Galban Lobo Trading Company S/A v. The Diponegaro

• Decision Date: 09 November 1951
• Citation: 103 F. Supp. 452
• Parties: GALBAN LOBO TRADING COMPANY S/A v. THE DIPONEGARO et al. THE DJAKARTA LLOYD, Inc.
• Court: U.S. District Court — Southern District of New York

103 F. Supp. 452

GALBAN LOBO TRADING COMPANY S/A v. THE DIPONEGARO et al. THE DJAKARTA LLOYD, Inc.

United States District Court S. D. New York.

November 9, 1951.

Bigham, Englar, Jones & Houston, New York City, William F. Andersen, New York City, of counsel, for libelant.

Kirlin, Campbell & Keating, New York City, Michael F. Whalen, New York City, of counsel, for respondent.

RYAN, District Judge.

Libelant, on September 12, 1951, filed a libel in rem against the freights of the S. S. Diponegaro, and in personam with clause of foreign attachment of the freights against the owner of the vessel, Indonesian Shipping Company. "Djakarta Lloyd, Inc." Libelant seeks recovery in the sum of $250,000 for damage to sugar cargo laden on the Diponegaro. It alleges the presence within this jurisdiction of $75,907.43 freights for the carriage of the cargo prepaid in New York by libelant to Shipowners Agency, Inc., as agent of Indonesian. These moneys, it is alleged, are still in the possession or under the control of Shipowners or Boise-Griffin Steamship Co., Inc., as agents. Both Shipowners and Boise-Griffin have answered the attachment: Shipowners that it has no funds in which respondent has an interest, Boise-Griffin that it has but $925.52. Indonesian has intervened in the attachment as owner of the vessel and her freights and has made claim to the funds which may have been arrested under process.

The suit comes on to be heard on application of the libelant for an order under Rule 37 of the Admiralty Rules of the Supreme Court, 28 U.S.C.A., requiring Shipowners and Boise-Griffin to bring the freights into court to answer the exigency of the suit, and appointing a commissioner to hear and take testimony concerning the receipt and disposition of the $75,907.43, paid as freight by libelant. We also have before us the exceptions of respondent-claimant Indonesian to the libel, that libelant has no claim against the freights of the Diponegaro and that this court has no jurisdiction in rem against such freights on the facts pleaded.

The primary question presented is whether a cargo owner, in the absence of a specific contract so providing, has a maritime lien against moneys it has prepaid to the owner's agent for the transportation of the goods, for injury which it claims to have suffered as a result of loss or damage to the cargo. We hold that it has not.

The charter-party and the bill of lading for the cargo are pleaded in and are annexed to the libel. They contain no provision giving libelant a lien against the freights. The charter party does provide, however, that the shipowner has a lien upon the cargo for freight and all other charges which may become due under the charter. The bill of lading, in turn, provides that it is subject in all respects to the provisions of the charter party. Libelant must, therefore, rest entirely upon a right to assert a maritime lien not created by contract to maintain the libel in rem against the freights.

Search by counsel and the court has disclosed only two cases where it might be said that the right of a cargo damage claimant to assert a maritime lien against freights of the carrying vessel was enforced. The City of Athens, D.C.Md.1949, 83 F.Supp. 67, A.M.C. 572, and Freights of The Kate, D.C.S.D.N.Y.1894, 63 F. 707. We have not found in any text a single indication or even discussion that in a cargo damage claim there is a maritime lien against the freights which have been prepaid. In Freights of The Kate, supra, the maritime lien which the court recognized as attaching to the freights was created by contract of the owner hypothecating the freights. The court there wrote, 63 F. at page 712: "`No one has ever questioned,' says Butler, J. in The Mary Morgan, D.C. 28 F. 196 199, `that an express lien may exist whenever the owner chooses to create it.'" The maritime nature of the lien sprang from the contract which created it, and the court observed that "accordingly maritime liens, resting wholly on express contract, have constantly been enforced." 63 F. at page 713. In the City of Athens, libelant, Todd Shipyards Corporation, brought suit in rem against the vessel and in personam against the shipowner with clause of foreign attachment, attaching the earned freight in the hands of an agent. No in rem proceeding was instituted against the freights. A reading of the opinion shows that the freights were treated only as attached property and not as property against which the cargo owner had a maritime lien in rem. Neither case is a precedent for the filing of the libel in rem against moneys prepaid as freights by a cargo owner for loss or damage to its cargo.

The maritime lien against the freights sought to be enforced here does not arise out of any contract, statute or commonlaw court. Enforcement of a maritime lien against freights for cargo loss or damage is neither mentioned nor provided for in the Admiralty Rules of the Supreme Court of the United States. See, Rules 13, 14, 15, 16 and 17, 28 U.S.C.A. The law of the sea has passed that period when even the most ingenious and resourceful of proctors might father new rights; it has long left behind the time for the development or belated recognition of maritime liens heretofore unknown and unsuspected. This is not an instance where "the right to the lien is not to be recognized and upheld, when within accepted supporting principles, merely because the circumstances * * * are unusual or infrequent." Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 1933, 290 U.S. 117, 125, 54 S.Ct. 105, 107, 78 L.Ed. 216. Claims for loss or damage to cargo are neither unusual nor infrequent. The rule that "the merchandise is bound or hypothecated to the vessel for freight and charges (unless released by the covenants of the charter party), and the vessel to the cargo", The Yankee Blade, 19 How. 82, 15 L.Ed. 554, 556, has never been extended to a holding that prepaid freights are likewise subject to claims for cargo loss or...