Diacon-Zadeh v. Devlet Denizyollari

• Decision Date: 26 July 1954
• Docket Number: No. 193 of 1951.,193 of 1951.
• Parties: P. DIACON-ZADEH, Libellant, v. DEVLET DENIZYOLLARI, Richard Nathan Corporation, THE S.S. YOZGAT and a Cargo of Pig Iron and Sureyya Gursu, her master, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

127 F. Supp. 446

P. DIACON-ZADEH, Libellant, v. DEVLET DENIZYOLLARI, Richard Nathan Corporation, THE S.S. YOZGAT and a Cargo of Pig Iron and Sureyya Gursu, her master, Respondents.

No. 193 of 1951.

United States District Court, E. D. Pennsylvania.

July 26, 1954.

Charles Lakatos, Freedman, Landy & Lorry, Philadelphia, for plaintiff.

George E. Beechwood, John V. Lovitt, Philadelphia, Pa., for defendant.

KIRKPATRICK, Chief Judge.

These exceptive allegations are not denied by answer and they bring before the Court undisputed documents and the record of court proceedings. A Court, of course, takes judicial notice of its own record and, in a case like this, in which the main issue is res judicata and the case turns upon the scope and effect of proceedings involving substantially the same parties in the District Court for the Southern District of New York, Republic of Turkey v. Zadeh, 112 F. Supp. 933, this Court may properly consider that record as well. With one exception, any possible fact dispute relates to matters immaterial to the issue now before the Court. The facts are as follows:

On July 2, 1951, the S. S. Yozgat arrived at Philadelphia from Filios, Turkey, and began unloading a cargo of pig iron. She was owned by a Turkish Government agency (Devlet), chartered by the libellant (Zadeh) and subchartered by him to Richard Nathan Corporation (Nathan), the owner of the cargo, and one of the respondents in this action.

While the unloading was going on, on July 14, 1951, this libel was filed by Zadeh against Devlet, Nathan, the vessel, her master, and the cargo. We are concerned only with the cause of action stated against Nathan, which consists in substance of claims for earned freight, earned dead freight, and demurrage at both Filios and Philadelphia, amounting in all to something over $107,000. Nathan appeared and obtained a release of the cargo, which had been seized by the marshal, by posting bond of $50,000. There have been subsequent proceedings in this Court but they have no direct bearing upon the issue now under consideration.

Meanwhile, also while the vessel was unloading, and before this action was begun, namely on July 11, Devlet commenced an action in the Southern District of New York, in personam against Zadeh and in rem against the cargo. On the same day Nathan appeared in that action as owner of the cargo and claimed the same and entered into a stipulation for the deposit of $110,000 with the clerk of the New York District Court, in consideration of Devlet's refraining from seizing the cargo. The money was deposited and subsequently Nathan tendered $73,102.50 of the amount for payment in the Court's discretion and asked that it be given proper acquittance therefor. Nathan has never disputed and, in effect, has always admitted that it owed this amount for freight to either Devlet or Zadeh. On August 20, Judge Conger of the United States District Court in New York made an order relieving Nathan from "any and all liability to the libelant (Devlet) or respondent (Zadeh) to the extent of the sum of $73,102.50."

I have no doubt that the District Court of New York had jurisdiction both of the parties and of the res. Zadeh was a respondent in the in personam action and was properly brought into court. Nathan, the cargo claimant, appeared generally, see Judge Dimock's opinion, The Yozgat, D.C., 112 F.Supp. 933, 1953 A.M.C. 1728, and his stipulation and deposit of $110,000 gave the Court jurisdiction of the action in rem as fully as if the cargo had been seized in New York. Judge Dimock so ruled and his view is amply supported by authority. See 2 Benedict on Admiralty, 6th Ed. 242, page 78; The Providence,...