Alliance Tobacco Co. v. United States, 369.

• Decision Date: 23 July 1936
• Docket Number: No. 369.,369.
• Citation: 85 F.2d 86
• Parties: ALLIANCE TOBACCO CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

85 F.2d 86 (1936)

ALLIANCE TOBACCO CO., Inc., v. UNITED STATES.

No. 369.

Circuit Court of Appeals, Second Circuit.

July 23, 1936.

Lamar Hardy, U. S. Atty., of New York City (William E. Collins, Sp. Asst. U. S. Atty., of New York City, of counsel), for appellant.

Single & Tyler, of New York City (Wilmer H. Eberly and Alonzo L. Tyler, both of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The respondent appeals from an interlocutory decree in a suit brought under the Suits in Admiralty Act (section 742, title 46, U.S.Code, 46 U.S.C.A. § 742), to recover for damages to a parcel of tobacco carried from Antwerp to New York in January, 1928, in a vessel owned by the United States, but chartered to a private company. Upon examination by cargo surveyors at the outturn on February 4th, the tobacco was found to be wet and mouldy, and this was the loss sued for. The judge concluded that the damage could not have been due to sweat, as the ship asserted, but that water in the 'tween-decks of compartment No. 5 must have caused it, perhaps because the scuppers had been clogged, but in any case because water which was more than accumulated sweat had gathered on that deck. He held therefore that the damage had not been brought within the exception for sweat or any other exception, and that the ship was liable. Only very slight damage had occurred in other holds, and the character of the wetting in the case of at least some of the bales was such as precluded the notion that it was from sweat; at this stage of the suit we are not concerned with the extent of the loss. We are satisfied that the judge was right in holding that the respondent was liable for part at any rate of the damages to the stained bales; we leave to the reference how far the damage to the other bales was the ship's fault, as well as the extent of the damage to the stained bales for which she is liable.

The other question in the case turns on whether the suit was brought in time. The shipper gave written notice of loss as required by the bill of lading on February 2, 1928, which we assume, arguendo, was the date of delivery. The suit was filed on February 4, 1930, more than two years after the notice was served, and the bill of lading allowed only one year; it was therefore begun too late unless it was saved by the proviso to section 745, as amended by the Act of June 30, 1932, 47 Stat. 420 (46 U.S.C.A. § 745). In order to show that it was so saved, the libelant proved that on February 1, 1929, it had brought an action in the City Court in the City of New York against the Fleet Corporation and the charterer of the ship, to recover for the same damages; that the defendants had answered on March 6, 1929; and that the case had been discontinued by stipulation on June 6, 1930. Such a stipulation is the equivalent of an order of discontinuance entered in the proper court.^* The question is whether the action was "dismissed because not commenced within the time or in the manner prescribed in this chapter, or otherwise not commenced or prosecuted in accordance with its provisions."

This requires the action at law, suit in admiralty, or petition under the Tucker Act (46 U.S.C.A. § 745), for which the substitute is provided, to have been dismissed because not in conformity with the Suits in Admiralty Act (46 U.S.C.A. §§ 741-752); it does not cover a dismissal because it was defective as an ordinary action or suit. In Dietrich v. United States, 80 F.(2d) 207, we held that a suit in the admiralty, discontinued under threat of dismissal because brought in the wrong district, did not fulfill this condition. There was no evidence that it had been discontinued because it did not comply with the Suits in Admiralty Act; the defect in venue might have been one which was fatal to any suit in the admiralty. We did indeed add that a...