The opinion of the court was delivered by: COOPER
This is a claim for cargo lost on July 21, 1959, consisting of five barrels of sheep casings shipped aboard respondent's vessel, the S.S. EXCALIBUR, from Beirut, Lebanon to Hoboken, New Jersey.
Union Marine & General Insurance Co., Ltd. (hereinafter "Union Marine"), the subrogated cargo insurer and an alien corporation authorized to do business in New York, invokes the jurisdiction of the Court on the basis of diversity of citizenship, 28 U.S.C. § 1332.
Filed July 15, 1960, the complaint seeks recovery against both the carrier, American Export Lines, Inc. (hereinafter "Export") and McRoberts Protective Agency, Inc. (hereinafter "McRoberts"), a firm engaged by Export to protect cargo.
The evidence shows that all the barrels of casings involved here, valued at some $14,000, actually were last seen on July 21, 1959 while being discharged from the ship's crib at Pier B in Hoboken. When last observed, this cargo was in a hoist preliminary to discharge to the pier. Although due demand was made, the casings were never delivered to the intended consignee. Pre-Trial Order, para. 3(a)(6).
Union Marine predicates its claim against Export on breach of the bill of lading which incorporated the provisions of the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. §§ 1300-1315. Prior to the commencement of trial, Export settled Union Marine's claim against it for the sum of $2,000.
Seeking indemnity in the amount of its settlement, Export, in turn, cross claims against codefendant, McRoberts.
Union Marine's direct claim against McRoberts for the balance of the $14,000 loss is sought to be buttressed on several theories: (1) warranty, (2) tort, and (3) bailment. First, the complaint (paragraph 23) alleges, in substance, that the agreement between McRoberts and Export inured to the benefit of the consignee and "defendant negligently failed to perform its duty owing to the plaintiff to adequately observe the discharge of plaintiff's cargo * * *." In its trial memorandum (pp. 23-32) Union Marine argues that McRoberts breached its warranty of workmanlike service, implied in such agreement, and that Union Marine was a third party beneficiary thereof. Alternatively, Union Marine argues that the consignee can take advantage of such a warranty even if it is not a third party beneficiary, since the warranty is not limited to the zone of direct contractual relations.
Second, in its post-trial memorandum (pp. 9-11), Union Marine cites the principle, not grounded in contract, that an agent such as McRoberts is directly liable to plaintiff for the negligent performance of responsibilities which it undertook. Third, Union Marine contended by notice dated May 2, 1966 that it would prove at trial that McRoberts, as plaintiff's cargo bailee, failed in its burden of accounting for non-delivery.
This case came on for trial on May 24 and 25 before the Court sitting without a jury. Post-trial and reply memoranda were received on June 14 and 17 respectively.
After a careful study of the total evidence adduced and the theories upon which plaintiff relies, we find plaintiff has failed to meet its requisite burden of proof.
The Export-McRoberts Agreement
The substance of the 1958 oral agreement between Export and McRoberts is not in dispute. It provided, in essence, that the latter was to watch all cargo on the carrier's ships and piers, and be responsible for the safekeeping of "special" cargo.
As more fully set forth in Exhibit 2, pp. 2-3, the agreement provided:
Export designated the items of "special cargo," preparing from time to time a list of such cargo which was delivered to McRoberts. When "special cargo" was discharged or received on the pier, McRoberts arranged with Export employees for its prompt transfer to a "safe room" or "crib" where it was held under McRoberts' custody. McRoberts kept appropriate records of such cargo. Its ...