Charter Shipping Co v. Bowring, Jones Tidy

• Decision Date: 19 May 1930
• Docket Number: No. 397,397
• Citation: 50 S.Ct. 400,74 L.Ed. 1008,281 U.S. 515
• Court: U.S. Supreme Court
• Parties: CHARTER SHIPPING CO., Limited, v. BOWRING, JONES & TIDY, Limited

281 U.S. 515

50 S.Ct. 400

74 L.Ed. 1008

CHARTER SHIPPING CO., Limited,

v BOWRING, JONES & TIDY, Limited.

No. 397.

Argued April 22, 1930.

Decided May 19, 1930.

Mr. Cletus Keating, of New York City, for petitioner.

Mr. Theodore L. Bailey, of New York City, for respondent.

Mr. Justice STONE delivered the opinion of the Court.

Respondent, a British corporation, filed in the District Court for Southern New York a libel in personam against petitioner, also a British corporation, to recover a general average deposit made in London. The libel alleged that the petitioner received on its vessel, the Charterhague, at various Gulf and Atlantic ports in the United States, shipments of rosin and turpentine for transportation to London, bills of lading for which were indorsed to the respondent. As grounds for recovery it was set up that the general average act was due to unseaworthiness of the vessel at the beginning of the voyage, unknown to respondent when it made the deposit in order to release the cargo from the general average lien.

On the libel, the general appearance and exceptions of the libelee, the petitioner here, and an answering affidavit setting up that after the libel in the present suit was filed respondent commenced suit in England involving the same subject-matter, the District Court dismissed the libel, saying that contribution for general average is to be determined by law of the port of discharge and that 'under all the circumstances' jurisdiction should be declined. The Court of Appeals reversed, holding that the jurisdiction should have been retained. 33 F.(2d) 280. It pointed out that the suit did not involve a restatement of a general average adjustment and said that if the bills of lading contained a 'Jason clause' or incorporated the provisions of the Harter Act (46 USCA §§ 190-195), the question of due diligence to make the vessel seaworthy would be an issue in the case, citing The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969; The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 38 L. Ed. 688; Hurlbut v. Turnure (D. C.) 76 F. 587, affirmed (C. C. A.) 81 F. 208; Trinidad Shipping Co. v. Frame, Alston & Co. (D. C.) 88 F. 528; that the rule that general average is controlled by the law at the port of destination was consequently an insufficient reason for declining jurisdiction, and, in view of the statement of the affidavit that there were American witnesses as to seaworthiness, concluded that it was expedient under all the circumstances for the court to retain jurisdiction. This court granted certiorari, 280 U. S. 545, 50 S. Ct. 39, 74 L. Ed. —.

The retention of jurisdiction of a suit in admiralty between foreigners is within the discretion of the District Court. The exercise of its discretion may not be disturbed unless abused. The Belgenland, 114 U. S. 355, 368, 5 S. Ct. 860, 29 L. Ed. 152; The Maggie Hammond, 9 Wall. 435, 457, 19 L. Ed. 772.

The affidavit states that the bills of lading contain a clause providing for general average, but the bills of lading are not in the record and it does not appear that they embraced Jason or other clauses modifying the liability in general average. As that liability arises not from contract but from participation in the common venture, see Hobson v. Lord, 92 U. S. 397, 23 L. Ed. 613; Barnard v. Adams, 10 How. 270, 303, 13 L. Ed. 417; The Roanoke (C. C. A.) 59 F. 161, 163; ...