298 F. 184 | E.D. Pa. | 1924
This suit was brought under the terms of the Suits in Admiralty Act of March 9, 1920 (Comp. St. Ann. Supp. 1923, §§ 125134-125to recover the sum of $3,008.-65, a balance of an account for repairs performed by the libelant to the steamship Castlewood at Newport News, Va., in November, 1920. The libel contains two counts. Under the first, the libelant elects to proceed in rem, as if the vessel were privately owned, without prejudice to its right to proceed in personam, and, in the second, it proceeds in personam against the United States Shipping Board Emergency Fleet Corporation, as upon an account stated. '
“In a casual way I said, ‘Mr. Anderson, whose ship is this?’ He said, ‘We are agents for the ships and we are in a great hurry.’ I said, ‘Have you any further papers on it?’ He said, ‘To avoid time we are using the list made out by the engineer.’ ” /
That was the only inquiry made by any one, so far as the evidence shows, to ascertain what authority Hasler & Co. had to impose a lien upon the vessel. The charter party contained clauses substantially
Mr. Bridges, secretary and treasurer of the libelant company, being ■ unable to get payment through Hasler & Co., went to the office of the Emergency Fleet Corporation and presented an itemized statement of the repairs, labor, and materials furnished, and upon a statement of the facts was informed by the general counsel of the Emergency Fleet Corporation that the libelant had an admiralty claim against the Shipping Board, and that he could go to the controller’s office, and that he would give him some settlement. As a result of further conference, Mr. Bridges received for the libelant from the Emergency Fleet Corporation a voucher for $6,000 as an advance on account of the bill for repairs ordered by Hasler & Co. - in the amount of $8,491.70.
The voucher is upon the form of the United States Shipping Board Emergency Fleet Corporation, Division of Operations. It contains the following matter pertinent to the claim:
‘Debtor to Newport News Iron Works, Inc., Newport News, Va.
‘Date, .Tune 10, 1921.
“Seller’s Invoice No. 742, November 16, 1920. For use on Contract No. Rq. November 23, 1920. F. O. B. Hasler & Company, Inc. S. S. Castlewood.
“For an advance on account of repairs to tbe Castlewood (5141 D. W. T.) for work performed at Newport News in accordance with invoice of Nov. 16, 1920, bill No. 742, in the amount of $8,491.70, bill now in the course of audit by the Norfolk office and final settlement will be made by the New York office on completion of audit.
“Repairs ordered by Hasler & Co., Inc., in accordance with confirming requisition dated November 23, 1920, on authorization from the receiver, Victor S. Fox & Co.
“Vessel returned to the Board as per memorandum of the assistant counsel dated June 8, 1921, $6,000.00, attached.
“Approved: W. W. Nottingham, Assistant Counsel.
“Maritime lien. ' G. R. Snider, Adm. Counsel.
“I certify that the above claim constitutes a maritime lien and is payable by the Shipping Board. Edward M. Hyzer, General Counsel.
“I certify that the above is true and correct.
“C. P. Stone, for Acting Director of Operations.
“Audit reviewed and voucher certified for payment
“J. P. Brantley, Auditor Mise. General, Expense Branch.
“Approved for $6,000.00.
“M. Newbold,
“Auditor, Bureau of General Auditing for the General Comptroller.”
The Emergency Fleet Corporation paid the libelant by check the said sum of $6,000, and in accordance with the terms of the voucher the Emergency Fleet Corporation caused the bill to be audited, and upon audit its amount was increased-to $9,008.65, which was certified to be correct.
The voucher and the circumstances under which it was prepared, I think, clearly establish it as an account stated. The libelant’s bill for repairs was presented to the Emergency Fleet Corporation’s office. They received the account, admitted liability subject to audit, and promised to pay it after audit. An audit was made and certified, and balance stated. Thus, in my opinion, it became an account stated. Toland v. Sprague, 12 Pet. 300, 335, 9 L. Ed. 1093; 1 Cyc. 364.
The contrary was held by Judge Adams, of the Southern District of New York, in the case of Morse Dry Dock & Repair Co. v. Munson Steamship Line, 155 Fed. 150, which was affirmed by the Circuit Court of Appeals of the Second Circuit in 158 Fed. 1021, 85 C. C. A. 666, and following that case the same court, in an opinion by Judge Mantón in the Hattie Thomas, 262 Fed. 943, held that a maritime contract is not changed into a nonmaritime contract because of an account stated.
A decree may be entered for the libelant in the'sum of $3,008.65, with interest from June 10, 1921, and costs.