The opinion of the court was delivered by: GANEY
This matter concerns itself with the motion to dismiss by the respondents with an answer thereto by the libellant. With respect thereto the court makes the following
1. Libellant, American Anthracite and Bituminous Coal Corporation, is a corporation existing under the laws of the State of New York, whose principal office is at 11 West 44th Street, New York.
2. The respondents herein and Amerocean S.S. Co., Inc., a New York corporation whose place of business is 149 Broadway, New York, and its wholly owned subsidiary, Amersea Navigation Corp., a Liberian corporation whose place of business is the office of Amerocean S.S. Co., Inc., Broadway, New York.
3. The respondent, Amerocean S.S. Co., Inc., owns all of the capital stock of Amersea Navigation Corp. The corporate officers of Amersea Navigation Corp. are the same as those of Amerocean S.S. Co., Inc.
4. The Amersea Navigation Corp. was formed by the Amerocean S.S. Co., Inc. in order to place the S.S. Amersea, a vessel of American registry owned by Amerocean S.S. Co., Inc., under the Liberian flag by reason of the fact that it was more economical to operate the same under Liberian registry.
5. The bill of sale of the S.S. Amersea from Amerocean S.S. Co., Inc. to Amersea Navigation Corp. was dated December 3, 1954.
6. On December 24, 1954 Alfred Devereaux, a partner of Walter A. DeLappe Co., New York, brokers for chartering vessels, acted as agent for the libellant in charter negotiations with Samuel H. Wang who was president of both Amersea Navigation Corp. and Amerocean S.S. Co., Inc.
7. During the course of these negotiations Samuel H. Wang disclosed to Alfred Devereaux the ownership of the S.S. Amersea and advised him that the Amersea was owned by Amersea Navigation Corp. of Liberia.
8. As a result of these negotiations, Alfred Devereaux caused to be drawn up in his office a proposed charter party between Amersea Navigation Corp. of Liberia, owner of the American S.S. Amersea or Liberty Substitute and American Anthracite and Bituminous Coal Corporation, which draft was mailed to and received by Samuel H. Wang, Amerocean S.S. Co., Inc. at his office, 149 Broadway, New York City.
9. Before the draft of the proposed charter party was completed, Alfred Devereaux was aware of the fact that the S.S. Amersea was owned by the Amersea Navigation Corp. of Liberia, by reason of the fact that 'Amersea Navigation Corp. of Liberia' was inserted into the proposed charter party by the agent of the libellant, Walter A. DeLappe Co.
10. An action, the basis for which is the same as in the one before us, was brought by the libellant against Amerocean S.S. Co., Inc. in the United States District Court for the Southern District of New York on the twenty-fourth day of January, 1955. Attached to the New York pleading is a photostatic copy of a carbon copy of the charter party offered in evidence in the instant case as R-7.
11. Amerocean S.S. Co., Inc. and Amersea Navigation Corp. of Liberia are separate and distinct corporate entities, and Amerocean S.S. Co., Inc. acts as agent for Amersea Navigation Corp. in the operation of the S.S. Amersea.
12. The libellant had full knowledge of the fact that the S.S. Amersea was owned by the Amersea Navigation Corp. of Liberia prior to the time of the ...