Bowring, Jones & Tidy v. Charter Shipping Co.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: MANTON, SWAN, and AUGUSTUS N. HAND, Circuit
• Citation: Bowring, Jones & Tidy v. Charter Shipping Co., 33 F.2d 280 (2nd Cir. 1929)
• Decision Date: 10 June 1929
• Docket Number: No. 340.,340.
• Parties: BOWRING, JONES & TIDY, Limited, v. CHARTER SHIPPING CO., Limited.

33 F.2d 280 (1929)

BOWRING, JONES & TIDY, Limited, v. CHARTER SHIPPING CO., Limited.

No. 340.

Circuit Court of Appeals, Second Circuit.

June 10, 1929.

Theodore L. Bailey, of New York City, for appellant.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating and James H. Herbert, both of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

This libel seeks to recover a deposit made to secure the release of a cargo from an alleged general average lien. The deposit stood in the place of the released cargo, and, if there be no general average liability, the deposit must be released from the lien and delivered to the appellant, as consignee. Exceptions to the libel were filed, based on the claim that the court below had no jurisdiction. A writ of foreign attachment was issued, and the appellee's vessel, the steamship Charterhague, was arrested and subsequently released on filing a bond. Appellee filed a general appearance.

The cargo was shipped under three bills of lading, admittedly containing a general average clause, from ports of Georgia and Florida for British destination. The title passed to the consignee at the shipping port. The general average act under which the lien is claimed arose out of a strand in the port of Jacksonville, Fla., at the commencement of the voyage. Some of the witnesses necessary to prove the claim of negligence in the strand and unseaworthiness of the vessel are in the jurisdiction of the United States. Appellant claims the strand was due to the unseaworthy condition of the vessel, and the failure of the engines and boilers to function properly, and lack of due diligence by the appellee. Repairs were made at Newport News, and it is claimed that some repairmen from the plant will be necessary witnesses. Both the appellant and the appellee are British corporations. A general average adjustment has been made up in England.

The appellant argues that, although the bills of lading are not in evidence, they are of United States origin, and by their terms and the provisions of the Harter Act, the appellee was not entitled to general average as against this cargo, or the deposit made to obtain its release, and therefore, the District Court having obtained jurisdiction, and a general appearance having been interposed, the court should retain such jurisdiction. The general average statement made in England is not questioned, but the libel alleges that the vessel was unseaworthy and insufficiently supplied and manned at the commencement of the voyage, and therefore the vessel owner cannot recover from the cargo, relying upon the following authorities: The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969; Hurlbut v. Turnure (D. C.) 76 F. 587, affirmed 81 F. 208 (C. C. A. 2); Trinidad Shipping Co. v. Frame, Alston & Co. (D. C.) 88 F. 528; Schr. Lewis H. Goward (So. D. N. Y. 1924), Ward, J., 1924 A. M. C. 1251. In the latter case, the owners of a coal cargo filed a libel for breach of contract to carry the coal to the Azores. The ship put in at Bermuda in a leaky condition, and the coal was ordered sold.

The court found that the cargo was accepted at Bermuda and the libel was not dismissed. The shipowners filed a cross-libel for general average, claiming that the exception of leakage qualified the warrant of seaworthiness. Ward, J., said: "Exceptions in a charter party or bill of lading do not apply to it (general average) unless they are expressly stated to do so." It was held that the exception relied on applied only to the contract of carriage and not to general average. To obtain general average contribution, the court said: "The burden lies upon him the ship owner to show that she...