In re Red Cross Line
| Decision Date | 20 June 1921 |
| Docket Number | 691. |
| Citation | 277 F. 853 |
| Parties | In re RED CROSS LINE. |
| Court | U.S. District Court — Southern District of New York |
Hunt Hill & Betts, John W. Crandall, and E. F. Rapallo, all of New York City, for Atlantic Fruit Co.
Loomis Barrett & Jones, Homer L. Loomis, and Reginald B. Williams all of New York City, for Red Cross Line.
The Red Cross Line has a claim against the Atlantic Fruit Company to recover $35,256.96, charter hire and expenses alleged to have been overpaid by the Red Cross Line in ignorance that the master had failed to prosecute the voyage with dispatch. The charter party contained the covenant that the captain should prosecute the voyage 'with the utmost dispatch.' It contained the following arbitration clause:
* * * '
The Red Cross Line demanded an arbitration pursuant to the foregoing clause of the charter party, but the Atlantic Fruit Company refused to submit the matter to arbitration. Thereupon the Red Cross Line filed a petition in the New York Supreme Court, New York County, pursuant to chapter 275 of the Laws of 1920 of the state of New York, praying that an order be made by that court requiring the Atlantic Fruit Company to proceed to an arbitration.
In this state of the record in the state court, the Atlantic Fruit Company filed its petition and bond for removal to this court, alleging that the Red Cross Line is a British corporation and the Atlantic Fruit Company is a Delaware corporation, having an office at 61 Broadway, New York City. The petition for removal further alleges that the matter in dispute exceeds the sum of $3,000, exclusive of interest and costs, and is a suit of a civil nature at law or in equity, arising under the Constitution or laws of the United States, because it is one of admiralty and maritime jurisdiction, and is one between a citizen of a state and a foreign citizen or subject. On removal to this court, the Red Cross Line, appearing specially, moved to remand, and the Atlantic Fruit Company, likewise appearing specially, moved to dismiss for lack of jurisdiction.
(a) If this is a suit of a civil nature, at law or in equity, between an alien and a citizen of a state of the Union, and involves the sum of more than $3,000, I have no doubt that it was properly removed under the rule laid down in Guaranty Trust Co. v. McCabe, 250 F. 699, 163 C.C.A. 31. All the judges in that case held that an alien, suing a citizen in a district whereof neither the plaintiff nor defendant was an inhabitant, could not object to removal by the citizen. It was on this very point that the majority of the court distinguished the cases of Matter of Tobin, 214 U.S. 506, 29 Sup.Ct. 702, 53 L.Ed. 1061, and Matter of Nicola, 218 U.S. 668, 31 Sup.Ct. 228, 54 L.Ed. 1203, from Ex parte Wisner, 203 U.S. 449, 704, 27 Sup.Ct. 150 (51 L.Ed. 264), and the dissenting judge said (250 Fed.at page 704, 163 C.C.A. 31):
'We all start * * * with the assumption that, when an alien sues a nonresident citizen in a state court, the defendant may remove the cause to the District Court for the district in which the suit is brought.'
Such an expression of opinion from the Circuit Court of Appeals must clearly be binding on me.
(b) The cause may be removed to this court if it involves more than the sum of $3,000 and arises under the Constitution and Laws of the United States. For the reasons I have given, if cause of removal exists, the defendant's waiver makes removal to this district proper. But it seems clear that the suit does not arise under the Constitution and laws of the United States. Mr. Justice Moody, in the case of In re Winn, 213 U.S.at page 465, 29 Sup.Ct. 516 (53 L.Ed. 873), said:
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