339 F.2d 66 (9th Cir. 1964), 19274, States Steamship Co. v. American Smelting & Refining Co.

Docket Nº:19274.
Citation:339 F.2d 66
Party Name:STATES STEAMSHIP COMPANY et al., Appellant, v. AMERICAN SMELTING & REFINING COMPANY, Appellee.
Case Date:December 04, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 66

339 F.2d 66 (9th Cir. 1964)

STATES STEAMSHIP COMPANY et al., Appellant,

v.

AMERICAN SMELTING & REFINING COMPANY, Appellee.

No. 19274.

United States Court of Appeals, Ninth Circuit.

December 4, 1964

Certiorari Denied April 5, 1965.

See 85 S.Ct. 1109.

Page 67

Gilbert C. Wheat, H. Donald Harris, Jr., Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellant.

Stephen McReavy, Lee H. Cliff, Hall, Henry, Oliver & McReavy, San Francisco, Cal., William G. Symmers, Symmers, Fish & Warner, New York City, for appellee.

Before ORR, JERTBERG and MERRILL, Circuit Judges.

ORR, Circuit Judge.

In this appeal we have one question for decision, to wit: Is appellee's claim time-barred by the one-year limitation provision of Section 3(6) of the Carriage of Goods by Sea Act of 1936 (COGSA)? (46 U.S.C. § 1303(6)). We affirm the trial court in its determination that it is not.

Libelant-Appellee is the American Smelting and Refining Company (herein Asarco). The Respondent-Appellant is the States Steamship Company (herein States).

The facts have been stipulated. They are:

'* * * 3. At all times mentioned herein States owned and operated the vessel formerly known as the SS CHARLES E. DANT.

'4. On November 27, 1956 approximately 8400 tons of copper concentrates were laden aboard the SS CHARLES E. DANT at Poro Point, La Union, Philippines, consigned to Asarco at Tacoma, Washington.

'5. Asarco acquired title to said copper concentrates when they were loaded aboard the SS CHARLES E. DANT and at all times hereinafter mentioned was the owner and consignee of said concentrates.

'6. The Bill of Lading constituting the contract of affreightment which governs the rights and liabilities of the parties hereto, insofar as it is applicable, is attached as Exhibit A.

'7. Shortly after departure from Poro Point on November 27, 1956 the SS CHARLES E. DANT took a serious list, necessitating salvage services which were rendered and which enabled the vessel to continue the voyage.

'8. Said salvage services were rendered pursuant to a Salvage Agreement entered into by States on behalf of the vessel and her cargo * * *. Security was given to salvor on behalf of the vessel and her cargo in order to release the vessel and cargo from the salvor's lien.

'9. On January 17, 1957 Asarco entered into an Average Agreement with States in order to obtain possession of the cargo * * *

'10. On or before February 11, 1957 said shipment of copper concentrates was delivered to Asarco at Tacoma, Washington.

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'11. The amount of the salvage award was arbitrated between salvor on the one hand and Asarco and States, on the other, in accordance with the Salvage Agreement. On October 28, 1958 the Salvage Award became final. Thereafter Asarco and States each paid to salvor its respective share of the amount awarded by the arbitrators.

'12. On March 16, 1959 Asarco filed the libel in this action to recover its portion of salvage paid.

'13. States plead, in defense, the one-year statute of limitations contained in the United States...

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