Cactus Pipe & Supply Co., Inc. v. M/V Montmartre

• Decision Date: 05 April 1985
• Docket Number: No. 83-2478,83-2478
• Citation: 756 F.2d 1103
• Parties: CACTUS PIPE & SUPPLY CO., INC., Plaintiff-Appellant, Cross-Appellee, v. M/V MONTMARTRE, her engines, tackle, etc., et al., Defendants-Appellees, ORIENT LEASING CO., LTD., Cross Plaintiff-Appellee, v. CORINTH PIPEWORKS, S.A., Cross Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1103

756 F.2d 1103

1985 A.M.C. 2150

CACTUS PIPE & SUPPLY CO., INC., Plaintiff-Appellant, Cross-Appellee, v. M/V MONTMARTRE, her engines, tackle, etc., et al., Defendants-Appellees, ORIENT LEASING CO., LTD., Cross Plaintiff-Appellee, v. CORINTH PIPEWORKS, S.A., Cross Defendant-Appellee, Cross-Appellant.

No. 83-2478.

United States Court of Appeals, Fifth Circuit.

April 5, 1985.

Fulbright & Jaworski, R. Scott Hogarty, Hirsch, Westheimer, Block & Wilk, Joe C. Holzer, Houston, Tex., for plaintiff-appellant, cross-appellee.

Eikel & Davey, J.E. Davey, Robert Eikel, Houston, Tex., for defendant-appellee M/V Montmartre & cross plaintiff-appellee Orient Leasing Co.

Baker & Botts, William C. Bullard, Houston, Tex., for Canadian Forest, Seanav Intl.

G. Byron Sims, Houston, Tex., for Empire-United Stevedoring Corp.

Joseph Newton, Houston, Tex., for cross defendant-appellee, cross-appellant Corinth Pipeworks, S.A.

Appeals from the United States District Court for the Southern District of Texas.

Before BROWN, TATE, and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This appeal arises from claims for damage to a cargo of steel tubing shipped aboard the M/V MONTMARTRE in July, 1979. Because we find that in rem jurisdiction was established in one case of this consolidated action, we reverse. We also reverse and remand for a determination of whether the vessel was liable in rem. We affirm the trial court's finding that appellee, vessel owner, was not liable as the carrier of cargo because there was no evidence that the vessel owner authorized issuance of the bills of lading either by actual or apparent authority.

How It All Began

Appellant, Cactus Pipe & Supply Co., Inc. (Cactus), contracted with Corinth Pipeworks, S.A. (Corinth) to purchase steel tubing. Under this agreement, the trial court found that Corinth was to arrange for shipment from Corinth, Greece to Houston, Texas. The cargo was shipped aboard the M/V MONTMARTRE owned by appellee Orient Leasing Co., Ltd. (Orient).

Before the carriage of cargo in issue, Orient bareboat chartered the MONTMARTRE to Eternity Navigation Co., S.A. (Eternity), in September, 1976. Eternity, as bareboat charter owner, time chartered the vessel to Iino Kaiun Kaisha, Ltd. (Iino). Iino in turn time chartered the MONTMARTRE to Canadian Forest Navigation Co., Ltd. (Canadian) in June, 1979. In July 1979, Canadian voyage chartered the MONTMARTRE to Seanav International Co. (Seanav). Seanav in turn voyage chartered the vessel to Corinth.

Nine bills of lading covering the cargo were issued on July 14, 1979, signed by Delpa Shipping and Transportation Co., Ltd. (Delpa) "For The Master." ¹ The vessel arrived in Houston in August, 1979, and surveyors observed damage in the hold before unloading. In addition to damage, appellant Cactus contends that portions of the cargo were never delivered.

Cactus, consignee of the cargo of steel tubing, instituted two causes of action seeking recovery of its damages. The First action (District Court No. H-80-1721) was brought in Cactus' name by its subrogated underwriter against the MONTMARTRE, Orient and Corinth. The Second action (District Court No. H-80-1769) was instituted by Cactus seeking recovery of the uninsured portion of its loss (approximately $10,000) against the vessel and against Orient, the vessel owner. The MONTMARTRE was never arrested. However, a claim of owner ² was filed by Orient in both actions. Subsequently the two cases were consolidated pending trial.

On July 6, 1983, the district court, after a bench trial, entered its opinion finding that the cargo was damaged and short upon delivery in Houston, Texas. It also found that Corinth, the voyage charterer and shipper, was liable as a carrier of the cargo and that Orient, the vessel owner, was not liable because it was not the COGSA ³ carrier. The trial court found that the MONTMARTRE, although the carrying vessel, was not liable to Cactus because it was not liable for the acts or omissions of the charterer/shipper, Corinth. The district court entered judgment in favor of Cactus and against Corinth for $28,673.51 plus interest. On August 11, 1983, the trial court issued amended conclusions of law determining that in rem jurisdiction over the vessel did not exist because the vessel was never arrested nor had any bond or letter of undertaking been filed in the court by the owner of the vessel. The court held that the claims of owner filed by the vessel owner, Orient, manifested only the vessel owner's interest in the vessel and did not establish in rem jurisdiction. The district court also determined that, although a voyage charterer such as Corinth may be liable as a carrier, the evidence was insufficient to hold Corinth liable as a carrier under the facts of this case. ⁴ Accordingly, Cactus was awarded nothing.

The MONTMARTRE--In Rem Jurisdiction

Cactus disputes the district court's conclusion that there was no in rem jurisdiction established over the MONTMARTRE. Specifically, Cactus urges that the claims of owner ⁵ filed by Orient constituted an appearance on the part of the vessel thereby establishing in rem jurisdiction.

Generally, the power of the court to exercise jurisdiction over a vessel depends upon the arrest of the vessel within the court's territorial jurisdiction. Reed v. The YAKA, 307 F.2d 203, 204, 1962 A.M.C. 1226, 1228 (3d Cir.1962), rev'd on other grounds, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, 1963 A.M.C. 1373 (1963); see also Rule C, Supplemental Rules for Admiralty and Maritime Claims. A claimant, however, can waive the necessity of in rem seizure and consent to jurisdiction so far as its interest in the vessel is concerned. The YAKA, 307 F.2d at 204, 1962 A.M.C. at 1228. Thus in Continental Grain Co. v. Federal Barge Lines, Inc., 268 F.2d 240, 1959 A.M.C. 2158 (5th Cir.1959), aff'd sub nom. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540, 1961 A.M.C. 1 (1960), we dealt with the issue of whether an in rem proceeding upon application of a willing claimant could be transferred under 28 U.S.C. 1404(a) to a district in which the res was not located. However, we initially determined that the issuance of a letter of undertaking on behalf of the vessel and a Non-Waiver of Rights Clause in the letter perfected the in rem jurisdiction of the court. On the filing of the action in rem and in personam for damage to a cargo of soybeans, the barge FBL-585 was not seized. We pointed out that in accordance with the practice in major seaports, a letter of undertaking was given by the vessel owner providing that in consideration of the barge not being seized and released on bond, the vessel owner would "file claim to Barge FBL-585, ... and that, vessel lost or not lost would pay any final decree which may be rendered against said vessel in said proceedings." 268 F.2d at 243, 1959 A.M.C. at 2160. We determined that the letter of undertaking, and particularly the Non-Waiver of Rights Clause, ⁶ required that "we treat it as though, upon the libel being filed, the vessel had actually been seized, a Claim filed, a stipulation to abide decree with sureties executed and filed by Claimant, and the vessel formally released." Id. Essentially, the underlying rationale for all of this was the necessity of avoiding "needless costs, time, and inconvenience to litigants, counsel, ships, Clerks, Marshals, Keepers and court personnel...." Id. ⁷ In Associated Metals & Minerals Corp. v. S.S. PORTORIA, 484 F.2d 460, 1973 A.M.C. 2095 (5th Cir.1973), no in rem process was issued, the vessel was not arrested, and the owner did not waive attachment of the vessel. We thus determined on those grounds that the district court erred in entering judgment against the vessel in rem.

In other contexts, a party can waive an objection to in personam jurisdiction. See F.R.Civ.P. 12. Rule 12(h)(1) provides that the defense of lack of jurisdiction over the person is waived (i) if omitted from a motion under 12(g), or (ii) if it is neither made by motion under Rule 12 nor included in a responsive pleading or an amendment. See Golden v. Cox Furniture Mfg. Co., 683 F.2d 115 (5th Cir.1982) (objection to personal jurisdiction waived when answer and amended answer filed without raising in personam jurisdiction objection); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982) (jurisdiction attaches if a defendant makes a voluntary general appearance, as by filing an answer through an attorney); Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1140, 1981 A.M.C. 2937, 2944 (5th Cir.1980), cert. denied, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861, 1981 A.M.C. 2100 (1981) (service of process and personal jurisdiction may be waived by a party); United States v. Fishing Vessel MARY ANN, 466 F.2d 63, 1972 A.M.C. 2652 (5th Cir.1972), cert. denied sub nom. Walter v. United States, 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 590 (1973) (action to foreclose preferred ship mortgage--two defendants not served with process but answered asserting defenses on the merits).

Generally, an appearance in an action involves some presentation or submission to the court. Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195, 1196 (3d Cir.1971) (no appearance found). An appearance may result from the filing of an answer without raising jurisdictional defects. An appearance may also arise by implication "from a defendant's seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to plaintiff other than one contesting only the jurisdiction or by reason of some act or proceedings recognizing the case as in court." 6 C.J.S. Appearances Sec. 18 at 22 (1975); see also Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.1972) (if a party enters a case and fails to object to jurisdiction, and requests the court to do some affirmative act on its behalf in some substantive way, the party will be held to have waived...