The opinion of the court was delivered by: LEVET
This is a libel in admiralty growing out of an alleged deviation by the S/S Nordstern, owned by C. Mackprang, Jr. (Mackprang) and under time charter to Sabre Shipping Corporation (Sabre). Libellant, United Nations Children's Fund (UNICEF), a shipper of goods on the S/S Nordstern, has libelled the ship in rem, and respondents Mackprang and Sabre in personam. Mackprang cross-claims against Sabre, the charterer, should Mackprang be held liable to libellant.
Respondent Sabre is currently undergoing an arrangement pursuant to Chapter XI of the Bankruptcy Act (11 U.S.C. § 701 et seq.). On December 18, 1964, Hon. Edward J. Ryan, Referee in Bankruptcy, signed an order in that proceeding which provided, inter alia:
"ORDERED, that any and all persons hereby are stayed, restrained, and enjoined from proceeding in any Court wherein the above named debtor [Sabre Shipping Corporation] is a defendant until final decree in the above entitled proceedings or until further order of this Court * * *."
This order was pursuant to 11 U.S.C. § 714.
Libellant now moves for summary judgment against all respondents. Respondent Mackprang moves for summary judgment on its cross-claim against Sabre, in the event it is held liable.
No application for a modification of the restraining order has been made to Referee Ryan, though this is the procedure implicitly approved in In re Laufer, 230 F.2d 866 (2d Cir. 1956). This court, therefore, feels constrained to respect the Referee's order, and to decline to entertain the motions for summary judgment against Sabre. The only motions properly before the court, therefore, are motions for summary judgment by UNICEF against the S/S Nordstern in rem, and against Mackprang, the owner, in personam.
The undisputed facts are as follows:
1. At all times herein relevant the S/S Nordstern was owned by Mackprang.
2. At all times herein relevant the S/S Nordstern was under time charter to Sabre. This time charter was for a period of from eight to twelve months.
3. The time charter provided that the vessel was to be employed in carrying lawful merchandise "between safe port and/or ports in Worldwide trading within [certain broad territorial limits not relevant here] as the Charterers or their Agents shall direct," on the following conditions, among others:
"8. * * * The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency, and Charterers are to load, stow and trim the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate's or Tally Clerk's receipts."
"9. That if the Charterers shall have reason to be dissatisfied with the conduct of the Captain, Officers, or Engineers, the Owners shall on receiving particulars of the complaint, investigate the same, and, if necessary, make a change in the appointments."
"11. That the Charterers shall furnish the Captain from time to time with all requisite instructions and sailing directions, in writing * * *."
4. On or about June 30, 1961 there were delivered at Baltimore, Maryland to the S/S Nordstern certain shipments of DDT belonging to UNICEF, libellant herein.
5. In return for these goods a printed bill of lading under the heading and insignia of "Sabre Line" was issued to UNICEF. The bill of lading provided that the port of discharge from the S/S Nordstern of the DDT was to be Karachi (Pakistan). The bill of lading closed with the following recital:
"In witness whereof, the carrier by its agent has signed 3 (three) bills of lading, all of the same tenor and date, one of which being accomplished, the others to stand void.
Division of Sabre Shipping Corporation
By TERMINAL SHIPPING CO. ...