Swift & Co. v. Compania Transmaritima Colombiana
| Decision Date | 30 May 1949 |
| Docket Number | No. 2798.,2798. |
| Citation | 83 F. Supp. 273 |
| Parties | SWIFT & CO., PACKERS, et al. v. COMPANIA TRANSMARITIMA COLOMBIANA, S. A., et al. |
| Court | U.S. District Court — Panama Canal Zone |
McGrath, Sheridan, & Thomas, William J. Sheridan, Jr., Deutsch, Kerrigan, & Stiles and Harry F. Stiles, Jr., all of New Orleans, La., for libelants.
Van Siclen & Ramirez and Charles E. Ramirez, all of Ancon, Canal Zone, and Nelson, Healy & Baillie and Nicholas J. Healy, III, all of New York City, for respondents.
This action in admiralty was filed March 7, 1948 upon a libel in personam accompanied by a prayer for foreign attachment.
The respondent Compania Transmaritima Colombiana was incorporated under the laws of the Republic of Colombia. As such incorporated company it was the registered owner of two vessels; namely, The Cali and The Alacran, which registration was likewise in the Republic of Colombia.
On the 7th day of January, 1948, the above corporation received from one Luis A. Noba at Guayaquil, Ecuador, a certain quantity of bagged rice. Luis A. Noba, a resident and citizen of Colombia, contracted with the carrier that such rice be transported and delivered under an "order bill of lading" to the ports of Cienfuegos, Cuba, and Santiago de Cuba with notation on such bills of lading to notify Swift & Company of Habana, Cuba, and Industrial Commercial Casal, at Santiago de Cuba.
This rice was loaded on the vessel Cali, and on the 17th day of January, 1948, the vessel Cali was beached on the island of Grand Cayman resulting in the loss of the rice before reaching the ports of delivery.
The libelant Swift & Company is a corporation organized under the laws of the State of Nevada in the United States which, by reason of the place of its incorporation, is their place of residence. The other libelants are residents and citizens of the Republic of Cuba other than Luis A. Noba who is a citizen and resident of the Republic of Colombia.
The pleadings allege the delivery by Luis A. Noba, of the rice to the carrier for delivery; however, there is no allegation in pleadings setting forth how or by what manner the ownership of this rice in question passed from Noba to Swift & Company or to the other named libelants. The only allegation stated as to such claimed ownership is that they (libelants) became the owner of all the merchandise so shipped.
Under the above proceedings, a process in personam with clause of foreign attachment was issued March 7, 1948, and by the Marshal executing such process by serving Captain John Bowie, the Master of the vessel Caribe, and by taking into the Marshal's custody the steamer Caribe, her engines et cetera, and "also some gear, hoists, winches, etc., from the M/V Cali, part of the goods and chattels of the respondents."
On the following day, March 8, 1948, an amended and supplemental libel was filed by the same libelants causing the corporation, Compania Colombiana Del Caribe to be made a party respondent and charging that the respondent Compania Colombiana Del Caribe was on March 4, 1948 organized under the laws of the Republic of Colombia, and was organized by the directors, officers, and stockholders of the corporation Compania Transmaritima Colombiana without any substantial monies being paid into its treasury, and that the corporation Compania Colombiana Del Caribe is merely the creature or alter ego of the corporation Compania Transmaritima Colombiana and that the transfer of the steamship Alacran to the corporation Compania Colombiana Del Caribe was not a real or valid consideration and was wholly fictitious and an attempt to defraud the rights of the libelants; that in furtherance of such fraudulent scheme that the name of such vessel was changed from Alacran to Caribe, which change was registered in the Custom and Port Officials of Barranquilla, Colombia on or about March 4, 1948.
This amended and supplemental libel by way of a plea in the alternative alleges that the corporation Compania Colombiana Del Caribe is indebted unto the corporation Compania Transmaritima Colombiana for the full purchase price of said steamship Alacran now known as the steamship Caribe or a substantial part thereof.
Process with clause of foreign attachment was issued under the prayer contained in the amended and supplemental libel on March 8, 1948, which was executed on March 8, 1948 on Captain John Bowie as Master of the vessel Caribe and by taking into official custody the vessel Caribe, her engines, et cetera.
The respondents, Compania Transmaritima Colombiana and Compania Colombiana Del Caribe, filed their answers on June 11, 1948, denying all allegations contained in amended and substituted libel and in support of such denial have filed affidavits.
On August 16, 1948, the respondent Compania Colombiana Del Caribe, upon notice, filed motion to vacate and discharge attachment on steamship Caribe and for an order dismissing the amended and supplemental libel filed herein on March 8, 1948, there being attached to such motion an affidavit of one of the proctors for respondents.
This action is now before this Court on the above motion to vacate and discharge the attachment on the vessel Caribe and for an order dismissing the amended and supplemental libel filed March 8, 1948, upon the grounds of non-jurisdiction and failure of libel to allege facts sufficient to support libelants' cause of action.
The motion to discharge levy of attachment and to dismiss amended and supplemental libel, which is supported by affidavit, will be treated as a motion for summary judgment under rule 12(b) of the Federal Rules of Civil Procedure, as recently amended, 28 U.S.C.A.
The liability of the respondent, Compania Transmaritima Colombiana, commenced upon its failure to deliver the shipment of rice to the ports of Santiago de Cuba and Cienfuegos, Cuba. Its vessel Cali which contained the shipment in question was beached on the Island of Grand Cayman on January 17, 1948, resulting in that such rice was never delivered at either of the two designated ports. After the beaching of the vessel Cali, and prior to the filing of this libel proceeding, and in the latter part of February, 1948, certain individual citizens and residents of the Republic of Colombia organized and created under the laws of the Republic of Colombia a corporation designated as "Compania Colombiana Del Caribe."
Some, but not all, of the stockholders of the corporation Compania Transmaritima Colombiana were stockholders in the corporation, Compania Colombiana Del Caribe, and likewise the designated managing officers of the two corporations were different persons, other than Walter Keene acting as Chairman of the Board of Directors of both incorporated companies.
Prior to February, 1948, the date of the creation of the corporation Compania Colombiana Del Caribe, the corporation Compania Transmaritima was the registered owner under the laws of the Republic of Colombia of a vessel named Alacran.
After the incorporation of Compania Colombiana Del Caribe and on February 25, 1948, the vessel Alacran was sold and tranferred from the corporation Compania Transmaritima Colombiana to the corporation Compania Colombiana Del Caribe. Thereafter and on March 4, 1948, the vessel Alacran was changed to the name of Caribe and under that name was registered in the office of administration of customs of Barranquilla and in the republic of Colombia under the ownership of Compania Colombiana Del Caribe. An attested copy of certificate of registry has been filed as an exhibit herein.
The vessel Caribe from and after date of registration and up to the time of levy under the attachment proceedings of March 8, 1948, had been operated by the corporation Compania Colombiana Del Caribe.
Libelants' claims are a direct obligation of the corporation Compania Transmaritima Colombiana and in view of the corporation Compania Colombiana Del Caribe not being in existence prior to February, 1948, and of its not being in existence until more than thirty days after the beaching of the vessel Cali, there cannot be any liability existing against the Compania Colombiana Del Caribe unless a right of action based upon one of two facts exists, the first of which is, if the one corporation is merely a fictitious entity for the other or if either are alter ego for the other, then upon such fact being established, any assets of either could be reached by libelants in satisfaction of their claims, and the other right of action would be if the corporation Del Caribe had in its custody or control any property or assets belonging to the corporation Transmaritima Colombiana, then such property or assets could be sequestered to the payment of libelants' claims.
There is no charge contained in libelants' complaint which charges any contractual or maritime liability against the corporation Del Caribe, libelants' claim against this corporation being founded entirely on the relations existing between the two corporations from and after the breach of carriage committed by the corporation Compania Transmaritima Colombiana.
Respondents' motion to dismiss levy of attachment on the vessel Caribe is based upon two questions of law:
First, that this Court lacks jurisdiction to inquire into or determine any relations existing or transactions carried out between the two corporations in view of the fact that same were completed in and under the laws of the Republic of Colombia and therefore the determinative authority over such acts and transactions are governed solely by the laws of the Republic of Colombia.
Second, that the cause of action, out of which the attachment of the vessel Caribe was issued, fails to allege any fact or cause constituting an act of transportation of commerce by sea and therefore such action against the corporation Del Caribe is not of a maritime nature and...
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Swift Co Packers v. Compania Colombiana Del Caribe 14 8212 15, 1949
...was ordered to be vacated. While libellants submitted additional evidence upon a rehearing, the court adhered to its original views. 83 F.Supp. 273. The Court of Appeals affirmed. It held that jurisdiction to set aside a fraudulent transfer before judgment on the main claim was at best 'dou......