Nacirema Operating Co. v. Steamship Virginia

141 F. Supp. 792, 1956 U.S. Dist. LEXIS 3373

Opinion

SUGARMAN, District Judge.

The fundamental question posed by this motion to dismiss the libel as to the S.S. Virginia in rem is whether the libel-ant made reasonable effort to ascertain whether the one ordering the stevedoring, for which recovery is sought, had authority to bind the ship.

Captain Astrom deposes that he “was never asked by anyone on behalf of the stevedore regarding the charter party relationship between the owner and the charterer of the Virginia” and that if he had he would “have shown them a copy of the charter and called to their attention paragraph 18 of the charter by reason of which charterers could not incur a lien on the ship”.

Inasmuch as there was a subsequent subcharter which contained no counterpart of paragraph 18 of the charter, the fact that no one asked the captain about the relationship between the owner and the charterer does not of itself resolve the question of libelant’s exercise of reasonable diligence.

Motions of this nature should be sparingly granted and then only when the allegations of the libel do not make out a case.¹

That question of libelant’s reasonable diligence can be answered only at a trial.²

The exceptions and exceptive allegations are overruled and the motion to dismiss is denied. Let claimant answer pursuant to Local Admiralty Rule 11.

It is so ordered.

1 . Mayo v. United States War Shipping Administration, D.C.E.D.Pa., 82 F.Supp. 61; Chisto v. United States, D.C.E.D.Pa., 83 F.Supp. 960.

2 . Sprague & Son Co. v. Howard, D.C.N.J., 68 F.Supp. 348, 349.