The Strathnairn

• Decision Date: 08 April 1911
• Citation: 190 F. 673
• Parties: THE STRATHNAIRN. THE HERM.
• Court: U.S. District Court — Western District of Washington

190 F. 673

THE STRATHNAIRN. THE HERM.

United States District Court, W.D. Washington, Northern Division.

April 08, 1911

George H. Walker, for libelant in case No. 4,482.

George H. Walker and Richard Saxe Jones, for libelant in case No 4,487.

John Trumbull, for claimants.

DONWORTH District Judge.

These two libels are in rem, and are substantially identical in their allegations. Like exceptions to the libel in each case have been filed, and the two cases have been argued together and submitted on the same briefs. For convenience I will specifically refer only to the libel and exceptions in the case of the Strathnairn, as the differences in detail between the two cases do not call for any statement.

The first three exceptions go to the point that the facts alleged in the libel fail to show any maritime or other lien against the steamship or any other cause of action against her. The decision which must be rendered on this point will make it unnecessary to consider the other exceptions.

According to the allegations of the libel, at San Francisco on November 22, 1910, the owner of the respondent steamship, a British corporation, 'by its duly authorized agents and time charterers, the Java Asiatic Company, entered into an agreement with the libelant as stevedore, providing for the loading by the libelant of said vessel on Puget Sound, at the rate of 85 cents per thousand, board measure, and at the rate of $1.10 per thousand, board measure, if the said vessel should be found to have more than 200,000 feet of long lumber, which sums of money the said Java Asiatic Company did in and by the terms of said agreement promise to pay the libelant. ' It is further alleged that on the arrival of the vessel at Bellingham, Wash., on or about December 26 1910, the libelant tendered itself ready to perform and carry out the agreement, and was then and there ready to load the vessel according to the agreement, and then and there had on hand a force of men sufficient for that purpose, employed instructed, and ready to load the vessel. Written notice of such readiness to perform was duly served upon the master of the vessel, but, notwithstanding libelant's readiness to perform, 'the said master and the said Java Asiatic Company did then and there refuse to allow or permit the libelant or its men or any of them to board the vessel or to proceed with the work of loading the same. ' Damages are claimed in the sum of $59.24 for incidental expenses incurred in procuring the agreement, $540 for loss of profits and $5,000 for loss in reputation and prestige.

It will be noted that the libelant never in fact rendered any stevedoring service to the steamship, and that the contract remains wholly executory. The authorities are almost unanimous in holding that there is no maritime lien for the damages arising from the breach of a contract, though it be of a maritime nature, where there has been no performance in whole or in part. That such is the rule in the case of unexecuted contracts for the transportation of goods was decided by the Supreme Court in the two cases of Schooner Freeman v. Buckingham, 18 How. 182, 15 L.Ed. 341, and Vandewater v. Mills (The Yankee Blade) 19 How. 82, 15 L.Ed. 554. The same application of the rule has been made by the lower federal courts in the cases of The Ira Chaffee (D.C.) 2 F. 401; The Guiding Star (D.C.) 53 F. 936; The Habil (D.C.) 100 F. 120; The Ripon City, 102 F. 176, 42 C.C.A. 247; The Pleroma (D.C.) 175 F. 639. To the same effect is the decision of the Circuit Court of Appeals of this circuit in Guffey v. Alaska & Pacific S.S. Co., 130 F. 271. 64 C.C.A. 517. The decision of Judge Brown (later Mr. Justice Brown of the Supreme Court) in The Ira Chaffee (D.C.) 2 F. 401, is especially full, clear, and convincing. After a careful analysis of the principal cases, it is said:

'From this review of the cases it will be seen that,

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