Mitsui Steamship Co. v. Jarka Corporation of Philadelphia

• Decision Date: 14 June 1963
• Docket Number: No. 7 of 1962.,7 of 1962.
• Citation: 218 F. Supp. 424
• Parties: MITSUI STEAMSHIP CO., Ltd., also known as Mitsui Line v. JARKA CORPORATION OF PHILADELPHIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

218 F. Supp. 424

MITSUI STEAMSHIP CO., Ltd., also known as Mitsui Line v. JARKA CORPORATION OF PHILADELPHIA.

No. 7 of 1962.

United States District Court E. D. Pennsylvania.

June 14, 1963.

Rawle & Henderson, Richard W. Palmer, Philadelphia, Pa., for libellant.

Clark, Ladner, Fortenbaugh & Young, H. Wallace Roberts, Philadelphia, Pa., for respondent.

KRAFT, District Judge.

This action in admiralty is before us on respondent's exceptive allegations and motion to dismiss.

The operative facts giving rise to this action may be briefly stated. In July 1960, Mitsui & Co., Ltd., filed a libel against libellant and its vessel, among others, in the United States District Court for the Southern District of New York, alleging damage to its cargo during its ocean carriage by libellant. Respondent, Jarka Corporation of Philadelphia, had discharged the cargo in Philadelphia, pursuant to a contract with libellant for stevedoring services. The contract provided, inter alia, that the stevedore "will be legally liable for * * * damage to cargo, or loss of cargo overside through its negligence." Libellant attempted to bring the respondent into the New York action under Admiralty Rule 56, but was unable to obtain service. Libellant thereupon gave respondent due notice of the demand made in the New York action and requested it to appear and defend therein, to which notice and request respondent made no response.

Libellant then filed the present suit against Jarka claiming indemnity in the event of an adverse result in the pending New York action, averring that if any damage was sustained by the New York libellant, "it was sustained while the merchandise referred to was in the care, custody and control and under the responsibility of respondent herein and its agents, servants or employees, or was the result of acts or omissions of said respondent and said agents, servants or employees."

Respondent contends, inter alia, that the libel fails to state a cause of action, and that this Court lacks jurisdiction of the subject matter of the suit.

We agree with respondent that this Court's decision in West Africa Navigation, Ltd. v. Nacirema Operating Co., 191 F.Supp. 131 (E.D.Pa.1961), is dispositive of the present issue. In that case, an injured longshoreman sued West Africa alleging negligence and unseaworthiness. While that suit was pending, West Africa brought action against Nacirema demanding indemnity in the event of an adverse result in the longshoreman's suit, averring that Nacirema's improper method of discharging the cargo was the cause of the longshoreman's injuries. Judge (now Chief Judge) Clary granted defendant's motion to dismiss after a thorough review of the authorities, in which he pointed to the distinction between indemnity against liability and indemnity against loss or damage. The substance of the Court's ruling appears in the last paragraph of the opinion (191 F.Supp. p. 134):

"So regardless of what type contract existed between plaintiff and defendant, it is clear that there must first be a legal liability imposed on the indemnitee. The complaint is therefore premature until such time as this should occur, and, defendant's motion to dismiss must be granted."

Libellant seeks to distinguish West Africa on the grounds that that case was on the civil side of the Court, and, moreover, that West Africa's own neglect prevented it from joining Nacirema as a third-party defendant. We regard neither...