PETITION OF COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: Single & Tyler, of New York City, for claimants
• Citation: PETITION OF COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO, 21 F.Supp. 372 (E.D. N.Y. 1937)
• Decision Date: 06 December 1937
• Docket Number: No. 12172.,12172.
• Parties: Petition of COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO. THE MANDU.

21 F. Supp. 372

Petition of COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO.

THE MANDU.

No. 12172.

District Court, E. D. New York.

December 6, 1937.

Single & Tyler, of New York City, for claimants.

Purrington & McConnell, of New York City, for petitioner.

INCH, District Judge.

The immediate issue to be decided arises from a large number of claims filed in this limitation proceeding and the exceptions and exceptive allegations duly filed thereto. Is there present a single claimant or plaintiff who would be competent to sue in this jurisdiction?

Reference here should be made to what has previously taken place in this proceeding.

About eight years ago a collision occurred in the harbor of Santos, Brazil, between a Brazilian ship, Mandu, owned by petitioner, and a German ship, Denderah. The Denderah was damaged and likewise her cargo. So far as can be ascertained from the record before me, the German shipowner has never sued the Brazilian ship Mandu or her owner. The various insurers of the cargo on the German ship made good the loss to the cargo owners. The above claims represent an effort to recover these payments.

The collision occurred July 31, 1929. On June 3, 1930, while the Mandu was in the port of New York, a United States citizen, the Great American Insurance Company, filed a libel against her. Exceptions to this libel were sustained, but upon the return of the Mandu to New York in October, 1930, the same United States citizen again libeled the ship and thereafter, on December 10, 1930, the petitioner, as shipowner of the Mandu, filed this petition for limitation or exoneration. A stipulation for value thereafter took the place of the vessel. The sole claim filed was by this Insurance Company.

Various proceedings then followed in the form of motions, exceptions, etc., and finally the limitation proceeding came on to be heard during the spring of 1937. At this trial the petitioner promptly asserted that the sole claimant, the United States citizen, the Great American Insurance Company, had no capacity to sue or file a claim and asked that this claim be dismissed and that petitioner be allowed to withdraw its action for limitation. On July 21, 1937, this court decided that such claim was invalid. It denied, however, the right of petitioner to then withdraw its petition and discontinue the action, retained jurisdiction of the proceeding by providing, for reasons stated, an opportunity to any bona fide claimant, having capacity to sue, to file such claim within sixty days (October 1, 1937).

In view of the argument by claimants that the issues now raised have previously been decided, a brief reference to said decision of July 21, 1937, should here be made.

The sole issue there decided was whether the sole claimant, the United States citizen, the Great American Insurance Company, was the real party in interest and had the right to prove a claim? The court decided that it was not and had no such right.

The issues now raised as to the new claims were not before the court and could not properly be decided at that time.

There is no doubt but that the United States citizen was endeavoring to represent foreign underwriters by allegations which were either not proved or shown to be false, but in no instance could this claim of the United States citizen be held a claim filed in a representative capacity. On the contrary, it was one filed in its own alleged right. This claim was held to be invalid and not capable of amendment.

There is no longer before the court any claim by a United States citizen.

All the claims now sought to be enforced are those of foreign underwriters of cargo on a German ship damaged in a collision with another foreign ship in foreign waters.

An entirely different situation therefore is now presented to that which was before the court when it passed upon the sole alleged claim of the United States citizen. No attempt has been made by such citizen to file a new claim.

To be sure, the court stated in its decision, there was no doubt but that there had been a substantial loss occasioned by the collision and that it seemed to the court, in its discretion, it would be "most unjust to close the door upon a proper claimant or claimants unless it was absolutely necessary and equitable to do so"; but the court also stated, "whether or not they or any claims will be or could be proved is not necessary now to determine."

The court further indicated, "There is no telling that, because of this lapse of time, rights otherwise sought to be enforced might be barred. * * * That if * * * a bona fide claimant now appeared and asked leave to open its default * * * this court would * * * allow same," but it also stated, "that a claimant must be competent to sue. * * * The nature of a claimant is that of a plaintiff or libellant." The Titanic (C.C.A.) 225 F. 747; In re Davidson S. S. Co. (D.C.) 133 F. 411; The John H. Starin (C.C.A.) 191 F. 800; The S. S. Hewitt (D.C.) 284 F. 911; The Princess Sophia (C.C.A.) 61 F.2d 339, certiorari denied Brace v. Canadian Pac. Ry. Co., 288 U.S. 604, 53 S.Ct. 396, 77 L.Ed. 980.

Finally, the court stated: "If, during this time, a valid claim is duly filed, then the court will take up the consideration of the remaining question of liability, if any. * * * If, however, in spite of this extension, there still remains only this present invalid claim, then such claim will be dismissed and the Ship-Owner will be allowed to withdraw its petition."

We now come to the present issues which have heretofore not been before the court for decision. Has any claim now been filed by a claimant having capacity to sue? As has been said, no claim has been filed by a United States citizen. All of the claims are those of foreign underwriters. Under such conditions it can be well argued that this court should now refuse further jurisdiction to such claimants. Fairgrieve et al. v. Marine Insurance Company (C.C.A.) 94 F. 686; Firemen's Insurance Co. v. Bremner (C.C.A.) 25 F.2d 75; The Tricolor (D.C.) 1 F.Supp. 934, affirmed U. S. Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 65 F.2d 392 (C.C.A.2).

However, there appears to me to be an additional reason for now granting the request of the petitioner which, until the necessity for decision arose, was but incidentally considered by me. This reason is that I am convinced that each of the claims now filed would be barred by the laches of claimants. The original claimant acted with reasonable promptness but not so these present claimants.

It is the law of this case, made so by my associate judge of this district, The Mandu (D.C.) 15 F.Supp. 627, that the Treaty between Germany and...