In re Maret
| Citation | 2 V.I. 418 |
| Decision Date | 17 October 1944 |
| Docket Number | No. 8450,8450 |
| Parties | THE MARET |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
See, also, 145 F.2d 431
Amtorg Trading Corporation filed a libel in the District Court of the Virgin Islands, Division of St. Thomas and St. John, againsta fund deposited with the Treasurer of the United States, against the United States and against the United States Maritime Commission, arising from the requisition of the S.S. Maret and asserting a right to a portion of such fund to which Johannes Kaiv, Acting Consul General of Estonia, trustee, and attorney in fact for some of the beneficial owners of the vessel, was claimant. From a judgment (February 25, 1943) of the District Court, Moore, J., in favor of the libelant, U. S. Civil No. 69-1942, the claimant appeals. The Court of Appeals on the record refused to enter a final order and indicated that a commissioner would be appointed to take further evidence.
Order in accordance with opinion.
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PERRY A. BECK, New York City (DENZIL NOLL, St. Thomas, Virgin Islands, on the brief), for appellant
CHARLES RECHT, New York City (OSMOND K. FRAENKEL and HYMAN OPPENHEIM, both of New York City, on the brief), for respondents
Before BIGGS, JONES, and GOODRICH, Circuit Judges
The S.S. Maret, a ship of Estonian registry the beneficial ownership of which apparently rested in a number of Estonian citizens in a shipping copartnership under the style of "Tallinn Shipping Company, Ltd.",1 arrived at the Port of St. Thomas in the Virgin Islands July 27, 19402. The Maret had been engaged in carrying bauxite from Georgetown in British Guiana to St. Thomas. J. H. Winchester & Co., Inc., of New York City (hereinafter referred to as "Winchester") were her general agents. The Maret was under a time charter to Saguenay Terminals, Ltd. (hereinafter referred to as "Saguenay"), which required delivery of the Maret at a safe port north of Cape Hatteras.3
On June 17, 1940, the armies of the Union of Soviet Socialist Republics occupied Estonia and thereafter the Soviet Socialist Republic of Estonia was created. The Soviet Republic of Estonia promulgated certain decreesand enacted various statutes4 which purported to nationalize ships of Estonian registry. An Estonian State Steamship Line was organized pursuant to a decree promulgated on October 29, 1940, by the People's Commissar of the Maritime Fleet.5 By a proclamation published in the Estonian State Gazette6 the Maret was transferred to the Estonian State Steamship Line. On July 19, 1940, a time charter was executed between "The Tallinn Shipping Company, Limited" as "owners" of the Maret and All Union Chartering Company (hereinafter referred to as "Sovfracht"),7 a juridical entity or corporation organized under the laws of the Union of Soviet Socialist Republics. Sovfracht is the agency employed by the Soviet Republics and by the Estonian State Steamship Line for the chartering of vessels. The charter referred to provided for one "Far East round voyage", the charterer to supply bunkers and supplies. It was stipulated by the parties that Amtorg Trading Company (hereinafter referred to as "Amtorg"), a New York corporation, acted as "agent" for Sovfracht in connection with the Maret.8
On or about July 31, 1940, the Maret being at St. Thomas, her master, Captain Jakob Hall, received from Winchester information that the Maret had been nationalized. Hall thereupon cabled Amtorg for instructions. Amtorg by acablegram dated August 7, 1940, ordered Hall to procure bunkers and supplies and to proceed immediately to Murmansk. Hall then cabled Amtorg and asked for instructions as to the disposition of the charter party made with Saguenay, having in mind that clause of the charter providing that the Maret should be delivered to a safe port north of Cape Hatteras. He was instructed by Amtorg to disregard the provisions of the charter. Hall then cabled for instructions to certain individuals whom he considered to be the managers of the Maret and received contradictory directions from certain of them.9 He then decided to take the Maret to Murmansk and requested advances from Amtorg to pay his crew and himself and to buy supplies, including bunkers for a "six thousand mile" voyage. The nature and dates of these advances will be discussed at a later point in this opinion.
[1, 2] On August 5, 1940, the Honorable Johannes Kaiv, acting Estonian Consul General at New York City, directed Hall to disregard any instructions to take the Maret to Murmansk. Since Hall was uncooperative, on August 13, 1940, Mr. Kaiv, acting purportedly pursuant to the authority of Article XXII of the Treaty between the United States and Estonia signed on December 23, 1925, 44 Stat. 2387,10 and Paragraph 84 of the Estonian Consular Law,11 sent him a cable dismissing him as master of the Maret. On September 17, 1940 the Consul General ap-pointed Captain Leopold Truberg, an Estonian citizen and apparently one of the beneficial owners of the Maret, as her captain. Hall, however, refused to relinquish his command to Truberg and Truberg never took command of the ship.
At various times during the dispute as to ownership and control of the Maret, powers of attorney were executed by individuals who were among the beneficial owners of the Maret. In certain of these powers of attorney Mr. Kaiv as Consul General or a representative to be appointed by him were named as attorney-in-fact to take such acts as should be necessary to preserve the private property interests in the Maret. Other individuals who also were beneficial owners of the Maret, but who were resident in Estonia, executed powers of attorney making Mr. Charles Recht, one of the proctors for Amtorg in the case at bar, their attorney-in-fact. Some of the latter powers were revoked by subsequent instruments executed before the United States Consul at Helsinki.12 We think that it is sufficiently clear from the record that Mr. Kaiv represented and does now represent several individuals who, absent the requisition of the Maret by the United States Maritime Commission, hereinafter referred to, would have beneficial interests in the Maret and who presently have an interest in preserving the fund in the hands of the Treasurer of the United States.
On August 3, 1940, Sovfracht cabled Amtorg in New York naming about eighteen "Estonian Latvian" ships, described as being "chartered on time charter . . . at present in American and Canadian port waters",13 and directed Amtorg to follow the movement of the ships, to get in touch with the captain of each and, if necessary, to arrange to have an agent supply bunkers and provisionsfor them. Sovfracht also directed Amtorg to telegraph or cable information concerning the status of each steamship.
On the back of Exhibit 18, a cablegram dated August 2, 1940, from Amtorg to the Maret, appears a message written in pencil which was sent apparently by Saguenay to some undisclosed person, perhaps Winchester or West Indian Company, Ltd. (hereinafter referred to as "West Indian"), the latter apparently being an agent for the Maret at St. Thomas, requesting that instructions be given to the Maret to proceed to Norfolk, Virginia, in ballast in order that the ship might be delivered in accordance with the terms of her charter to Saguenay. This message ends with the sentence, "Captain replenish bunkers sufficient reach Norfolk with safe margin telegraph acknowledgement and sailing." On the seventh of August Amtorg cabled the Maret, "Tallinn transferred you 6,000 dollars take necessary bunkers and proceed to Murmansk direct."14 It appears from the record that Captain Hall did not receive this money. On August 8, 1940, a cable signed "Amtorg Vassiliev" was sent to Sovfracht at Moscow quoting a cable sent by Hall to Amtorg, stating that he needed 750 tons of coal and provisions which would cost $11,000 to enable the Maret to proceed to Murmansk.15 On August 12, 1940, Amtorg cable to Hall, "Sovfracht transferring $11,000 to Winchester wire when sailing Murmansk."16 It appears that Sovfracht did not transfer this money to Winchester, but that funds were received later as indicated in the following paragraph. On August 19, 1940, Sovfracht cabled Amtorg, "Maret money being transmitted by Tallinn."17
On August 27, 1940, Amtorg transferred by cable to Hall as master of the Maret $3,000 for "crew's wages".18On September 9, 1940, Amtorg cabled to West Indian $11,-000 following further requests by Hall for funds.19
Claimant's Exhibit No. 9 is a bill of West Indian totaling $11,342.77, dated September 13, 1940. It includes a charge of $7,545.91 for 849 tons of coal, shipchandler's charges of $1,339,73, a charge of cash delivered to Captain Hall of $1,500, and other smaller charges for water, pilotage, medical attention, and similar items. Johannes Rasmussen, an accountant for West Indian, testified that no coal was put on board the Maret until West Indian had received the cabled draft from Amtorg referred to. He subsequently modified this statement by saying that 199 tons of coal were put on board the Maret on July 30, 1940, and 650 tons on September 12, 1940.20 The evidence as to the date of payment by West Indian of the Maret's ship-chandler's bill cannot be definitely settled from the present record,21 nor is it clear when the other disbursements included in West Indian's bill were made by that company on behalf of the Maret.22 It also appears that Mr. CharlesRecht gave Mr. Julius Niin, the first officer of the Maret, the sum of $30023 while on a trip to St. Thomas. This payment was made about March 26, 1941.
In the latter part of 194024 Captain Truberg filed25 a possessory libel against the Maret in the District Court of the Virgin Islands at "Civil No. 29 - 1940." Amtorg intervened in this suit. Because of a joint petition by the parties to the court for a general continuance, this case was not decided and...
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