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BERISFORD METALS CORP. v. M/V COPIAPO

December 23, 1986

Berisford Metals Corporation, Plaintiff
v.
M/V Copiapo, her engines, boilers, etc., New Sun Shipping Co., S.A., Compania SudAmericana de Vapores, and Chilean Line, Inc., Defendants; Compania Sud-Americana De Vapores, Defendant and Third-Party Plaintiff, v. Universal Maritime Service Corp., Third-Party Defendant



The opinion of the court was delivered by: WALKER

MEMORANDUM AND ORDER

 WALKER, District Judge:

 The instant dispute arises out of the mysterious disappearance of 28 bundles of tin ingots. Plaintiff Berisford Metals Corporation ("Berisford"), an importer and purchaser of the ingots, moves for summary judgment on its claims for breach of contract and negligence against Defendants M/V Copiapo ("Copiapo"), the vessel which contained the ingots, as well as Defendants New Sun Shipping Co., S.A., Compania SudAmericana de Vapores ("CSAV") and Chilean Line, Inc., common carriers who arranged for the transportation of the ingots. Berisford also seeks to join as plaintiffs two other parties who allegedly possess interests in the tin: Seguros Illimani S.A. ("Seguros"), which issued an insurance policy protecting the ingots, and Empresa National De Fundiciones ("ENDF"), a state-owned Bolivian smelting plant which sold the ingots to Berisford and purchased the insurance policy from Seguros. Defendant CSAV moves for summary judgment on its claim as a third-party plaintiff against Third-Party Defendant Universal Maritime Service Corp. ("UMS"), a stevedore which unloaded the ingots when the Copiapo docked in Newark, New Jersey.

 This Court grants Plaintiff Berisford's motion to join Seguros and ENDF as plaintiffs. Bills of lading executed by CSAV in favor of Plaintiff Berisford entitle Berisford to succeed on its motion for summary judgment. Also, since Third-Party Defendant UMS has failed to rebut the presumed breach of warranty established by Third-Party Plaintiff CSAV, this Court grants CSAV's motion for summary judgment.

 STATEMENT OF FACTS

 During early 1984, ENDF contracted to sell 6,000 tin ingots to Plaintiff Berisford, with Berisford agreeing to pay only for the ingots actually delivered to Newark, New Jersey. All ingots shipped pursuant to the contract were insured by Seguros under a contract purchased by ENDF.

 Berisford subsequently contracted with CSAV for transportation of the tin, receiving bills of lading from CSAV for 6,000 ingots. These ingots were packaged in 400 bundles, which each contained 15 ingots. On April 18, 1984 the ingots were loaded at Arica, Chile on the vessel Copiapo. Defendant CSAV counted the ingots and found that 400 bundles were loaded on the ship. CSAV took extensive precautions to secure the tin inside the ship and separate this cargo from other goods also transported aboard the Copiapo. Prior to reaching Newark, New Jersey, the ultimate destination of the ingots, the Copiapo stopped at the ports of Guayaquil, Ecuador; Norfolk, Virginia; Baltimore, Maryland; Philadelphia, Pennsylvania; and New Haven, Connecticut, unloading various goods at each port.

 On May 15, 1984, the Copiapo dropped anchor in Newark. On May 17, 1984, Third-Party Defendant UMS, hired by CSAV to perform services as a stevedore, completed its task of hoisting the ingots from the ship's hull and dropping the tin onto the wooden Newark dock. Once all the tin was unloaded, a member of Copiapo crew again counted the ingots and found that UMS had removed 400 bundles of ingots. UMS has produced no affidavits or other evidence indicating that it took steps to count or secure the ingots on its Newark dock after taking custody of the tin.

 During the afternoon of May 17, a UMS foreman reported that some of the tin was missing. A Berisford agent later counted the ingots and found that 28 bundles containing 420 tin ingots were missing. Since Berisford agreed to pay ENDF only for the number of ingots actually delivered to Newark, ENDF, and its surety Seguros, retain ownership of the missing tin and have suffered the losses resulting from the disappearance of the 420 ingots.

 On March 20, 1985, Plaintiff Berisford commenced the instant action, alleging breach of contract and negligence. On April 8, 1985, CSAV, which issued the bills of lading for 6,000 ingots to Berisford, instituted an action against Third-Party Defendant UMS, alleging breach of contract, breach of warranty, and negligence.

 DISCUSSION

 Plaintiff Berisford's Motion to Join Additional Parties

 Federal Rule 17(a) specifies that "no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed . . . for . . . joinder or substitution of the real party in interest. . . ." Fed. R. Civ. P. 17(a). Plaintiff invokes this rule in attempting to join ENDF, the seller of the tin, and Seguros, ENDF's surety, as additional plaintiffs.

 A suit may proceed to its conclusion even where the plaintiff initially filing a complaint is not the real party in interest, if this party is subsequently joined. M. W. Zack Metal Co. v. S.S. Birmingham City, 291 F.2d 451, 453 (2d Cir. 1961); American Dredging Co. v. Federal Insurance Co., 309 F. Supp. 425, 427-28 (S.D.N.Y. 1970); 3A Moore's Federal Practice ยง 17.15-1, at 182 (2d ed. 1986). Although Defendant CSAV contends that this Court should deny plaintiff's request for amendment, "the source of the limitations posited by defendant remains a mystery to the Court." Motta v. Resource Shipping & Enterprises Co., 499 F. Supp. 1365, 1370 (S.D.N.Y. 1980). The principal authority cited by CSAV in opposition to plaintiff's motion, Delta Coal Program ...


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