M. W. Zack Metal Co. v. International Navigation Corp., 74--1544
| Decision Date | 10 March 1975 |
| Docket Number | No. 74--1544,74--1544 |
| Citation | 510 F.2d 451 |
| Parties | M. W. ZACK METAL COMPANY, Appellant, v. INTERNATIONAL NAVIGATION CORPORATION, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Anthony B. Cataldo, New York City (Jett, Berkley, Furr & Heilig, Norfolk, Va., on brief), for appellant.
John W. Winston, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and THOMSEN, Senior District Judge.
M. W. Zack Metal Company (Zack) appeals from an order of the district court dismissing an action filed therein by Zack against International Navigation Corporation, a Liberian corporation (International). Zack had designated its action as an admiralty and maritime claim within the meaning of Rule 9(h), F.R.Civ.P., and caused the vessel Virtus, owned by International, to be attached.
International chartered its vessel Severn River to Contam Linie Hansen (the charterer), a German partnership, for a voyage in 1960 from Antwerp, Belgium, to New York. The charterer solicited cargo to be transported on board the Severn River and issued its bills of lading for such cargo signed by the vessel's master. Zack shipped with the charterer 93 coils of hot-rolled steel, for which a clean bill of lading was issued, but which were found to be damaged when they were discharged in New York.
In 1961 Zack instituted a suit in a court in Hamburg, Germany, where the charterer resided, against the charterer, the individual partners of the charterer, and International. In 1966 that court found the charterer and its partners liable for the damage to Zack's steel and entered a money judgment for the full amount of the damage in favor of Zack against the charterer and its partners. Zack's claim against International was postponed for later decision.
In 1971 the German court rendered a further decision holding, according to the agreed translation, that 'personal liability of the ship's owner does not exist', but that the 'claims because of cargo damages are secured through a ship's creditor's right, even if--as in the present case--the carrier is not at the same time the ship's owner'. The court entered a judgment that International 'is convicted to submit to execution being levies on the S.S. Severn River' of US $64,018.83, plus interest and part of Zack's expenses. The affidavits of German lawyers submitted by Zack and International respectively, as well as...
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