310 F.2d 811 (4th Cir. 1962), 8610, Industria E. Comercio de Minerios, S. A. v. Nova Genuesis Societa Per Azioni Per L'Industria Et Il Commercio Maritimo

Docket Nº:8610.
Citation:310 F.2d 811
Case Date:November 09, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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310 F.2d 811 (4th Cir. 1962)

INDUSTRIA E. COMERCIO DE MINERIOS, S.A. and United States of America, Appellants,



No. 8610.

United States Court of Appeals, Fourth Circuit.

November 9, 1962

Argued Sept. 28, 1962.

George B. Warburton, New York City (Michael B. Wagenheim, Norfolk, Va., and Hill, Rivkins, Louis & Warburton, New York City, on brief), for libellant-appellant.

C. V. Spratley, Jr., U.S. Atty., on brief, for appellant United States of America.

William A. Grimes, Baltimore, Md. (Leon T. Seawell, Norfolk, Va., Ober, Williams, Grimes & Stinson, Baltimore, Md., and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit judges.

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SOPER, Circuit Judge.

The appeal in this case is taken by the libellant, Industria E. Comercio de Minerios, S.A., a Brazilian corporation, hereinafter called ICOMI, from a decree of the District Court wherein the court granted the motion of Nova Genuesis Societa Per Azioni Per L'Industria Et Il Commercio Maritimo, the respondent, an Italian corporation, to decline jurisdiction under the doctrine forum non conveniens because all the parties interested in the subject of the suit are foreign corporations. The libellant also appealed from a portion of the decree which denied a motion of the United States to intervene as a party libellant. This raises the most important question before the court since jurisdiction would not have been denied by the District Judge, as his opinion indicates, if the United States were a proper party. 1

The controversy grows out of the loss at sea on February 2, 1958 of the steamship Bonitas, an Italian vessel, which was owned by the Italian corporation which is the respondent in this case. She was carrying a cargo of manganese ore from Santana, Brazil, to Baltimore, Maryland, which had been shipped by ICOMI in fulfillment of a contract of June 7, 1953 between ICOMI and the United States, wherein ICOMI agreed to obtain large quantities of the ore and to ship it in vessels from Brazil to such ports as the United States might designate. The agreement provided that ICOMI was to have the cargo insured and the policy of insurance which covered the lost cargo in this case was issued by the Eagle Star Insurance Company, a British corporation, and purported to cover ICOMI and such other persons as their interests might appear.

The libel was originally filed in personam by two New York corporations which had arranged for the shipment and the insurance as the agents of ICOMI. It was brought against the respondent owner of the Italian ship on the ground that the vessel was unseaworthy and hence her owner was liable to the libellant in the sum of $650,000 for the damages sustained in the loss of the cargo. A few days after the libel was filed it was amended by order of court to substitute ICOMI in place of the original libellants since it was shown that they served only as agents for ICOMI in bringing the suit. Service of process was made upon certain persons alleged to be officers of the owner of the ship who were temporarily in Norfolk, Va., attending funeral services for members of the crew of the ship. A motion to quash the service of process was filed on the ground, amongst other things, that the respondent was not engaged in any business within the jurisdiction of the court. The District Judge did not find it necessary to pass on this question.

After the ship was lost the United States first took the position that it had no interest in the cargo or in the insurance since the cargo had not been delivered. Thereupon, ICOMI's agents collected the insurance in the sum of $593,019.28 from the British insurance company and, with the consent of the United States, paid $144,582.62 out of the moneys received to the Export-Import Bank pursuant to a contract between the bank and ICOMI. Subsequently, the United States discovered that under the terms of its contract with ICOMI delivery of the cargo was made to it at the time that it was loaded on board the ship at Santana and, therefore, it had title to the cargo and was entitled to the insurance money. This claim was recognized by ICOMI and the money which it had received from the insurance company, less the sum of $144,582.62, was paid by it to the United States.

By reason of these circumstances the complexion of the case has changed. It is no longer a suit by the owner of the cargo against the owner of the ship for losses incurred by the failure to furnish a seaworthy vessel. United States claims the right to come into the case as the

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representative of the insurance company in order to recover on its behalf the value of the cargo lost through the shipowner's default. The insurance policy contained provisions which entitled the insurer to any recovery that might be had from the shipowner if it...

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