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TAIWAN INTL. LINE LTD. v. MATTHEW SHIP CHARTERING

September 9, 1982

TAIWAN INTERNATIONAL LINE LIMITED, Plaintiff,
v.
MATTHEW SHIP CHARTERING LTD., MONTREAL, Defendant



The opinion of the court was delivered by: POLLACK

MILTON POLLACK, District Judge.

 This is a suit by Taiwan International Line, Ltd. ("Taiwan Line"), the owner of the M/V GLORIOUS TRADER, to recover $203,692.47 in freights and demurrage from Matthew Ship Chartering, Ltd. ("Matthew Chartering"), which hired the vessel in September 1981. The Royal Bank of Canada ("the Bank") has intervened to claim the same funds on the basis of a general assignment of receivables granted to it seven years previously by Matthew Chartering in 1974.

 Taiwan Line has moved for summary judgment in its favor pursuant to Fed. R. Civ. P. 56, while the Bank has cross-moved for an order directing payment of the funds to it. For the following reasons, the Court holds that Taiwan Line is entitled to the freights and demurrage earned by the ship, irrespective of the general assignment to the Bank.

 Facts

 On August 5, 1981, Matthew Chartering entered into a charter party with Associated Metals & Minerals Corp. ("Associated") to ship 40,000 metric tons of di-ammonium phosphate from Florida to India. Under the agreement, Matthew Chartering had the option of using two or three ships, to be named later, for the carriage of the cargo. The contract also provided that within five working days of signing and releasing the bills of lading, 90% of the agreed charge for freight was due and payable to Matthew Chartering.

 On September 9, 1981, in arranging its performance of the August 5 contract with Associated, Matthew Chartering hired the M/V GLORIOUS TRADER from Taiwan Line, the vessel's owner. The charter party between Matthew Chartering and Taiwan Line provided for freight charges in an amount less than Matthew charged Associated and that 90% of the freight earned by the ship was due and payable to Taiwan within seven days of the signing and releasing of the bill of lading. The agreement also provided that the "balance of freight is payable by [Matthew Chartering] upon vessel's completion of discharge and receipt by [Matthew Chartering] of Owner's final freight invoice." Clause 13 of the charter party specifically provided that: "The Shipowners shall have a lien upon the cargo for all freight, dead freight, demurrage, average, and all other charges whatsoever."

 By September 19, 1981, the M/V GLORIOUS TRADER completed loading her cargo of 14,098.499 metric tons of di-ammonium phosphate at Tampa, Florida, at which time the bill of lading was signed and released. In accordance with their respective contracts, Associated paid Matthew Chartering $601,917.80 on October 1, 1981 and Matthew Chartering paid Taiwan Line $518,955.54 on October 7, 1981, these amounts constituting the 90% of the charges agreed to be due and payable to each respectively at that time for the freight.

 On November 2, 1981 the M/V GLORIOUS TRADER arrived at Madras, India, and began unloading her cargo, finishing on November 28, 1981, at which time the vessel proceeded to her second discharge port, Calcutta.

 More than seven years earlier, on September 20, 1974, Matthew Chartering had granted a general assignment *fn1" of its receivables then or in the future to become due to the Royal Bank of Canada. The assignment was registered in Montreal on September 26, 1974. On November 25, 1981, after the M/V GLORIOUS TRADER had begun discharging her cargo in Madras, the Bank sent a notice of assignment to Associated that the latter's "account in the amount of $121,948.17 due to Matthew Ship Chartering Ltd. has been assigned to this bank as collateral security. Full payment of this account shall be directed to our office." The Bank made no claim for the 90% of the freight, amounting to $601,917.80, which Associated had paid under its charter party with Matthew Chartering on October 1, 1981; similarly, after that sum was deposited in Matthew's account with the Bank, Matthew paid out through that Bank account the amount thereof payable to Taiwan, $518,955.54 on October 7, 1981, as mentioned above, without any objection or claim to any part thereof by the Bank.

 On December 1, 1981, the M/V GLORIOUS TRADER arrived at Calcutta, where she completed unloading her cargo on December 20, 1981.

 On January 8, 1982, Matthew Chartering sent an invoice to Associated for $246,624.07, consisting of the 10% balance of the freight and the demurrage due Matthew Chartering under its charter party with Associated on account of the M/V GLORIOUS TRADER's voyage. On January 22, 1982, Taiwan Line sent an invoice to Matthew Chartering for $203,692.47, consisting of the 10% balance of the freight and the demurrage earned by the ship and due Taiwan Line under its charter party with Matthew Chartering.

 On April 29, 1982, the Bank sent a second notice of assignment to Associated this time demanding payment pursuant to its 1974 assignment of $246,624.07, the full balance of the freight and demurrage due from Associated to Matthew Chartering. Again, the Bank made no claim to the 90% of the freight that had previously been paid over, or to an additional $24,391.91 that Associated had paid Matthew Chartering sometime during the interim.

 At no time prior to the commencement of this action did Taiwan know of nor did the Bank attempt to notify Taiwan Line that over seven years earlier it had been granted a general assignment of Matthew Chartering's receivables, or specifically, that it claimed a right to the moneys deliverable to Matthew Chartering by Associated or to the freight and demurrage included therein earned by the ship as a result of the M/V GLORIOUS TRADER's voyage.

 On April 30, 1982, Taiwan Line commenced the present action against Matthew to recover the balance of freight and demurrage that it has demanded from Matthew Chartering. Associated, with the consent of the Bank and Matthew, placed $246,624.07, the entire amount it admittedly owes to Matthew Chartering on account ...


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