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CITY STORES CO. v. SUN INS. CO.

October 24, 1972

CITY STORES COMPANY, Plaintiff,
v.
SUN INSURANCE COMPANY OF NEW YORK, Defendant


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by plaintiff (City) for summary judgment in its favor. Fed. R. Civ. P. 56. After this motion was made, defendant (Sun) also moved for summary judgment in its favor.

 The action is on an insurance policy entitled "Open Cargo Policy -- Marine Only" issued by Sun to City.

 Jurisdiction is said to be in this Court because it is "a case of admiralty and maritime jurisdiction" (complaint, para. 1). There is no diversity jurisdiction but defendant apparently concedes that the Court does have jurisdiction and, not without some doubt, it is so assumed. 28 U.S.C. § 1333(1).

 City operates a number of retail stores in this country. It buys merchandise in Italy (among other places) and arranges to bring the goods to this country for sale.

 The complaint alleges that before July 4, 1969 plaintiff had bought goods at inland factories in Italy and had caused such goods to be shipped to itself from various places in Italy to various places in this country; that Del Bene was a shipping agent in Italy who handled inland freight transportation of goods from inland factories to the port of Leghorn (Livorno) where the goods are exported here; that Del Bene had a warehouse in Livorno; that Del Bene handled the transportation of City's goods from the inland factories to his warehouse in Livorno; that while the goods were in the warehouse they were totally destroyed on July 4, 1969. City alleges that the loss is covered by Sun's policy and asks for damages of $106,601.19.

 On this motion, City submits one invoice from a factory in Florence covering goods of the value of $133.81. It is said for City that there are other invoices which in the aggregate amount to the sum demanded in the complaint but the other invoices are not submitted because they would constitute mere repetition. It is said for City that the invoices are 103 in number, that the earliest is dated March 27, 1969; that three are dated in May, 1969; and that the others are dated June 9, 1969 and later (but, of course, before July 4, 1969).

 The facts are not made to appear in any orderly fashion by either side but from the Clerk's file and otherwise the situation can be understood in general and appears to be undisputed.

 The goods were bought by agents of City from inland factories in Italy and were paid for.

 Del Bene was an "agent" of City "through whom the goods were transported from the various factories to the vessel that would eventually carry said goods" to City in this country (answers for City to interrogatories, p. 2).

 Del Bene for plaintiff arranged to take delivery of the goods from the inland factories. The goods were in "packages for export to the United States" (answers for City to interrogatories, p. 3).

 According to the practice of City, Del Bene did not open the packages at any time but arranged for their transportation (usually by truck) from the factories to his warehouse in Livorno where they were then "consolidated for shipment" under instructions to Del Bene to "consolidate all packages for early export" to the United States (answers for City to interrogatories, pp. 4, 5). In most instances, the vessel provides Del Bene with containers in which the various packages are consolidated (answers for City to interrogatories, p. 6).

 In summary, therefore, Del Bene as agent of City arranged to pick up the goods in suit in various lots and at various factories in inland Italy, arranged to move them (usually by truck) to his warehouse in Livorno, kept them in his warehouse for various periods of time preparing to consolidate them for shipment on one vessel to the ...


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