Isbrandtsen Co. v. Federal Ins. Co.

• Decision Date: 28 October 1952
• Citation: Isbrandtsen Co. v. Federal Ins. Co., 113 F.Supp. 357, 1952 A.M.C. 1945 (S.D. N.Y. 1952)
• Parties: ISBRANDTSEN CO., Inc. v. FEDERAL INS. CO. et al.
• Court: U.S. District Court — Southern District of New York

113 F. Supp. 357

ISBRANDTSEN CO., Inc. v.FEDERAL INS. CO. et al.

United States District Court S. D. New York.

October 28, 1952.

Lord, Day & Lord, New York City, proctors for libellant.James S. Hemingway, John W. Castles, III, New York City, advocates.

Bigham, Englar, Jones & Houston, New York City, proctors for respondents.Henry N. Longley, F. Herbert Prem, New York City, advocates.

CLANCY, District Judge.

The libel in this action to recover the cargo's proportionate share of the expenses necessarily incurred in refloating and temporarily repairing the vessel The John Miller alleges that the libellant, the demise charterer of the vessel, contracted to carry freight from the Hawaiian Islands to Piraeus, Greece; that the cargo was taken aboard; that there is no custom house at Pearl Harbor where the ship originally berthed; that before clearance her berth was desired by the Navy and on June 19, 1946she proceeded to the Honolulu Anchorage Ground seven miles away intending to anchor there pending clearance; that she never left the customs district of Honlulu but stranded off Honolulu.The libel continues that the libellant was not responsible for the expenses necessarily incurred in refloating and temporarily repairing the vessel arising out of the stranding but that the stranding was due solely to the neglect or default of the master or the servants of the libellant in the navigation of the ship.Respondent has excepted to the libel on the ground that it does not state a cause of action since it alleges the stranding of The John Miller occurred when the vessel had not cleared customs at Honolulu and therefore before the commencement of its voyage.

The contract of affreightment contained a typewritten clause which made the clause paramount and the amended Jason clause superior to any apparent inconsistency in the rest of the agreement.The clause paramount subjected the entire contract to the provisions of the Carriage of Goods by Sea Act thereby incorporated.The amended Jason clause reads: "In the event of accident, danger, damage or disaster before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the shipowner is not responsible, by statute or contract or otherwise, the shippers, consignees or owners of the cargo shall contribute with the shipowner in general average * * *."Thus the respondent's liability depends on the determination of the liability of the shipowner if any to cargo for negligent navigation which admittedly caused the stranding.

The exemption of the carrier and ship for loss or damage arising or resulting from neglect or default of the...