Soloil Compania Naviera, Inc. v. Sea Man Pak Co. Ltd.

89 A.D.2d 537, 452 N.Y.S.2d 628, 1982 N.Y. App. Div. LEXIS 17582

Opinion

Order, Supreme Court, New York County (Alexander, J.), entered July 17,1981, insofar as it granted the motion of Isla Del Sol Compañía Naviera, Inc. (Isla) for summary judgment and directed an assessment of damages, unanimously reversed, on the law, with costs, and Isla’s motion denied. Isla’s motion to submit certain evidence dehors the record is denied. Isla, plaintiff in Action No. 2, is the owner of the vessel Maria L. Defendants Sea Man Pak Co., Ltd. (Pak) acted as a port agent in Iran. Pursuant to agreement between the parties, plaintiff Isla advanced funds to defendant Pak in November of 1978. These funds were to be used by Pak to pay various port fees after the Maria L. had been discharged in Bandar Abbas, Iran. Plaintiff submits proof, upon its motion for summary judgment, that its vessel was ready to sail on January 1, 1979 and that a certificate of port clearance could have been obtained on that date. Plaintiff submits affidavits and documents tending to support its contention that a port strike did not occur until January 3, 1979. Isla seeks damages arising from the fact that the vessel belatedly sailed on January 10, 1979. On the other hand, defendant Pak submits evidence suggesting that civil unrest and political strife in Bandar Abbas prevented it from obtaining a certificate of port clearance on January 1, 1979. In particular, Pak stresses that plaintiff’s “exhibit 7” actually shows that a strike was in force on January 1, 1979. In that exhibit, the master of the Maria L. states: “[ajfter completion [of unloading] the vessel got delayed due to port strike.” Upon the conflicting evidence presented, a triable issue arises as to whether the vessel was delayed because of (i) Pak’s negligence or (ii) a port strike. Therefore, plaintiff’s motion for summary judgment should have been denied. Concur — Murphy, P. J., Carro, Markewich, Lupiano and Bloom, JJ.