United States v. James W. Elwell & Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation250 F. 939
Docket Number172,173.
PartiesUNITED STATES ex rel. PRESSPRICH & SON CO. v. JAMES W. ELWELL & CO. et al. (two cases).
Decision Date10 April 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.

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.

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 Statutes, Sec. 4255, leaves practically no doubt upon the question. Judge Love in United States v. Burlington & Henderson County Ferry (D.C.) 21 F. 331, ruled the contrary; but the decision stands quite alone. Nevertheless, we have no doubt that the fine might be collected by a qui tam action in the District Court (Judicial Code (Act March 3, 1911, c. 231) Sec. 24, subd. 9, 36 Stat. 1092 (Comp. St. 1916, Sec. 991 (9)); United States v. Atlantic Fruit Co., 206 F. 440, 124 C.C.A. 322) and that the jurisdiction of the District Court over the subject-matter was, therefore complete. It is quite true that an indictment will also lie under the Harter Act (United States v. Cobb, 163 F. 791), but our decision in United States v. Atlantic Fruit Co., supra, is to be taken as holding that the United States has the option in such cases of suing in what would have been in earlier times an action of debt, despite the unliquidated character of the recovery. We see no reason to make a distinction between an action by the United States to collect the fine and an action qui tam like that at bar.

If it were the law that under no circumstances could a libel in admiralty be amended into a complaint qui tam at common law we would have no alternative but to dismiss the proceedings, but the rule we think is not so narrow. In The Sarah, 8 Wheat. 391, 5 L.Ed. 644, a libel in admiralty in rem had been filed for a forfeiture. The court held that, as the goods were seized on hand, the District Court as a court of admiralty had no jurisdiction; but it did not dismiss the cause for that reason, but remanded with instructions to amend the pleadings and proceed as upon a libel of...

To continue reading

Request your trial
22 cases
  • Troupe v. Chicago, D. & G. Bay Transit Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 1 Junio 1956
    ...law" may, under some circumstances, be deemed to have been brought in admiralty, and vice versa. United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 2 Cir., 1918, 250 F. 939; United States v. The John R. Williams, 2 Cir., 1944, 144 F.2d 451, 454, certiorari denied Great Lak......
  • United States v. Mulcahy
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 30 Junio 1948
    ...by statute, the federal appellate courts should be given a similar discretionary power. 16 See, e.g., United States ex rel. Pressprich & Son Co. v. James W. Elwell, 2 Cir., 250 F. 939; James Richardson & Sons v. Conners Marine Co., 2 Cir., 141 F.2d 226, 229; Cory Bros. & Co. v. United State......
  • Connecticut Action Now. Inc. v. Roberts Plating Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 21 Marzo 1972
    ...injured by such violation and the remainder to the Government of the United States" 27 Stat. 446 (United States ex rel. Pressprich Son Co. v. James W. Elwell & Co., 250 F. 939 (2d Cir. 1918)); a suit "may be brought and carried on by any person" or "the informer, who is enabled to recover i......
  • Civil v. Waterman Steamship Corporation
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 12 Noviembre 1954
    ...and law, indeed holding jury trial to be waived if not claimed before the interchange. See, e. g., United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 2 Cir., 250 F. 939, certiorari denied 248 U.S. 564, 39 S.Ct. 8, 63 L.Ed. 423; James Richardson & Sons v. Conners Marine Co.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT