UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT NEW YORK.
January 25, 1950
ARNOLD BERNSTEIN SHIPPING CO., Inc.
The opinion of the court was delivered by: KAUFMAN
S. H. KAUFMAN, District Judge.
The cause of action alleged is for indemnity arising out of the presentation of an on-board bill of lading by respondent for goods never shipped. The previous petition of libelant against the same respondent was to compel it to arbitrate the controversy asserted in this libel. Judge Goddard, in a decision reported in Petition of A/S Falkefjell, D.C., 78 F.Supp. 282, held that the dispute did not arise out of the provisions of the charter party and was, therefore, not subject to its arbitration provisions. An order was entered dismissing the petition. The claims asserted in the previous petition and in this suit are not the same. In the former, libelant prayed that respondent be compelled to arbitrate; in the latter, it prays for damages. No rights or interests established by the order dismissing the previous petition will be destroyed or impaired by the prosecution of this libel. All that is decided now is that the doctrine of res adjudicata does not bar the prosecution of this suit. The question as to whether the libel can be sustained in view of the fact that respondent's principal was disclosed in the bill of lading is not reached at this time.
The exceptive allegations are overruled.
Settle order on notice.
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