IMPALA TRADING CORPORATION v. Hawthorne Lumber Co.

• Decision Date: 05 December 1961
• Citation: 200 F. Supp. 261
• Parties: IMPALA TRADING CORPORATION, Libelant, v. HAWTHORNE LUMBER CO., Inc., and a certain cargo consisting of lumber now aboard THE S.S. TROPIC SEA, Respondents.
• Court: U.S. District Court — Southern District of New York

200 F. Supp. 261

IMPALA TRADING CORPORATION, Libelant, v. HAWTHORNE LUMBER CO., Inc., and a certain cargo consisting of lumber now aboard THE S.S. TROPIC SEA, Respondents.

United States District Court S. D. New York.

December 5, 1961.

Jacob Rassner, New York City, Donald D. Olman, Whitestone, of counsel, for libelant.

Dougherty, Ryan, Mahoney & Pellegrino, New York City, Thomas J. Short, New York City, of counsel, for respondents.

FEINBERG, District Judge.

Libelant, Impala Trading Corporation ("Impala"), a New York corporation, has brought a libel in rem and in personam against respondents, Hawthorne Lumber Co., Inc. ("Hawthorne") and a certain cargo consisting of lumber now aboard the S.S. Tropic Sea. Its action is for freight charges due and owing, detention charges and the reasonable cost of discharging the lumber. At the present time, the vessel is at anchor in Puerto Cortez, Honduras, with the lumber laden aboard. Libelant has petitioned for an order authorizing it to sell the lumber, with any funds derived from the sale to be deposited in court with authority to pay libelant therefrom "sums due them."¹

The petition for sale was verified on October 6, 1961, and was originally returnable on October 31, 1961. Thereafter, it was adjourned to November 6, 1961. Requests were made by both parties to submit briefs, the last of which was served on or about November 20. Thereafter, a number of conferences were held to explore the possibility of settlement of portions of the controversy. These proved to be fruitless.

The libel alleges that in July 1961, respondent Hawthorne "entered into a contract with Compania de Navigacion Tropicana, S.A. ("Compania"), Impala Trading Corporation, Owners Agents" pursuant to which Hawthorne agreed to ship 225,000 board feet of loose Sawn Lumber from Puerto Cortez to other ports in the Caribbean. It further claims that the cargo was loaded and that immediately thereafter the sum of $5,088 became due and payable to Compania, Impala, Owners Agents. Hawthorne has refused to pay this sum and libelant claims, among other things, a maritime lien against respondents for the $5,088 as well as damages for detention charges and the reasonable cost of discharging the lumber.

The petition for sale alleges that the ship and cargo are in the hurricane zone and that action must be taken to dispose of the cargo and otherwise safeguard the ship to conserve the assets involved. Hawthorne has filed an answer to the libel which denies that any freight is due. It has also submitted an affidavit in opposition to the petition which states, among other things, that the vessel listed when the cargo was loaded aboard, that the vessel was unseaworthy and that this is the cause of any claims which libelant has. Hawthorne also sharply challenges the jurisdiction of this Court to issue any decree or order affecting the cargo.

Underlying the bare bones of the petition and answering affidavit, the following appears to be the basic situation. The cargo was loaded on the vessel early in August. Shortly thereafter, the vessel took a heavy list and some of the cargo had to be jettisoned in order to prevent possible further damage to the vessel. Since that time the cargo has remained on board and the ship has remained at Puerto Cortez. Hawthorne refuses to pay libelant anything and libelant refuses to give up possession of the cargo, although it, or the owner of the ship (who has not appeared in the proceeding), presumably would like the ship towed away for survey and possible repair.

The basic issue on consideration of the petition for sale is the Court's jurisdiction to grant the relief sought. On this point, it appears that Hawthorne's contention that this Court has no jurisdiction over the cargo is correct. The cargo has never been seized and brought into the custody of the Court in accordance with Admiralty Rule 10, 28 U.S.C.A., which provides that

"In all cases of seizure, and in other suits and proceedings in rem, the process, if issued and unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody, and shall cause public notice thereof and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct."

See also Burns Bros. v. Long Island R. Co., 176 F.2d 950 (2 Cir.1949); Yokohama Specie Bank v. Chengting T. Wang, ...