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CLEARY BROS. v. BOSTON INS. CO.

September 25, 1959

CLEARY BROS., INC., Cross-Libellant,
v.
BOSTON INSURANCE COMPANY, Cross-Respondent



The opinion of the court was delivered by: BYERS

These exceptions bring into question the legal sufficiency of a cross-libel filed June 12, 1959 in view of the lapse of time after July 25, 1951 (nearly eight years) when the cause is alleged to have arisen, and the said filing date.

The original cause bears the file number A-20223, and has to do with the failure of this cross-libellant Cleary Bros., to deliver a cargo of coal, the property of C. H. Sprague, Inc., laden at Pier 18, C.R.N.J. on July 24, 1951 to the Board of Transportation of the City of New York.

The carrying barge John J. Smith sank on the following day, before the contract of carriage had been performed, and while the place of sinking does not appear in the papers on this hearing, it is assumed to have been near to or at the pier where delivery was to be made.

 The libel in that cause was filed March 23, 1954 and the answer and impleading petition referred to below, on March 7, 1955.

 It was stated at this argument that the barge was overloaded by better than one hundred tons, her capacity being one thousand tons. It was also stated that thereby her seams opened, which caused the sinking. These factual matters do not enter into this decision, and are tentatively alluded to merely to explain what is thought to be the nature of the cause as set forth in Cause No. 20223, which has been restored to the calendar for trial, after having been marked 'Settled' by order of discontinuance filed October 30, 1958. That order was vacated for failure to perform, by motion granted March 4, 1959.

 The Boston Insurance Company, being the insurer of Sprague, became subrogated to the status of the latter, upon payment of the loss, which explains its presence in both causes.

 It will be convenient to refer to Sprague as though it were in each case, for the questions for decision turn upon the respective rights of the owner of the cargo and the carrier. It is proper to add that the carrier impleaded the Central Railroad of New Jersey as above stated, in the earlier cause for negligently overloading the barge John J. Smith. That again does not affect these exceptions, but tends to bring the second cause into an understandable relation to the first.

 The cross-libel in No. 20781 was therefore filed over four years after the answer in No. 20223, and only after the agreed to settlement of that cause had failed to come to fruition.

 The precise cause as pleaded in the Tenth Article is:

 'Tenth: Subsequent to the sinking of the barge John J. Smith, *fn1" cross libellant made certain sacrifices of a general average nature and incurred various general average expenses and special charges on cargo which resulted in the preservation of cargo on board said barge.'

 The following Articles allege that the cargo insurer received the benefit of the said expenses whereby the carrier is entitled to recover from cargo (its insurer) $ 6,122.66 'representing its proper share of the expenses necessarily incurred for the benefit of the cargo on board the barge John J. Smith' whereby a decree is sought for payment 'of its just claim with interest and costs, etc.'

 If the pleading is understood, a cause in general average is set forth, and not for salvage, although the latter subject has been somewhat argued.

 The right to recover for general average contribution where the burden of a stated loss is distributed among all interests held to have benefited by a given sacrifice, is entirely a concept of the admiralty.

 It may be defeated if the assertion of the claim can be fairly seen to be barred by laches as distinguished from the running of ...


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