In re John B. Rose Co.

254 F. 367 | S.D.N.Y. | 1918

LEARNED HAND, District Judge.

[1,2] Normally a vessel, once arrested and discharged, may not be again arrested for the same cause of action. The Union, 4 Blatchf. 90, Fed. Cas. No. 14,346; The White Squall, 4 Blatchf. 103, Fed. Cas. No. 17,570; The Thales, 3 Ben. 327, Fed. Cas. No. 13,855; Id., 10 Blatchf. 203, Fed. Cas. No. 13,856; The William F. McRae (D. C.) 23 Fed. 557; The Mutual (D. C.) 78 Fed. 144. There has always been a condition imposed upon the rule that if the stipulation was entered into “improvidently,” or through “fraud or mistake,” the court might order a new arrest, and Justice Clifford approved that condition in U. S. v. Ames, 99 U. S. 35, 25 L. Ed. 295. I have no doubt that it exists. It was extended in The I. F. Chapman, 241 Fed. 836, 154 C. C. A. 538, by the Circuit Court of Appeals for the First Circuit to a case where, in a libel for personal injuries, the libelant later raised his damages, and upon trial recovered more than he had originally claimed’. The circumstances justifying the re-arrest were held in that case to be matter of discretion for the District Court, and an order was affirmed, though the ' first stipulation covered the damages then claimed. .

In the case at bar there is no suggestion that the sum fixed in the stipulation was wrong through “fraud or mistake,” nor was the amount “improvidently” reached. The trouble was in stating the original items in the libel. Apparently some of the towage services were omitted; at least, that is the more reasonable explanation of the language. Each .of these may have constituted a separate cause of action, being by separate contract. If so, I know of no obligation on the part of the libelant to joiii them all in one libel. In such case it would not be as though they had constituted several breaches of a single contract. If they really are each several separate engagements, I think the rule does not apply.

If, on the other hand, the errors were those of incorrect statement of the amount of the several services, I apprehend that the rule would prevent any re-arrest. It is designed to compel the libelant to state his claim once and for all, and to discharge the vessel finally of the lien, and the mistake or the like, as I read the cases, must go to the supposed value of the vessel, not to the statement of the claim. The I. F. Chapman, supra, does, indeed, extend the rule further; but the cases in this circuit do not go so far.

Hence, if the libelant had a series of independent contracts, so that it need not have joined all in one libel, I see no objection, by way of amendment here, to allow them to be set up and to allow a re-arrest; but, if the correction be in the amount of the several services originally pleaded, I shall not allow it.' The papers do not show these facts, and the motion to re-arrest must be denied, but with leave to file further affidavits, if the libelant be so advised.