Schirmer Stevedoring Co., Ltd. v. Seaboard Stevedoring Corp.

• Decision Date: 29 June 1962
• Docket Number: No. 17419.,17419.
• Citation: 306 F.2d 188
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

306 F.2d 188 (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.

COPYRIGHT MATERIAL OMITTED

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 chartered¹ 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 sub-freights 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.

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 disbursements 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 validity of these attachments under California Code of Civil Procedure § 537, we assume their validity, so far as procedure is concerned, for the purpose of this opinion. On July 2, Schirmer obtained a default judgment against Navandes. On June 18, Schirmer filed a libel in rem, to which no response was made, against the freights of all the vessels on which it had performed stevedoring services for Navandes, including the Areti S.

1. The appeal of Financiera.

The court was correct in holding that Owners prevailed over Financiera. Financiera relies upon Clause 15 of the voyage charter, which provides:

"Full freight to be prepaid, less disbursements for Owners\' account at loading ports, in U.S. dollars at San Francisco upon departure of vessel from last loading port. Freight shall be deemed earned on cargo as loaded on board and is discountless and non-returnable vessel and/or cargo lost or not lost."

The first sentence specifies when freights become due, i. e., "upon departure of vessel from last loading port". This was June 18, after the withdrawal of the vessel on June 10.

The second sentence deals with the time as of which the freights are "deemed earned". It has a different purpose; it deals with risk of loss, so that Marine would not be able to recover prepaid freights, and would be required to pay unpaid freights to Navandes, if the ship were lost, or if the voyage were interrupted through no fault of Navandes. (See e. g. Mitsubishi Shoji Kaisha Limited v. Societe Purfina Maritime, 9 Cir., 1942, 133 F.2d 552; Allanwilde Corp. v. Vacuum Oil Co., 1919, 248 U.S. 377, 39 S.Ct. 147, 63 L.Ed. 312). Such a clause does not make the freight "due" on loading, if another time for payment is specified in the contract. (cf. Pope & Talbot v. Guernsey-Westbrook Co., 9 Cir., 1947, 159 F.2d 139; Toyo Kisen Kaisha v. W. R. Grace & Co., 9 Cir., 1931, 53 F.2d 740). Financiera cites two cases for the proposition that the rights of an assignee of a time charterer to freights "earned" before withdrawal by the owner, are superior to the rights of the owner: Layne & Bowler Corp. v. U. S. Shipping Board Emergency Fleet Corp., 9 Cir., 1928, 27 F.2d 39; In re Atlantic Gulf & P. S.S. Co., D. Maryland, 1923, 289 F. 145, aff'd 3 F.2d 438. But these cases involved assignment of freights that actually became due before withdrawal.

On the theory that the right to freights is "incident to ownership" (see Layne & Bowler Corp. v. U. S. Shipping Board, supra), it is held that freights not due at the time of withdrawal, but becoming due thereafter, are the owner's and not the assignee's. Layne & Bowler Corp. v. U. S. Shipping Board Emergency Fleet Corp., supra, 9 Cir., 1928, 27 F.2d 39; In re Atlantic, Gulf & P. S.S. Co., supra, D.Maryland, 1923, 289 F. 145, 152). One case suggests that the assignee must have reason to know that he takes the risk of the freights not becoming "due" until after a withdrawal, i. e., he must have reason to know that the assignor is not the owner. (Cf. In re Atlantic G. & P. S.S. Co., supra, at p. 152, involving foreclosure by a mortgagee.) The case is of no help to Financiera; it is clear that Financiera knew that Navandes was not the owner. Financiera's position is no better than that of Navandes, its assignor. The latter's rights depend upon the February 19 voyage charter. The ship was withdrawn by reason of Navandes' default, and at a time when no freights were "due" to Navandes. We need not decide whether the result would be different if the withdrawal had occurred after departure from the last loading port, on June 18.

2. The appeal of Schirmer.

The court was correct in holding that Schirmer did not acquire a maritime lien on the deposited freights of the Areti S. The court's conclusion that none of the services was rendered for the voyage charter with Marine is supported by the evidence. Maritime liens may be obtained against freights, independent of any lien against the vessel. (U. S. v. Freights, etc., of The S.S. Mount Shasta, 1927, 274 U.S. 466, 47 S. Ct. 666, 71 L.Ed. 1156; Freights of the Kate, S.D.N.Y., 1894, 63 F. 707.) A stevedore's maritime lien is now based on § 971 of the Federal Maritime Lien Act, (41 Stat. 1005-06, 46 U.S.C.A. §§ 971-75) which speaks of a lien upon the "vessel". We...