Danzas, Ltd. v. National Bank of Alaska

• Decision Date: 24 October 1963
• Docket Number: Civ. No. A-49-61.
• Citation: 222 F. Supp. 671
• Parties: DANZAS, LTD., Plaintiff, v. NATIONAL BANK OF ALASKA, Defendant.
• Court: U.S. District Court — District of Alaska

222 F. Supp. 671

DANZAS, LTD., Plaintiff, v. NATIONAL BANK OF ALASKA, Defendant.

Civ. No. A-49-61.

United States District Court D. Alaska, at Anchorage.

October 24, 1963.

COPYRIGHT MATERIAL OMITTED

George J. Toulouse, Jr., and Samuel J. Wettrick, of Wettrick, Toulouse, Lirhus & Hove, Seattle, Wash., for plaintiff.

Daniel A. Moore, Jr., of Plummer, Delaney & Wiles, and Ronald Benkert and Clifford J. Groh, Anchorage, Alaska, for defendant.

HODGE, Chief Judge.

By this action plaintiff seeks to recover from the defendant bank the sum of $36,731.42, together with interest and costs, representing the amount of two collection letters, with bills of lading and sight drafts attached, sent to the bank for collection through the First National City Bank of New York, by reason of the defendant bank having wrongfully delivered the bills of lading to the consignee, the Hotel & Restaurant Corporation, of Anchorage, without collecting the charges against the shipments in accordance with the instructions contained in the collection letters, thus enabling the consignee to obtain possession of the goods without payment.

Plaintiff (formerly Danzas & Co. Ltd.), is a corporation existing under the laws of the Confederation of Switzerland, engaged in the business of international shipping and forwarding agent and broker for shippers, and the defendant bank is a corporation existing under the banking laws of the United States, conducting a general banking business in the city of Anchorage. Jurisdiction of this court is based upon Section 1332, Title 28 U.S.C.A. For brevity, the plaintiff will be referred to herein as "Danzas," the defendant bank as "NBA," the First National City Bank of New York as "Citibank," and the Hotel & Restaurant Corporation as the "H & R Corporation."

The uncontroverted facts, as established by the pre-trial order, numerous exhibits, and the oral testimony adduced at the trial, although somewhat complicated, may be summarized as follows:

On February 15, 1960, an order was placed with Danzas by letter from one August Pellet, of the H & R Corporation, accepting the bid of Danzas as to freight and other charges for shipment of a number of prefabricated houses, called chalets, which H & R Corporation had purchased on contract from one Murer, a Swiss manufacturer, together with roofing tiles, which letter provided that

"Payment will be made, as usual, upon receipt of the documents, through the National Bank of Alaska at Anchorage."

This letter also included shipping instructions.

Such shipment was accomplished by two separate bills of lading executed at Antwerp, Belgium, the first denominated as B/L No. 7 being dated April 7, 1960, covering four of the chalets, together with roofing tiles, and the second being B/L No. 9, being accomplished at Antwerp on May 4, 1960, covering the remainder of the chalets plus roofing tiles. Both bills of lading were executed in triplicate. No. 7 provided for shipment on the SS TANNSTEIN from Antwerp and No. 9 provided for shipment on the SS NECKARSTEIN from Antwerp. Both were order bills of lading, the shipper being Danzas, consigned to the order of Danzas to notify simultaneously the H & R Corporation of Anchorage and Arthur J. Fritz & Co., customhouse broker at Seattle, Washington. In both instances the port of discharge was Seattle. No. 7 provided that the final destination as to one of the chalets and tiles was to be Seattle and the remainder to be "REFORWARDED VIA SEAWARD PER ALASKA STEAMSHIP CO. TO ANCHORAGE." No. 9 likewise provided as to some of the parcels final destination at Seattle and the remainder to be likewise reforwarded to Anchorage.

Danzas submitted the bills of lading to Citibank, by letter, for collection through NBA. On April 26 Citibank sent to NBA for collection on behalf of Danzas as its agent a collection letter with sight draft and two executed copies of B/L No. 7 attached. On May 25 Citibank sent for collection to NBA on behalf of Danzas a second collection letter with sight draft and two executed copies of B/L No. 9 attached. The third executed copies of the bills of lading were retained by Citibank. The amount of the two drafts represented the balance of the purchase price of the chalets, one-half having been paid, plus collection charges, amounting to $36,686.52, later adjusted by pre-trial order account differences in exchange to $36,731.42, the amount sued upon. Both collection letters contained the following instructions:

"Deliver documents against payt or payment * * * The item described is enclosed for collection and remittance in New York funds. Advise payment and/or remit only when actually and finally paid in cash or its equivalent. If unpaid report promptly giving reason for dishonor. Wire dishonor on items for $1000.00 or more * * * Return without delay dishonored nondocumentary items unless otherwise instructed * * * Do not hold items for convenience of parties. Release documents only as instructed * * * No protest."

The first collection letter was received by NBA on April 29, 1960, and the second on May 27, 1960, and the consignee H & R Corporation notified.

The shipment on board the TANNSTEIN arrived at Seattle on May 21, 1960, and the shipment on board the NECKARSTEIN arrived June 9, 1960. Both the H & R Corporation and Arthur J. Fritz & Co., agent of the H & R Corporation, were notified.

The bills of lading had been endorsed by Danzas prior to being mailed to NBA and were endorsed by Arthur J. Fritz & Co. as agent and broker for the H & R Corporation on or about May 17 and June 21, respectively.

One set of B/L No. 7 left the possession of NBA some time between April 26, 1960 and May 17, 1960; and one set of B/L No. 9 left the possession of NBA some time between May 27, 1960 and June 20, 1960. The possession of the bills of lading was obtained "in some manner" by an agent of the consignee and they were thereafter delivered to Arthur J. Fritz & Co. by August Pellet. B/L No. 7 was delivered in person by Pellet on or about May 17, 1960 and B/L No. 9 was sent to Fritz & Co. by Pellet by letter dated June 20, 1960.

The consignee H & R Corporation, through its agent at Seattle, took possession of the goods represented by B/L No. 7 and surrendered the bill of lading to Balfour Guthrie Co., agent for the North German Lloyd Line, on May 18, 1960; and also took possession of the goods represented by B/L No. 9 and surrendered the same to Balfour Guthrie Co. on June 21, 1960.

The goods represented by B/L No. 7 were then forwarded by Arthur J. Fritz & Co. to Anchorage in bond on May 25, 1960, by Alaska Railroad domestic bill of lading, by sea to Seward and by rail from Seward to Anchorage, consigned to the Collector of Customs for H & R Corporation, and arrived at Anchorage on June 16, 1960 with freight, handling, and customs charges amounting to $4,446.81. The second shipment was forwarded by Fritz & Co. to Anchorage by domestic bill of lading of the Alaska Railroad on July 16, 1960, consigned to the H & R Corporation, and arrived in Anchorage on July 26, with freight, handling and customs charges advanced amounting to $10,749.47.

In answer to inquiries from Citibank concerning the collections the officer of the NBA in charge of collections replied by letter dated June 23 that the material covered by the second collection had not yet arrived in Anchorage; and in answer to a further inquiry of June 24 the officer replied that the goods covered by the first collection letter had only partly arrived in Anchorage and that they had no record of receiving the second collection letter which "may have been lost in transit," asking that Citibank furnish copy, in reply to which Citibank, by letter dated June 27, sent to NBA a duplicate copy of the second collection letter and bill of lading, together with other documents, and asked that original instructions be followed and the documents presented to the drawee for collection.

Nothing further appears to have been done regarding the collections, despite further inquiry from Citibank, until NBA received a letter from Ann Pellet, sister of August Pellet and president of H & R Corporation, dated August 1, 1960, stating that August Pellet had suffered a heart attack and that his present whereabouts were unknown. (He later turned up in Brazil.) NBA then sent telegrams to Murer and Danzas in Switzerland to this effect, seeking to work out other arrangements regarding the merchandise. In answer to a further inquiry by Citibank of August 18, NBA advised that they still had the documents in their possession, that the merchandise had arrived at Anchorage, was being held by the Alaska Railroad at the railroad freight terminal, and that they had just received a wire from Danzas stating that a representative of Murer was flying directly to Anchorage in regard to the situation. Both Danzas and Murer had meanwhile protested the "new arrangements" but Danzas later advised that Murer was flying to Anchorage. Murer arrived about August 23, examined the merchandise and left without contacting NBA. At this time the Alaska Railroad had claims for storage, customs charges, freight and expenses in excess of $15,000.00. Meanwhile, on August 11, 1960, a writ of attachment issued out of the Superior Court for the State of Alaska was served upon the Alaska Railroad in a case of Price-Rite Meat Co. vs. the H & R Corporation, attaching the goods for the sum of $30,000.00, in which case judgment was entered against said corporation in the sum of $22,000.00, subject to the lien of the Alaska Railroad. Finally, on May 31, 1961, pursuant to published notice, the goods were sold by the Alaska Railroad in satisfaction of its lien, amounting at that time to $28,183.78.

On September 24 Danzas requested the return of all documents sent NBA for collection. NBA returned to Citibank as uncollected the collection letters and drafts, together with one set of the bills of lading. Citibank advised that one set of the bills of...