Opinion
January 27, 1927.
Anderson, Cann Cann, of Savannah, Ga., for libelant.
Lawton Cunningham, of Savannah, Ga., for claimant.
In Admiralty. Libel by the Compania de Flete y Remolque against the steamship City of Atlanta, her engines, tackle, etc., claimed by the Ocean Steamship Company of Savannah. On exceptions to libel as amended. Exceptions sustained in part, and in part overruled.
See, also, 17 F.2d 308.
The original libel was against "the steamship City of Atlanta, her engines, boilers, tackle, apparel, and furniture, and against all persons intervening for their interests in said steamship in a cause of contract, civil and maritime," and was filed in this court on June 29, 1921. The services for which compensation is sought were rendered in the port of Havana, Cuba, in August and September, 1920; the last item being October 6, 1920.
Upon exceptions this court decided on September 16, 1924 ( 17 F.[2d] 308): (1) That the services rendered were of a character to establish a maritime lien; (2) that the law of the republic of Cuba governs; (3) that the law of Cuba pleaded gave a right of attachment or proceeding in rem against the vessel, and that such a right of attachment creates a right to libel in a court of the United States; (4) that there was no right to a lien under the general maritime law or under the act of Congress of the United States; and (5) that it was inferable that the entire law of the republic of Cuba as to maritime liens had not been pleaded, and opportunity was afforded libelant to make the appropriate amendment.
The amended libel was filed in this court on December 15, 1924, and was brought, not only against the steamship City of Atlanta, but "against the Ocean Steamship Company of Savannah," averring that such company "is a corporation created by, organized and existing under the laws of, the state of Georgia, with an office and place of business at Savannah, Ga.," and that it was at all times mentioned the owner of the City of Atlanta. A further amendment to this libel was filed on April 9, 1925. Exceptions were filed to the libel as amended.
1. It seems appropriate to dispose first of that exception which challenges the right to now bring suit in personam against the Ocean Steamship Company of Savannah. The general rule is firmly established that courts of admiralty follow by analogy the state statutes of limitations.
"Prior to recent acts of Congress, there was no statute of limitations in admiralty, though the courts of admiralty in their discretion have commonly applied the analogy of the state statute of limitations." Benedict on Admiralty (5th Ed.) § 463.
"Semble, the statute of limitations is followed by analogy in admiralty, as in equity, where no special equitable reasons exist against its application." Scull v. Raymond (D.C.) 18 F. 547.
"A claim in admiralty, which would be barred at law by the statute of limitations, is barred, by analogy, on the ground of laches." Southard v. Brady (C.C.) 36 F. 560.
In the body of the opinion, in Nesbit v. The Amboy (D.C.) 36 F. on page 926, we find: "But the policy of statutes of limitation as statutes of repose must be respected in courts of admiralty as much as in courts of common law. In the careful brief furnished by the libelant no case is cited where any suit has been sustained after the lapse of the statutory period."
To the same effect see Davis v. Smokeless Fuel Co. (D.C.) 182 F. 1004; Nolte v. Hudson Nav. Co. (C.C.A.) 297 F. 758, 764; McGrath v. Panama R. Co. (C.C.A. Fifth Cir., April 8, 1924) 298 F. 303.
"In the absence of other limitations, those of the lex fori apply." Davis v. Smokeless Fuel Co. (D.C.) 182 F. 1004, 1005.
"Therefore the statute of limitations of the country where the action is brought, and the remedy is sought to be enforced, * * * is the one which controls in the event of a conflict of laws. In other words, the lex fori determines the time within which a cause of action shall be enforced." 17 Ruling Case Law, § 49, p. 697.
Under sections 4362 and 4368, Code of Georgia 1910, an action of this kind must be brought within four years from the accrual of the right of action. The date of accrual in this case could not be later than October 6, 1920. The libel in personam against the Ocean Steamship Company of Savannah was not filed until December 15, 1924, more than four years after the date of the accrual of the right of action.
It is urged that, because a proceeding was being had in rem against the City of Atlanta, the property of the Ocean Steamship Company, within the statute of limitations, the Ocean Steamship Company had full knowledge of the claim and all the facts in connection therewith, and that this should relieve of the bar of the statute, either by analogy or by reason of laches, but no authority is cited to sustain this position. The contrary is held in Scull v. Raymond (District Court of New York, in 1883) 18 F. 547. On page 553 it is said: "The libelant, it is true, was during most of this time diligently pursuing his remedy in rem; * * * but this has never been held to be a ground for the extension of the statutory period of limitation in regard to remedies in personam."
Authorities are cited by libelant showing that the statute of limitations did not apply under the principle of laches, even though the libel had been sued out a considerable time after the expiration of the statute of limitations. In these cases peculiar facts were pleaded and disclosed as to why the libelant was not guilty of laches, as, for instance, in our Fifth Circuit, in the case of The Alabama (C.C.A.) 242 F. 431.
It is also urged that, because the rule as to amendment is exceedingly liberal in courts of admiralty, this amendment making a new party should be allowed. There is no question as to such liberality, but it has not been shown that this extends to the allowance of making a new party after the statute of limitations had expired.
It is further urged that, because exceptions were filed to the original libel by the Ocean Steamship Company, as claimant, this was equivalent to a general appearance by such company, and that it cannot be heard now to object to the amendment seeking to bring a proceeding in personam as being too late. While exceptions are equivalent to a demurrer, and the filing of a demurrer equivalent to a general appearance, this principle produces only a general appearance in behalf of the ship and not the owner. There was nothing in the original libel to indicate a claim against the Ocean Steamship Company in personam. It is difficult to conceive how the filing of an intervention in behalf of the ship can be construed as a general appearance in a proceeding that did not exist and was not indicated.
The exception, therefore, to the libel, as amended, proceeding against the Ocean Steamship Company of Savannah, is sustained, and the libel is dismissed as against said steamship company.
2. Exceptions 1, 2, 3, 4, 5, 6, and 7 are to the effect that no lien on the vessel is conferred by Cuban laws; that merely a right to attach the vessel in the port of registry is conferred by such laws; that the laws of Cuba quoted do not purport to give to a resident of Cuba the right to proceed by attachment against a foreign vessel in a court foreign to the republic of Cuba; that the admiralty courts of the United States provide their own remedies and the laws of Cuba do not govern; that unless the libelant has a lien it cannot prosecute a libel in rem in the United States; that the vessel in this case was seized by virtue of a libel in rem, under whose allegations libelant was entitled to a maritime lien on the vessel, and it is not claimed in the amended libel that libelant had such a lien; and that libelant cannot proceed by attachment against the property of the Ocean Steamship Company of Savannah in the Southern district of Georgia, because such company is a resident of the Southern district of Georgia.
These matters have been determined adversely to exceptor in the previous opinion of this court. An authority in addition to that there cited is The Kaiser Wilhelm II (D.C.) 230 F. 717.
3. Exception 9 is also disposed of adversely to exceptor in the previous opinion of this court. The fact that the services upon which the libel is based might have been appropriately furnished to, or on the credit of, the cargo, does not destroy the force or completeness of the allegation that they were necessaries of the ship and were furnished on the credit of the ship.
4. In paragraph 6 of the libel it is averred that "libelant rented to the said steamship the necessary lighters," etc., and in paragraph 7 that the lighters, etc., "were rented to the said vessel on the credit of said vessel," and in paragraph 8 that the lighters, etc., "were furnished to the said vessel on the credit of said vessel." Challenge is made by exceptions that these allegations are vague and indefinite, and are mere conclusions of the pleader, and that there should be stated specifically the precise connection of the persons who may have made the contract of rental, or the facts which establish such rental contract and liability of the vessel.
Notwithstanding the subsequent allegations as to F. Suarez Co. and Armenio La Villa and B.L. Stafford and the captain, these exceptions are well taken, and the libel should be amended accordingly.
5. The exception calling for the striking of article 1911 of the Cuban Civil Code, that "a debtor is liable for the fulfillment of all his obligations with all his present and future property," is overruled. While it may state a principle universally recognized, it is not harmful, and is really no more comprehensive than the last paragraph of article 584 of the Cuban Code of Commerce, that "for debts of any other kind whatsoever, not included in the said article 580, the vessel can only be attached in the port of her registry."
6. The exceptions urge that articles 586 and 588 of the Cuban Code of Commerce should be stricken. They read as follows:
"Art. 586. The owner of a vessel and the agent shall be civilly liable for the acts of the captain and for the obligations contracted by the latter to repair, equip and provision the vessel, provided the creditor proves that the amount claimed was invested therein. By agent is understood the person intrusted with the provisioning of a vessel, or who represents her in the port in which she happens to be."
"Art. 588. Neither the owner of the vessel not the agent shall be liable for the obligations contracted by the captain if the latter exceeds his powers and privileges which are his by reason of his position or should be granted him by the former. However, if the amounts claimed were made use of for the benefit of the vessel, the owner or agent shall be liable."
These exceptions are sustained. Such articles establish no liability upon the ship, but merely upon the owner of a vessel and the agent. It must be recalled that this is not a proceeding against the owner, for such attempted proceeding has been held barred, and the only proceeding now left is that against the ship. Even when the captain has exceeded his powers, and "the amounts claimed were made use of for the benefit of the vessel," it is the owner or the agent, and not the vessel, which is liable.
Further reasons are that it does not appear that the obligations upon which this libel is founded were contracted by the captain, nor does it appear that they were to "repair, equip and provision the vessel." They were merely for the purpose of unloading the cargo.
7. A portion of article second of the Cuban Code of Commerce is set forth in the libel as follows:
"Commercial transactions, be they executed by merchants or not, whether they are specified in this Code or not, shall be governed by the provisions contained in the same; in the absence of which, by the commercial customs generally observed in each place; and in the absence of both, by those of the common law. Commercial transactions shall be considered those embraced in this Code and any others of a similar character."
An exception urges that such section be stricken. It might be that, if such Code were further quoted, showing what specifications of "commercial transactions" are contained in such Code, the opinion now entertained by the court would be altered. The ruling must be according to the "lights before me."
"Commercial transactions," as here used, do not embrace the services upon which this libel is founded. I am not unmindful that with a different context they might embrace any act connected with commerce, and that under certain conditions they might be synonymous with "maritime transactions." 12 C.J. 141. The ordinary meaning is more limited, and the context makes clear that the use here is in the limited sense. It is contemplated that the "transactions" are those usually had between "merchants"; that they are either specified in such Code, or are "of a similar character," and no specification is quoted indicating that services in unloading a vessel are embraced; and that in the absence of specification or commercial customs the common law shall control, and rights in admiralty are not founded in the common law.
Paragraph 10 of the libel is stricken. If libelant desires to amend by setting forth other portions of such Code as would indicate that the foregoing view is erroneous such amendment will be allowed.
8. Paragraph 13 of the libel is as follows:
"When said steamship City of Atlanta entered the port of Havana, Cuba, on or about June 30, 1920, her captain consigned the said vessel to F. Suarez Co., and said consignment was duly transferred to Armenio La Villa on or about August 6, 1920, who thus became the agent, consignee, and representative of the said steamship and her owner at the port of Havana. The lighters, tarpaulins, and tugs were procured for the use of the said steamship by the said Armenio La Villa, as the agent, consignee, and representative of the said vessel, for the benefit of the said steamship and her owner, acting in conjunction with the captain of said steamship."
The challenge to this paragraph is overruled, except that portion of it which challenges the phrase "acting in conjunction with the captain of said steamship," as being vague and indefinite. Claimant is entitled to the precise averment as to what is meant by this phrase. This portion of the exception is sustained.
In thus overruling the exception to paragraph 13, it is not intended to be held that the authority claimed therein to arise from the consignment of the vessel by the captain does in fact arise. The effect of the consignment, if proven as alleged, will be subject to construction at the time of the trial.
9. Paragraph 14 of the libel is as follows:
"Upon information and belief, libelant avers that said captain of said steamship exhibited to the said Armenio La Villa cables or other writings, purporting to come from the owner of the said steamship, authorizing or directing him to procure whatever instrumentalities which might be necessary for the unloading and landing of the cargo from the said steamship, and the prompt dispatch of the said steamship from the port of Havana, in order that she might proceed on her voyages with the least possible delay."
This paragraph is too vague and indefinite to permit it to stand as it is. It is significant that the allegation is not that these "cables or other writings" actually came from the owner of the steamship to the captain, but that they were " purporting to come from the owner of the said steamship." The allegations herein are not coupled with any other allegations to the effect that the captain made a contract with La Villa upon the authority of these "cables or other writings." La Villa's connection with the transaction is definitely averred to arise by reason of the fact that he was the transferee of the consignment of the vessel made by the captain of the vessel to F. Suarez Co., and thus became the agent, consignee, and representative. If it is claimed that these writings came from the owner of the vessel, and that a contract which would bind the vessel was made or confirmed with La Villa on the faith of them, and they were exhibited to La Villa, the allegation as to them would be entirely appropriate, or, if it is intended to bind the vessel by any act of the captain himself, whether done under an authority actually received or by reason of a misrepresentation as to such alleged authority, they would be competent. In the absence of appropriate amendment, the paragraph will be stricken.
10. Paragraphs 15 and 16 of the libel aver that certain customs prevailed in Havana, whose enforcement would sustain the libel; but there is no allegation that the owner or the captain knew of such customs. These paragraphs will be dismissed, unless amended so as to meet the requirements of law as herein interpreted.
The custom therein averred is limited to Havana, and is a local custom. "Evidence of a local custom is not admissible, unless it is shown to be known to both parties." Chateaugay Ore Co. v. Blake, 144 U.S. 476 (2), 12 S. Ct. 731, 36 L. Ed. 510. See, also, Savannah Bank Trust Co. v. McQueen, 149 Ga. 302 (2), 100 S.E. 33, and citations therein.
"If a custom is not general in character, but is local, it is binding only upon persons who have knowledge thereof, express or implied. This is especially true in the case of persons residing in foreign lands and never within the particular locality before." 27 R.C.L. p. 163.
"A nonresident will not ordinarily be presumed to have contracted with reference to a purely local usage, but must be shown to have had knowledge of it." 17 Corpus Juris, p. 462.
11. The exception to paragraph 18 of the libel is overruled.
12. Paragraph 19 of the libel is as follows:
"That the said lighters, tarpaulins, and tugs were rented to the said vessel upon the request and order of B.L. Stafford (to whom libelant was directed to go by the captain of said steamship), and of the said Armenio La Villa, the consignee of the said steamship, then and there acting on behalf of the said steamship City of Atlanta, and then and there represented and was the agent for said vessel, to enable the said steamship to discharge her cargo and proceed on her voyages, and to avoid said steamship being indefinitely detained at the port of Havana at that time."
The exception challenges the omission to aver in such paragraph or elsewhere "fully and definitely the relation of the said Stafford to the ship and the cargo, and his authority to bind the ship and the owner of the ship." This exception is sustained.
13. Paragraph 20 of the libel is as follows:
"In pursuance of such directions by said captain, the vice president and general manager of libelant saw the said Stafford, who told him to see the said Armenio La Villa, who was the officially designated agent of the ship. Libelant avers upon information and belief, that the said Armenio La Villa had instructions from the said Garfield, as captain of the said steamship, to procure libelant's lighters, tarpaulins, and tugs for the use of the said steamship to discharge her cargo."
While the challenge to this paragraph is not very definite itself, it is justified, for the reason that it does not appear in such paragraph or elsewhere who was Stafford, what was his relation to the ship or the owner, or what was his authority, and it is not clear as to whether Stafford made the statement that La Villa "was the officially designated agent of the ship," or whether this is an allegation of the libelant. Such paragraph is further vague for the reason that it does not definitely appear whether it was the intention of the pleader to allege that the contract with libelant by La Villa was made under the instructions and authority of the captain of the ship or otherwise. Such paragraph should be made more definite as herein indicated.
14. Exception 23 to paragraph 21 of the libel is overruled.
Libelant is allowed until March 1, 1927, to present any amendments in response to the foregoing opinion.