McGahern v. Koppers Coal Co.
| Decision Date | 05 January 1940 |
| Docket Number | No. 7116.,7116. |
| Citation | 108 F.2d 652 |
| Parties | McGAHERN v. KOPPERS COAL CO. et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Milton M. Borowsky, of Philadelphia, Pa., for appellant.
Edwin Longcope and Krusen, Evans & Shaw, all of Philadelphia, Pa., for appellees.
Before MARIS, CLARK, and JONES, Circuit Judges.
The sole question involved in the present appeal is this: In an admiralty suit in personam brought in a district in which the respondent is not found, may a vessel in the possession of the respondent as charterer be attached under a clause of foreign attachment included in the libel under Admiralty Rule 2? That rule (28 U.S.C.A. following section 723) which was prescribed by the Supreme Court pursuant to Sec. 913, Rev.Stat. (28 U.S.C. § 723, 28 U.S. C.A. § 723), following ancient practice in the admiralty provides that the libel may contain "a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the district."
In the case before us the writ of attachment commanded the marshal to attach the steamship "Melrose" and not merely the interest of respondent Mystic Steamship Company as bailee therein. We, therefore, need not consider whether a charterer's interest in a vessel under a bare boat charter is subject to attachment under the rule in a suit in personam.
It is settled that the "goods and chattels or credits and effects" which may be attached under the rule include a vessel. The Alpena, D.C., 7 F. 361; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265. The question remains whether a vessel in the possession of a charterer is "his" chattel within the meaning of Admiralty Rule 2 and, therefore, subject to attachment in a suit brought against him. The libellant argues that such a charterer is owner of the vessel pro hac vice; consequently, he says, the vessel must be treated as the charterer's property for the purpose of the rule.
It is true that under a demise charter the charterer is for many purposes treated as owner pro hac vice. "A special property, carrying with it the entire possession and control, and leaving in the general owner only an interest in the nature of a reversion, may be created in a vessel as well as in any other chattel." Webb v. Peirce, Fed.Cas.No.17,320, 1 Curt. 104. Under these circumstances the charterer becomes subject to certain duties and responsibilities of ownership for the time being. It does not follow, however, that he is to be deemed the owner in the sense that the vessel may be treated as his property and taken in execution to satisfy a judgment...
To continue reading
Request your trial
-
Brown v. CD Mallory & Co.
...a particular district but could be invoked by reason of the presence of property of the respondent within the district. McGahern v. Koppers Coal Co., 3 Cir., 108 F.2d 652; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; Rosasco v. Thompson, D.C., 242 F. Are the sub......
-
Swift Co Packers v. Compania Colombiana Del Caribe 14 8212 15, 1949
...only the respondent's property may be attached. E.g., Cushing v. Laird, 107 U.S. 69, 2 S.Ct. 196, 27 L.Ed. 391; cf. McGahern V. Koppers Coal Co., 3 Cir., 108 F.2d 652; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265. Inevitably such disputes may involve transactions......
-
Gill v. United States, 221
...have been attached had it been owned privately. Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; McGahern v. Koppers, 3 Cir., 108 F.2d 652. We think this follows from the provisions of the Suits in Admiralty Act, supra, 46 U.S.C.A. § 741 et seq. giving a remedy equi......
-
Malin Int'l Ship Repair & Drydock, Inc. v. Oceanografia, S.A. DE C.V.
...at 491–92 (quoting Hall, Clerke's Praxis part 2, tit. 28) (emphasis added).10 31 F.2d 265, 267 (2d. Cir.1929).11 Id. at 266–67.12 108 F.2d 652 (3d Cir.1940).13 Id. at 653.14 Id.15 Id.16 56 Fed.Appx. 594 (4th Cir.2003) (unpublished).17 Id. at 597.18 Id.19 Id. at 598.20 Id. at 598–99.21 Id. a......