306 F.2d 188 (9th Cir. 1962), 17419, Schirmer Stevedoring Co. Ltd. v. Seaboard Stevedoring Corp.

Docket Nº:17419.
Citation:306 F.2d 188
Party Name:SCHIRMER STEVEDORING CO., LTD., Appellant, v. SEABOARD STEVEDORING CORP., Brady Hamilton Stevedore Co., Williams, Dimond& Co., N. J. Goulandris, Ltd., et al., Appellees. FINANCIERA PERUANA, S.A., Appellant, v. SEABOARD STEVEDORING CORPORATION et al., Appellees. N. J. GOULANDRIS, LTD., et al., Appellants, v. MARINE CHARTERING CO., Inc., Appellee.
Case Date:June 29, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 188

306 F.2d 188 (9th Cir. 1962)

SCHIRMER STEVEDORING CO., LTD., Appellant,

v.

SEABOARD STEVEDORING CORP., Brady Hamilton Stevedore Co., Williams, Dimond& Co., N. J. Goulandris, Ltd., et al., Appellees.

FINANCIERA PERUANA, S.A., Appellant,

v.

SEABOARD STEVEDORING CORPORATION et al., Appellees.

N. J. GOULANDRIS, LTD., et al., Appellants,

v.

MARINE CHARTERING CO., Inc., Appellee.

No. 17419.

United States Court of Appeals, Ninth Circuit.

June 29, 1962

Page 189

[Copyrighted Material Omitted]

Page 190

Lillick, Geary, Wheat, Adams & Charles, James L. Adams, Nichols & Rogers, by Alan H. Nichols, San Francisco, Cal., for appellant Schirmer Stevedoring Co.

McCutchen, Doyle, Brown & Enersen, Russell A. Mackey, and Bryant K. Zimmerman, San Francisco, Cal., for appellant N. J. Goulandris, Ltd., and others.

Wallace, Garrison, Norton & Ray and M. Garrison, Jr., San Francisco, Cal., for appellant Financiera Peruana, S.A.

Graham, James & Rolph, and Robert E. Patmont, San Francisco, Cal., for appellees.

Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

These are appeals from a final judgment in an interpleader action brought under the Federal Interpleader Act (28 U.S.C. §§ 1335, 1397 and 2361). The interpleading plaintiff, Marine Chartering Company (Marine), is a voyage charterer of the vessel, Areti S. Claimants are the owners of the vessel, N. J. Goulandris, Ltd., et al. (Owners), an assignee, Financiera Peruana, S.A. (Financiera), of a time charterer of the vessel, Naviera Andes Peruana, S.A. (Navandes), and a stevedoring company which rendered stevedoring services to Navandes, the Schirmer Stevedoring Company (Schirmer). Six other claimants in the court below have not appealed. The court awarded Owners the $48,337.61 deposited by Marine, and out of this awarded $91.79 costs and $5,000 attorney's fees to Marine. Schirmer and Financiera appeal from the judgment awarding the deposit to Owners and Owners appeal from the order allowing Marine attorney's fees and refusing to allow Owners, as prevailing parties, to recover the attorney's fees as costs against the losing claimants. Marine asks that it be awarded attorney's fees for this appeal. This request we are denying. We have jurisdiction under 28 U.S.C. §§ 1291, 1294(1). On the appeals of Financiera and Schirmer we are affirming. On that of Owners, we are reversing.

On October 27, 1958, Owners time chartered 1 the vessel to Navandes. The time charter provided in pertinent part: Navandes was to make payment 'semimonthly in advance' and 'failing the punctual and regular payment of the hire, or bank guarantee, or on any breach of this Charter Party, the Owners (were) at liberty to withdraw the vessel from the service of (Navandes) without prejudice to any claim they (the Owners) may otherwise have on (Navandes)' (clause 5). The charter further provided: 'The Owners shall have a lien upon all cargoes and all subfreights for any amounts due under this Charter * * * (Navandes) will not suffer nor permit to be continued, any lien or encumbrance incurred by them or their agents, which might have priority over the title and interest of the owners * * *'.

On February 19, 1959, Navandes and Marine entered into a voyage charter.1 The voyage was to be from ports on the Pacific Coast, starting with Vancouver, B.C., to ports in the Caribbean Sea. On April 6 and April 16, 1959, Navandes purported to assign its rights to the freights under the voyage charter to Financiera, but the trial court found it unnecessary, as do we, to determine the assignment's validity.

From approximately May 1 to May 4, Schirmer performed stevedoring and other services for the Areti S. The amount owing Schirmer for its services for the Areti S. was $8,994.85. It also performed services for three other vessels controlled by Navandes, which owes $34,756.45 for those services.

Page 191

On May 27, 1959 the vessel was delivered under the voyage charter in British Columbia for loading; she did not leave her last loading port until June 18, 1959. On June 10, 1959, Owners withdrew the vessel from the service of Navandes, pursuant to clause 5 of the time charter. The justification was: at all times Navandes had been hard put to pay the charter hire, having paid the charter hire two days late in the early part of May and four days late in the latter part of May; in the first week of June Navandes had closed its home office and its San Francisco agent had resigned; Navandes, after demand, failed to pay hire and overtime due on June 10 in the amount of $10,718.38; and Navandes had failed to pay for bunker fuel, pilotage, fumigation and other charges incurred in various loading ports ($8,900)-- charges which, under the time charter, Navandes should have paid. Owners notified Navandes on June 10, by letters to its New York representatives and to its home office in Lima, Peru, that the vessel was withdrawn.

Also on June 10, after the withdrawal, Owners entered into a voyage charter with Marine having substantially the same terms as the previous voyage charter. Loading at the last loading port was completed on June 18, 1959, and the ship thereafter transported the goods to the Caribbean. The total freights earned under the terms of the February 19 and June 10 voyage charters, less dibursements calculated by Marine, was $48,337.61. $34,445.48 in freights (not taking into account disbursements) had been 'earned', via loading on board, before Owners' withdrawal.

On June 5, 1959, Schirmer filed a libel in personam against Navandes for stevedoring services, and on June 9 and June 18, served writs of foreign attachment on Marine, pursuant to California Code of Civil Procedure § 542(6). Although there is some doubt in our minds as to the...

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