Artinano v. W.R. Grace & Co.

• Decision Date: 09 February 1923
• Citation: 286 F. 702
• Parties: ARTINANO v. W. R. GRACE & CO.
• Court: U.S. Court of Appeals — Fourth Circuit

286 F. 702

ARTINANO v. W. R. GRACE & CO.

United States District Court, E.D. Virginia.

February 9, 1923

Baird White & Lanning, of Norfolk, Va. (Edward R. Baird, Jr., and R. Clarence Dozier, both of Norfolk, Va., of counsel), for plaintiff.

Bigham Englar & Jones, of New York City, and Hughes, Little &amp Seawell, of Norfolk, Va. (Leon T. Seawell, of Norfolk, Va of counsel), for defendant.

GRONER District Judge.

This is an action at law for the recovery of damages alleged to have been sustained as the result of the illegal arrest, in admiralty proceedings, by the defendant, of the steamship Consuelo, belonging to the plaintiff. The action was begun by the filing of a notice of motion for judgment, to which the defendant demurs on the ground that no cause of action is sufficiently shown. The notice charges that on July 29, 1921, the Spanish steamship Consuelo, belonging to the plaintiff, was then lying in Hampton Roads; that on the day mentioned the defendant wrongfully, carelessly, and negligently filed in this court a libel in rem against the steamship for the recovery of $65,000, and caused an attachment to be issued against the ship, as a result of which she was arrested and taken into possession by the marshal and held until the 8th of August following, when she was voluntarily released and the proceedings voluntarily dismissed; that as a result of this wrongful detention damages were suffered to the amount claimed by reason of the loss of her charter. The amended notice of motion sets out that the proceeding in admiralty grew out of a charter party entered into between the defendant and the French High Commission for the hire of a French steamer-- a sister ship of the steamship Noyon-- named Rheims, which name had later been changed to Consuelo; that plaintiff's vessel was a Spanish steamship of steel construction, flying the Spanish flag, 342 feet in length, 47 feet in width, and 25 feet in depth, with machinery amidships; and that the French steamer intended to be arrested and attached in the libel proceeding was a wooden steamer with auxiliary equipment, schooner rigged, machinery aft, and 250 feet in length, 44 feet in width, and 22 feet in depth.

The demurrer, of course, admits the truth of all the facts properly pleaded in the notice of motion, and from this it will be seen that the ground of negligence charged is that the defendant, in its pursuit of a French wooden auxiliary vessel of 250 feet, seized and detained a Spanish steel steamship of 350 feet; the position of the plaintiff here being that this constituted such gross negligence as in law to imply malice.

On behalf of the defendant, it is insisted that a party who, in good faith and without malice, in a proceeding in admiralty libels a vessel and fails in his suit, is not responsible ex delicto, and is not liable even to the extent of actual damages which, by reason of his groundless action, his adversary may have sustained. The following cases are cited as in point: The Adolph (D.C.) 5 F. 114; The Scandinavia (D.C.) 38 F. 41; Kemp v. Brown (D.C.) 43 F. 391; The Alex Gibson (D.C.) 44 F. 371; Gow v. Brauer Steamship Co. (D.C.) 113 F. 672; The Alcalde (D.C.) 132 F. 576; The Amiral Cecille (D.C.) 134 F. 673; The Wasco (D.C.) 53 F. 546; Watt v. Cargo of Lumber, 161 F. 104, 88 C.C.A. 268; The Evangelismos, 12 Moore, P.C. 357 (14 English Reprint, 945).

In The Adolph, the District Court for the Southern District of New York declined to release a vessel, or to require bond pending appeal from a decision dismissing the libel, and is not in point, except that it is there announced as a principle of admiralty that damages for the arrest of a vessel in an admiralty cause will not be awarded, unless the arrest of the vessel is mala fide, or the result of such gross negligence as amounts to bad faith.

The case of The Scandinavia grew out of a controversy between the consignee of a cargo of iron and the vessel in which it was transported as to the correct amount of a freight bill. A libel and cross-libel were filed; the owner of the vessel claiming the right to demand payment of the freight before delivery, and the consignee declining to pay until the correct weight of the shipment was determined. Unnecessary detention of the vessel resulted, and, following the rule adopted in The Adolph, supra, the court held that no damages for detention while in custody could be given, in the absence of proof of bad faith.

In the case of Kemp v. Brown, decided by Judge Billings in the District Court for the Eastern District of Louisiana, the seizure of the vessel grew out of the belief on the part of the libelant that certain drafts drawn by the master of the vessel were for necessary disbursements in a foreign port, and carried a lien, and he libeled the vessel. Later it developed that the master had no need of the funds at the time the drafts were drawn, but had been supplied by the owners with funds sufficient to make all necessary disbursements, and the libel was thereupon dismissed, and the vessel discharged. The court, in passing upon the question of whether actual damages might be recovered against a libelant, who, in good faith and without malice, libels a vessel, but fails in his suit, held the rule to be that enunciated in Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116:

'That advice of counsel, and an honest belief on the part of libelant that he was using rightful remedies, exempts him from a suit for a wrong.'

The Gibson Case arose, in the Northern District of Washington out of a controversy between the vessel and the charterer as to the stevedore to be employed to load the vessel, thus delaying the loading. The charterer thereupon libeled the vessel, alleging loss by a decline in the price of the wheat which he was loading, caused by the delay...