BREWER & CO. v. American President Lines

• Decision Date: 24 November 1944
• Citation: BREWER & CO. v. American President Lines, 59 F. Supp. 796 (S.D. N.Y. 1944)
• Parties: C. BREWER & CO., Limited, et al. v. AMERICAN PRESIDENT LINES, et al.
• Court: U.S. District Court — Southern District of New York

59 F. Supp. 796

C. BREWER & CO., Limited, et al. v. AMERICAN PRESIDENT LINES, et al.

District Court, S. D. New York.

November 24, 1944.

Bigham, Englar, Jones & Houston, of New York City (John W. R. Zisgen, of New York City, of counsel), for libelants.

Hardin, Hess & Eder, of New York City (Monroe Collenburg, of New York City, of counsel), for respondents.

HULBERT, District Judge.

Libelants sue in personam in Admiralty joining five respondents "in causes of contract and recovery of prepaid freight charges" covering shipments of cargoes by the S/S Sirdhana, owned by the British India Steam Navigation, Ltd., from Calcutta and Singapore to Hong Kong, there to be transhipped by a vessel of the Canadian Pacific Railway Company to Vancouver, B. C. The Sirdhana was sunk by a mine before her arrival at Hong Kong and her cargo was a total loss.

The Canadian Pacific Railway Company moved to dismiss the libel for lack of jurisdiction, urging that the attempted exercise thereof by this court would be in violation of Article 1, Sec. 8, Clause 3 of the United States Constitution.

Judge Mandelbaum denied the motion as a matter of discretion, D.C., 37 F.Supp. 230, pointing out that 7 of the 10 libelants were American citizens, a corporation respondent was an American citizen, some of the other respondents had agents within the district, and all had been served with process, and the convenience of witnesses would not be any better served by a trial in the Canadian courts.

When the case finally came on for trial on Nov. 1st, 1944, all of the claims had been settled except those of Woods Manufacturing Co. Ltd., Blue Ribbon, Ltd., and Kelly Douglas & Co., Ltd., all Canadian corporations, against the Canadian Pacific Railway Company.

At the opening of the trial, the respondent renewed its motion to dismiss, asserting:

(1) That this court is forum non conveniens.

(2) That cause of action is not one properly cognizable in Admiralty, citing Israel v. Moore & McCormack Co., D. C. 295 F. 919.

However, a stipulation of facts had been agreed upon so that only questions of law were presented, except that the through bills of lading issued by the respondent to the respective libellants expressly provided that all claims arising thereunder should be settled according to the law of England, which, of course, it was necessary to prove as a fact.

Considering that this suit has been pending since October 30, 1940, and a dismissal of the libel would necessitate commencing suit anew in the Canadian courts, decision on the motion was reserved and proof of the law of England was taken.

Two bills of lading were issued at Calcutta; a through bill of lading, in duplicate, to the libellants by the...