George D. Emery Co. v. Tweedie Trading Co.

• Decision Date: 19 December 1905
• Citation: 143 F. 144
• Parties: GEORGE D. EMERY CO. v. TWEEDIE TRADING CO. TWEEDIE TRADING CO. v. GEORGE D. EMERY CO.
• Court: U.S. District Court — Southern District of New York

143 F. 144

GEORGE D. EMERY CO. v. TWEEDIE TRADING CO.

TWEEDIE TRADING CO. v. GEORGE D. EMERY CO.

United States Circuit Court, S.D. New York.

December 19, 1905

Convers & Kirlin and John M. Woolsey, for George D. Emery Co.

Wheeler Cortis & Haight, for Tweedie Trading Co.

ADAMS District Judge.

The original action herein was brought by the George D. Emery Company against the Tweedie Trading Company to recover a balance of hire of the steamship Osceola for a half month from April 3, 1905, amounting to, less conceded deductions $1,209.35.

The respondent in its answer after some denials and claims alleged:

'Seventh. Further answering the libel herein the respondent alleges that the Steamship Osceola arrived at the port of New York on or about the 10th day of April, 1905, and was there detained at quarantine for one day and nineteen and one-half hours by reason of the sickness of the crew of said steamer, which constituted 'a deficiency of men,' and the respondent is entitled to deduct from the hire the time so lost, which at the rate agreed upon in the charter party amounted to $272.61. The respondent further disbursed for account of said steamer at the port of New York the sum of $95.46. These sums were disbursed at the request of the master of said steamer and were made while the hire of said steamer was suspended under the provision of the charter party, and were properly chargeable to the owners.

'Eighth. Further answering the libel herein, the respondent alleges that it advanced and disbursed to the master of said steamer the sum of $1300.44 for necessary supplies for said steamer. These sums were advanced and disbursed at the request of the master of said steamer and constitute a lien on said steamer and are properly chargeable to the owners thereof.

'Ninth. Further answering the libel herein the respondent alleges that on or about the 9th day of December, 1903, a charter party was entered into between the libelant and respondent, whereby the libelant agreed to load on the steamer Myrtledene a full and complete cargo of mahogany logs at Belize for transportation to Boston.

'The libelant wrongfully failed to perform the obligations imposed upon it by said charter and failed and refused to load the cargo contracted for, by reason of which breach of the charter the respondent has sustained damages to the amount of Three thousand dollars ($3000), payment of which has been demanded and refused. The respondent performed all the obligations and stipulations of said charter party on its part to be performed.'

The respondent also filed a cross libel seeking to recover thereby the sums $272.61 and $95.46, alleged in the 7th paragraph of the answer and the further sum of $3,000 for damages for breach of charter of the Myrtledene as above stated.

The libellant thereupon filed the following exceptions to the answer:

'First. It excepts to the following allegation contained in the seventh article of the answer:

''The respondent further disbursed for account of said steamer at the port of New York, the sum of $95.46. These sums were disbursed at the request of the master of the said steamer and were made while the hire of the said steamer was suspended under the provision of the charter party, and were properly chargeable to the owners.'

'On the ground that it is impertinent, and irrelevant in an action between the George D. Emery Company, which was the charterer of the Steamship Osceola, and the Tweedie Trading Company, the sub-charterer.

'Second. It excepts to all the allegations contained in the eighth article of the answer on the ground that it is impertinent and irrelevant, in an action between the George D. Emery Company, which was the charterer of the steamship Osceola, and the Tweedie Trading Company, the sub-charterer.

'Third. It excepts to the allegations in the ninth article of the answer on the ground that they are not a part of the controversy for which the libel was brought, and hence cannot properly be appealed as matter of set-off thereto.'

The libellant also filed exceptions to the cross libel as follows:

'First. Because the matters alleged in the second and third articles of the so-called cross-libel are not matters involved in the original libel, and therefore not properly to be included in any cross-libel thereto.

'Second. Because the matters alleged in the fourth, fifth and sixth articles of the so-called cross-libel have already been pleaded in the answer to the original libel of the George D. Emery Company against the Tweedie Trading Company, and do not constitute a claim for affirmative relief, and, hence, are not properly pleaded as part of a cross-libel.'

It is admitted by the cross libellant that, as under the rules of the court, a cross libel can...