Vianello v. The Credit Lyonnais

• Decision Date: 08 March 1883
• Citation: 15 F. 637
• Parties: VIANELLO v. THE CREDIT LYONNAIS.
• Court: U.S. District Court — Southern District of New York

15 F. 637

VIANELLO v. THE CREDIT LYONNAIS.

United States District Court, S.D. New York.

March 8, 1883

Wilhelmus Mynderse, for libelant.

Condert Brothers, for respondents.

BROWN J.

A motion is made in this case that the respondents file security under the present fifty-third (formerly fifty-fourth) rule of the supreme court in admiralty.

The respondents were the consignees of certain iron imported from Europe upon the Italian bark Querini Stampalia, in December 1881. The quantity of iron delivered being less than that described in the bill of lading, the respondents refused to pay freight, and on December 31, 1881, filed their libel in this court to recover the value of the iron not delivered.

Thereafter on the same day, the present libelant, the master of the bark, filed this cross-libel against the respondents to recover the freight. In both actions the question in dispute is the same; namely, whether the bark is responsible for the shortage of iron; no other matter being in controversy. In the respondent's suit the bark was arrested, and gave security for the claim and costs. The libelant in this suit now asks for similar security from the respondents, upon an affidavit that the respondents are a non-resident corporation, and have now no agent resident within this district.

The motion is opposed upon the ground that the present libelant's counter-claim does not 'arise out of the same cause of action for which the original libel was filed,' within the language of rule 53; because, it is said, the cause of action in the original libel is to recover the value of the iron not delivered; while the cause of action in the cross-libel is to recover payment of freight upon the iron that was delivered.

The objection is evidently based upon the contention that the words 'same cause of action,' in rule 53, mean the same legal demand or legal claim. The words themselves separately considered, might doubtless have that meaning; but if that meaning were adopted here, it would destroy, as it seems to me, all the force of the rule; and, so far as I can see, render it incapable of application in any case. For I cannot recall any circumstances in which a cross-libel could be filed for the purpose of asserting against the original libelant a counter-claim arising out of the same identical legal demand or the same legal claim as that sought to be enforced by the original libelant. The context itself...