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Lawrence R. McCoy Co. v. Theomitor

Decided: February 25, 1975.

LAWRENCE R. MCCOY CO., INC., PREMIER TRADING CO., PHILLIP BROTHERS (SOCOMET, INC.), RUSS STONIER, INC., AMERLUZ STEEL PRODUCTS CORP., SIMPSON TIMBER CO. AND SIMPSON INTERNATIONAL, C. ITOH & CO. (AMERICA) INC., WEYERHAUSER CO., KURT ORBAN CO., INC., SIGMA MACHINERY, INC., C.A.M. MACHINERY CORP., FIDELITY MACHINE TOOL, INC., NATIONAL MACHINERY EXCHANGE, INC., EVANS PRODUCTS CO., PLAINTIFFS,
v.
S.S. "THEOMITOR III", MONDEZUMA COMPANIA ARMADORA, S.A., RETLA STEAMSHIP CO., S.S. "OLYMPIC PEARL", FALMOUTH MARINE PANAMA, S.A., S.S. "MEGALO HARI", DEMETRIOS RAVIOLOS AND PETROS DAICAS, S.S. "OLYMPIC PIONEER", RICHMOND MARINE PANAMA, S.A., SIDMAR MARITIEME STAALNIJVERHEID, S.S. "FRATERNITY", DICTA MARITIME CORP., FRATERNITY SHIPPING CORP., S.S. "OLYMPIC PEGASUS", SOMERSET NAVIGATIONAL CO., PANAMA, S.A., S.S. "BRITISH MONARCH", SCOTT'S SHIPBUILDING & ENG. CO., LTD., S.S. "VENNACHAR", AIDEN SHIPPING CO., LTD., S.S. "PHILIPPINE BATAAN", MARITIME CO. OF THE PHILIPPINES, HOLT HAULING & WAREHOUSE SYSTEMS, INC., HOLT MARINE TERMINAL, INC., LUCKENBACH STEAMSHIP CO., INC., AND SOUTH JERSEY PORT CORPORATION, A CORPORATION WITHIN THE STATE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, DEFENDANTS. HOLT MARINE TERMINAL, CORP., A NEW JERSEY CORPORATION, THIRD-PARTY PLAINTIFF, V. LUCKENBACH STEAMSHIP CO., INC., A DELAWARE CORPORATION, AND SOUTH JERSEY PORT CORPORATION, A CORPORATION WITHIN THE STATE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, THIRD-PARTY DEFENDANTS. AMERICAN WOOD FINISHING SYSTEMS, PLAINTIFF, V. HOLT HAULING & WAREHOUSE SYSTEMS, INC. AND SOUTH JERSEY PORT CORPORATION, A CORPORATION WITHIN THE STATE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, DEFENDANTS



Rosenberg, J.s.c.

Rosenberg

This is a motion for summary judgment brought by defendant and third-party plaintiff Holt Marine Terminal, Inc. (H.M.T.) to dismiss the complaint, cross-claims and other claims against it in the instant lawsuit. The court rejected a previous application for the same relief based on different grounds in a prior opinion containing a full statement of the salient facts of this case. It is necessary to restate only those facts which are particularly relevant to this motion.

As the result of a fire on August 6, 1971 at the Holt Hauling & Warehouse Systems, Inc. marine terminal compound in Gloucester City, N.J., goods owned consigned to or shipped by the various plaintiffs were destroyed. Action was instituted

to recover for this loss by complaint filed July 25, 1972. Service was made on defendant Holt Hauling & Warehouse Systems, Inc., on August 11, 1972. H.M.T., the terminal operator and a subsidiary of Holt Hauling, was not named as a party until the second amended complaint filed June 21, 1973 on leave granted by order dated June 19, 1973. Since that time a third amended complaint has been filed, litigation has been removed to the federal court and then remanded to the state court, and various cross- and counterclaims have been asserted. The matter was pretried on October 10, 1974 and is scheduled to go to trial on April 14, 1975.

H.M.T. bases its motion on the fact that the goods destroyed in the fire were involved in marine commerce and therefore were shipped under bills of lading issued by the carriers. Although original documents apparently were destroyed in the fire, defendant Retla Steamship Co. has provided sample bills of lading which the parties agree reflect the terms of the bills destroyed. On the reverse side of the bills are various terms which are applicable to carriage of the goods. Paragraphs 19 and 24 of those terms are particularly relevant:

19. In any event the carrier and the ship shall be discharged from all liability in respect of loss, damage, delay, or any other claim concerning the goods or their carriage, including but not limited to, any claims by preceding or connecting carriers for contribution or indemnification for claims asserted against or paid by such other carriers, unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought until jurisdiction has been obtained over the carrier or ship by service of process or by an agreement to appear. Nothing shall be deemed a waiver of any of the provisions of this clause or Clause 18 except an express written waiver specifically referring thereto and signed by the carrier or its authorized agent. [Emphasis supplied]

24. In addition to those hereinabove listed as included in the term "carrier," the owners, managers, charterers, master, officers and crew members of the ship and the carrier's agents, servants, officers, stevedores, longshoremen, representatives, contractors, terminal operators, or others dealing with cargo destined for or discharged from the vessel or used, engaged or employed by the vessel and the carrier, and any substituted vessel or carrier, whether any of them be acting

as carrier or bailee or as an independent contractor, shall have the benefit of all privileges and of all exemptions, immunities from, and limitations of liability granted to carrier in this bill of lading, or by laws applicable to the carrier, including, but not limited to, those limitations set forth in clauses 17 and 19 of this bill of lading, and the carrier shall be deemed to contract for the benefit of all such parties in this regard. Protection extended to third persons in the foregoing are granted to the extent permitted by law or contract, but in no event give rise to any liability of the carrier to such third persons. [Emphasis supplied]

H.M.T. reasons that since the claims relate to losses from the August 6, 1971 fire the subject goods must have been delivered no later than that date. It argues that under the above-quoted terms any action for loss against it must be commenced within the one-year limitations period and that since it was not joined in the suit until June 1973, nearly two years after the last possible delivery date, all claims against it are barred. Plaintiffs and codefendants raise various arguments in opposition, claiming that fact questions exist making summary judgment inappropriate and that under the so-called "discovery" rule and our court rules by which amended pleadings relate back to the filing date of the original pleading the terms of the limitations provision are satisfied and the action is not barred. They also contend that the substantive effect of the terms of the bills of lading should not operate to defeat their respective claims.

I

There is no question but that action against H.M.T. was commenced well beyond the limitations period specified in the bills of lading. Under the circumstances, however, this fact alone is not dispositive of the motion. Although H.M.T. was not joined until June 1973 the original complaint filed within one year of the fire named Holt Hauling & Warehouse Systems, ...


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