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NORTH AMERICAN CONTINENTAL CO. v. THE EL CUIS

October 30, 1952

NORTH AMERICAN CONTINENTAL CO., Inc.
v.
THE EL CUIS



The opinion of the court was delivered by: BYERS

This is a renewed application on the part of the claimant for leave to intervene and file an answer in this proceeding, and to set aside and vacate the interlocutory decree and order of reference entered September 5, 1952, and to direct the Clerk to accept a $ 250 stipulation by claimant to cover costs.

The previous application was denied by Judge Galston in D.C., 107 F.Supp. 436, which discusses the status of the respective parties and the nature of the claim which is sought to be asserted if intervention be granted. The following is quoted:

'In view of the foregoing it must be concluded that the explanation of why the default occurred is not sufficiently complete, and that there is no substantial showing of the existence of a meritorious defense.

 'Since the claimant's mortgage would be subordinate to valid maritime liens, the right to file a petition asserting a claim against the proceeds of the sale of the vessel would avail the claimant little unless it can defend against the establishment of such liens. The assertion of such defense is properly a part of the action to determine the validity of a libel filed to assert such liens.

 Consequently, so that the rights of the claimant may not be prejudiced, although leave to set aside the default must be denied on the present showing, it will be without prejudice to the claimant's presenting another application in conformity with the views set forth herein * * *.'

 The deficiency thus portrayed has two aspects:

 (a) The delay on the part of the claimant;

 (b) The failure to portray the alleged mortgage.

 As to (a), the new papers really contradict the affidavit of the Consul General of Argentina which is full of conjectures as to what might have caused procrastination in arranging for the filing of a bond, namely, the posture of affairs resulting from the death of the wife of the president of the Republic of Argentina which occurred on June 26, 1952. The assertion of disruption in the conduct of governmental functions during the month of August, 1952 is substantially dispelled by Exhibit A (of which Exhibit B is a translation) attached to the said affidavit, which seemingly is a certificate, duly authenticated made by Jose Sartorio 'National Judge of First Instance of the Special Civil and Commercial Court of the Capital of the Republic of Argentine,' signed and sealed in his office in the City of Buenos Aires on August 12, 1952. This document seems to be a petition which concludes- assuming the accuracy of the translation- thus:

 'We hereby state that the General Consul of Argentina in New York or the person by him appointed, are entitled to take charge of the necessary arrangements to carry out this petition, with ample faculties in order to defend with the aoutmost (sic) efficiency the interest of Banco Industrial Argentino.'

 That is, governmental functions were by no means in suspense during the month of August, 1952.

 If the earlier opinion is understood, the delay in making claims was not regarded as fatal to the application, or leave to renew, with a more complete showing as to the alleged mortgage, would not have been reserved to the claimant. It is required, therefore, to examine Exhibits A and B as to the deficiency (b).

 The showing may be thus paraphrased:

 (1) The claimant, desiring to intervene, appeared before the certifying Judge to demand the payment of 2,011,009 (?) pesos and 58 cents from Compania Argentina ...


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