondents under Admiralty Rule 56 of the Supreme Court — the pier terminal operator (which happened to be also stevedore for respondents) and an affiliate of the pier operator, the lessee of Pier 5, respectively, Atlantic Stevedoring Co., Inc. and Atlantic Piers Co., Inc. These two last named corporations are subsidiaries of Barber. The petition to implead averred that respondents had a contract with Atlantic Stevedoring for stevedoring and terminal operation services; that in the contract Atlantic Stevedoring agreed to indemnify respondents for any liability imposed on respondents by reason of the negligence of Atlantic Stevedoring; that the damage to the cargo items from the Toreador and Turandot occurred while such cargo items were in the custody of Atlantic Stevedoring on Pier 5; and that if there was any negligence, it was solely the negligence of Atlantic Stevedoring "in the maintenance of the pier and the care and custody of said shipments". The petition to implead further averred that Atlantic Piers was the lessee in possession of Pier 5 in Brooklyn; that when there was high water at Pier 5 on September 12, 1960, the cargo items were in the custody of Atlantic Piers as the lessee of Pier 5 and as bailee; and that if there was any negligence causing the damage by wetting to the cargo items it was solely the negligence of Atlantic Piers "in the maintenance of said pier and the care and custody of said shipments". Respondents ask, therefore, that if they (respondents) are held liable to libelants, there be recovery over in favor of respondents against the impleaded respondents.

b. The Gelmart Knitting Mills, Inc. suit (61 Ad. 807)

This libel was filed on July 5, 1961. The libelants, some twenty-one in number, are the shippers (consignors) or owners or both of cargo items which are alleged to have been delivered to respondents at Pier 5, Bush Terminal, in Brooklyn, for shipment to foreign ports by respondents on vessels, the M/V Turandot, the M/V Tatra and the S/S Queensville. Respondents are Barber and various other corporations, partnerships, and individuals engaged as owners and operators of common carrier cargo vessels; some of the respondents owned or operated or both the Turandot, Tatra, and Queensville. The libel alleged that after delivery to respondents and while the cargo items were on Pier 5 in their custody the cargo "became damaged by water" to the extent of $32,768.83.

In this suit, there are 16 named respondents as follows:

Barber A/S Tankfart V American-West African Line, Inc. A/S Tankfart VI D/S A/S Den Norse Africa-Og Barber Mediterranean Australielinie (there are many variants Line, Inc. in the spelling of this word in the papers; this spelling is used uniformly because it is employed in the printed bill of lading.) Wilh. Wilhelmsen Barber Line Wilhelmsens D/S A/S A. F. Klaveness & Co. A/S A/S Tonsberg A/S Solstad A/S Tankfart I D/S A/S International A/S Tankfart IV James Denny

No citation was ever served on respondent James Denny nor did he ever appear. All the other respondents have appeared. The bills of lading and dock receipts show that the several shipments (except for items 19, 20 and 23 of Schedule A to the libel) were delivered to Pier 5 for shipment out by Turandot and Tatra. There is no evidence in the record of delivery of anything for shipment out by Queensville. There are dock receipts (signed by the receiving clerk of the pier operator) covering items 19, 20 and 23 of Schedule A to the Gelmart libel; these dock receipts are marked "Hold on Dock" but without the name of any ship; as to items 19 and 20 the receipts indicate in typewriting that the shipment was to go by "Barber Line" or "Barber Steamship Line" and as to item 23 the dock receipt is unsigned but is on a printed form of "Barber Line". Respondents appear to make nothing of these differences and for present purposes they are ignored.

The following respondents were owners of the Turandot and Tatra and as such parties to the contract of carriage and to receipt of the cargo items by their agents at Pier 5:

Dampskibsaktieselskabet Den Norske Africa-Og Australielinie Wilhelmsens Dampskibsaktieselskab A/S Tonsberg A/S Tankfart I A/S Tankfart IV A/S Tankfart V A/S Tankfart VI

These are proper parties respondent. As to the other named respondents in this suit, the libel would be dismissed as to them in any event unless before entry of the decree it could be shown that other respondents are proper because of the facts concerning items 19, 20 and 23 of Schedule A annexed to the libel. On substantially the same averments as in the first suit, respondents by petition brought into the second suit — as impleaded respondents under Admiralty Rule 56 of the Supreme Court — Atlantic Stevedoring and Atlantic Piers; recovery over was asked on the same basis.

c. The Isaac B. Cohen Sons Corp. suit (61 Ad. 1096)

The libel in this suit was filed on September 12, 1961. Ten of the libelants are the consignees or owners or both of cargo items which were discharged to Pier 5 in Brooklyn prior to September 12, 1960 from the Toreador, the Turandot and the Talleyrand. Twelve of the libelants are the shippers (consignors) or owners or both of cargo items which are alleged to have been delivered to respondents at Pier 5 in Brooklyn for shipment to foreign ports by respondents on the motor vessels Tatra, Turandot and Corneville. Respondents are Barber and various other corporations, partnerships and individuals engaged as owners and operators of common carrier cargo vessels; some of the respondents owned or operated or both the Toreador, the Turandot, the Talleyrand and the Tatra.

The Corneville, according to a bill of lading in evidence (Ex. 11; item 17 of Schedule B to the libel) and according to advice from counsel for respondents, was owned by S/A Sangstad — not a party to any of the suits. There could thus have been no decree in any event as to the deliveries for shipment by Corneville (items 17 and 18 of Schedule B to the libel).

As to the cargo discharged to Pier 5 from Toreador, Turandot and Talleyrand, the libel alleged that when later delivered to the ten libelants concerned, it was not in the same good condition as when delivered to respondents but was damaged in the aggregate amount of $17,171.51 because it was "slack, wet, stained and deteriorated". As to the cargo items delivered by the twelve libelants to respondents for shipment to foreign ports, the libel alleged that after...

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