The opinion of the court was delivered by: COOPER
Libelant, P. D. Marchessini & Co. (New York) Inc. (hereinafter Marchessini), has brought this libel against respondent, H. W. Robinson & Co., Inc. (hereinafter Robinson), alleging breach of a contract of carriage (Ex. 1A)
involving 260 locomotive trucks
which were to be carried aboard vessels operated by libelant.
Respondent asserts the lack of actual or apparent authority on the part of the signatory to bind Robinson contractually, fraud in its inducement, and that the document is not a complete integration of the agreement.
Eugene Holzapfel, head of Robinson's sales department, testified that in the fall of 1961
he received a phone call from a Mr. Hiroshima of Hitachi & Company requesting an ocean freight rate on locomotive trucks to be shipped abroad (Tr. 241-242, 245, 248). Holzapfel brought this matter to the attention of James Engers, President of Robinson, and Edward Boyens of Robinson's export department (Tr. 250); the latter made phone inquiries to five or six different steamship carriers for a freight quotation. Dominic (hereinafter D.) Jordan of Marchessini's traffic department received Boyens' call and quoted him an ocean freight rate on locomotive trucks; Boyens responded that it was a large shipment, and he required a better rate than that provided by Marchessini's tariff (Tr. 79-80). D. Jordan discussed the rate with Salvatore (hereinafter S.) Jordan, Marchessini's General Traffic Manager, and, using the facts and figures supplied by Boyens, they arrived at a freight rate of $775 per unit (Tr. 80). Boyens, when informed of this new quotation by D. Jordan, said he would let him know if they had a booking (Tr. 81-82).
The Marchessini quotation was passed on to Holzapfel (Tr. 50) who called and informed Hiroshima of this freight rate (Tr. 255). Hiroshima in turn agreed to let Holzapfel know if this business developed for Hitachi & Company. Holzapfel called Hiroshima a second time, approximately a month later, and made inquiry concerning these locomotive trucks. Hiroshima indicated that the business had not yet materialized and again agreed to call if it did in fact develop (Tr. 255-256). Holzapfel heard nothing further from Hiroshima concerning this shipment (Tr. 257).
S. Jordan testified that on December 14, 1961 Boyens called and informed him that the cargo was going to move (Tr. 170). S. Jordan had the contract prepared, and directed Edwin O'Brien, one of Marchessini's traffic representatives, to take it to Robinson's office for Boyens' signature (Tr. 170-171). Boyens signed
and affixed the Robinson company name stamp
to the document (Tr. 10). O'Brien returned it to Marchessini's office where it was then signed by libelant's Outward Traffic Manager, Thomas Giardino (Tr. 198), and a copy mailed back to Robinson, attention of Boyens (Tr. 223). Libelant's tariff was then amended to reflect the $775 per unit rate (Tr. 84, 176-181), and its contract with Maher Stevedoring was amended to reflect a rate, based on the volume of this shipment, of $40 per unit (Tr. 85-89, 183-184).
The first shipment comprising 30 units was to be carried aboard the "Eurylochus" scheduled to sail on January 27, 1962 (Tr. 174). As the sailing date approached with no cargo delivered, S. Jordan sent O'Brien, on at least three separate occasions, to discuss with Boyens how and when the cargo was moving to the pier. During these talks, Boyens furnished O'Brien with a copy of a memorandum (Ex. 2), a letter (Ex. 3), and a specification sheet (Ex. 4)
- papers purporting to explain the delay and indicate how the cargo would be delivered in the future (Tr. 127-130, 139-142, 173-176).
Respondent has not in fact shipped on libelant's vessels any of the cargo described in Exhibit 1A (Pre-Trial Order, April 20, 1965).
During the reading of Boyens' deposition, respondent offered in evidence a handwritten document dated February 21, 1962, addressed "To Whom It May Concern" and signed by Edward C. Boyens (Ex. A.). Boyens, in his deposition, identified the document by testifying that it was in his handwriting and signed by him (Tr. 53). The contents of this document, for the most part, purport to explain the circumstances under which Boyens signed the alleged contract. Libelant objected to its admissibility on the grounds that it was selfserving and violated the parol evidence rule (Tr. 53-54, 57-58). This Court received the document in evidence subject to reconsideration.
After a close reading of the document in question, we conclude that it is hearsay and unworthy of admission as affirmative proof of the assertions contained within it. Further, as to its admissibility as an aid in judging deponent's veracity, the document amounts to a prior consistent statement, and thus, far from impeaching Boyens' testimony, serves only to reinforce and bolster it. We therefore strike respondent's Exhibit A from evidence.
During the direct examination of S. Jordan, libelant offered in evidence a copy of the tariff page filed by Marchessini with the Federal Maritime Commission (Ex. 5), and a copy of the amendment to the stevedoring contract between Marchessini and Maher Stevedoring. Respondent's counsel, after voir dire examination of S. Jordan, indicated to this Court that he had no objection to the admissibility of Exhibit 5 into evidence (Tr. 178-181). However, at the time he objected to the admissibility of the amendment to the stevedoring contract, he raised the point that neither the amendment nor Exhibit 5 were listed in libelant's Pre-Trial Memorandum as exhibits to be introduced during the trial, and therefore moved that they be excluded (Tr. 185-188). We find such ...