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February 11, 1953


The opinion of the court was delivered by: CONGER

The above entitled case is one of 15 identical suits except for the name of the plaintiff, the type and extent of the cargo and the amount sued for. Plaintiff claims jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2).

Identical motions are made in each case. My opinion in the above case will be dispositive of all the motions.

Defendant moves for an order dismissing the complaint under Rule 12(b) (1, 2) of the Federal Rules of Civil Procedure, 28 U.S.C., on the ground that this Court lacks jurisdiction over the subject matter of the action and over the person of the defendant in that defendant United States of America as sovereign has not waived its immunity from suit nor consented to be sued upon the cause of action purportedly set forth in the complaint and further defendant moves for summary judgment dismissing the complaint pursuant to Rule 56, Federal Rules of Civil Procedure.

 In this connection defendant urges, among other things, (a) that the action is time barred, (b) res adjudicata and estoppel by judgment and (c) that there is no genuine issue of fact or law to be decided here.

 Plaintiff moves for summary judgment in favor of plaintiff with a reference to compute damages.

 The issue before me is rather simple. Plaintiff's attorneys very well state it in their reply memorandum as follows: 'Simply stated these motions frame the issue: Is the Tucker Act with its six year limitation of time for suit (28 U.S.C. 1346[a] [2], 2401[a]) the sole basis for jurisdiction of this Court over the United States and of the subject matter of the complaints?'

 On the argument before me, I believe it was conceded by both counsel that if I decide that the Tucker Act applies and that res adjudicata and estoppel by judgment does not apply, then plaintiff is entitled to summary judgment with a reference to fix damages.

 The converse of the problem is: Do the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., together with the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., control here? If they do, then plaintiff has no cause of action.

 A brief statement of facts (not contradicted) will be helpful.

 Plaintiff was one of a number of shippers who, on or about December 21, 1942, delivered certain goods to defendant, the owner, operator, charterer, manager and the one in control of the S. S. Mormacmar, as a common carrier, for transport to the port of New York. On or about January 30, 1943, the S. S. Mormacmar put into the port of Wellington, New Zealand and sailed from there on February 5, 1943. On February 7, 1943, the vessel again put into said port of Wellington. Defendant asserts that the calls at Wellington were necessary as a port of refuge following alleged marine casualties. On or about February 9-11, 1943, certain of the cargo of the S. S. Mormacmar, including part or all of plaintiff's shipment, was discharged and placed ashore in a warehouse at King's Wharf, Wellington, by defendant, necessitated, as claimed by defendant, to effect repairs to the vessel, caused by the marine casualties.

 A part of the cargo being shipped by plaintiff was subsequently and on February 21, 1943, damaged or destroyed by a fire on the said King's Wharf. It is not denied by defendant that defendant did not insure the goods against loss by fire while they were in the warehouse.

 The complaint in this action contains two causes of action. The first cause of action is for defendant's failure to perform its contract to insure the goods against the risk of fire, the cause of the loss, on the theory as claimed by plaintiff (Paragraph Sixth of the complaint) that defendant when it discharged the cargo on the wharf at Wellington as bailee of the said cargo and as a matter of invariable and established custom was under the contractual duty and obligation implied in fact and in law to arrange, place and procure for the protection of plaintiff insurance on said cargo as a special risk against the risk of fire and other hazards.

 In this cause of action plaintiff sues not for the value of the goods but for damages for failure to insure.

 In the second cause of action plaintiff sues for an alleged breach of contract on defendant's part in (1) not furnishing a seaworthy vessel, (2) in unlawfully deviating via ports not enroute from Calcutta to New York and (3) unlawfully deviating by placing plaintiff's goods in the warehouse at Wellington. In this cause ...

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