A.O. Andersen & Co., Inc. v. Susquehanna S.S. Co., Inc.

• Decision Date: 21 October 1921
• Citation: 275 F. 989
• Parties: A. O. ANDERSEN & CO., Inc., v. SUSQUEHANNA S.S. CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

275 F. 989

A. O. ANDERSEN & CO., Inc., v. SUSQUEHANNA S.S. CO., Inc.

United States District Court, E.D. Virginia.

October 21, 1921

Duncan & Mount, of New York City, and Baird, White & Lanning, of Norfolk, Va., for libelant.

Cass &amp Apfel, of New York City, and Hughes, Little & Seawell, of Norfolk, Va., for respondent.

WADDILL Circuit Judge.

This is a libel in personam, with 'foreign attachment,' against the respondent to recover damages for alleged breach of contract of charter party, entered into between the libelant, as agent, under authority from the owners of the steamship Lydia, and the respondent, on the 29th day of December, 1919, whereby the steamship Lydia was let to the Susquehanna Steamship Company, Inc., to transport a cargo of sugar from 'one or two north side ports or one or two south side ports of Cuba (charterer's option) to either Rotterdam or Amsterdam, Holland, one port of discharge (charterer's option). ' The third paragraph of said charter party is as follows:

'3. And to pay to A. O. Andersen & Co., Inc., in United States gold coin, or its equivalent, at New York, N.Y., ten (10) days after receipt of master's cable advice that vessel has loaded and bills of lading had been signed, free of discount, commission, or insurance to said party of the first part of agent, for the use of the vessel during the voyage aforesaid, thirty dollars ($30.00) net per ton of 2,240 lbs. bill of lading weight. Susquehanna Steamship Company bill of lading form No. 226 to be used in connection with this shipment.'

Under the terms of this charter party, the Lydia was tendered to the respondent on the 7th of February, 1920, and finished loading her cargo of 4,928 tons of sugar on the 15th of February, 1920. The libelant was duly advised by the ship's master of the loading of the ship and the issuance of bills of lading according to the provisions of the charter party, of which fact the libelant, on the 16th of February notified the respondent, and that the freight hire of $147,867.45 would be due and payable to the libelant under the terms of the charter of February 26, 1920. Upon failure to pay the amount after due demand therefor, this libel was filed; the libelant suing out an attachment, which was levied upon the steamship Susquehanna, owned by the respondent, found within the jurisdiction of this court.

There seems to be no dispute on the facts as to the execution of the charter party, the loading of the cargo, and transportation of the sugar, and of the failure to pay the freight to the libelant, as demanded, and these facts were substantially admitted by the answer, which, however, set up affirmative matter briefly as follows: That the owner of the Lydia had chartered her to one Grotios on September 12, 1919, for six months; that the libelant guaranteed the hire, and later repudiated its obligation; that thereupon the Lydia Steamship Company, Inc., and the libelant, on the 29th of November, 1919, agreed that the libelant should assume the Grotios charter, and the ship was delivered under this agreement; that the libelant failed to disburse the ship as required, and to pay her hire, and turned her back to the Lydia Steamship Company, Inc., before the libel was filed, and before that time the Lydia Steamship Company, Inc., assigned its claim to respondent; that the Lydia was owned by the Lydia Steamship Company, Inc., and that that company and the respondent company were principally owned by Joseph and Frank Auditore, they being the principal stockholders and officers in both companies. The pleadings set forth other matter, but the same is in amplification or repetition of the above facts.

The libelant excepted to the sufficiency of the answer, and insisted that, under the undisputed testimony and plain terms of the charter, the sum sued for was due, and the libelant was entitled to a decree therefor, and that, under the admitted facts, the equitable defense interposed in the nature of set-off could not be maintained in admiralty, it clearly appearing that the Lydia Steamship Company's alleged claim arose under other and different contracts or undertakings than the one in suit, and between different parties; that the charter party upon which the libelant sues in this case was wholly independent of the transactions sought to be injected herein, and under it the services contracted for having been rendered, and the freight money not paid, the defense sought to be interposed constituted no valid answer to the libelant's demand. The exceptions to the answer were therefore sustained (W. R. Grace & Co. v Luckenbach S.S. Co. (D.C.) 248 F. 953, 258 F. 49, affirmed (C.C.A.) 267 F. 676), with leave to answer over. This was the conclusion reached by the United States District Court for the Southern District of...