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April 22, 1953


The opinion of the court was delivered by: DIMOCK

In this suit in admiralty, Patel Cotton Co., Ltd., filed a libel which has been served upon the respondents Isthmian Steamship Company and Todd Shipyards Corporation. Todd impleaded Anderson Clayton & Co., Inc. These four parties will be hereinafter referred to respectively as 'Patel', 'Isthmian', 'Todd' and 'Anderson Clayton'. Todd also impleaded Isthmian and a warehouse company over the latter of which jurisdiction has not been obtained. There are before me three motions made respectively by Patel, Anderson Clayton and Todd for various forms of relief.

Anderson Clayton moves to dismiss the petition impleading it on the ground that neither the libel against Todd nor the petition impleading Anderson Clayton seeks relief for a maritime tort.

 Todd moves that the whole case be transferred to the United States District Court for the Southern District of Texas, Houston Division, on ground of forum non conveniens.

 Anderson Clayton moves that the issues on the impleading petition be severed and transferred to the Texas District for trial.

 The other motions all involve questions as to the place, time or manner of taking depositions.

 Patel is an East Indian corporation which was consignee of cotton loaded at Houston on Isthmian's ship 'Steel Traveler' for delivery at Bombay. The cotton was destroyed or damaged by fire while the vessel was in Tood's floating drydock at Houston.

 Anderson Clayton was shipper of the cotton. Todd impleaded Anderson Clayton and Isthmian and the warehouse on the theory that they were guilty of some fault in the preparation or loading of the cotton and, if Patel should recover from Todd, then Todd 'should have recovery over therefor against respondents-impleaded.'

 With respect to Anderson Clayton's motion to dismiss the impleading petition on the ground that no maritime tort is involved, it will be remembered that the fire occurred when the vessel was in Todd's floating drydock at Houston. The cause of action for such damage is maritime. Travelers Ins. Co. v. McManigal, 4 Cir., 139 F.2d 949; Butler v. Robins Dry Dock & Repair Co., 240 N.Y. 23, 147 N.E. 235. The result is not changed by the fact that Anderson Clayton's part may have been played on land. Smith v. Lampe, 6 Cir., 64 F.2d 201, 202, certiorari denied 289 U.S. 751, 53 S. Ct. 695, 77 L. Ed. 1496; The America, D.C.E.D.N.Y., 34 F.Supp. 855; Leonard v. Decker, D.C.S.D.N.Y., 22 F. 741.

 Assuming the power of the court to direct a severance of the impleaded cause of action, while it might serve the convenience of some of the parties, it would not serve the ends of justice sought to be attained by Admiralty Rule 56 under which respondents were impleaded. Anderson Clayton's liability over to Todd will in all probability depend upon the facts established in the prosecution of Patel's claim against Todd. If Anderson Clayton is not a party to the proceeding in which that claim is determined the issue will have to be relitigated with the possibility of an inconsistent decision.

 I pass not to Todd's motion for a transfer of the case to Texas and the motions involving depositions. These involve geographical considerations. Jurisdiction of all of the original and impleaded respondents could have been obtained in the Texas District. Indeed, jurisdiction over the warehouse, which plaintiff is now attempting to obtain by foreign attachment, could be obtained in the Texas District by personal service. Libelant has no office in either New York or Texas, the suit having been brought in New York to meet the convenience of the insurer which has paid the loss, Export Insurance Company, which has its principal office in New York City. Todd has an office and plant in Houston and Anderson Clayton has its principal office in Houston and all witnesses with respect to the preparation, loading and damage are in Houston except the crew of the vessel whose whereabouts is presumably no more stable than is usual for mariners.

 Patel and Isthmian oppose the transfer. Anderson Clayton, while evidently preferring to have the impleaded cause of action severed and tried in Texas, does not oppose transfer of the whole case.

 The forum non conveniens doctrine is embodied in 28 U.S.C.Supp.V, § 1404(a) which reads:

 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or ...

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