Susquehanna SS Co. v. AO Anderson & Co.

• Decision Date: 15 June 1925
• Docket Number: No. 1959.,1959.
• Citation: 6 F.2d 858
• Parties: SUSQUEHANNA S. S. CO., Inc., v. A. O. ANDERSON & CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

6 F.2d 858 (1925)

SUSQUEHANNA S. S. CO., Inc., v. A. O. ANDERSON & CO., Inc.

No. 1959.

Circuit Court of Appeals, Fourth Circuit.

June 15, 1925.

Charles R. Hickox, of New York City (Hughes, Little & Seawell, of Norfolk, Va., Cass & Apfel, of New York City, Henry H. Little, of Norfolk, Va., and Alvin C. Cass, of New York City, on the brief), for appellant.

H. S. Hertwig, of New York City, and Edward R. Baird, Jr., of Norfolk, Va. (Duncan & Mount, of New York City, Baird, White & Lanning, of Norfolk, Va., and John A. McManus, of New York City, on the brief), for appellee.

Before WOODS and ROSE, Circuit Judges, and MEEKINS, District Judge.

ROSE, Circuit Judge.

The appellee here, A. O. Anderson & Co., Inc., was libelant below, and the Susquehanna Steamship Company, Inc., the appellant, was respondent. They will be referred to by the positions they occupied in the lower court.

By means of a libel in personam with a clause of foreign attachment, the libelant, a New York corporation, sought to recover from the respondent charter hire or charter freight for the steamship Lydia, under a charter dated December 29, 1919. By that instrument, respondent promised to pay to the libelant the hire, in United States gold coin, or its equivalent, in New York, ten days after the receipt of master's cable advice that the vessel was loaded and that bills of lading had been signed. It is admitted that the charter party was made; that, in accordance with its terms, the Lydia was put at the service of the respondent; that the charter hire or freight amounting to $147,867.45 became due and payable on February 26, 1920, and was not paid to the libelant. In the court below, a decree in favor of the libelant and against the respondent was duly entered for that amount, with interest.

It appears that at and before the making of the charter there were two legally distinct corporations — the respondent and the Lydia Steamship Company, Inc. — both of which were, however, solely owned and altogether controlled by the same two individuals. In September, 1919, the Lydia Steamship Company had made a six months' time charter of its ship to one Crotois, who was to pay nearly $60,000 a month for it. In November he defaulted, and the Lydia Steamship Company had its ship back on its hands. It claimed, and the libelant denied, that the latter had guaranteed the undertakings of Crotois, and was therefore bound to pay the charter hire which he had promised but had not paid. In a mutual effort to minimize the loss, it was agreed that without prejudice to the contentions of either the Lydia Steamship Company or the libelant, the ship should for the remainder of the six months, beginning September 27, 1919, be delivered to the libelants who were to have the right to handle her and trade her for the benefit of whom it might concern, in any way that would, according to the libelant's judgment, work to the best advantage. It was under the authority thus given that libelant made the charter here in suit.

The respondent asserts that the Lydia Steamship Company has assigned to it its claims against the assignee and that these greatly exceed the amount of the charter freight it, the respondent, promised to pay the libelant. In a full and satisfactory opinion (275 F. 989), the learned court below held that the admiralty had no jurisdiction to consider this defense, based as it was upon a set-off, recoupment, or counterclaim, not depending upon or arising out of a maritime undertaking which was the subject-matter of the libel. It cited, in support of this view, Willard v. Dorr, Fed. Cas. No. 17,680; O'Brien v. 1,614 Bags of Guano (D. C.) 48 F. 726, 729, 730; Emery Co. v. Tweedie Trading Co. (D. C.) 143 F. 145; Benedict's Admiralty (4th Ed.) § 392; Hughes' Admiralty (2d Ed.) § 200; Bowker v. U. S., 186 U. S. 136, 22 S. Ct. 802, 46 L. Ed. 1090; Howard v. 9,889 Bags of Malt (D. C.) 255 F. 917, 918; United Transp. & L. Co. v. N....