AGWILINES, Inc., v. EAGLE OIL & SHIPPING CO., Limited.
No. 142.
Circuit Court of Appeals, Second Circuit.
Jan. 10, 1946.
Writ of Certiorari Denied April 29, 1946. See 66 S.Ct. 980.
In this very confused situation certain things stand out. It is apparent (1) that the written contract proved by Volbers’ testimony, as well as that contained in the letter of January 12, 1937, proved by Johansen‘s testimony, if in effect one and the same contract, was abandoned by the appellee as an agreement which represented the undertakings by the League on behalf of the Reich; (2) that the appellee tried the case on the theory that proof of the existence of an express contract, whether written or oral, was not necessary and that agency proved by the acts of the parties within the definition of Section 1 of the Restatement, Agency, and Comment (a) thereof, was sufficient; and (3) that the charge of the court was substantially to that effect.
As has been indicated, if my interpretation of the Act as it existed prior to the 1942 amendments is correct, it follows that the League was not required to register with the Secretary of State and that the defendants could not be found guilty of conspiracy to aid it in avoiding registration. If the 1942 amendments had been in effect I entertain no doubt that the agency relationship shown to have existed between the League and the Reich would have been within the purview of the statute. The appellants have been tried and convicted upon a theory of the statute stated in H.R.No.1547, 77th Cong., 1st Sess., as being “probably implicit” in the Act prior to the 1942 amendments. See note 6 supra. But a criminal statute must afford an adequate and certain definition of the crime which it purports to create. Otherwise it will not meet the requirements of the Fifth Amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; United States v. Brandenburg, 3 Cir., 144 F.2d 656, 861. Judgments of conviction may not be based upon a definition of a crime which is not expressed with full certainty in a penal statute.
For these reasons I conclude that the judgments of conviction should be reversed.
Edwin S. Murphy and Kirlin, Campbell, Hickox & Keating, all of New York City (Helen C. Cunningham, of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
L. HAND, Circuit Judge.
The libellant appeals from a decree in the admiralty, because of the insufficiency of the award for the detention of its ship, “Agwidale,” resulting from a collision with the claimant‘s ship, “San Veronico.” The parties agreed that the claimant should pay eighty-five per cent of the total damages, and the case was sent to a commissioner, before whom all items of damage were stipulated except that for detention. The Commissioner‘s report as to this item is not disputed, and was as follows: “As a result of the collision the ‘Agwidale’ was necessarily out of service for nine days, from June 6, 1943, 5:00 A. M. to June 15, 1943, 5:00 A. M.; from June 6, 1943, at 8:20 A. M. until June 11 at 3:30 P. M. she was undergoing repairs, and from the last mentioned date until June 15 at 5:00 A. M. she was waiting for a convoy. During all this period the ‘Agwidale’ was under time charter to the United States through the War Shipping Administration. Pursuant to the provisions of this charter the United States was under obligation to, and did, pay libellant half hire during the repair period, full hire during the period while the ‘Agwidale’ waited for a convoy, and $207.89 for fuel and water. During the repair period libellant paid $240.12 for fuel and water, for which it has not been reimbursed.
“Counsel for the ‘San Veronico’ do not dispute liability for the pecuniary loss of the owners of the ‘Agwidale,’ namely, half hire for the first repair period, and $240.12 for fuel and water paid during this period.
“The advocates for the ‘Agwidale’ claim that the fact that the owners of the ‘Agwidale’ have been paid part hire during the detention period is res inter alios acta, and that the liability of the ‘San Veronico’ is not thereby diminished. Consequently, they claim loss of hire for nine days, equal to $10,942.56 and $448.01, the total disbursements for fuel and water.” The only question in the case therefore is—again as stated by the commissioner: “What damages is a shipowner entitled to for loss of use of his ship due to collision, when his charter party hire continues to run and is paid by the charterer?”
It is well settled law that damages for the detention of a commercial vessel are to be measured by the profits which the owner would have realized from her use, had she been free. The Potomac, 105 U.S. 630, 26 L.Ed. 1194, The Conqueror, 166 U.S. 110, 133, 17 S.Ct. 510, 41 L.Ed. 937. We have so decided many times, the last being in Navigazione Libera Triestina v. Newtown Creek Towing Co., 2 Cir., 98 F.2d 694, 699. The dispute here is therefore as to what profits the libellant lost by the detention; and we find it hard to believe that there could be any doubt about the answer, if the inquiry were confined to the owner‘s personal loss. Having parted
The second ground for recovery is that the libellant, as owner, should be allowed to sue for the charterer‘s loss on the same theory that a ship recovers as bailee of her cargo for cargo losses, as in effect we held in Pool Shipping Co. v. United States, 2 Cir., 33 F.2d 275, in accord with recognized admiralty practice. To that, however, Robins Dry Dock & Repair Co. v. Flint et al., 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290, is an answer. The charterer there sued to recover his loss from a detention caused by the negligence of a drydocker who had broken the ship‘s propeller. When the case was before us (2 Cir., 13 F.2d 3), we held that, although the charterer had had no proprietary interest in the ship and no contract with the drydocker, the drydocker could not protect himself by the ordinary doctrine that a tortfeasor is not liable for remote damages, because the whole loss from detention of the ship was to be apprehended from his lack of care, whether the owner bore it all, or shared it with a charterer; and that, the whole loss being therefore a direct consequence of his negligence, he should not be allowed to cut down his liability. As part of our argument we said that the owner could have sued on behalf of the charterer for the charterer‘s share in their joint loss, in analogy to suits by a ship as bailee of her cargo—the very position now taken by the libellant at bar. The possible objection that the owner was not a party libellant (Hines v. Sangstad S. S. Co., 1 Cir., 266 F. 502), we disregarded because the respondent had failed to assign this procedural defect as error. To all of this the Supreme Court said “no.” It thought that the only basis for charging the drydocker with liability was because he had prevented the performance of the charterparty by the promisor—the owner—and that interference by a third person with the performance of a contract was an actionable wrong only if it was intentional. The Court thought it irrelevant that this resulted in exonerating the drydocker from nearly all liability through the fortuity that the profitable use of the ship had been divided between the owner and charterer: the difficulty went deeper; the drydocker had committed no legal wrong against the charterer at all, although he had caused it serious damage. Perhaps it was not necessary after so holding to consider our argument that the owner might be treated as suing on behalf of the charterer; but the court did so and definitely repudiated it, as appears by the passage from the opinion on
Decree affirmed.
CLARK, Circuit Judge (dissenting).
I take it as agreed that but for the payment by the United States to the libellant of a portion of the charter hire, pursuant to the charter, libellant would recover complete compensation for the loss of use of its vessel due to claimant‘s act—computed here at the charter rate, since that was the only evidence of value offered. That being so, we have the rather startling result that claimant receives the bonanza of a substantial reduction in damages through the mere chance that its victim has a favorable contract with another. The case viewed as requiring this result, Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 135, 72 L.Ed. 290, has no such effect; there the action was by the charterers, and the Court quite scrupulously avoided a decision beyond the issue before it or casting doubt upon our premise below (2 Cir., 13 F.2d 3) that the owner could sue. It merely disagreed with our further deduction that hence the charterers also could sue; indeed, it seems to assume that the owner—who had already settled with the tort-feasor—could have sued for his full damages, for it says that the charterers “have no claim either in contract or in tort, and they cannot get a standing by the suggestion that if some one else had recovered it he would have been bound to pay over a part by reason of his personal relations with the respondents.” 275 U.S. 303 at page 309, 48 S.Ct. 134, 72 L.Ed. 290 (italics supplied). But the point was not of immediate importance, since the owner had already collected for loss of use, and the charterers—excused by their charter from paying charter hire, see The Bjornefjord, 2 Cir., 271 F. 682—were suing only for the loss of their good bargain, vessel hire having become very expensive in the summer of 1917.2
Whether or not one may like the policy of the Robins case, there are some very good arguments for it on its own terms. The idea that a defendant may be subjected to many lawsuits, even after he has taken a release from the injured owner, by persons lacking anything approaching what is commonly viewed as property or more than various contract rights with the owner, is novel. Moreover, liability to such harassment is ordinarily unnecessary for just re-
For in admiralty, as well as at law, there is no more solidly established principle than that payments or reparations of whatever nature which the injured party receives from a collateral source are, in the words of the courts, res inter alios acta, of no concern to the wrongdoer.
Nor is the rule confined to reparations which may be classified as insurance or indemnity where the injured party or some one acting in his behalf has contributed to the fund from which payment is made. Thus an owner may recover damages for injury to his buildings, although the terms of his lease require the tenant to continue payments. S. H. Kress Co. v. Bullock Shoe Co., 5 Cir., 56 F.2d 713. In nearly all jurisdictions, an employee may recover full damages for personal injuries, although he has received wages from his employer during the period of illness, Shea v. Rettie, 287 Mass. 454, 192 N.E. 44, 95 A.L.R. 571; Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374, 53 A.L.R. 771; Hayes v. Morris & Co., 98 Conn. 603, 119 A. 901—a view which I understand my brethren to accept in citing this line of cases favorably. And an injured party may include as part of his damages medical services, although they have been gratuitously performed or paid for by relatives. Chicago, Duluth & Georgian Bay Transit Co. v. Moore, 6 Cir., 259 F. 490, certiorari denied 251 U.S. 553, 40 S.Ct. 118, 64 L.Ed. 411. See annotation 128 A.L.R. 687.
These decisions are so identical with the facts here that the attempt to distinguish this case as one where the libelant suffered no “loss,” I can regard only as question begging—so much so in fact that I confess to surprise that so purely verbal an argument is urged. It is most starkly stated by claimant when it says the cases are “clearly distinguishable” because “in all of
I do not think these persuasive precedents of the law of damages should be repudiated for an unorthodox doctrine which can serve only to penalize the prudent and provident shipowner. I would reverse for the grant of damages for the loss of use, as claimed.