New Hampshire Fire Ins. Co. v. The Perla

• Court: U.S. District Court — District of Maryland
• Citation: New Hampshire Fire Ins. Co. v. The Perla, 84 F.Supp. 715 (D. Md. 1949)
• Decision Date: 01 July 1949
• Docket Number: No. 3001.,3001.
• Parties: NEW HAMPSHIRE FIRE INS. CO. v. THE PERLA et al.

84 F. Supp. 715

NEW HAMPSHIRE FIRE INS. CO. v. THE PERLA et al.

No. 3001.

United States District Court D. Maryland.

July 1, 1949.

George W. P. Whip (Lord & Whip), of Baltimore, Md., Bigham, Englar, Jones & Houston, New York City, for libellant.

Robert W. Williams (Ober, Williams, Grimes & Stinson), Baltimore, Md., for respondents.

CHESNUT, District Judge.

The libel in this case presents a claim against the S. S. Perla and its owners for cargo damage. The libel is filed by the New Hampshire Fire Insurance Company which issued a marine insurance policy to the cargo owners. It is alleged that the cargo was damaged in shipment, that the owners had made demand on the insurer and the latter, as libellant, states that it has become liable under the policy to pay approximately $36,050 on account of the loss. Proctors for the ship and its owner claimant have filed exceptions to the libel on the ground that the libellant is not the real party interested in the alleged loss and damage and that it does not appear that at the time of the filing of the libel the libellant had suffered any loss or damage because it is not alleged in the libel that the libellant as insurer of the cargo has yet actually paid the loss.

It further appears from the papers in the case and other statements made by counsel at the hearing in court that delivery of the cargo was made to the ship at the port of New Orleans on or about January 20, 1947; that the cargo consisted of 150,000 bags of wheat flour in good order to be transported to Santos, Brazil, and consigned to the Secretary of Agriculture of the State of Sao Paulo, Santos, Brazil; and that when the ship arrived at Santos a part only of the shipment was delivered to the consignee and that part was badly damaged by contact with water and otherwise. It is said the partial delivery was made on February 28, 1947 and, as the bill of lading was subject to the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., which contains a one year limitation for suit against the carrier, it was necessary for the libellant to file this suit within the year from the time of delivery, even though the loss had not been completely adjusted and paid up to that time. It therefore seems apparent that if the libel is dismissed because prematurely brought, as contended for by the proctors for the respondent, the carrier would not be liable either to the consignee sustaining the initial loss or the insurer as subrogee. And it is to be noted that in the libel it is stated that the insurer brings the action "on its own behalf and on behalf of and for the benefit of all parties who may be or may become interested in the said shipment, as their respective interests may ultimately appear".

It will be noted from the papers that considerable delay has already occurred with respect to the subject matter of the case. Thus while the loss occurred on or about February 28, 1947 the libel was not filed until February 25, 1948. At the latter time the ship was not within the jurisdiction of this court but it came here early in June 1948 and was seized and attached in rem by the marshal of the court on June 16, 1948, and on the same date the marshal served a writ of foreign attachment on the owners by service on the first mate as garnishee. Apparently on the following day the proctor for the libellant authorized the release of the ship on receipt of a voluntary letter of indemnity to act as or in lieu of a stipulation for value. And it is to be further noted that despite these proceedings in June 1948 it was not until May 13, 1949 that appearance was entered by proctors for the respondent and that their exceptions to the libel were filed on June 28, 1949 and heard by the court the following day.

The sole point urged in support of the exceptions is that the libellant does not state that it has actually paid the loss for which it however admits liability. At the hearing it was suggested to counsel that possibly the libel could now be amended in this respect by alleging the loss had actually been paid some time after the libel had been filed on February 25, 1948. Counsel stated that his information was to the effect that while the insurer had drawn and tendered its check to the cargo owner for the full amount of the loss it for some reason had not yet been accepted by the insured. It seems to be quite apparent that the whole matter has been handled in a very leisurely way by all the parties in interest. The only question to be now decided by the court is whether the libel should be dismissed for the reason suggested which seems to be, in view of the circumstances, rather technical. As pointed out, the effect of dismissing the libel for the reasons stated would be to practically preclude any further assertion of liability against the carrier.

I conclude that the libel should not be dismissed for the reasons stated in the exceptions, which are that the libellant as insurer is not a real party in interest because it had not at the time of filing the libel actually paid the loss and therefore the libel was filed prematurely.

There seems to be no general admiralty rule similar to Federal Rule of Civil Procedure 17(a)...