Pool Shipping Co. v. United States

• Decision Date: 10 June 1929
• Docket Number: No. 296.,296.
• Citation: 33 F.2d 275
• Parties: POOL SHIPPING CO., Limited, v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

33 F.2d 275 (1929)

POOL SHIPPING CO., Limited, v. UNITED STATES.

No. 296.

Circuit Court of Appeals, Second Circuit.

June 10, 1929.

Charles H. Tuttle, U. S. Atty., of New York City (Horace M. Gray, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Charles C. Burlingham and A. Howard Neely, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The liability of the respondent for the collision of its Coast Guard cutter Apache with the Clearpool was determined in our former decision on an appeal from the interlocutory decree in this cause. Pool Shipping Co. v. United States (C. C. A.) 18 F.(2d) 1020. On mandate a commissioner was appointed to report the damages suffered by libelant, exceptions to the report were overruled, and the report was confirmed. It is conceded by the libelant that interest should not have been allowed, in view of the recent decisions of the Supreme Court in Boston Sand & Gravel Co. v. United States, 278 U. S. 41, 49 S. Ct. 52, 73 L. Ed. ___, and United States v. Commonwealth, 278 U. S. 427, 49 S. Ct. 183, 73 L. Ed. ___.

The errors assigned on this appeal all relate to the damages allowed by the court below. The questions which remain for consideration are:

(1) Whether libelant, as bailee, is entitled to recover for damages sustained by the owners of the cargo.

(2) Whether libelant's damages should not be reduced by the contribution in general average made by the cargo to the hull.

(3) Whether the libelant's damages should not be reduced by the amount expended for wages and provisions of crew.

This suit could only be brought by authority of the special act of Congress known as Private Act No. 129, 67th Congress (42 Stat. 1714), which provided as follows:

"That the claim of the Pool Shipping Company, Limited, owner of the British steamship Clearpool, against the United States for damages alleged to have been caused by collision between the said steamship and the United States Coast Guard cutter Apache in Chesapeake Bay, on the 13th day of November, 1914, may be sued for by the said Pool Shipping Company, Limited, in the District Court of the United States for the Southern District of New York, sitting as a court of admiralty and acting under the rules governing such court, and said court shall have jurisdiction to hear and determine such suit and to enter a judgment or decree for the amount of such damages and costs, if any, as shall be found to be due against the United States in favor of the Pool Shipping Company, Limited, or against the Pool Shipping Company, Limited, in favor of the United States, upon the same principles and measures of liability as in like cases in admiralty between private parties and with the same rights of appeal. * * *"

Respondent contends that the words, "the claim of the Pool Shipping Company, owner of the * * * Clearpool against the United States for damages caused by collision," which "may be sued for" under the act, mean only the individual claim of that company and do not include any cause of action which libelant may have as bailee of the cargo. If this is so, it may be argued that the grant was not enlarged by the succeeding provision of the act that:

"The District Court, * * * sitting as a court of admiralty and acting under the rules governing such court, * * * shall have jurisdiction to hear and determine such suit and to enter a judgment or decree for the amount of such damages and costs, if any, as shall be found to be due against the United States * * * upon the same principles and measures of liability as in like cases in admiralty between private parties. * * *"

Yet the remedy is given in admiralty "upon the same principles * * * as in like cases in admiralty between private parties," and in admiralty an action by a carrier as bailee to recover against a tort-feasor for damage to cargo is extremely common. The Beaconsfield, 158 U. S. 303, 15 S. Ct. 860, 39 L. Ed. 993; Mercantile Bank v. Flower Lighterage Co. (C. C. A.) 10 F.(2d) 705; National Surety Co. v. United States (C. C. A.) 129 F. 70; The Winkfield, 1902 P. D. 42. While a bailee in possession had at common law a remedy in trespass even before the days when the bailor was permitted to sue (Holmes on the Common Law, p. 116 et seq.), yet a suit by a bailee has long been a matter of such frequent occurrence in admiralty as to have become a marked characteristic and an almost daily practice of that branch of the law.

In such circumstances it seems an illiberal interpretation of the act to say that the words "claim of the Pool Shipping Company," which in terms do not limit the recovery to damages to the vessel and property of that company, are not sufficiently broad to cover the claim which a shipowner is accustomed to assert on behalf of the cargo. The case is different from one where A is simply empowered by special act to sue for damages to his property and should attempt as trustee under a will to recover damages arising from the same casualty. Here the court is given jurisdiction to enter a decree for the amount of such damages as shall be found to be due against the United States, "upon the same principles * * * as in like cases in admiralty between private partie...