United States Shipping Bd Emergency Fleet Corp. v. Banque Russo Asiatique, London

• Decision Date: 17 February 1923
• Docket Number: 2913.
• Citation: 286 F. 918
• Parties: UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. BANQUE RUSSO ASIATIQUE, LONDON.
• Court: U.S. Court of Appeals — Third Circuit

286 F. 918

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. BANQUE RUSSO ASIATIQUE, LONDON.

No. 2913.

United States Court of Appeals, Third Circuit.

February 17, 1923

J Frank Staley, of Washington, D.C., and George W. Coles, of Philadelphia, Pa., for appellant.

Lewis Adler & Laws, of Philadelphia, Pa. (Otto Wolff, Jr., of Philadelphia, Pa., of counsel), for appellee.

Before WOOLLEY, Circuit Judge, and WITMER and GIBSON, District Judges.

GIBSON District Judge.

The present case is an appeal from a decree in admiralty. No dispute exists as to certain of the facts. The steamship Kittegaun, owned by the United States and operated by the Export Steamship Corporation of New York for the appellant arrived at the port of Philadelphia on February 26, 1920, at 5 p.m., with a cargo consisting, in part, of 3,100 tons of peroxide of manganese ore consigned to the appellee. On the following day she was entered at the custom house, and late on February 28, 1920, at 5 p.m., she docked at Point House Pier, Philadelphia. This day was Saturday, and no stevedores were available to unload the ship on that or the following day. The consignee of the ore was unknown, and no one appeared to receive it. The ship's agent, by reason of insufficient inquiry or appeal for information to the wrong persons, was of the opinion that the ore could not be unloaded into open lighters or upon the open dock without injury to it, and therefore did not order it to be so unloaded, as he might have done under the provisions of the contract of shipment. The ore was not taken from the ship until March 8, 1920, when it was unloaded into open lighters.

However, on March 1, 1920, the Fourth Street National Bank appeared for the consignee; but, due largely to the demands of the ship's agent for the immediate payment of the freight and demurrage, the unloading did not begin until March 8th, as stated before. Before he would allow the cargo to be unloaded, the ship's agent required the consignee's agent to pay, in advance, the sum of $32,775 as demurrage. This amount was paid under protest, and after payment the consignee immediately filed its libel in personam, with attachment, for the recovery of the sum of paid, with interest from March 9, 1920. In due time the cause came on to be heard before the District Court of the United States for the Eastern District of Pennsylvania, which court, on June 27, 1922, filed its decree, wherein it gave judgment in favor of the libelant for the sum of $32,775, with interest thereon from March 9, 1920. The present case is an appeal from that judgment.

The appellant has raised two jurisdictional questions, not raised in the court below. It alleges (1) that actions against the Emergency...