Pillsbury Flour Mills Co. v. Interlake SS Co., 259.

• Decision Date: 07 April 1930
• Docket Number: No. 259.,259.
• Citation: 40 F.2d 439
• Parties: PILLSBURY FLOUR MILLS CO. v. INTERLAKE S. S. CO.
• Court: U.S. Court of Appeals — Second Circuit

40 F.2d 439 (1930)

PILLSBURY FLOUR MILLS CO. v. INTERLAKE S. S. CO.

No. 259.

Circuit Court of Appeals, Second Circuit.

April 7, 1930.

Bigham, Englar, Jones & Houston, of New York City, and Brown, Ely & Richards, of Buffalo, N. Y. (Henry N. Longley, of New York City, Lawrence E. Coffey, of Buffalo, N. Y., and Ezra G. Benedict Fox, of New York City, of counsel), for appellant.

Dustin, McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, and Burke & Desmond, of Buffalo, N. Y. (Thomas C. Burke, of Buffalo, N. Y., and Carl A. Schipfer, of Cleveland, Ohio, of counsel), for appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Appellant shipped a cargo of grain in good order and condition from Milwaukee, Wis., to Buffalo, N. Y., on appellee's steamer. In consideration of the freight paid, it was to be transported and delivered in as good condition as when shipped. The bills of lading provided for carriage and for "winter storage." The steamer sailed on November 5, 1927, and arrived at Buffalo on November 9, 1927, and anchored in the outer harbor under the breakwater, there to store her cargo of wheat for the winter months. The consignees were notified on November 9, 1927, that there was no report of damage to the cargo. The steamer was still in the Buffalo outer harbor April 7, 1928, and was towed to the elevator at Buffalo, and the cargo discharged in a damaged condition. Below it was held the suit was ex contractu in sustaining the exceptions filed to the libel and that the admiralty court was without jurisdiction.

The libel relies upon appellee's breach of contract to carry, store, and deliver the wheat in like good order and condition as when received. It charges a breach of a maritime contract. Dittmar v. Fred. Starr Contracting Co. (C. C. A.) 249 F. 437; Supreme Court Admiralty Rule 22. Each bill of lading provides: "Order of Pillsbury Flour Mills Company, Buffalo, N. Y.; For Winter Storage: Care of Island Warehouse Corporation, Buffalo, N. Y." And the court below held that the cargo was not to be delivered to the consignees in pursuance of the contract of carriage, but upon the completion of the voyage was to be held by the carrier as warehouseman only; that the maritime service of carriage had been performed, the liability as carrier ceased, and that of warehouseman commenced.

The appellant argues that the contract is maritime and the subject of admiralty jurisdiction. A contract to be "`wholly maritime,' means that the principal subject-matter of agreement gives character to the whole." The Ada (C. C. A.) 250 F. 194, 198. In cases of contract, admiralty jurisdiction will attach if it has reference to a maritime service or maritime transaction. Insurance Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90; The Moses Taylor, 4 Wall. 411, 18 L. Ed. 397. In The Poznan, 9 F.(2d) 838, this court considered maritime liens in connection with wharfage charges. After reviewing the cases, we concluded that contract rights are maritime and within the admiralty jurisdiction when they relate to the ship as an instrument of commerce, and pointed out that a contract for the wharfage of a ship withdrawn from commerce is not maritime and will not support a maritime lien. In The Ada, 250 F. 194, 195, this court said:

"Evidently the whole controversy could have been disposed of in an action at law, but the jurisdiction of a court of admiralty is confined to maritime subjects. It cannot, having obtained jurisdiction, dispose of non-maritime subjects, for the purpose of doing complete justice, after the manner of courts of equity, nor can it distribute funds in its possession, as do courts of equity and bankruptcy, among all creditors, preferred and general. Its power to dispose of the proceeds of a vessel, though it extends to the payment of nonmaritime liens, after maritime liens have been satisfied, does not extend to claims in personam or of general creditors, except so far as to pay over any surplus to the owner."

In The Richard Winslow (C. C. A.) 71 F. 426, 428, a contract was made near the close of the season of navigation on the Great Lakes, for the shipment of a cargo of grain from Chicago to Buffalo, the grain to be stored in the vessel at Buffalo until the following Spring. The vessel proceeded on her voyage, arrived safely at the port of Buffalo in November, 1893. When her hatches were opened and her cargo examined, it was found to be in as good order and condition as at the time of shipment. The hatches were then put on and covered with tarred paper and canvas covers. The schooner was moored at the place designated by the shippers or their agents in the harbor. While thus stored in the ship, the cargo was damaged. The libel sought recovery for the loss, and the Circuit Court of Appeals for the Seventh Circuit held that the contract was not within the cognizance of admiralty, and that the liability of the owners at the time of the injury was that of warehousemen. The court said:

"Unquestionably there was here a contract for carriage by sea, and that contract was maritime in its nature. But there was joined with it a contract with respect to the cargo after the completion of the voyage that was in no respect maritime in its nature. If as Judge, now Mr. Justice, Brown observes in The Pulaski D. C. 33 F. 383, the storage were a mere incident to the transportation, the entire contract would be held to be maritime, and within the admiralty jurisdiction. But here the contract for holding the corn in storage did not concern navigation. It could not take effect until after completion of the voyage, and had no relation to further transportation of the cargo by the vessel. It was to be performed at a time when the vessel was not engaged in commerce or navigation, or in preparation therefor. It was merely a contract for winter storage, and was no more maritime in its nature than the nonmaritime contracts for winter wharfage. * * * The reason is that such service does not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation."

These bills of lading...