Before CLARK, Chief Judge, MEDINA, Circuit Judge, and SMITH, District Judge.
Suing on its own behalf and as assignee of H. R. Jacoby, Inc., plaintiff has recovered damages for delay in delivery of certain shipments of acetone and lubricating oil after presentation of the bills of lading in proper form and after due demand. Defendant appeals.
The source of such controversy as may be said to exist in the case is a certain similarity of names and the service of Italian attachment papers which turned out to be invalid on their face. In addition, there is a question of law relative to the Jacoby shipments, as the action was commenced more than one year after delivery of the goods was actually made. This legal point will be discussed in the closing paragraphs of this opinion.
There were two New York corporations, Commercio Transito Internazionale, Ltd., and H. R. Jacoby, Inc., which owned by appellant, bound for Genoa, acetone and lubricating oil on vessels owned by appellant, bound for genoa, Italy. The merchandise arrived in good order and some time subsequent to the service of the attachment papers, which will be described shortly, the bills of lading in proper form were presented to Paolo Scerni, who was concededly appellant's agent, and immediate delivery of the merchandise was demanded. We shall not discuss the details; suffice it to say that the documents were in order, the demand properly made, and, according to commercial practice and applicable law, the acetone and the lubricating oil should have been delivered without delay. The Jacoby rights having been assigned to appellee, a recovery was in order in the absence of proof by appellant of some legal excuse for non-delivery or a showing that the suit was not timely brought.
Appellant's defense was that, as to the acetone, a writ of attachment had issued out of the District Court for Civil Matters of Genoa, in the nature of a Third-Party Attachment, based upon a decree of January 3, 1948, of the presiding justice of the Superior Court of Milan, authorizing the Third-Party Attachment of "the assets, claims, amounts and merchandise" belonging to the "Societa Commercia Transito Internazionale" up to the amount of 33,200,000 Lire. In the writ of summons, dated February 2, 1948, at Genoa, the alleged debtor is described as "Commercio Transito Internazionale, with registered Office in Milan" and the debtor is directed to appear at a hearing on February 23, "in the person of its Director Mr. Hanjo Ogric of Via Dei Bossi 2." Other references in the attachment papers are to "Societa a.r.1.Commercio Transito Internazionale having its principal office in Milan." As there was an Italian corporation as thus described, in charge of Mr. Hanjo Orgic in Milan, facts well known to appellant through a variety of prior transactions, it is quite clear to us that the mere service of such papers upon appellant in Genoa furnished no excuse whatever for its failure to deliver the acetone upon the presentation of the bills of lading. No attempt was ever made by the attaching creditor to levy upon any specific property by taking the same into the physical possession of an officer of the court or otherwise. Moreover, the attachment was ultimately vacated because of the failure to make service of the attachment documents above referred to within thirty days after the date of the decree of January 3, 1948, the service having been made on February 3, one or two days too late. The invalidity of the attempted levy was thus apparent upon the face of the papers.
The trial judge made the following findings:
"21. Defendant offered no efidence indicating that it was in any way prohibited by court order to deliver the merchandise under the said bills of lading.
"22. Defendant offered no evidence of any provision of Italian law prohibiting it from making delivery of the said merchandise or excusing its failure to make delivery."
Nor was there at any time a dispute about appellee's ownership of the acetone and the bills of lading. The Italian corporation had no title thereto any time.
Risks incident upon questions of identity and the similarity of names are inherent in the business of a common carrier, and must be borne by the carrier in the absence of fraud or proof of facts giving rise to an estoppel.
The lubricating oil was shipped by H. R. Jacoby, Inc. The second writ of attachment was served on appellant on February 7, 1948, and refers to "all property, claims, merchandise and amounts * * * belonging to Mr. H. R. Jacoby."
We need not pursue the details of the attachment proceeding insofar as it may be deemed to constitute a defense against the claim arising out of the non-delivery of the lubricating oil, as it is elementary that an attachment against the goods of an individual can furnish no excuse for failure to honor a bill of lading issued to a corporation of the same name. Here again, the trial judge found that appellant by prior transactions and other notice was well aware of the fact that Mr. Jacoby and H. R. Jacoby, Inc., were not the same.
After a long period of correspondence back and forth, which it is tedious to read, and which completely demonstrates the lack of any valid excuse for non-delivery, appellant finally made delivery of the lubricating oil on May 3, and of the ...