814 F.2d 115 (2nd Cir. 1987), 320, Kanematsu-Gosho Ltd. v. M/T Messiniaki Aigli

Docket Nº:320, Docket 86-7610.
Citation:814 F.2d 115
Party Name:KANEMATSU-GOSHO LTD., Plaintiff-Appellant, v. M/T MESSINIAKI AIGLI, Amigos Compania Naviera S.A., Mobil Shipping and Transportation Co., Leeward Petroleum Corp., Ltd., and Doman Tankers, Inc., Defendants-Appellees. LEEWARD PETROLEUM COMPANY, LTD., Third-Party Plaintiff, v. E.W. SAYBOLT & CO., LTD., Third-Party Defendant-Appellee.
Case Date:March 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 115

814 F.2d 115 (2nd Cir. 1987)

KANEMATSU-GOSHO LTD., Plaintiff-Appellant,

v.

M/T MESSINIAKI AIGLI, Amigos Compania Naviera S.A., Mobil

Shipping and Transportation Co., Leeward Petroleum

Corp., Ltd., and Doman Tankers, Inc.,

Defendants-Appellees.

LEEWARD PETROLEUM COMPANY, LTD., Third-Party Plaintiff,

v.

E.W. SAYBOLT & CO., LTD., Third-Party Defendant-Appellee.

No. 320, Docket 86-7610.

United States Court of Appeals, Second Circuit

March 20, 1987

Argued Oct. 28, 1986.

Page 116

J. Edwin Carey, New York City (Hill, Rivkins, Carey, Loesberg, O'Brien & Mulroy, Alan S. Loesberg, Donald B. Allen, of counsel), for plaintiff-appellant.

Hollis M. Walker, Jr., New York City (Walker & Corsa, Vera E. Weinberg, Scott A. Walker, of counsel), for defendant-appellee, Amigos Compania Naviera S.A.

John R. Foster, New York City (Waesche, Sheinbaum & O'Regan, P.C., of counsel), for defendant-appellee, Mobil Shipping and Transportation Co.

Lionel R. Saporta, New York City (Hill, Betts & Nash, of counsel), for defendant-appellee, Leeward Petroleum Company, Ltd.

Richard A. Nachman, New York City (Ohrenstein & Brown, of counsel), for third-party defendant-appellee, E.W. Saybolt & Co., Ltd.

Before MESKILL, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Appellant Kanematsu-Gosho Ltd. ("Kanematsu") commenced an action under the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. Sec. 1300 et seq., alleging contamination of a cargo of "jet fuel, kerosene," against the vessel M/T Messiniaki Aigli ("AIGLI"); the ship's owner Amigos Compania Naviera S.A. ("Amigos"); the time charterer Mobil Shipping and Transportation Co. ("Mobil"); and the voyage charterer Leeward Petroleum Company, Ltd. ("Leeward"). Leeward impleaded E.W.

Page 117

Saybolt & Co., Ltd. ("Saybolt") for indemnification purposes.

The United States District Court for the Southern District of New York (Motley, Ch. J.), after a bench trial, dismissed appellant's claims for failure to present a prima facie case, finding that appellant had not "demonstrated that any material change occurred in the cargo between the time of its loading" and discharge. The district court also entered an order awarding costs and attorneys' fees to appellees Amigos, Mobil, Leeward, and Saybolt. Appellant moved the district court pursuant to Federal Rule of Civil Procedure 52(b) for an order amending its findings and judgment, but was denied the relief requested by decision dated March 12, 1986. Appellant comes before this court, contending that the district court erred in finding that appellant failed to establish a prima facie case of liability and in assessing reasonable costs and attorneys' fees in appellees' favor.

We affirm the district court's judgment insofar as it dismisses appellant's claims but reverse that part of the judgment awarding appellees costs and attorneys' fees.

BACKGROUND

On November 13, 1981, appellee Leeward, a corporation in the business of buying and selling petroleum products, contracted with a non-party to this action, Shell Oil Company, for the purchase of approximately 250,000 barrels of what it described as "jet fuel." The contract provided for the delivery of the fuel "into buyer's designated vessel" at Shell Oil Company facilities near Houston, Texas.

In order to transport the fuel, Leeward entered into an agreement with appellee Mobil for the chartering of a tanker, the AIGLI. Mobil had earlier chartered the AIGLI from its owner...

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