Pan-American Trading Co. v. Franquiz

• Decision Date: 31 October 1925
• Citation: 8 F.2d 500
• Parties: PAN-AMERICAN TRADING CO. v. FRANQUIZ.
• Court: U.S. District Court — Southern District of Florida

8 F.2d 500 (1925)

PAN-AMERICAN TRADING CO. v. FRANQUIZ.

District Court, S. D. Florida.

October 31, 1925.

Bigham, Englar & Jones, of New York City, and E. J. L'Engle and W. F. Rogers, both of Jacksonville, Fla., for libelant.

Hampton, Bull & Pencke, of Tampa, Fla., for respondent.

JONES, District Judge.

This is a libel in personam, based upon a breach of a contract of affreightment made and entered into between Pan-American Trading Company, a corporation, libelant, and Jose Franquiz, respondent. After the respondent had filed his answer, a stipulation was entered into between the proctors for libelant and respondent, agreeing to an order allowing respondent a given time in which to file "such amended answer or other pleading therein as he may be advised," and an order to this effect was duly entered, and within the time specified in the order respondent filed an amended answer, embodying in such amended answer certain exceptions to the libel. Libelant has filed a motion to strike these exceptions upon the grounds that under the rules exceptions to a libel should be filed before answer is made and by filing the original answer respondent waived his right to file exceptions.

An order of reference to take the testimony was duly made, and the cause comes on to be heard upon final hearing, subject to the exceptions of respondent to the libel and the motion of libelant to strike said exceptions upon the grounds hereinbefore stated. The stipulation entered into between the proctors in this case and the order based thereon allowed the respondent "to file such amended answer or other pleading" in the case as he might be advised. I think this order, based upon an agreement of proctors for the libelant, clearly permitted respondent to file these exceptions, and therefore the motion of libelant to strike the exceptions to the libel will be denied.

Before going into the merits of this case, it will be necessary, of course, to first pass upon the exceptions to the libel. The grounds of these exceptions are:

"(1) It appears that the libelant ought not to have the relief for which he prays. * * *

"(2) It appears in and by said libel and the allegations therein that the libelant has been guilty of gross laches in bringing said proceeding. * * *

"(3) Said libel shows on its face that the vessel described therein left the port of embarkation in a seaworthy condition."

The first exception is in the nature of a general demurrer and attacks the form of the libel. This libel is in the usual form, and in my opinion contains all the necessary allegations to state a cause of action, and this exception is not well taken.

The second exception is based upon the grounds of laches. The libel alleges that the cargo (the failure to deliver which is the basis of this action) was delivered aboard the vessel John Francis in St. Andrews Bay, Fla., on or about May 17, 1919, for delivery in Arecibo, Porto Rico, and that said cargo was never delivered. This libel was filed January 17, 1924, less than five years after the alleged breach of the contract for carriage.

The question of laches is a difficult one, for the reason that no hard and fast rule can be laid down by which to determine whether or not a claim is stale. This question has been considered by the courts in many cases, and various decisions rendered. The consensus of opinion and the rule as laid down by the courts of the United States are to the effect that the question of laches is to be determined from the facts and circumstances surrounding each separate case; that state statutes of limitations are not binding and lapse of time is not necessarily controlling. Statutes of limitations are, however, sometimes followed by analogy. See The Key City, 14 Wall. 653, 20 L. Ed. 896; Harwood v. C. & C. A. L. R. R. Co., 17 Wall. 78, 21 L. Ed. 558; Foster's Federal Practice (6th Ed.) par. 576; Lincoln v. Cunard S. S. Co., 221 F. 622, 137 C. C. A. 346; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 F. 180, 36 C. C. A. 135; Fill v. Cunard S. S. Co. (D. C.) 217 F. 84; The Alabama, 242 F. 431, 155 C. C. A. 207.

In considering the facts and circumstances surrounding a particular case, the rule seems to be fairly well settled that, where there has been no change in the status of the parties and no intervening rights accrued, a mere lapse of time is not sufficient grounds to justify a court of admiralty in holding a claim stale and denying the libelant the right to enforce his rights. Pacific Coast S. S. Co. v. Bancroft-Whitney Co., supra; Bailey v. Sundberg, 49 F. 583, 1 C. C. A. 387; The Martino Cilento (D. C.) 22 F. 859; Coburn v. F. & T. Ins. Co. (C. C.) 20 F. 644.

The facts in the instant case do not show any change in the status of the parties, or intervening rights of any kind that would be affected by the delay in bringing this suit. The action is based upon the breach of a written instrument and the statute of limitations in the state of Florida in connection with such actions is five years, and this suit was brought within this period. I do not see anything in the facts connected with this case that would justify this court in sustaining the exception to the libel upon the ground of laches.

The third ground of the exceptions — that it appears on the face of the libel the vessel left the port of embarkation in a seaworthy condition — is not well taken, as I find nothing in the libel to this effect. The exceptions will therefore be overruled.

This libel alleges, and the amended answer admits, that the respondent was the owner of the schooner John Francis; that he undertook, in consideration of the freight money paid to him by the libelant, to carry a cargo of lumber, the property of the libelant, from St. Andrews Bay, Fla., to Arecibo, Porto Rico; that the cargo of lumber was in good order and placed aboard the vessel; that the respondent acknowledged receipt thereof by delivering a bill of lading to the libelant, wherein it was agreed that delivery should be made as stated above; that a charter party had been previously entered into covering said voyage; that the respondent received in advance the entire stipulated freight for the voyage, and that said cargo was never delivered at Arecibo, Porto Rico.

The amended answer then proceeds in paragraph 4 thereof to deny all liability, upon the ground that the failure to deliver the cargo in accordance with the contract was due to a "peril of the seas," an excepted cause in both the charter party and the bill of lading, and said failure was in no way due to any negligence upon the part of the respondent, or any of the officers or agents of said vessel.

This paragraph in the answer sets out that the respondent purchased the vessel John Francis while she was upon the high seas and after the charter party of the libelant had already been entered into; that the respondent had never seen the vessel at the time of purchase, nor had he seen her at the time of loading and of sailing from St. Andrews Bay, Fla., with this cargo; that he caused the vessel to be thoroughly inspected by competent persons at St. Andrews Bay, Fla., to ascertain if she was suitable for the proposed voyage, and alleges that the result of said inspection was "that said vessel was pronounced and certified to be seaworthy in every way"; that after the vessel left port, and was proceeding on her voyage in a prudent manner, "she suffered a misfortune due to a peril of the sea, in that the power pump upon said vessel, due to a latent and hidden defect unknown to this respondent or persons in charge of said vessel at the time of embarking on said charter party, became out of commission and would not work, and near the entrance of Northwest Channel of Tampa Bay, while said vessel was under the command of a pilot whom this respondent was required by law to employ, and which said pilot was then and there a member of the Pilots' Association of the Port and Harbor of Tampa, a certain pin, the attachment of which held the rudder in place, and which before that time had given no external evidence of being out of order or repair, which lack of repair was unknown to the persons operating said ship, broke, and became unshipped by means whereof, through no fault or negligence on the part of the pilot in charge of said vessel, the same by reason of said extraordinary circumstances was inevitably carried by wind and tide into shoal waters; that owing to the strong wind prevailing at said time, and proximity of said vessel to said shoals at said time and place, it was impossible for the employees of this respondent in charge of said vessel to repair said rudder, or control the vessel, so that on or about May 31st, in the afternoon, by reason of striking the bar at said time and place, the vessel became damaged so badly that she had about seven feet of water in her hold, and fell over on one side, in consequence of which she then and there became wrecked and was a total loss."

It is the contention of the libelant that the vessel was unseaworthy at the time she broke ground for this voyage, for the reason that she was leaking badly; that the power pump on said vessel was defective at that time, as was also the rudder; and that the failure to deliver the cargo in accordance with the contract was due to unseaworthiness of the vessel, and not to any "peril of the sea," as contended by the respondent. The questions, therefore, to be determined are: (1) Was the vessel unseaworthy at the time she undertook this voyage? (2) If so, was the failure to deliver the cargo due to this condition, or was said failure due to or brought about by a "peril of the sea"?

In my judgment the law governing this case is quite plain. Where an owner enters into a charter party containing a warranty (as is the case here) that the vessel shall be "tight, staunch, strong, and in every way fitted for the voyage," he is bound to see that the vessel is seaworthy, and is not excused by the fact that the defect...