UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
June 30, 1955
Willoughby B. FOX, Berthe Fox, W. Brooke Fox and Richard B. Fox, copartners, doing business under the firm name and style of C. B. Fox Company, Libelants,
The HENNING OLDENDORFF, her engines, boilers, etc., and The EGON OLDENDORFF, Respondents
The opinion of the court was delivered by: BYERS
This is a motion by respondent Oldendorff appearing specially, for an order vacating and setting aside the purported service of citation on May 12, 1955 upon Walter Mahnke, 'operations manager of Glaessel Shipping Corp.' as agents.
The libel was filed January 15, 1953 and alleges that the libelants are copartners doing business, etc., as C. B. Fox Company in New Orleans, La.
That the individual respondent has his principal place of business in Lubeck, Germany, and owns and operates ships, including the one named in the caption, between the ports of Bremen, Germany and Braithwaite, Louisiana. That the said ship is or will be during the pendency of process within this district.
That in November 27, 1951 the parties entered into a charter party for the carriage of specified merchandise from Bremen to Braithwaite; that it was laden in good order and condition to be likewise delivered via the S/S Henning Oldendorff.
That there was a failure to make delivery in said good order and condition, in the respects pleaded, to the damage of libelants in the sum of $ 16,500.
The prayer for process is conventional.
The libelants argue that the service upon Glaessel Shipping Corporation was legally sufficient, although the president thereof makes affidavit as follows:
'* * * At the time of the voyage in question, the s/s Henning Oldendorff was under a voyage charter, dated at Hamburg November 27, 1951, to the libelants. Under the terms of the charter, the charterers were to pay to Glaessel Shipping Corporation the freight in United States currency on telegraphic advice on signing bills of lading. Glaessel Shipping Corporation received this freight and duly remitted the same to respondent in Germany. The only other connection Glaessel Shipping Corporation had with respondent was that respondent appointed Glaessel Shipping Corporation to look after its interests with regard to the turn-around of the vessel at Braithwaite and to take care of necessary vessel disbursements, such as for bunkers and provisions. This relationship terminated when the vessel completed discharge and sailed from Braithwaite.
'The above was the only connection Glaessel Shipping Corporation had with respondent other than to correspond with respondent when the claim which is the basis of this suit was presented on behalf of the libelants.
'Your deponent respectfully submits that Glaessel Shipping Corporation acted for respondent solely for the purpose of looking after the vessel on this one particular voyage and the appointment in no way contemplated a general agency between Glaessel Shipping Corporation and Egon Oldendorff.
'Your deponent is informed and truly believes that the only vessel belonging to respondent to call in New York waters since 1945 was the s/s Klaus Oldendorff, which loaded some cargo at the port of Albany in January, 1951.
'Glaessel Shipping Corporation holds no monies or property belonging to respondent nor is Glaessel Shipping Corporation indebted to respondent in any way. Furthermore, Glaessel Shipping Corporation is not acting at the present time in connection with any vessels belonging to respondent.'
There is no attempt to refute that statement but reliance is had upon a letter written December 26, 1951 by Glaessel to a third person as follows:
'December, 26, 1951.
'T. Smith & Son, Inc. 1011 Maritime Building New Orleans 12, La.
'Re.: S/S 'Henning Oldendorff' Sailed December 19th from Bremen for Braithwaite Charter Party dated November 27, 1951. 'Gentlemen:
'Please be advised that we act as General Agents on this side for the Owners of the aforementioned vessel. We have been advised by same, as well as by Messrs. C. B. Fox Co., that you have been appointed port agent for the abovementioned vessel, which is to discharge her Westbound cargo at Braithwaite. We trust that you will obtain from the Coast Guards, in due course, the License, which is required for vessels going into Braithwaite.
'We should very much appreciate your keeping us closely advised as to vessel's position and we request that you kindly send us a telegram upon vessel's arrival, stating the exact time of arrival, as well as bunkers and water aboard and expected time of sailing.
'Thanking you in anticipation for your kind cooperation, we remain.
Very truly yours,
Glaessel Shipping Corporation JFS/hw (Signed) Ernst Glaessel
'PS Owners have requested us to make payment of vessel's disbursement account. Therefore, kindly let us have same, which we shall honor immediately upon receipt.'
The suggestion is made that there is need for a hearing to reconcile the quoted matters, in order than an informed decision may be made of the motion.
That is not deemed necessary because:
(a) A condition asserted in December, 1951, is not to be deemed to have continued until the filing of the libel on January 15, 1953.
(b) The fact that but one Oldendorff ship is believed to have called in New York waters since 1945 discounts any possibility that Egon Oldendorff has been doing business in New York since the charter party was entered into.
Since the ship has not been arrested, and Egon Oldendorff has not been served with the citation, the motion is granted.
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