The Astoria

• Decision Date: 30 June 1922
• Docket Number: 3793.
• Citation: The Astoria, 281 F. 618 (5th Cir. 1922)
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: THE ASTORIA. CHARLES R. McCORMICK & CO. v. ANGLO-AMERICAN S. S. AGENCIES, Inc., et al. ANGLO-AMERICAN S. S. AGENCIES, Inc., v. OLSEN et al.

281 F. 618

THE ASTORIA. CHARLES R. McCORMICK & CO. v. ANGLO-AMERICAN S. S. AGENCIES, Inc., et al.ANGLO-AMERICAN S. S. AGENCIES, Inc., v. OLSEN et al.

No. 3793.

United States Court of Appeals, Fifth Circuit.

June 30, 1922

Chauncey P. Fairman, of Cristobal, Canal Zone (Ira S. Lillick, of San Francisco, Cal., on the brief), for Charles R. McCormick &amp Co.

William C. MacIntyre, of Ancon, Canal Zone, for Anglo-American S. S Agencies, Inc.

Albert C. Hindman, of Ancon, Canal Zone, for J. W. Olsen and others and the Panama Canal.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

This is an appeal by Charles R. McCormick & Co., claimant of the cargo of the American twin screw motor schooner Astoria, from decrees in favor of the Anglo-American Steamship Agencies, of the crew of the schooner, and of the Panama Canal.

January 22, 1921, the Anglo-American Steamship Agencies libeled the Astoria and her cargo for repairs, supplies, canal tolls, and disbursements.February 2, 1921, the crew intervened, and also libeled both vessel and cargo for wages, and for transportation under R.S. Sec. 4583(Comp. St. Sec. 8374).The Panama Canal did not become, by pleading or otherwise, a formal party to the proceedings.Default was entered against the vessel for failure to make claim or to answer.Appellant appeared and claimed the cargo.

The evidence disclosed that the owner of the Astoria at the time she was libeled was the Viking Shipping Company, which had theretofore been represented by the Marine Trading Corporation of New York as agent.The Anglo-American Steamship Agencies, a corporation under the laws of Maryland hereinafter called libelant, was engaged in business at the Panama Canal as local steamship agent, and in the conduct of that business it was accustomed to advance necessary funds to vessels in order to facilitate their passage through the Canal.July 25, 1920, the Marine Trading Corporation wrote to libelant the following letter:

'We take pleasure in advising you that our auxiliary schooner Astoria will sail from Puget Sound some time in August with a cargo of lumber for New York, Philadelphia, or Baltimore.In accordance with your letter written us on February 26, 1919, we take pleasure in appointing you as our agents for this vessel, and ask that you kindly effect all disbursements for her, drawing on us at sight in the usual manner.We are instructing the master to report his arrival at the Canal immediately to you, so that you can secure dispatch through the Canal of the auxiliary schooner.We shall also ask that you please telegraph us arrival of the Astoria at the Canal, and also departure for North Atlantic ports when effected.The Astoria is an American auxiliary schooner, being 1,275 tons net and 1,611 tons gross register, and is commanded by Capt. A. W. Svensson.'

December 14, 1920, the Astoria arrived at the Panama Canal short of provisions and with one of her engines disabled.The master applied to the libelant for funds sufficient, not only to pay charges for passage through the canal, but also to pay for repairs and supplies.The libelant made advances for these several purposes.Drafts made by it, to cover the amounts advanced up to some time in December, not definitely shown by the evidence, upon the Marine Trading Corporation, were dishonored, and on January 3, 1921, libelant received from the Marine Trading Corporation the following cable:

'Stop work entirely.Managers vessel terminated agency agreement with us.Will advise you whom to draw for disbursements.'

In the meantime the libelant also cabled to the appellant, claimant of the cargo, stating that repairs were being made, and, 'in order not to hold the cargo, we asked for their suggestions. 'Appellant replied that the cargo could not be held responsible for repairs to the vessel.After the libelant had received the foregoing communications from the New York agent, and from the owner of the cargo, it proceeded to advance funds for supplies and repairs to the vessel, in reliance upon the master's oral undertaking to pledge both vessel and cargo for advances already made and to be made.The shipping articles of the crew expired on January 23, 1921.

Proceedings were had for the sale of the vessel and cargo, and on April 5, 1921, the court entered its order confirming the sale to appellant of the vessel for $20,000, and of the cargo for $25,000, upon condition that the purchaser should pay the additional sum of $1,500, which was done.Thereafter the court entered separate decrees, one in favor of the libelant for $22,864.46, and the other in favor of the crew for $21,706.06, reciting that $11,524.96 had been paid under order of the court to the crew for wages to the date of the expiration of their...