The Jane Palmer

• Decision Date: 28 December 1920
• Citation: 270 F. 609
• Parties: THE JANE PALMER. THE SINGLETON PALMER. FRANCE & CANADA S.S. CORPORATION v. FRENCH REPUBLIC.
• Court: U.S. District Court — Southern District of New York

270 F. 609

THE JANE PALMER. THE SINGLETON PALMER. FRANCE & CANADA S.S. CORPORATION v. FRENCH REPUBLIC.

United States District Court, S.D. New York.

December 28, 1920

Kirlin Woolsey, Campbell, Hickox & Keating, of New York City (William H. McGrann, of New York City, of counsel), for libelant.

Patterson Eagle, Greenough & Day, of New York City (J. Culbert Palmer and C. D. Francis, both of New York City, of counsel), for claimant and cross-libelant.

MAYER District Judge.

The libel in the first cause of the title is in rem and alleges that on or about April 16, 1917, there were shipped on board the schooner Jane Palmer 956 bales of bleached cotton linters, the property of libelant, in good order, to be carried to St. Nazaire, France, and there to be delivered to libelant in like good order, in consideration of an agreed rate of freight, and under the bill of lading issued by the agent of the Jane Palmer after the shipment had been placed on board; that during May, 1917, the Jane Palmer arrived at St. Nazaire and there made delivery of the goods in a damaged condition, due to the negligence (in certain respects set forth) of the Jane Palmer; that by reason of the premises libelant sustained damages in the sum of $54,482.02.

The answer denies the essential allegations of the libel, and alleges inter alia that, after the Jane Palmer arrived at St Nazaire, libelant delayed the discharge of the cotton for 48 days, but that libelant has paid claimant demurrage for the delay. Up to this point it appears that the voyage upon which it is alleged libelant's goods were damaged had ended. The controversy thus far is solely with respect to damage to cargo on a particular voyage.

For a cross-libel, counterclaim, and set-off claimant alleges, inter alia, that about April 5, 1917, claimant entered into a contract of affreightment with libelant, which included a bill of lading therein specified (said contract being marked Exhibit A), whereby libelant agreed to furnish, to be transported from United States ports to French ports, a total of 100,000 tons of certain commodities, which claimant agreed to ship within a period specified on sailing vessels which flew the American flag, and claimant agreed to deliver the commodities to libelant in France. One of the provisions of the contract, Exhibit A, is as follows:

'The War Administration (libelant) agrees to assume the war risk on vessels engaged in the transportation of this merchandise by the France & Canada Steamship Corporation. The value of vessels will be calculated at the rate of . . .10-- 0-0 (sterling) per ton dead weight.'

Reference is then made to seven schooners belonging to claimant, one of which was the Jane Palmer, and all of which were engaged in transporting merchandise to France under the contract. It is then alleged that libelant in connection with the prosecution of the war--

'detained and compelled said vessels to remain at said French ports for the periods hereinafter specified, waiting for libelant's war vessels to convey them out to sea and protect them from damage, destruction or capture by Germany or her allies.'

The Jane Palmer was compelled by libelant to remain in the outer roads at St. Nazaire from July 6, 1917, to July 21, 1917, and the damage for this delay was $11,277.18. It will be noted that the discharge of the cargo of the Jane Palmer was completed some time on July 5th, i.e., 48 days from May 18th, while the delay in starting the voyage back to the United States did not begin until July 6, 1917. In other words, the damage for the delay complained of arose out of a voyage intended to be undertaken after the completion of the voyage on which libelant's merchandise is said to have been damaged.

Libelant then sets forth damage of the same kind for periods specified in respect of the delay of the other six schooners. The total claimed for the damage for delay in regard to the seven schooners is the sum of $133,972.93. The theory of this part of the pleading is that libelant breached that part of the contract quoted supra.

The same facts are then repeated and the same amount is claimed, upon the theory that libelant in and by its contract, Exhibit A, as an implied term thereof, gave claimant the right to send its vessels engaged in transporting the merchandise to and bring them from the French ports whenever the vessels were ready and able to sail, and that libelant, in violation of its agreement, detained and compelled the vessels in question to remain at the French ports for the periods set forth.

As a further answer, claimant refers to article XIII of the contract, Exhibit A, reading:

'All disputes relative to execution of present contract must be submitted to the arbitrage of the Chamber of Commerce of New York.'

Claimant alleges that it was and is willing and has offered to submit its claim of $133,972.33 and libelant's claim for damage to the cargo in accordance with the arbitration provision above quoted, but that libelant has refused and still refuses to submit these claims to arbitration, as provided by the contract.

The libel and answer in respect of the Singleton Palmer are the same in regard to theory and differ only in details. The damage in respect of the Singleton Palmer is put at $22,659.97. The voyage on which the cargo was damaged and the voyage which was delayed by failure to...