United States v. James W. Elwell & Co., 172

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 250 F. 939
• Docket Number: 172,173.
• Parties: UNITED STATES ex rel. PRESSPRICH & SON CO. v. JAMES W. ELWELL & CO. et al. (two cases).
• Decision Date: 10 April 1918

250 F. 939

UNITED STATES ex rel. PRESSPRICH & SON CO.
v.
JAMES W. ELWELL & CO. et al. (two cases).

Nos. 172, 173.

United States Court of Appeals, Second Circuit.

April 10, 1918

Appeals from two decrees in admiralty entered on the 28th day of August, 1917, each adjudging the respondents liable in the sum of $2,000 and costs as a penalty for violation of section 5 of the Harter Act. The causes came up upon motions by the relator for the direction of decrees in its favor upon two libels in personam and answers thereto. These libels are precisely the same, except that they concerned different ships. The gist of them was that the relator had delivered to the respondents merchandise which they accepted on board their two steamers, the Venezelos and d'Jibouti; that when on board the relator demanded a clean bill of lading of the respondents, which they had refused to give, in violation of section 5 of the Harter Act. Act Feb. 13, 1893, c. 105, 27 Statutes at Large, 445 (Comp. St. 1916, Secs. 8029-8035). The answers in each case alleged as an excuse for the refusal to give a clean bill of lading that the relator had agreed to deliver to the respondents at their pier at Thirty-First street, Brooklyn, 1,500 tons of granulated sugar alongside, and that, in accordance with the known custom prevailing in the port of New York, permits were duly issued by the respondent to the relator, requiring the delivery of the sugar on or before August 4, 1915, alongside the steamer Harpagus, then under charter to the respondents; that on the 2d day of August the respondents informed the relator of the arrival of the steamer Harpagus and of her readiness to receive the cargo, and that August 4, 1915, was the latest date on which the delivery of said sugar could be made without causing undue delay to the steamer; that in disregard of its agreement the relator failed to deliver the sugar until the 12th day of August, and then delivered only 12,800 bags, leaving undelivered 20,800 bags, which arrived later 'alongside said steamer,' but at a time when the Harpagus had already filled her space; that the 20,800 bags so delivered were later laden on the steamers Venezelos and d'Jibouti, and that the respondents having taken them on board refused to give a clean bill of lading without either payment to them of the damages for the detention of the Harpagus, or with an annotation upon the bills of lading of a lien for such damages. [250 F. 940]

Butler, Wyckoff & Campbell, of New York City (Homer L. Loomis, of New York City, of counsel), for appellants.

Everett, Clarke & Benedict, of New York City (A. Leo Everitt, of New York City, of counsel), for appellee. [250 F. 941]

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District Judge.

LEARNED HAND, District Judge (after stating the facts as above).

We think that the District Court had no jurisdiction in admiralty over the collection of a penalty by proceedings in personam. Virginia, etc., Co. v. U.S., Taney, 418, Fed. Cas. No. 16,973; McAfee v. The Creole, Fed. Cas. No. 8,655; United States v. The Queen, 4 Ben. 237, Fed. Cas. No. 16,107. The Scotia (D.C.) 39 F. 429, was a slightly different case, but indicates the same rule. In The Strathairly, 124 U.S. 558, 580, 8 Sup.Ct. 609, 31 L.Ed. 580, while the point was not raised, the decision, so far as it concerned Revised...