THE TUBUL

• Decision Date: 26 June 1947
• Docket Number: No. A-17573.,A-17573.
• Citation: 73 F. Supp. 757
• Parties: THE TUBUL. SCHNELL et al. v. UNITED STATES.
• Court: U.S. District Court — Eastern District of New York

73 F. Supp. 757

THE TUBUL SCHNELL et al. v. UNITED STATES.

No. A-17573.

District Court, E. D. New York.

June 26, 1947.

Joffe & Joffe, of New York City (Joseph Joffe, of New York City of counsel), for libellants.

J. Vincent Keogh, U. S. Atty., of New York City (Reid, Cunningham & Freehill and Renato C. Giallorenzi, all of New York City, of counsel), for respondent.

INCH, District Judge.

Libellant brings this suit against the United states of America. As to most of the facts there is no real dispute and such facts are a sufficient basis for this decision.

Libellant's libel alleges that a portion of their merchandise (crates of garlic) was loaded on the steamship Tubul, at Valparaiso, Chile, in apparent good order and when the whole cargo was delivered in this country, this portion was found to be damaged, owing to the negligence of those in charge of the steamship, in respect to the loading, stowage, custody and care of such cargo. The libel is in the form of a suit "in personam," liability being based on the alleged breach of contract of carriage.

The United States of America was, at the times in question, the owner of the said steamship Tubul. As the respondent in the suit it duly answered, by which answer, and amended answer, certain issues were raised, among them being a question of jurisdiction by this court and the liability of the United States of America in personam.

I see no necessity here for going into the issue in regard to loading, stowage, etc., of the merchandise for the following reason:

At the trial it was decided by this court, on conceded facts, that libellant had no cause of action against the United States of America in rem, because the vessel was not within the territorial waters of the United States of America at the time the libel was filed (August 13, 1945). Blamberg Bros. v. United States, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346.

At the close of the libellant's direct evidence, the court denied a motion to dismiss the libel in personam without prejudice to the respondent's introduction of evidence on its part of the case, whereupon the respondent offered in evidence the Demise Charter entered into between the United States Government and the Chilean Government, which, it was duly stipulated, represented the Demise Charter of the steamship Tubul, the vessel involved in this suit (Respondent's Exhibit A).

This Demise Charter was entered into during the recent war. Naturally, as Sovereign, certain rights over such shipping...