TTT Stevedores of Tex., Inc. v. M/V JAGAT VIJETA
| Decision Date | 12 March 1981 |
| Docket Number | Civ. A. No. B-79-171-CA. |
| Citation | 509 F. Supp. 1072,1981 AMC 2446 |
| Parties | TTT STEVEDORES OF TEXAS, INC. v. M/V JAGAT VIJETA, in rem and Dempo Steamships, Ltd., Kontizanis Shipping, Inc., and Clay Bridge Shipping, Inc., in personam. |
| Court | U.S. District Court — Eastern District of Texas |
Robert Eikel, Eikel & Davey, Houston, Tex., for plaintiff.
F. L. Benckenstein, Benckenstein, McNicholas, Oxford, Radford, Johnson & Nathan, Beaumont, Tex., for M/V Jagat Vijeta and Dempo Steamships, Ltd.
Bryan J. McGinnis, McGinnis, Holmes & Adams, Beaumont, Tex., for Kontizanis Shipping, Inc. and Clay Bridge Shipping, Inc.
TTT Stevedores of Texas, Inc., brought this admiralty suit to recover unpaid stevedoring charges incurred during the loading of flour on the M/V Jagat Vijeta in Beaumont and Orange, Texas, from February to March, 1979. The defendant Dempo Steamships, Ltd., is the owner of the Jagat Vijeta and chartered the vessel to defendant Clay Bridge Shipping, Inc., for a trip from the U.S. Gulf to Egypt under a New York Produce Exchange form of time charter.
During the trial of the case, the Court permitted TTT Stevedores to file an amended complaint asserting a cause of action for damages against Clay Bridge, the charterer, and gave Clay Bridge sixty days to defend. The defendants asserted cross-claims against each other, and the dispute between Clay Bridge and Dempo is the subject of an arbitration otherwise unrelated to this suit. Dempo filed a counterclaim for wrongful seizure of the Jagat Vijeta. A second hearing was held (phase II of the trial) for the purpose of receiving additional evidence of plaintiff's damages, hearing the defense of Clay Bridge, and receiving evidence of damages for the wrongful seizure of the vessel.
Clay Bridge, having chartered the Jagat Vijeta from Dempo, appointed Kontizanis Shipping, Inc., of Pireaus, Greece, as its agent for the purpose of contracting for stevedoring services for the voyage from the U.S. Gulf to Egypt. The purpose of the voyage was to transport 28,483 metric tons of bagged flour. Kontizanis, acting as agent for Clay Bridge, requested and received bids for stevedoring services from several U.S. stevedores. One of those bids, and Kontizanis' acceptance thereto, constitutes the contract in issue. On December 22, 1978, Kontizanis sent a telex to TTT Agencies, nominally not a party to this suit, inviting a quotation. TTT Agencies responded with a quotation of prices at various Gulf ports. On January 4, 1979, Kontizanis indicated that the cargo would be loaded at Orange and Beaumont, Texas, and asked for TTT Agencies' lowest bid. TTT Agencies responded on the same day with an offer to load the flour for $12.40 per metric ton in Beaumont and $12.85 in Orange. The telex concluded:
On January 5, Kontizanis responded with a counteroffer of $12.00 and $12.50, including I.L.A. guarantees, J.S.P., G.A.I. Kontizanis also asked for an explanation of the abbreviations. TTT Agencies answered that $12.40 and $12.85 were the lowest rates.2 On January 6, TTT Agencies received the message "we agree to your stevedoring rates as per telex of January 5." This telex does not indicate the sender on its face. All other telex communications were between TTT Agencies and Kontizanis with no mention of Clay Bridge or TTT Stevedores. TTT Agencies appointed TTT Stevedores to load the vessel. Dempo Steamships also appointed TTT Agencies as its protecting agent in Beaumont and Orange, and on January 13, 1979, sent a copy of the charter agreement to TTT Agencies for delivery to the master of the vessel upon its arrival.
The Jagat Vijeta arrived at the Port of Orange on January 22, 1979 and tendered a notice of readiness to load cargo on January 27. Loading took place from January 31 to March 8, 1979, in Beaumont. At plaintiff's direction, the vessel's cargo loading gear was used in a "married configuration" or "union purchase" arrangement. That is, the load was carried in a sling, using two booms for each cargo lift. It appears that the winches were locked in the lower, or slower gear at the insistence of the master of the vessel. The stevedores and Kontizanis apparently protested the use of the lower gear, and Captain Daskalakis, of Kontizanis, wrote to the master of the vessel on the second day of loading that there was a delay caused by the vessel, namely, that all the winches were operating in low gear, some were not working properly, and there was some problem opening and closing the hatches.
On February 16, TTT Stevedores sent a letter to the master complaining of the winches being operated in slow gear. On February 23, TTT Stevedores had a survey performed on the winches, which basically indicated that the winches were locked in slow gear. Plaintiff wrote to Daskalakis This amount was later reduced to $2.36 per metric ton for cargo loaded at Orange, and $1.73 for Beaumont.
The next communication from TTT Stevedores to Kontizanis was a letter dated March 3, which requested additional compensation for further difficulties with the winches. TTT Stevedores estimated the additional expenses would amount to $198,084.14 for both ports, including the charge for slow winches (over $52,000.00). The remaining $145,547.77 was for "extra labor — sweat battens," detentions, overtime differentials and materials. During the trial, plaintiff was granted leave to amend its complaint to increase the ad damnum clause to $211,524.31, representing the final charges claimed to be owed.
The vessel was seized about two hours after it completed loading on March 8, 1979. It was released on a letter of undertaking at noon on March 13, 1979.
Clay Bridge was the principal in whose behalf the contract for stevedoring services was made. It is undisputed that Clay Bridge paid $358,000.00 to TTT Stevedores for services received. During the second phase of the trial, TTT filed a "notice of election" to hold Kontizanis liable on the contract. Clay Bridge argues that it is relieved of liability, but that result does not obtain because the third party is not barred from holding the principal liable until he has recovered a judgment from the agent. See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 274 (5th Cir. 1980); Restatement (Second) of Agency, § 209.
The telex communications that make up the contract in this case were between Kontizanis and TTT Agencies. No mention of Clay Bridge was made in the communications. Kontizanis argues, nonetheless, that it was a disclosed principal and was disclosed at or before the time that the contract was made. Kontizanis argues, based on Lake City Stevedores v. East-West Shipping Agencies, Inc., 474 F.2d 1060 (5th Cir. 1973), that it is a disclosed agent and not liable on the contract.
Critical to an understanding of Kontizanis' contentions that TTT Stevedores knew that Kontizanis was acting as agent for Clay Bridge is the relationship between TTT Agencies and TTT Stevedores. Each has an office in Beaumont, although on separate floors of the same building. Each has the same shareholders and the two companies have common officers. The Court notes that the two corporations, while legally separate entities, are confusingly intertwined. TTT Stevedores is the plaintiff in the suit, but the contract introduced in evidence was made between Kontizanis and TTT Agencies. Often, there is a reference to "3T's" without any indication of whether TTT Agencies or TTT Stevedores is referred to. It appears that TTT Agencies was the agent for TTT Stevedores in negotiating the contract at issue. Thus, any knowledge of the agent involved in the negotiation can be imputed to the principal.
Dempo appointed TTT Agencies as the vessel's protecting agent while in Beaumont and Orange. There is no evidence as to the exact date when TTT Agencies was appointed, but there was credible testimony that TTT Agencies knew that the Jagat Vijeta was chartered to Clay Bridge prior to the time that the contract was entered into. TTT Agencies employee Garza testified that he knew that the Jagat Vijeta was chartered at the time the bid was submitted. There was also evidence that the parties had dealt with each other in similar capacities in the past, and were well aware that Kontizanis was Clay Bridge's agent. The Court finds that TTT Agencies knew that Kontizanis was acting on behalf of the charterer, Clay Bridge, and thus Clay Bridge was a disclosed principal. Kontizanis is not liable on the contract. See Lake City Stevedores v. East-West Shipping Agencies, Inc., 474 F.2d 1060 (5th Cir. 1973).
Although the claim is made on a written contract, there is some possibility of recovery in quantum meruit, in that Clay Bridge, through Kontizanis, was aware of and ratified additional services provided by the plaintiff. All the services in this case were performed after TTT Agencies and TTT Stevedores had actual knowledge that Clay Bridge was the principal, and Kontizanis is thereby relieved of liability on that theory as well.
The plaintiff argues that even...
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