406 F.2d 510 (5th Cir. 1969), 26482, Banco Continental v. Curtiss Nat. Bank of Miami Springs

Docket Nº:26482.
Citation:406 F.2d 510
Party Name:BANCO CONTINENTAL, Plaintiff-Appellant, v. CURTISS NATIONAL BANK OF MIAMI SPRINGS et al., Defendants-Appellees.
Case Date:January 09, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 510

406 F.2d 510 (5th Cir. 1969)

BANCO CONTINENTAL, Plaintiff-Appellant,



No. 26482.

United States Court of Appeals, Fifth Circuit.

January 9, 1969

Page 511

Don R. Livingstone, Richard B. Adams, Miami, Fla., Charles F. Schirmeister, New York City, Dean, Adams, George & Wood, Miami, Fla., for appellant.

Henry Burnett, S. J. Powers, Jr., James E. Tribble, P. W. Knight, Fred R. Ober, Hervey Yancey, John L. Britton, Miami, Fla., Blackwell, Walker & Gray, Miami, Fla., for appellee First National Bank of Miami.

Fowler, White, Collins, Gillen, Humkey & Trenam, Miami, Fla., for appellee Braniff Airways, Inc.

Miller Walton, for appellee Wells Fargo Armored Service Corporation of Florida; Walton, Lantaff, Schroeder, Carson & Wahl, Miami, Fla., of counsel.

Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.

AINSWORTH, Circuit Judge:

Appellant, Banco Continental, a Chilean banking corporation, brought this diversity suit against five defendants for the recovery occasioned by the loss of a shipment of United States currency in the amount of $150,000. The District Court dismissed the suit for failure of plaintiff to state a claim against three of the defendants, namely, Braniff Airways, Inc., Wells Fargo Armored Service Corporation of Florida, and First National Bank of Miami, appellees. The two remaining defendants, Curtiss National Bank of Miami Springs and Pan American World Airways, Inc., are not parties to this appeal. Appellant challenges the propriety of the Court's dismissal of the three named defendants, and our sole inquiry on appeal is whether the Court erred in this regard. We are of the opinion that it did, and accordingly reverse and remand.

Under a continuing agreement between Banco Continental and defendant Curtiss National Bank, for a certain consideration (including commissions, air freight and insurance premiums), Curtiss National provided for periodic shipments of United States currency in amounts of $150,000 to $200,000 in designated denominations from Miami, Florida, to appellant at Santiago, Chile. By terms of the agreement, Curtiss National, upon cabled instructions from Banco Continental, was authorized to charge Banco Continental's account with these remittances. On March 17, 1967, Banco Continental cabled Curtiss National, requesting a transmission of $150,000 in dollar bills of specified denominations. On March 21, 1967, the money bag in which the currency was to be shipped finally arrived in Santiago, Chile, and contained instead of the currency ordered, cardboard imitations.

The usual sequence of events from order of the currency to delivery consisted of the following process: Banco Continental would cable its order to Curtiss National, which in turn would order the currency from First National. First National would place the currency in a bag, seal it, and deliver it to Wells Fargo Armored Service Corporation of Florida, which would transport it to Curtiss National. Curtiss National would return it to Wells Fargo for transportation to Pan American World Airways, Inc. for overseas shipment. En route, at Panama, by virtue of an interchange agreement, Braniff Airways, Inc. would become the delivery carrier.

Banco Continental filed a lengthy complaint consisting of five counts against all of the parties who were in a position to handle the currency on its ill-fated trip from Florida to Santiago, Chile, alleging breach of contract against Curtiss National, Pan American and Braniff, and negligence against all five defendants. After responses by Banco Continental to the District Court's own motion for more definite statements, and at least two amendments of the complaint, the District Judge, after argument,

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dismissed Braniff Airways, Wells Fargo and First National, without written reasons.

As a result of the amendments, reallegations and substitutions to the pleadings, the complaint as it now stands contains specific allegations of negligence against each of the appellees. 1

On appeal appellee Braniff Airways argues that under the specific limitations of the Air...

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