No. 772 | S.D.N.Y. | Jun 26, 1922
This' is a suit in admiralty in personam for damages flowing out of a breach of á charter party. It is brought against the United States under the so-called Suits in Admiralty Act (41 Stat. 525). The respondent has filed exceptions upon the ground that the party suing does not reside or hhve its principal place of business in the United States. The libelant is a Cuban corporation, and is not alleged to reside or have its principal place of business in this country. This, in my opinion, is a fatal objection to the suit, which is purely 'statutory, and must conform to statutory requirements. The contrary opinion was expressed in the case of Middleton & Co. v. United States (D. C.) 273 Fed. 199; but there the suit was in the name of a resident agent, and I cannot understand how the fact that a nonresident alien, having no place of business in the country, cannot take advantage of the statute, unless the provision as to' venue is disregarded, can justify a disregard of its requirements. The clause in the statute (section 2) permitting suit to be brought in the district in which the vessel “charged with liability is found” is also unavailing. While the Elmac was in this port at the time the libel was filed, there could be no liability in rem in such
The first, fourth, and fifth exceptions to the libel áre sustained, because the suit is not brought in the district where the party suing resides or has its principal place of business. The second exception is sustained, because no lien is set forth against the steamship Elmac, though she was within the jurisdiction when the libel was filed
I think the words in section 3 of the Act of March 9, 1920, “election so to proceed” (that is to proceed in accordance with the principles of libels in rem) “shall not preclude the libelant in any proper case from seeking relief in personam in the same suit,” indicate that causes of action in personam will lie. against the United States arising out of its operation of merchant vessels, and that this cause of action would lie if it had been brought in a district allowed by the statute.
Nor do I regard the cancellation of the charter party as an abandonment of libelant’s claim for damages arising from its expenditures for lighterage, rendered necessary by failure, to have the Elmac in readiness to receive the cargo. Farrelly v. United States, 159 Fed. 671, 86 C. C. A. 539.
The third exception is overruled, because the facts set forth constitute a cause of action. The libel is dismissed, with leave to file an amended libel within 20 days.