Canada Malting Co. v. Paterson Steamships

• Decision Date: 02 January 1931
• Citation: 49 F.2d 802
• Parties: CANADA MALTING CO., Limited, v. PATERSON STEAMSHIPS, Limited. BRITISH EMPIRE GRAIN CO., Limited, v. SAME. STARNES v. SAME.
• Court: U.S. District Court — Western District of New York

49 F.2d 802 (1930)

CANADA MALTING CO., Limited, v. PATERSON STEAMSHIPS, Limited.

BRITISH EMPIRE GRAIN CO., Limited, v. SAME.

STARNES v. SAME.

District Court, W. D. New York.

October 1, 1930.

On Rehearing January 2, 1931.

Brown, Ely & Richards, of Buffalo, N. Y. (Laurence E. Coffey, of Buffalo, N. Y., of counsel), and Bigham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and A. J. McElhinney, both of New York City, of counsel), for libelants.

Stanley & Gidley, of Buffalo, N. Y., for respondent.

HAZEL, District Judge.

On the night of July 9, 1930, the steamers Yorkton and Mantadoc collided in Whitefish Bay, Lake Superior, within the territorial waters of the United States. The above-entitled actions in personam were brought in this jurisdiction against the owner of the Mantadoc alone, and foreign attachments issued by owners of separate cargoes of grain laden aboard the Yorkton which, in consequence of the collision, sank, and the cargoes totally lost. Both vessels are of Canadian registry. Libelants and respondent are foreign citizens, subjects of the Dominion of Canada. The Yorkton was loaded at Port Arthur, Ontario, where the contracts of affreightment were made, and the bills of lading issued for delivery of the cargoes at Montreal, Quebec. An action by the respondent owner of the steamer Mantadoc is pending against the claimants of the steamer Yorkton in the Admiralty Court of the Dominion of Canada to determine the fault of the collision between the two vessels and their owners. The motion herein seeks to have this court decline further jurisdiction of the pending causes, and for dismissal of the libels.

Concededly whether jurisdiction shall be retained is a matter of discretion, and the exercise of the discretion depends upon the facts and circumstances contained in the affidavits. See Charter Shipping Co., Ltd., v. Bowring, Jones & Tidy, 281 U. S. 515, 50 S. Ct. 400, 401, 74 L. Ed. 1008, decided by the Supreme Court May 19, 1930. The moving papers show, not only that all the parties, including the colliding vessels and their officers and crews, are citizens and residents of Canada, but also that the Dominion Wreck Commissioner has had the cause of the collision under investigation, and on the evidence before him has reached the conclusion that both vessels were equally at fault for the mishap; both having committed culpable error due to faulty interpretation of the rules of navigation and their negligent application. It is pointed out that under existing United States law, assuming a finding of mutual fault on the part of the navigating vessels, the respondent here would be held liable under Admiralty Rule 56 (28 USCA § 723) for the entire amount of the cargo damage without any effective remedy for recoupment of one-half of cargo damages against the Yorktown in this action, and, on recovery of the damages, to enforce contribution, another action would be necessary by the claimants of the Mantadoc against the owner of the Yorkton (see The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; Erie R. Co. v. Erie & Western Transp. Co., 204 U. S. 220, 27 S. Ct. 246, 51 L. Ed. 450); while, on the other hand, the remission of the actions to the Admiralty Court of Canada, where the rule is the same as in England, would not in any event involve liability of respondent for more than a moiety of the cargo damage recoverable from each of the vessels found at fault.

It seems to me that the circumstances are such that this court is warranted in refusing to retain jurisdiction, and that no injustice will result to libelants by remitting the parties to their home forum. That the rule in this court is more favorable to the cargo owners is insufficient reason for retaining jurisdiction.

Plaintiff in opposition urges that inasmuch as the collision occurred within the territorial water of the United States, jurisdiction should not be declined, citing The Heredia v. Davies (C. C. A.) 12 F.(2d) 500, and several other adjudications. But in the Heredia Case the action was for personal injuries by a foreign seaman against a foreign ship, the injuries occurring owing to the negligence of the latter in an American port, and the court deemed it necessary to exercise jurisdiction to prevent failure of justice; while in the instant case, as said, no failure of justice would result by refusing jurisdiction and relegating the rights of the parties to the courts of their citizenship. That all the parties in interest are citizens of a foreign country, true enough, standing alone, constitutes no objection to retaining jurisdiction; but I think the reasons assigned in these cases for not doing so are meritorious. The collision of the steamships in Whitefish Bay in American waters does not, in my opinion, demand applying the law of the United States on the principle of lex loci in the determination of liability. See Charter Shipping Co. v. Bowring et al., supra, where the cause of action arose in waters at Jacksonville, Fla. In that case the Supreme Court said:

"Both the parties being British subjects and the present litigation, as well as the suit pending abroad, apparently involving the application of English Law to the fund located there, it was for the District Court to say, as it did, upon a consideration of all the circumstances, whether it should decline `to take cognizance of the case if justice would be done as well by remitting the parties to the home forum.' See The Maggie Hammond, 9 Wall. 457, 19 L. Ed. 780. * * *

"It was for the District Judge to consider the facts appearing and the inferences which he might draw from them and reach his own conclusion as to the convenience of witnesses, as well as the other factors upon which he...