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Valkenburg v. Denny

October 24, 1961


Author: Mercer

Before DUFFY and CASTLE, Circuit Judges, and MERCER, District Judge.

MERCER, District Judge.

Libellant, Valkenburg, K.-G., filed this libel in admiralty to recover damages for the alleged breach of a contract of affreightment for the carriage of a cargo of fresh-frozen pork livers between Chicago, Illinois and Rotterdam, Netherlands. Named as respondents in the libel were the Steamship Henry Denny, Irish & Continental Shipping Co., Ltd., managers of the Denny, Redereij H. Pinkster, owner of the Denny, and Kerr Steamship Co., Inc. Hereinafter, for convenience, the corporate respondents are referred to as Irish, Pinkster and Kerr, and the ship as Denny.

Libellant is a German corporation with its office and place of business at Cologne, West Germany. Irish is an Irish national with its office and place of business at Dublin, Ireland. Pinkster is a Dutch national with its office and place of business at Stadtskanaal, Netherlands. Kerr is a Delaware corporation. From the record it appears that Kerr, alone, of the corporate respondents is doing business in Illinois.

The libel was filed in the United States District Court for the Northern District of Illinois. Libellant was unable to obtain jurisdiction over the Denny because the ship has not returned to the port of Chicago and the jurisdiction of the court since July, 1958, when the cargo was loaded. Personal service was obtained upon Kerr. In an attempt to obtain jurisdiction over Irish and Pinkster libellant caused process to be served upon the Secretary of the State of Illinois, relying upon the provisions of the Illinois Non-Resident Watercraft Operators' Act. Ill. Rev.Stat.1959, c. 110, § 263b.

Irish and Pinkster appeared specially and moved to quash service of process and dismiss the libel as to them. That motion was granted, and judgment was entered accordingly.

Kerr filed exceptive allegations to the libel praying that the libel be dismissed as to it for the reason that the libel was insufficient to state a claim or cause of action against it. Upon consideration of Kerr's exceptive allegations, the court found that Kerr acted solely as local husbandry agent for the Denny while the vessel was in the port of Chicago. Upon that finding, the libel was dismissed as to Kerr.

This appeal has been taken to review the judgment of the court quashing service upon Irsh and Pinkster and dismissing the libel as to all respondents.

The cargo of pork livers, shipped by Berns & Koppstein, Inc., was loaded at Chicago aboard the Denny on or about July 1, 1958, consigned to the order of the shipper at Rotterdam, Netherlands, under a negotiable "on board" bill of lading executed by Kerr and providing for transportation of the cargo to Rotterdam under refrigeration of 15 degrees or lower. The bill of lading was assigned to libellant by the shipper prior to the arrival of the Denny at Rotterdam. Upon arrival of the vessel at Rotterdam, a substantial part of the frozen liver was found to be damaged by reason of thawing and decomposition. The precise cause of the thawing is not known, but it was alleged that the damage resulted either because the meat was in a partially thawed condition at the time of loading or because the method of stowage of the meat in the ship's refrigerator space was improper, or because of a combination of both causes.

Insofar as Kerr is concerned, libellant contends that Kerr became obligated on the bill of lading as a principal, because it failed to disclose the identity of the principal for whom it purported to act. That contention must be resolved by reference to the language of the bill of lading and the uncontroverted facts as set forth in the libel and Kerr's exceptive allegations.

The bill of lading was signed by Kerr as agent for "P. J. Janzen, Master" of the Denny. Kerr's exceptive allegations that it was neither the owner nor the operator of the Denny and that it had no control over the vessel are not challenged by libellant. The controversy arises because the name of the carrier was not given in the bill of lading, although the ship was named therein.

Unquestionably, Kerr purported to sign the bill of lading as an agent. Therefore, the decisive issue upon this phase of the appeal is the question whether there was a sufficient disclosure by Kerr of the identity of the principal for whom it acted. If there was not, libellant could successfully invoke the agency principle that an agent who executes a contract for an undisclosed principal becomes liable as a principal upon the contract, 2 Am.Jur., Agency, § 404, and enforce the bill of lading as a contract of carriage against Kerr. C.f., General Foods Corp. v. The Felipe Camarao, D.C.S.D.N.Y., 82 F.Supp. 622, affirmed 2 Cir., 172 F.2d 131.

We think there was sufficient information disclosed by Kerr upon the face of the bill of lading to disclose to a reasonable person the identity of the principal for whom Kerr acted. Where there is such disclosure, the principal only, not the agent, is bound by the contract. Instituto Cubano De Estabilizacion Del Azucar v. S.S. Theotokos, D.C.S.D.N.Y., 155 F.Supp. 945; 1 Williston on Contracts (Rev.Ed.1936), § 288.

Kerr signed the bill of lading as agent for the Master of a named vessel, the "M.V. Henry Denny." As counsel for libellant stated in oral argument, admiralty law and maritime usage accords to a ship an identity of her own to the extent that the ship herself is liable for her faults and may be sued in rem. The identity accorded by maritime law to a ship as a person also charges those who deal in maritime commerce with the knowledge as to the ownership and ...

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