Roberto Hernandez, Inc. v. ARNOLD BERNSTEIN, ETC.
| Decision Date | 06 January 1941 |
| Docket Number | No. 101.,101. |
| Parties | ROBERTO HERNANDEZ, Inc., v. ARNOLD BERNSTEIN SCHIFFAHRTSGESELLSCHAFT, M. B. H., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph K. Inness, of New York City, for plaintiff-appellant.
Burlingham, Veeder, Clark & Hupper, of New York City (Roscoe H. Hupper, Burton H. White, and J. Franklin Fort, all of New York City, of counsel), for defendants-appellees.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
The plaintiff filed its complaint with the United States Shipping Board on June 27, 1935, under the provisions of the Shipping Act of 1916, 46 U.S.C.A. § 801 et seq., in which defendants were charged with having unlawfully discriminated against the plaintiff by refusing it freight space on their vessels. Thereafter hearings were held before an examiner of the United States Maritime Commission which had superseded the Shipping Board, resulting in findings of fact which supported the charges and on which an order was entered requiring the defendants to pay damages to the plaintiff to the amount of $25,050 with interest from December 31, 1934. The defendants having failed to comply with this order, the appellant brought this suit for enforcement in the District Court for the Southern District of New York pursuant to the Shipping Act. 46 U.S.C.A. § 829. As no service could be made upon defendant Arnold Bernstein Schiffahrtsgesellschaft, M. B. H., there was a severance as to it. After hearing, the District Court confirmed the order of the Commission as to the unlawful discrimination charged but failed to hold that the plaintiff was entitled to any damages and accordingly dismissed the complaint. From that judgment, the plaintiff has appealed.
In confirming in part the findings of the Commission, the District Court accepted as proved by adequate evidence, and so do we, the following facts: The plaintiff made an oral contract in June 1934 with J. T. de Bareno, of Bilbao, Spain, to purchase in this country and ship to Bareno at Bilbao, on Spanish Conference Line vessels operated by the defendants, automobiles, chassis and trucks manufactured by General Motors Corporation and by Chrysler Corporation to the total amount of $175,000. They were to be bought and shipped at the rate of $25,000 each month from June to December 1934, inclusive, with the privilege of making up any shortage in any month in any succeeding month or months. They were to be purchased at a discount of 17½ per cent off the retail price and the plaintiff was to receive for his compensation 15 per cent of the total amount of the purchases, all expenses incident to purchase and shipment were to be paid by de Bareno. As he agreed, de Bareno provided the plaintiff with a letter of credit for $14,200 which was to expire on July 2, 1934, but was extended to October 2, 1934, and the plaintiff bought and shipped automobiles to the value of $8,000 but no more because the defendants refused space on their vessels.
It was found that in July 1934 the plaintiff's freight agent, Seven Seas Transport Corporation, applied to each of the defendants for freight space for the automobiles and that the president of the plaintiff also made such requests and that they were refused though space was available. The terms of the contract the plaintiff had with de Bareno were made known to the appellees and they were notified as to the amount of damages he would sustain but, though what amounted to a standing request for freight space was made, the defendants arbitrarily persisted in their refusal to supply what was needed and the contract expired unperformed by the plaintiff except to the extent above stated. It was found that the plaintiff was able and willing to perform and was prevented by the refusal of the defendants to provide the cargo space requested. The District Court, however, reached the conclusion that the order of the Commission could not be enforced for the reason that the plaintiff had failed in the requisite proof of its damages and in its duty to take reasonable steps to mitigate its damages. The defendants resisted the enforcement of the order not only on the grounds upheld by the court but also on the ground that the Commission had no jurisdiction. They did not prevail in this respect and have renewed that contention upon appeal.
It may well be considered first. The theory is that suit should have been brought in the first instance without making any complaint to the Commission. It is argued that, as the gist of the plaintiff's grievance was that the defendants had wholly refused and neglected to...
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