Oberfest v. Cargo Ships and Tankers, Inc.

• Decision Date: 06 September 1967
• Docket Number: Civ. A. No. 6123.
• Citation: 272 F. Supp. 567
• Parties: Samuel OBERFEST, Plaintiff, v. CARGO SHIPS AND TANKERS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

272 F. Supp. 567

Samuel OBERFEST, Plaintiff, v. CARGO SHIPS AND TANKERS, INC., Defendant.

Civ. A. No. 6123.

United States District Court E. D. Virginia, Norfolk Division.

September 6, 1967.

Charles F. Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., for plaintiff.

Virgil S. Gore, Jr., Seawell, McCoy, Winston & Dalton, Norfolk, Va., for defendant.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

The primary issue in this case is whether a complaint, seeking the recovery by an assignee of brokerage commissions under a contract providing for the conversion of certain vessels and further providing for the payment of brokerage commissions, is cognizable in admiralty. Under a clause of foreign attachment, one of the defendant's vessels was arrested, a claim was filed by the master, and presumably a bond or letter of undertaking was furnished.

The facts are not in dispute. On August 2, 1961, a contract was entered into between Progressive Steamship and Sociedad Espanola de Construccion (hereinafter referred to as "Contractor") wherein the contractor agreed to convert from tankers to bulk carriers, not exceeding four in number, in accordance with the terms and conditions of the contract. Included in the contract is clause 17 as follows:

"17. Brokerage Commission

The contractor will pay Cargo Ships and Tankers, Inc., 17 Battery Place, New York 4, N. Y., U.S.A., at 2½% (two and one-half) commission on the total conversion price".

On August 9, 1961, the defendant agreed to equally divide this brokerage commission with American Bulk Carriers, Inc.; reference being made to the pertinent clause of the main contract.

On August 16, 1961, American Bulk Carriers, Inc., assigned to the plaintiff its interest in the brokerage commission which the defendant had contracted to divide equally with American Bulk Carriers, Inc.

The total commission paid to the defendant was $29,275.00. Plaintiff seeks to recover one-half of said sum.

While the original contract for the conversion is maritime in nature,¹ over which admiralty should take jurisdiction, Wall Street Traders, Inc. v. Sociedad Espanola de Construccion Naval, 245 F.Supp. 344 (S.D.N.Y., 1964), we do not agree that independent clauses under such contract giving rise to a cause of action are necessarily maritime for the purpose of invoking admiralty jurisdiction. As Judge Addison Brown, a leading figure in the field of admiralty, said in The Thames, 10 F. 848:

"If the broker of a charter party be admitted to admiralty jurisdiction, the insurance broker must follow,—the drayman, the expressman, and all others having reference to a voyage, either in contemplation or executed".

For the same effect are P. D. Marchessini & Co. (N.Y.) v. Pacific Marine Corp., 227 F.Supp. 17 (S.D.N.Y., 1964); D. C. Andrews & Company v. United States, 124 F.Supp. 362, 129 Ct.Cl. 574 (1954); and Taylor v. Weir, 110 F. 1005 (D.C. Ore., 1901). While it is true that the object of the contract was maritime, it is necessary to examine the nature and subject matter of that portion of the contract which gives rise to this litigation. The brokerage services are in no way connected with the conversion. Cory Bros. & Co. v. United States, 51 F.2d 1010 (2 Cir., 1931). The leading case of American Stevedores v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011 (1947), is not to the contrary. That involved an indemnity provision of a stevedoring contract which is plainly maritime. See also: The Richard Winslow, 2 Cir., 71 F. 426, and Pillsbury Flour Mills Co. v. Interlake S.S. Co., 2 Cir., 40 F.2d 439, both cited in Porello.

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