THE ANDREE

• Decision Date: 02 March 1931
• Docket Number: No. 157.,157.
• Parties: THE ANDREE. THE ALEXANDER. ARMOUR & CO. et al. v. GREEN STAR S. S. CO., Limited.
• Court: U.S. Court of Appeals — Second Circuit

47 F.2d 874 (1931)

THE ANDREE THE ALEXANDER ARMOUR & CO. et al. v. GREEN STAR S. S. CO., Limited.

No. 157.

Circuit Court of Appeals, Second Circuit.

March 2, 1931.

Bigham, Englar, Jones & Houston, of New York City (D. Roger Englar and Leonard J. Matteson, both of New York City, of counsel), for appellants.

Barry, Wainwright, Thacher & Symmers, of New York City (John C. Crawley, of New York City, of counsel), for appellee.

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

MANTON, Circuit Judge.

The appellants seek to participate in the distribution of collision damages obtained by the steamship Andree from the steamship Alexander by reason of a collision occurring in the Delaware river near Philadelphia. The Andree, laden with cargo, was sunk by the Alexander on May 22, 1922. A suit was brought against the Alexander, but it was settled by an agreement to pay 90 per cent. of the libelants' provable damages resulting from the collision. An interlocutory decree was entered accordingly.

A dispute arose between certain cargo interests and the vessel owners as to the distribution of the recovery. Appellants filed their petition asking $30,000. The moneys were paid to the master of the Andree upon his filing a stipulation for value in that sum to abide any decree of the court with respect to the sum in dispute. After issue was joined on this petition and a trial had, the facts being stipulated, a decree was entered dismissing the petition. This appeal was then prosecuted.

The appellants' claim to an interest in the collision damages arises because of the loss sustained to their cargo loaded on the Andree while she was at New York City and before proceeding to load more cargo at Philadelphia. Her intended destination was Marseilles, North Africa, and Spanish ports. While the loading was proceeding at New York City, a serious fire occurred. It was extinguished, but sacrifices were made of the vessel and cargo. General average claims resulted. Appellants' cargo suffered water damage in an effort to extinguish the fire. The amount allowed by adjusters to the petitioners for the sacrifice to their cargo amounted to $70,000. The sound value of the Andree was fixed for general average purposes at $193,400. A deduction of $20,485 for fire and water damage was allowed, and, after adding the amount made good to the vessel in connection with the fire general average, gives a contributory value for the purpose of general average existing when sailing from New York of $175,000. The value of the cargo reshipped at New York after the fire was $194,000. If the voyage had been successfully completed, the appellants would have been entitled to a contribution in general average from the shipowners of approximately $27,000.

While thus proceeding to Philadelphia with appellants' lien attaching to the vessel, she came into collision with the Alexander and sunk. Both ship and cargo suffered seriously. The vessel was raised with cargo and taken to Philadelphia, where the voyage was abandoned. The sacrifices and expenditures of a general average nature made in raising the vessel and cargo were much in excess of the value of all the properties saved. An adjustment of these made by an experienced adjuster of general average determined that there was no contributory value of the steamship Andree at Philadelphia, and consequently no allowance was made to the appellants in respect to sacrifices of their cargo in extinguishing the fire in New York.

The owners of the Andree claimed the full value allowed for the Andree as she was before the collision for which payment had been made by the owners of the Alexander. They have refused to grant appellants the right to share in the fund recovered. Below it was held that, since the maritime lien on the vessel, which it was conceded appellants had at the sinking, depended upon the value of the res when the lien came to be foreclosed, and since the res had no value at the conclusion of the voyage, it followed that the lien was also valueless under general average rules which were embodied in the contract of carriage. But appellants' claim to a recovery does not involve a question of general average. They seek to enforce a maritime lien against the funds which had been substituted for the property to which the lien originally attached. They say that, while it is true the lien originally arose out of general average, their rights in the proceeds should not depend on the circumstances out of which their lien arose. The libel against the Alexander by the appellee was for the full amount of the cargo loss and the physical damage to the vessel. The recovery was for 90 per cent. thereof. Thus substantially full restitution was made to the owners of the Andree for the vessel valued before the collision. In this sum was included the lien of the appellant which attached to the ship. In equity and good conscience this lien should be paid. If the Andree had made the voyage, at the end thereof, it would have had to pay the lien; and, having obtained substantially the full value of the vessel to which the lien attached, may the owners retain that sum without paying the lien? We think not. The recovery obtained has been fixed according to the rule of restitution in integrum, a rule adopted by the admiralty courts. Standard Oil Co. v. So. Pac. Co., 268 U. S. 146, 45 S. Ct. 465, 69 L. Ed. 890; The Baltimore, 8 Wall. 377, 19 L. Ed. 463; United States v. Boston Sand & Gravel Co., 23 F.(2d) 839 (C. C. A. 1). The call of natural justice or implied contract which admiralty courts do not hesitate to answer (Ralli v. Troop, 157 U. S. 386, 15 S. Ct. 657, 39 L. Ed. 742; Ralli v. Societa Anonima, 222 F. 994 D. C. S. D. N. Y.; Burton & Co. v. English & Co., 49 L. T. Rep. 768, 5 Asp. Cas. 187, 12 Q. D. 218), dictates that appellee should pay this lien. That appellants had such a lien for their sacrifices is clear. Dupont de Nemours v. Vance, 19 How. 162, 15 L. Ed. 584; Ralli v. Troop, 157 U. S. 386, 15 S. Ct. 657, 39 L. Ed. 742; Cutler v. Rae, 7 How. 729, 8 How. 615, Appx. 12 L. Ed. 890; The Dora, 34 F. 343 (D. C. E. D. La.). Such a maritime lien is a jus in re, a property interest in the property affected, adhering to it wherever it may go. The John G. Stevens, 170 U. S. 113, 18 S. Ct. 544, 42 L. Ed. 969; The J. E. Rumbell, 148 U. S. 1, 13 S. Ct. 498, 37 L. Ed. 345; The Kalfarli, 277 F. 391 (C. C. A. 2); The Theodore Roosevelt, 291 F. 453 (D. C. N. D. Ohio). Assuming the lien to have existed at the collision, we need not inquire whether the appellants are entitled to have the damages paid substituted for the property lost in the general average adjustment. For the purpose of these appellants, we need not so hold. In many of the cases there are statements to the effect that damages stand "as a direct product and representative of the ship," but this means that they so stand for the purposes of compensating those injured. A right of action, or recovery thereon, for the value of the owner's interest in a vessel, stands in the same position as, and as a substitute for, the vessel, and maritime lienors, having a proprietory interest in the vessel, have an identical interest in the collision recovery. O'Brien v. Miller, 168 U. S. 287, 18 S. Ct. 140, 42 L. Ed. 469; Sheppard v. Taylor, 5 Pet. 675, 8 L. Ed. 269; In re United States Steel Products Co., 24 F.(2d) 657 (C. C. A. 2).

In Sheppard v. Taylor, supra, a vessel was seized, condemned, and sold by authorities...