THE RICHMOND

• Decision Date: 17 November 1924
• Docket Number: 985,988.,No. 976,977,976
• Citation: 2 F.2d 903
• Parties: THE RICHMOND. THE FLORENCE AND LILLIAN.
• Court: U.S. District Court — District of Delaware

2 F.2d 903 (1924)

THE RICHMOND.

THE FLORENCE AND LILLIAN.

Nos. 976, 977, 985, 988.

District Court, D. Delaware.

November 17, 1924.

Otto Wolff, Jr., of Philadelphia, Pa., for libelants.

J. Thurston Manning, Jr., of Philadelphia, Pa., for Skillings Whitneys & Barnes Lumber Co., Inc., claimant of cargo.

MORRIS, District Judge.

Having obtained supplies from Manta Souza & Company the schooner Florence and Lillian, laden with lumber, sailed on September 8, 1920, from Boston for Havana. On the course of the voyage she became water-logged, and put into Chincoteague, Va., in distress. There her master, Captain Barter, advised by telephone D. W. Burbage of Lewes, Del., that the vessel could not proceed, and asked for aid. Service and supplies were thereafter obtained at Chincoteague, for which payment was made by Burbage. The schooner was then towed by the tug Richmond to Wilmington for repairs. The American Car & Foundry Company there discharged the cargo, made further repairs to the vessel, and advanced money to the master for supplies and for the crew's wages. Between November 4 and November 27 libels in rem were filed against the schooner and her cargo by S. C. Loveland, owner of the tug Richmond, American Car & Foundry Company, D. W. Burbage, and, against the schooner alone, by Manta Souza & Co., to recover the amount of their respective claims. Attachment was made by the marshal as prayed. On the petition of Loveland the vessel was sold on November 27. The sale was confirmed and the proceeds of sale paid into the registry of the court. In each of the first three causes Skillings Whitneys & Barnes Lumber Company, Inc., intervened in December, 1920, and made claim to the cargo. Bond was given and the cargo released. On October 31, 1921, the claimant of the cargo filed in each of the three causes an answer denying liability of the cargo. Upon the same day the Skillings Company, by petition of intervention, filed in the cause instituted by Loveland, asserted that a part of the cargo had been lost at sea and the remainder damaged; that the vessel was liable therefor; and prayed a decree against the proceeds of sale to the amount of its damages. No claimant of the schooner having made answer to the libels, it was adjudged on January 29, 1923, that the libels be taken pro confesso against the schooner. The amount of the claims as alleged exceeds the proceeds of sale. The cases were consolidated, but for purpose of trial only. Final hearing has been had in open court.

The Skillings Company, asserting that each person claiming in admiralty a right to share in an inadequate fund may dispute, without pleading its defenses, the validity, the amount, and the rank of every other claim, attempts not only to support its own claim but by evidence alone to challenge the validity, the amount, and the rank of the other claims. The libelants contend that their right to liens against the schooner and, in turn, against the proceeds of sale was fixed and established by the decrees pro confesso against the ship, and that, consequently, the Skillings Company is without right, either as claimant of the cargo or as a petitioner intervening in the Loveland cause for the purpose of asserting a claim against the fund, to question the validity or the amount of the claim of any libelant. It is, of course, obvious that answers made in defense of the cargo alone by a claimant of the cargo confer no right to controvert claims made against the ship. Consequently, it is equally obvious that, if the Skilllings Company is in a position to dispute the claims of the libelants as against the ship, it has that right only by reason of its intervening petition filed in the Loveland cause for the sole purpose of asserting its own claim against the fund. That petition is not at all in the nature of an answer to the Loveland or other libel, and does not deny the validity or amount of the claim of any libelant. Even if an intervening petitioner may in and by his intervening petition contest the claim of the libelant (see The Two Marys D. C. 12 F. 152; The Clara A. M'Intyre D. C. 94 F. 552, 555), this one does not attempt to do so. As the purpose of that petition was to establish a liability of the proceeds of sale because, as it is alleged, the boat was liable, it would seem clear that the petitioner gained nothing by its delay in making its claim until after the schooner had been sold, and that its claim against the proceeds stands in no better position than it would have stood had it been made by libel and attachment against the boat before sale. The filing of the petition placed the intervener virtually in the position of a libelant in an independent suit. See Conkling on Admiralty (2d Ed.) vol. 2, p. 540. Consequently, the question here presented, as I see it, is, May a libellant be heard to attack at final hearing either the validity or the amount of claims set up in other libels which have been adjudged to be taken pro confesso for want of an answer? Mr. Story, in his Commentaries on Equity Pleading, § 1, says:

"It is obvious, that, in every system of jurisprudence, professing to provide for the due administration of public justice, some forms of proceeding must be established to bring the matters in controversy between the parties, who are interested therein, befor the tribunal, by which they are to be adjudicated. And for the sake of the despatch of business, as well as for its due arrangement with reference to the rights and convenience of all the suitors, many regulations must be adopted to induce certainty, order, accuracy, and uniformity in these proceedings. Hence it will be found that the jurisprudence of every civilized country, ancient and modern, has established certain modes, in which the complaints and defenses of parties are to be brought before the public tribunals; and has authorized the latter, by rules and orders, to prescribe the time, the manner, and the circumstances in which every suit is to proceed from its first institution to its final determination."

Though courts of admiralty are liberal in their treatment of pleadings, the underlying principles with respect to pleading, and its purpose, in admiralty do not differ from those laid down by Mr. Story. See McKinlay et al. v. Morrish et al., 62 U. S. 343, 16 L. Ed. 100; Benedict's Admiralty, § 303. These principles are carried into effect by the rules in admiralty. When the suits at bar were instituted, the twenty-ninth rule provided in part (Comp. St. 1916, p. 2699): "If the defendant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain." No case is cited in which the effect of a decree pro confesso under this rule upon a person standing in the position of the Skillings Company has been considered. But the eighteenth equity rule adopted in 1842 was not unlike the twenty-ninth admiralty rule promulgated under the act of 1842. It provided that "in default thereof plea, demurrer or answer the plaintiff may, at his election, enter an order (as of course) in the order book, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court * * * if the same can be done without an answer, and is proper to be decreed." The effect of a decree pro confesso had under that rule was considered by the Supreme Court in Thomson v. Wooster, 114 U. S. 104, at page 111, 5 S. Ct. 788, 791 (29 L. Ed. 105), Mr. Justice Bradley said:

"A carefully prepared history of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopkins Ch. 471, by Hoffman, master, in a report made to Chancellor Sanford, of New York, in which the conclusion come to (and adopted by the Chancellor), as to the effect of taking a bill pro confesso, was that `when the allegations of a bill are distinct and positive, and the bill is taken as confessed, such allegations are taken as true without proofs,' and a decree will be made accordingly; but `where the allegations of a bill are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proofs. The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant.'

"We may properly say, therefore, that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree pro confesso is a decree based on such statements, assumed to be true, 1 Smith's Ch. Pract. 153, and such a decree is as binding and conclusive as any decree rendered in the most solemn manner. `It cannot be impeached collaterally, but only upon a bill of review, or a bill to set it aside for fraud.'"

And at page 114 (5 S. Ct. 793):

"* * * From the authorities cited, and the express language of our own rules in equity, it seems clear that the defendants, after the entry of the decree pro confesso, and whilst it stood unrevoked, were absolutely barred and precluded from alleging anything in derogation of, or in opposition to, the said decree, and that they are equally barred and precluded from questioning its correctness here on appeal, unless on the face of the bill it appears manifest that it was erroneous and improperly granted. * * *"

Central Railroad Co. v. Central Trust Co., 133 U. S. 83, 10 S. Ct. 235, 33 L. Ed. 561, is to the same effect. The status of a defendant before...