THE FREDENSBRO

• Decision Date: 23 April 1927
• Docket Number: No. 63.,63.
• Citation: 18 F.2d 983
• Parties: THE FREDENSBRO.
• Court: U.S. District Court — Western District of Pennsylvania

18 F.2d 983 (1927)

THE FREDENSBRO.

No. 63.

District Court, E. D. Pennsylvania.

April 23, 1927.

Fraley & Paul, of Philadelphia, Pa., for libelant.

William J. Conlen, of Philadelphia, Pa., for respondents.

THOMPSON, District Judge.

The Fredensbro is a vessel owned by A/S Det Oeversoiske Compagnie, a Danish corporation. John Kelly, Limited, a corporation of Great Britain and Ireland, the libelant, entered into a contract of charter party in writing dated September 24, 1926, wherein the respondent corporation agreed to load upon the steamship Fredensbro at the port of Philadelphia, and deliver at Belfast, Ireland, a cargo of coal, freight to be paid, at the rate of 25 shillings per ton of 20 hundred weight, "in cash in London on completion of loading, without discount, and not to be returnable if ship lost on passage."

The libel sets out the loading and shipment on October 27, 1926, upon the Fredensbro at Philadelphia of 3,972 tons of coal and the payment of freight in cash in London on completion of the loading in the sum of £4,965. It is averred that the Fredensbro on the same day was in collision with the steamship Manchester Shipper in the Delaware river, and as a result the Fredensbro sank, resulting in the loss of a part of the cargo of coal and severe damage to the balance of the cargo, resulting in a total loss of the value of the cargo, subject to salvage. The libelant claims a return of the freight moneys paid in the total sum of $24,162.17.

The Fredensbro, having been raised, was attached by process of foreign attachment. The master of the vessel, Jens Martin Olsen, specially appearing, without admitting the jurisdiction of the court, filed a claim as bailee of the vessel, and proctors for the claimant and the respondent entered a special appearance, for the sole purpose of questioning the jurisdiction of the court, and filed exceptions to the libel.

The first ground of exception is that, the plaintiff and respondent being corporations of Great Britain and of Denmark, respectively, and neither a resident nor citizen of the United States, and no facts being set forth showing that the parties cannot settle their difficulties in their own courts, this court should not take jurisdiction. The suit is brought upon a charter party, a maritime contract. The action is in personam and in rem. The Fredensbro is, or was at the time of the filing of the libel, and at the time of the attachment, within the jurisdiction of this court.

Unless the exceptants' contention that a libel in rem will not lie for recovery of freight money is sound, the ruling of Mr. Justice Story in The Jerusalem, 2 Gall. 191, Fed. Cas. No. 7,293, justifies the court in the exercise of its discretion in taking jurisdiction of the suit. In citing the above case in The Belgenländ, 114 U. S. 355, 366, 5 S. Ct. 860, 865 (29 L. Ed. 152) Mr. Justice Bradley said:

"In this case Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an admiralty court can take jurisdiction on the principle of the civil law that in proceedings in rem the proper forum is the locus rei sitæ. He added: `With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts, where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy.' That, as we have seen, was a case of bottomry, and Justice Story, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: `In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civilized countries these are in general substantially governed by the same rules.'"

In addition to the presence of the vessel within the jurisdiction, there is the further circumstance that, as a result of the collision between the...