In re Atlantic Gulf & West Indies SS Lines

• Decision Date: 03 June 1927
• Citation: 1927 AMC 1084,20 F.2d 975
• Parties: In re ATLANTIC GULF & WEST INDIES S. S. LINES et al.
• Court: U.S. District Court — Southern District of New York

1927 AMC 1084, 20 F.2d 975 (1927)

In re ATLANTIC GULF & WEST INDIES S. S. LINES et al.

District Court, S. D. New York.

June 3, 1927.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Edwin S. Murphy, of New York City, of counsel), for Federal Shipbuilding & Dry Dock Co.

Burlingham, Veeder, Masten & Fearey, of New York City (P. Fearson Shortridge, of New York City, of counsel), for petitioners.

THACHER, District Judge (after stating the facts as above).

On March 7, 1927, proctors for Federal Shipbuilding & Dry Dock Company advised proctors who have since filed the petition herein in behalf of the owners of the tank steamer Agwisun that they intended to file a libel in the Eastern District of New York against the Agwisun for salvage services. Proctors for the owner at that time advised proctors for the salvor that they intended to file a petition for the limitation of the owner's liability to the value of their interest in the vessel, and that it would not be necessary for the salvor to begin suit because the suit would soon be stayed by the injunction issued in the limitation of liability proceedings. Proctors for the salvor nevertheless stated that they intended to file a libel, and asked if the ship would be bonded, and were advised by the proctors for the owners that they would bond. Upon filing the libel, and pursuant to the practice which prevails among proctors representing shipping interests, the process was not issued, but assurances were obtained from the proctors representing the owners that a bond would be filed in the libel proceedings. Agreement was reached between the proctors that a joint and several stipulation for value in the sum of $30,000 should be filed by the owners, and that this would be accepted in lieu of a surety bond.

The Atlantic, Gulf & West Indies Steamship Lines appeared as owner in the suit pending in the Eastern district and made claim to the Agwisun. Thereafter, on March 25, 1927, a stipulation for value in the sum of $30,000, jointly executed by Atlantic Gulf & West Indies Steamship Lines and International Shipping Corporation, was submitted to proctors for the salvor, but was returned because of a formal objection, which proctors for the owners agreed to correct. Thereafter, on April 4, 1927, the petition in this proceeding in the Southern district of New York was filed, and thereafter the usual injunction order went forth, enjoining prosecution of claims pending this proceeding to limit liability. Proctors for the owners have since refused to file a stipulation for value in the Eastern district, and in a memorandum presented in opposition to this motion state that the question here presented "is whether or not filing the ad interim stipulation for value in this proceeding is a performance of the agreement of proctors for petitioners to file bond in behalf of the Agwisun."

I think there can be no doubt that the agreement to file bond in behalf of the Agwisun was an agreement to file bond in the Eastern district, and that the commencement of proceedings to limit liability and the filing of an ad interim stipulation in this district was not a compliance with what was fairly understood and intended by the proctors. But certainly, if there has been but a technical departure from the...