Hickman, Williams & Co. v. Murray Transp. Co.

• Decision Date: 17 February 1940
• Parties: HICKMAN, WILLIAMS & CO., Inc., v. MURRAY TRANSP. CO.
• Court: U.S. District Court — Southern District of New York

31 F. Supp. 820

HICKMAN, WILLIAMS & CO., Inc., v. MURRAY TRANSP. CO.

District Court, S. D. New York.

February 17, 1940.

Hill, Rivkins & Middleton, of New York City (Thomas H. Middleton, of New York City, of counsel), for libelant.

Macklin, Brown, Lenahan & Speer, of New York City (Leo F. Hanan, of New York City, of counsel), for respondent.

CONGER, District Judge.

The libel in this case was brought to recover the sum of $20,000 by reason of the failure to deliver a cargo of pig iron pursuant to the terms of a bill of lading.

On or about October 27, 1937, at Troy, New York, there was delivered to respondent and laden on the deck of the scow Murray Glen a cargo of pig iron to be transported by the respondent on the Murray Glen to Jersey City, to be delivered at the Central Railroad of New Jersey piers.

Subsequently, the said scow, so loaded, left Troy bound for Jersey City, and on the early morning of October 28, 1937, was preceeding down the Hudson River in tow of a tug or tugs of the Cornell Steamboat Company. While so proceeding down the Hudson River the scow Murray Glen careened and dumped her cargo in the Hudson River resulting in the loss thereof. At the time there was a light wind blowing. There was no heavy sea. The river was normal, nothing unusual about it, a little choppy, with two or three inch waves.

Libelant claims to be the owner of the cargo, and contends that by reason of the above facts libelant has suffered a loss for which it should be compensated by the respondents.

There first must be decided certain motions made at the end of the libelant's case. (Respondent put in no proof.)

Respondent moved to strike out the testimony of Samuel L. Shober Jr., and Joseph F. Bauer, with regard to the purchase, sale and ownership of the cargo of pig iron. Libelant consented, in so far as the testimony of the witness Bauer was concerned. Libelant depends on the testimony of the witness Shober to prove ownership of the pig iron.

At this time it might be well to set down the facts showing the relationship of the parties directly and indirectly involved herein, and the transactions between them as testified by Shober. He testified that he was the eastern manager of Hickman, Williams & Company, Inc. (libelant), and Vice-President of the Troy Furnace Corporation (consignor); that Hickman, Williams & Company owned the cargo; that at the time the cargo was lost in the river libelant had sold it to Lukens Steel Company, F. O. B., that company's plant at Coatesville, Pa.; that the terms of sale from Troy Furnace Corporation to Hickman, Williams & Company was a discount of one-half of one per cent in ten days, thirty days net; that the proceeding by which Troy Furnace Corporation gets paid for the iron was to invoice Hickman, Williams & Company, as that was the only way in which Hickman, Williams & Company could get the money for its goods; that Hickman, Williams & Company had paid Troy Furnace Corporation for the pig iron in November, 1937, after delivery on board the scow; and that no payment had been received from the ultimate purchaser, Lukens Steel Company.

The witness Shober also testified concerning the procedure in this transaction as follows: "We phone the Murray Transportation Company, and we say `We wish to arrange for the floating to Jersey City or Central Railroad of New Jersey piers, or to Bridgeport — whatever the destination, so many thousands tons of pig iron in a barge load of 500 to 750 tons, what is your rate', and they quote us a rate, `We will float your iron for you at so many dollars or cents per ton.' On the basis of that, we quote a price to our consumer or customer and we close the sale. We then arrange with our customer a satisfactory delivery date and we then go to the Troy Furnace Corporation and say `We will have placed at your dock the barge of the Murray Transportation Company — which they name as the Murray Glen — on or about such and such a day, load this barge for our account'."

The bill of lading reads as follows:

"Murray Transportation Company: Received from Troy Furnace Corporation, October 27, 1937, at Troy, N. Y. on board barge: `Murray Glen', Seven hundred and fifty-one and forty-five hundredths gross tons (751.45) more or less Champlain Basic Pig Iron.

"Consigned to: Lukens Steel Company, Coatesville, Pa.

"Via: Barge of Murray Transportation Co.

"To: Central R. R. of New Jersey Piers, Jersey City, N. J. For Reading Delivery.

"As per charter party agreement.

"Murray Transportation Corporation. R. Sovik."

I have come to the conclusion that the testimony of the...