The opinion of the court was delivered by: LEVET
The third party defendant, United States Lines Company, sued herein as United States Lines Co. (hereinafter referred to as United States Lines), has moved this court for an order under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., dismissing the third party complaint herein on the ground that the third party plaintiff is not a proper third party plaintiff and is not the real party in interest. It is contended that the third party plaintiff has not yet become subrogated to plaintiff's rights; that since plaintiff did not sue the third party defendant within one year, the claim is time-barred by reason of the provisions of certain bills of lading involved and by reason of Section 3(6) of the United States Carriage of Goods by Sea Act, 1936, 46 U.S.C.A. § 1303(6).
The original complaint in this action against St. Paul Fire and Marine Insurance Co. (hereinafter referred to as St. Paul), the defendant and now the third party plaintiff, is based upon a certain insurance policy and an alleged loss and damage to five shipments of radio-phonographs made from Hamburg, Germany to M.V.M., Inc., the plaintiff's predecessor in interest. The complaint alleges that all five shipments were delivered in good and sound condition to the United States Lines in Hamburg, Germany, and were received in New York by M.V.M., Inc., plaintiff's predecessor in interest, in broken and damaged condition due to external causes. The defendant St. Paul impleaded the third party defendant, United States Lines, and served a complaint against such third party defendant.
The time factors involved in this motion are as follows:
1. In November, 1955, the five shipments of radio-phonographs were made from Hamburg, Germany, covered by various bills of lading;
2. On or about and before December 28, 1955, all shipments were delivered;
3. On October 31, 1956, the complaint was filed against defendant St. Paul;
4. On November 2, 1956, the third party summons was served upon the third party defendant, United States Lines;
5. On January 23, 1957, the third party defendant filed its answer;
6. On July 31, 1957, the third party defendant moved to dismiss the third party complaint.
Each of the five bills of lading involved contained this statement:
'* * * the carrier and the ship shall be discharged from all liability for any loss, damage, or delay unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.'
Title 46 U.S.C.A. § 1303(6) is in part as follows:
'In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided, That if a notice of loss or damage, either apparent or concealed, is not given as provided for in this section, that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered.'
The third party defendant directs his attack upon the third party complaint to the following words ...