272 F. 275 | E.D.N.Y | 1921
A libel was filed against the steamship' Devona to recover for freight paid by a shipper of formaldehyde and acetic acid, which were put on board and then taken off (at the direction of the captain) before the boat sailed. It appears that the Devona was chartered by the C. H. Pattengill Corporation, and that the freight
The claimant urges that no action in rem will lie to recover prepaid freight, even if the goods are received on board ship, unless the owner received the amount paid, and the court has been referred to no authority to the contrary. Prepaid freight is not necessarily recoverable, even if the goods actually went on board. The Bris, 248 U. S. 392, 39 Sup. Ct. 150, 63 L. Ed. 321; The Allanwilde, 248 U. S. 377, 39 Sup. Ct. 147, 63 L. Ed. 312, 3 A. L. R. 15; The Gracie D. Chambers, 248 U. S. 387, 39 Sup. Ct. 149, 63 L. Ed. 318. Indeed, the admitted receipt of goods on board does not necessarily malee the ship liable for damages for failure to transport. The Esrom (C. C. A.) 272 Fed. 266, reversing The Esrom (D. C.) 261 Fed. 624. In the case at bar there is nothing to indicate that the claimant intended to give the Caravel Steamship Lines, Incorporated, authority to bind the ship by the receipt of freight, and the equities are with the claimant, which is asked to return moneys which it never received, and which it never authorized another to receive in its behalf. This appears to be one of the class of cases referred to by Judge Hough in The Saturnus, 250 Fed. 407, 162 C. C. A. 477, 3 A. L. R. 1187, wherein he said:
“This -litigation exemplifies a common tendency to regard any floating property, used in the performance of contract, as in some sort a pledge or surety for satisfactory performance; such security to be enforced by asserted maritime lien. No such principle is known to the admiralty.”
The libelant may have a decree against the Caravel Steamship Lines, Incorporated, which has been brought in by petition; but the libel against the steamship Devona must be dismissed.
