Volume 5 — Federal Reporter, Second Series

A prohibition officer testified that the defendant lived in a house on the premises described; that at times prior to his entry of the cellar, witness noticed the odor of distillation and fermenting mash coming from the premises; that acting upon the information he had and the use of his own senses, he obtained a search warrant from a United States commissioner, and pursuant thereto entered and searched a dugout under the house; that defendant was not there; that he read the…

Almeida served as a waiter on the Portuguese steamship Goa. He shipped at.New York, and the agreement contained .in the articles was that he and others similarly situated should receive pay “until they reached the Port of New York.” But it was further agreed that “such members of the crew as are not to be sent back to New York shall be disembarked at Lisbon without payment of the return passage and without payment of salary for the duration of the return trip to New York.”…

<p>At the time of service rendered, the Glen White was under a time charter to Burtner Coal Company, and by that instrument it was provided that charter hire should be paid in advance, and also “that all derelicts and salvage shall be for owner’s and charterer’s equal account, including expenses incident thereto, and settlement of same shall be arranged for by owners.”</p> <p>This libel was filed by Castner, Curran & Bullitt, Inc., as owner of the Glen White, and no other libelant. Nor did'any person attempt at any time to intervene pro interesse suo, but the owner sued as is specifically declared in the libel, not only on its own behalf but on behalf of Burtner Coal Company and of the officers and crew of the Glen White.</p> <p>The United States never answered herein, but it did execute a stipulation agreeing that the “reasonable value of the, salvage service rendered” was $42,500.</p> <p>The stipulation further agreed that the libelant was actually out of pocket for coal, provisions, etc., by reason of rendering the salvage services aforesaid, to the amount of $8,596.15. Also, that the value of Glen White’s time expended in the salvage service was $22,520.50. That is, the charter hire was accepted as a fair measure of time value.</p> <p>Finally, it was stipulated that the libelant as owner of Glen White has “allowed to the charterer an off-hire credit” for the time devoted to the salvage service, and that the statements of the libel were true.</p> <p>On this libel and stipulation libelant moved for final decree, whereupon the United States filed the affidavit of an official to the effect that the charterer, Burtner Company, was indebted to the government for damages for breach of contract and for taxes in a sum greatly exceeding the salvage award. To this affidavit libelant duly objected, but the Court accepted it, and entered decree awarding to libelant:</p> <p>(1) Its out of pocket expenses......$ 8,596.15</p> <p>(2) “Salvage money” (so called in decree) .............. 1,453.75</p> <p>(3) The crew’s share of award..... 8,475.96</p> <p>Total ........................$18,525.86</p> <p>Decree says nothing at all about the balance of the $42,500, but it is ascertainable from other sources that the intent was to leave it with the United States because the charterer owed the government so much.</p> <p>Finally, decree impounds the officers and crew’s share in the registry of the court, there to remain until they severally appear and on notice to the United States attorney elaim their several shares.</p> <p>From this deeree the government appealed because libelant got anything except $1,453.-75, and libelant appealed because the entire sum had not been awarded to it.</p>

<p>Libel herein was filed June 4, 1920. It is a very simple claim for nonpayment of charter hire and expenses. Answer was filed in the following November and three defenses set up:</p> <p>(1) Denial of certain material allegations of the libel.</p> <p>(2) The fact that the charter party sued on contained the common agreement that: “Should any dispute arise between owners and charterers, the matters in dispute shall be referred to three persons in New York, one to be appointed by each of the parties herein and the third by the two so chosen; their decision or that of any two of them shall be final, and for the purpose of enforcing any award this agreement may be made a rule of court.”</p> <p>. Further, that the matter in suit was a dispute between owner and charterer and that respondent (charterer) had been at all times willing to arbitrate and had named an arbitrator, but that libelant had refused to proceed with the arbitration.</p> <p>(3) That the master of the chartered steamer had failed to comply withj the charter party provision that the voyage should .be prosecuted with the utmost des-patch, but had, on the contrary, delayed his voyage to the damage of respondent in a sum far greater than the amount of hire, etc., sued for by libelant.</p> <p>To the second defense libelant promptly excepted, the exception was sustained, and the defense stricken out by interlocutory order entered I4th October, 1921, by Mack, J., whose opinion is reported in (D. C.) 276 F. 319. The cause then proceeded to trial, respondent did not make good its third defense, and final decree in favor of libelant was entered in January, 1924, substantially for the sum demanded in the libel.</p> <p>From this decree respondent appealed, assigning for error substantially the action below in sustaining exception to the second defense.</p> <p>The foregoing covers all the material contents of the apostles. This court, however, is called on to take cognizance of the decision of the Supreme Court of the United States in Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 44 S. Ct. 274, 68 L. Ed. 582, and it is asserted by appellant that such cognizance requires not only notice of the propositions of law decided in the reported case, but knowledge of such facts as were laid before the Supreme Court by its transcript of record therein.</p> <p>An examination of that transcript shows after the institution of this suit, and in April, 1921, respondent herein moved in the Supreme Court of the State of New York, County of New York, for an order pursuant to the Arbitration Law of New York (chapter 275 of 1920, and chapter 14 of 1921 [Consol. Laws, e. 72]), requiring Atlantic Fruit Company, (libelant herein) to “proceed to arbitration as provided for in the (charter party), and appoint its arbitrator on or before” a certain day in August, 1921.</p> <p>From an order accordingly Atlantic Fruit Company appealed to the appropriate Appellate Division of the New York Supreme Court (Matter of Red Cross Line, 199 App. Div. 961, 191 N. Y. S. 949); that court affirmed the order, whereupon further appeal was taken to the Court of Appeals of New York, which reversed it (233 N. Y. 373, 135 N. E. 821).</p> <p>Certiorari was granted, and the Supreme Court of the United States reversed the order entered pursuant to the remittitur of the Court of Appeals of New York and reinstated the original order directing the arbitration to proceed. The final order on the mandate of the Supreme Court of the United States was entered April 2, 1924, i. e., about a month after the appeal at bar had been taken.</p> <p>It thus appears that there was what each party regarded as a dispute under this charter party. To settle that dispute the owner first began this suit. The charterer set up the arbitration clause as a defense, but did not until several months after it had answered herein attempt to enforce arbitration by means of the New York statute. The court below refused to consider the pleading good, and while this ease was standing for trial the charterer began proceedings under the New York statute, and since that time, in April, 1921, these two matters have both been going on in the manner above shown, until at the present time there is a final order in the New York court requiring arbitration to proceed, apparently about a matter as to which there is a final decree in the United States District Court based upon pleadings which (excluding the second defense, supra) embrace the whole matter in controversy.</p> <p>The explanation of charterer’s delay in applying for arbitration under the New York statute is that the charter party herein is a contract dated November 28, 1919, or before the passage of the New York Arbitration Law, and it was the holding of the New York courts prior to decision in Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 130 N. E. 288, that the statute did not apply to contracts made prior to its enactment. The Berkovitz Case (decided March 1, 1921) settled the matter the other way, and thereupon and in the following month this charterer-respondent began at the Special Term of the New York Supreme Court its proceeding for arbitration, which terminated in the Supreme Court of the United States on February 18, 1924, in Red Cross Line v. Atlantic Fruit Co., supra.</p>

<p>The appellee, Joseph Fountain, hereinafter called the libelant, received personal injuries while working as a stevedore in loading the vessel West Ison then docked at the port of Aberdeen, Wash. The vessel was being loaded by the appellant, which hired all the longshoremen who were engaged in that service. At the time of the injury the hatches over holds 4 and 5 in the after part of the ship and the manholes leading into said holds had been opened. The libelant first reported for work shortly before 8 o’clock in the evening, and as he started down the manhole into hold No'. 5, the cover of the manhole fell upon him, causing injury to his right hand. The manholes on the ship were constructed in pairs with their covers opening back to back and were so close together that when one was open the cover thereof almost completely covered the other. When both were open the covers stood at an angle of about 70 degrees, propped the one against the other. - They were not supplied with hook, latch, rope, block, or other device or means of sustaining them in position. They were of iron, each weighing about 50 pounds. It was necessary that both the manholes to holds 4 and 5 should be open while the cargo was being stowed in those holds, for a bulkhead between the two holds prevented the men from passing from one to the other.</p> <p>The libel alleged that the shipowner was negligent in furnishing unsafe and unsea-worthy manhole covers, and that the appellant was negligent in failing to furnish the libelant a safe place in which to work, and a safe passage to his work, and in directing covers of the manholes to be opened without using some device to prevent ,them from falling, and without giving the libelant warning of the conditions. The court below found that the vessel was seaworthy and that the hatch covers were safe when closed, and dismissed the libel as to the owner; but held that the hatch covers were unsafe when open and left unfastened, and that the stevedore company was negligent in failing to fasten the same or to warn the libelant of the danger. A decree was rendered in favor of the libelant against the stevedore company. The stevedore company appeals, and the libelant appeals from that portion of the decree dismissing the owner.</p>

The city of Cleveland was engaged in erecting two buildings, upon each of which some sheet metal work was required which indisputably called for the employment of sheet metal workers. Upon one of these buildings plaintiff became subcontractor for furnishing -and installing metal doors and frames and this work was in progress through his union carpenters.

The Roxana Petroleum Company, a corporation under the Oklahoma laws, predecessor in interest of the plaintiff, on June 30, 1916, entered into a contract with defendant, he being the owner in whole or in part of oil and gas mining rights in certain premises situated in Pawnee county, state of Oklahoma, by the terms of which defendant agreed to sell, transfer, assign, and set over by suitable instruments unto the plaintiff all his right, title, and interest in and to the crude…

<p>The complaint sets out all these contracts in liase verba, tbe aggregate construction of 82 steel steamers, the number of ships that were constructed and delivered, the number of ships that were canceled pursuant to authority delegated by the President pursuant to Act June. 15,1917, and the payments that were made upon all of the ships covered by the contracts, including the ships which were afterwards’ canceled. It is alleged that the overpayment was $4,612,500, and recovery of this is sought under count 1. Count 2 seeks to recover $78,000 paid through error and mistake; count 3, for certain materials delivered and still unpaid for, in the amount of $803,000; count 4, materials, etc., sold and delivered and not paid for, $623,000; count 5, $3,235,000 is sought for rental for the shipbuilding plant alleged to have been leased to the defendant; count 6, $146,000 for conversion of certain tools and plant equipment; count 7, damages of $7,500 for injury to a derrick; count 8, $2,660.60 for certain charges and credits given the defendant and accepted by the defendant in writing; count 9, $9,263.43 for defects id workmanship in some of the ships; count 10, $60,-000 for 12 reciprocating engines furnished to the defendants, which, through error, were billed for $60,000 less than should have been; count 11, $113,000 paid through error and mistake for bonuses for predelivery of ships; count 12, $100,000 for liquidated damages for 4 ships not delivered on delivery dates; count 13, $69,000 for equipment which plaintiff paid for and was not supplied; count ,14, $1,622,000 paid through error and mistake on account of claims erroneously made and paid for. ' .</p> <p>To plaintiff’s complaint and each' cdunt thereof the defendant has interposed a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, and that there is a defect of parties plaintiff, and also that several causes of action have been improperly united. The principal grounds of demurrer are based upon the proposition that the contracts pleaded are not contracts of the United States, but are contracts of the Fleet Corporation; no assignment is alleged from the Fleet Corporation to the United States. All of the contracts, except “10 S. C.,” dated May 28, 1917, recite that they are contracts “between Skinner & Eddy Corporation, * • * party of the first part, herein called the contractor, and the United States Shipping Board Emergency Fleet Corporation, * * * herein called the owner, representing, the United States of America, party of the second part.” (Italics mine.)</p> <p>The defendant contends 'that the contracts show on their face that they are contracts of the Fleet Corporation, and not contracts of the United States. All of the contracts, except contract No. 10, recite in the party clause: “The United States Shipping Board Emergency Fleet Corporation, * * * representing the United States of America, party of the second part.” Supplemental agreement, Contract No. 10 S. C., was entered into February 16, 1918, in which the corporation, “representing the United States of America, party of the second part (herein called the owner),” appears.</p>

<p>“In the présenee of</p> <p>“L. F. Boggs.”</p>

Mr. Johnston, as receiver and appellee m this matter, officially holds some $28,000, which is insufficient to discharge the expenses of the receivership. There is no fund wherewith to pay creditors of Kennebec Company existing at the time bill was filed.