COMPANIA DE REMORQUE Y SALVAMENTO v. Esperance, Inc.
| Decision Date | 13 February 1951 |
| Docket Number | Docket 21765.,No. 60,60 |
| Citation | 187 F.2d 114 |
| Parties | COMPANIA DE REMORQUE Y SALVAMENTO, S. A., v. ESPERANCE, Inc. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Lotterman & Tepper, New York City, Jacob Rassner, New York City, Louis A. Tepper, New York City, of counsel, for plaintiff-appellant.
Foley & Statt, New York City, Milton James, New York City, of counsel, for defendant-appellee, Esperance, Inc.
Engelman & Hart, New York City, Myron Engelman, Jack Hart, New York City, of counsel, for defendant-appellee, Seaboard Surety Co.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
The inability of a tower to perform a towage contract completely and the settlement by its surety on a performance bond, without its acquiescence, of consequent claims have led to this controversy.
On November 7, 1947, Esperance, Inc., a New York corporation hired Compania De Remorque y Salvamento, S. A., a corporation organized under the laws of Panama, to tow certain vessels from Charleston, S. C., to Buenos Aires, Argentina, for $60,000. The Seaboard Surety Company, a New York corporation, executed a performance bond as surety. Compania failed to perform fully the towage contract and each party blamed the other. Esperance brought a libel in admiralty against Compania and Seaboard in the Southern District of New York on May 27, 1948. Both answered and Compania filed a "counterclaim" for $40,000 against Esperance for the alleged breach by Esperance of the towing contract. Seaboard settled with Esperance for $30,000 before the suit was tried and secured a release from it. Thereupon the suit was discontinued as to Seaboard but Compania refused to discontinue its "counterclaim" unless it was released by Seaboard from any liability for indemnity. Apparently Compania was unwilling to agree to any settlement Seaboard made with Esperance if that settlement left it liable over to Seaboard, i.e., it did not concede that it owed Esperance anything. Seaboard was unwilling to release Compania because the latter had made an assignment to Seaboard as collateral security to indemnify it from loss on the bond. The release was not given and the "counterclaim" was not discontinued.
Compania's assignment covered all of its assets and property and "all claims which it has presently or may have against any and all persons, firms, and/or corporations" and it gave Seaboard the right "to prosecute all such claims, receive any monies in connection therewith, either by settlement, judgment or otherwise, to apply said monies to indemnify it against losses" on the bond, Seaboard agreeing to account for any excess. It also provided that Seaboard should "have the exclusive right for itself, and for the principal on said bond to decide whether to settle any claim against either." When Compania refused to discontinue its "counterclaim" against Esperance, the latter moved to dismiss it on the ground that Compania, having made this assignment to Seaboard, was not the real party in interest. This motion was granted on February 28, 1949; the "counterclaim" was dismissed; and no appeal was taken.
After that Seaboard sued Compania in the state court in New York to enforce its claims against Compania as its indemnitor, and Compania removed that suit to the Southern District, answered, and filed a counterclaim.
Motions were then made in both actions and consolidated for hearing. They were a motion by Esperance to discontinue its original libel for breach of the towage contract and to cancel all bonds and stipulations filed in that suit; a motion by Seaboard to remand its removed action to the New York court; and a motion by Compania to consolidate those two suits. The first two motions were granted and the third denied.
All this was followed by the present suit which was brought on October 27, 1949, by Compania against Esperance and Seaboard in the Southern District. The complaint alleges for a first cause of action the towage contract and breaches of it by Esperance for which recovery is sought. It alleges for a second cause of action Compania's assignment to Seaboard, Seaboard's becoming surety for it on the performance bond, the failure to complete the towage contract and the consequent suit for breach of that contract which Esperance brought against Compania and Seaboard, Compania's answer and "counterclaim" in that suit, and Seaboard's settlement with Esperance, without Compania's consent, which compelled dismissal of Compania's...
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