Iran Express Lines v. Sumatrop

• Decision Date: 05 October 1977
• Docket Number: No. 76-2290,76-2290
• Citation: 563 F.2d 648
• Parties: IRAN EXPRESS LINES, Appellant, v. SUMATROP, AG, a Foreign Corporation, Central Soya, International and Central Soya Co., Inc., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 648

563 F.2d 648

IRAN EXPRESS LINES, Appellant, v. SUMATROP, AG, a Foreign Corporation, Central Soya, International and Central Soya Co., Inc., Appellees.

No. 76-2290.

United States Court of Appeals, Fourth Circuit.

Argued April 5, 1977.

Decided Oct. 5, 1977.

Francis J. Gorman, Baltimore, Md. (James W. Bartlett, III, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant.

Robert H. Williams, Jr., Baltimore, Md. (Niles, Barton & Wilmer, Baltimore, Md., on brief), for Sumatrop, AG.

Edward S. Digges, Jr., Baltimore, Md. (Paul V. Niemeyer and Francis B. Burch, Jr., Baltimore, Md., on brief), for Central Soya Co., Inc. and Central Soya International.

Before WINTER, BUTZNER and HALL, Circuit Judges.

BUTZNER, Circuit Judge:

The principal question raised by this appeal is whether freight for a partial shipment of cargo which had been loaded aboard a vessel is subject to maritime garnishment. The district court held that it was not because the affreightment contract was executory. We believe that the contract was sufficiently executed to sustain the garnishment, and consequently, we reverse.

Iran Express Lines filed this suit in admiralty against Sumatrop AG a foreign corporation, for damages resulting from the alleged breach of a time charter. To provide security for a favorable arbitration award, which Iran Express anticipated, the complaint requested the issuance of a maritime garnishment against Central Soya International and Central Soya Company of all freights and effects of Sumatrop in their hands. Iran Express also asked for a stay of the trial against Sumatrop pending arbitration. ¹ The district court properly granted the stay, and consequently, the only issue on this appeal is the validity of the garnishment.

I.

Sumatrop had agreed with Soya to carry 10,000 tons of soybean meal from Baltimore, Maryland, to several European ports for freight of $100,000. Loading of a vessel operated by Sumatrop commenced in Baltimore on April 30, 1975, but it stopped at midnight because of a strike by grain elevator employees after only 3,456 tons had been loaded.

The record shows that on April 30 and May 9, Iran Express caused writs of garnishment to be served on Soya to attach freight for the soybean meal that had been loaded. Sumatrop entered a general appearance at 1:20 p.m. on May 12, 1975, and at 2:13 p.m. on the same day, Soya answered that the freight was not payable because the bills of lading had not yet been surrendered.

The evidence discloses that Soya and Sumatrop agreed on a freight of $35,000 for the partial shipment of the cargo which had been loaded on April 30. Bills of lading dated April 30, 1975, were signed and surrendered to Soya sometime after 2:00 p.m. on May 12, 1975. Soya, assured of indemnification, then paid the $35,000 freight to Sumatrop, and the partially loaded vessel left Baltimore on May 13, 1975.

Contending that Soya owed the freight to Sumatrop when the writs of garnishment were served, Iran Express sought an order requiring Soya to deposit $35,000 in the registry of the district court. The court denied the motion. It reasoned that contingencies arising from the strike could have excused Soya's performance of the voyage charter for the shipment of the soybean meal. It therefore ruled that the contract was executory and that the freight could not be garnisheed before Sumatrop entered its general appearance. It also ruled that Sumatrop's general appearance, though obviously timed to precede the delivery of the bills of lading, nullified the garnishment writs, and therefore the freight could not subsequently be garnisheed. ²

II.

The grain voyage charter executed by Sumatrop and Soya provided in part:

Freight is to be fully Prepaid in United States Currency to Morgan Guaranty Trust . . . New York . . . for immediate cable transfer to Den Danske Landmandsbank . . . Copenhagen . . . Credit Sumatrop, Ltd., upon surrender of signed Bills of Lading and to be deemed earned on cargo as loaded on board, discountless and non-returnable, vessel and/or cargo lost or not lost.

The district court properly held that the "deemed earned" clause dealt with the risk of loss and did not fix the time at which the freight became due. It also properly ruled that the freight became due and payable on surrender of the signed bills of lading. Cf. Schirmer Stevedoring Co. v. Seaboard Stevedoring Corp., 306 F.2d 188, 191-92 (9th Cir.1962).

However, the time at which the freight became due and payable according to the terms of the charter party does not determine the validity of the garnishment, because maturity of the debt is not a prerequisite for garnishment. See Robinson v. Shearer & Sons, Inc., 429 F.2d 83, 85 (3d Cir.1970). An unmatured debt may be garnisheed provided it arises from an executed contract. See Schirmer Stevedoring Co. v. Seaboard Stevedoring Corp., 306 F.2d 188, 193 (9th Cir.1962); 7A Moore's Federal Practice P B.04, at B-160 to B-161 (2d ed.1976).

Therefore, the critical question is this: When did the contract for affreightment become executed? The answer can be determined by examining the authorities dealing with a ship's lien on the cargo for freight. Maritime law affords a ship such a lien unless it is displaced by an inconsistent provision in the charter party. The Eddy, 72 U.S. (5 Wall.) 481, 493-94, 18 L.Ed. 486 (1866). The existence of this lien depends on an executed contract of affreightment; the ship cannot assert a lien for the breach of an executory contract. Execution of the affreightment contract occurs when the cargo is delivered to the ship. Bulkley v. Naumkeag Steam Cotton Co., 65 U.S. (24 How.) 386, 393-94, 16 L.Ed. 599 (1860); G. Gilmore & C. Black, The Law of Admiralty § 9-22 at 637 (2d ed.1975). If the contract is only partially performed, the lien attaches to the extent that the cargo has been delivered. See Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 43 S.Ct. 172, 67 L.Ed. 364 (1923); G. Gilmore & C. Black, The Law of Admiralty § 9-23 at 639 (2d ed.1975); 1 Benedict, Admiralty § 185 at 11-16 (7th ed.1974).

These principles of maritime law and the undisputed facts establish that as of May 9, when the second writ of garnishment was served, the contract of affreightment had been partially executed, and the vessel had a lien on the 3,456 tons of meal that had been loaded. We therefore conclude that since the contract was partially executed, the writ effectively garnisheed the freight on the loaded cargo. The partial execution of the contract was sufficient to sustain the garnishment even though the bills of lading had not yet been delivered and the debt was unmatured. Cf. San Rafael Compania Naviera v. American Smelting & Refining Co., 327 F.2d 581 (9th Cir.1964) (writ served June 5 validly attached freight payable June 11); see 7A Moore's Federal Practice P B.05...