Eadie v. North Pacific S.S. Co.

• Decision Date: 10 July 1914
• Docket Number: 15636.
• Citation: 217 F. 662
• Parties: EADIE v. NORTH PAC. S.S. CO. et al.
• Court: U.S. District Court — Northern District of California

217 F. 662

EADIE v. NORTH PAC. S.S. CO. et al.

No. 15636.

United States District Court, N.D. California.

July 10, 1914

Nathan H. Frank and Irving H. Frank, both of San Francisco, Cal for libelant.

C. H Sooy, of San Francisco, Cal., for respondent North Pac. S.S Co.

F. R Wall, of San Francisco, Cal., for respondent Illinois Surety Co.

DOOLING District Judge.

The libel herein sets forth that libelant chartered its vessel, the Cetriana, to the libelee North Pacific Steamship Company for the period of 12 months from the date of the delivery of said vessel, at an agreed charter hire of $75 per day, said vessel to be delivered between January 1 and 5, 1914. The charter party is made a part of the libel, and provides, among other things:

'This charter party shall only become effective after the second party shall have furnished a duly executed bond from a bond or surety company, in a form satisfactory to said party of the first part, binding said surety in the sum of $15,000, United States gold coin, for the faithful performance of each and all of the provisions, covenants, and agreements in said charter party, on the part of said party of the second part to be performed.' The libel also alleges the execution of such bond in the sum of $15,000 by the libelee Illinois Surety Company, which bond is also made a part of the libel, and contains the following provisions.

'The condition of the above obligation is such that, whereas, the said North Pacific Steamship Company and the said William Eadie have entered into a contract of charter party under date of December 22, 1913, wherein and whereby the said William Eadie chartered to the said North Pacific Steamship Company, a corporation, the steamship Cetriana, under the terms and conditions in said charter party set forth, a copy of which charter party is hereto attached and made a part hereof as fully as if set forth at length herein: Now, therefore, if the said North Pacific Steamship Company, a corporation, shall well and truly keep and perform all the covenants, conditions, and agreements in said charter party on its part to be kept and performed, then this obligation to be void; otherwise, to remain in full force and effect: Provided, however, this bond is executed upon the express condition precedent that it shall not extend or cover the terms and conditions of the seventh paragraph of said charter party, and the surety hereunder shall not be liable on account of any accident or personal injury to any person whatsoever.'

The libel further avers the failure of the libelee North Pacific Steamship Company to pay the charter hire for the months of February, March, and April, 1914, amounting to the sum of $6,675, and that the said steamship company has also incurred indebtedness in and about the vessel, and which is a lien thereon, amounting to $472.07, and which under said charter party the said steamship company should have paid. It is also averred in article IX of said libel:

'That the said North Pacific Steamship Company has further refused to continue the use of the said vessel for the balance of said charter, by reason of which said libelant has suffered further damage, the exact amount of which said libelant is at this time unable to definitely allege, but on his information and belief alleges the same will exceed the sum of $10,000.'

The libel was filed April 7, 1914, and seeks to recover the sums mentioned from the North Pacific Steamship Company on the charter, and from the North Pacific Steamship Company and the Illinois Surety Company on the bond, and from certain freights under the provisions of the charter party. With the last we are not at present concerned.

The Illinois Surety Company has filed exceptions to the libel, on the grounds, first, that as to it the court has no jurisdiction because of the nonmaritime nature of the bond sued upon; and, second, because article IX is surplusage, irrelevant, and impertinent, in that it alleges damages for a time subsequent to the filing of the libel. The North Pacific Steamship Company has also filed exceptions to the libel on substantially the same grounds.

The main question presented, therefore, has to do...