263 F. 243 | S.D.N.Y. | 1916
The plaintiff in this action heretofore filed a libel in admiralty in this court against the defendant and its ship Ada and attached the ship. The libel alleged a breach of a charter party by the defendant. Under that contract the Universal Transportation Company, Incorporated, had chartered the Ada from the defendant for six months, with an option to purchase at any time during that period and a privilege to apply all charter hire paid prior to the exercise of the option on account of the purchase price. The breach of the charter party alleged consisted in a withdrawal of the vessel and refusal to accept an instalment of charter hire, and also a refusal to tender a bill of sale of the vessel when requested and when the charterer was “prepared to pay the balance of tibe purchase money. The damages demanded were for failure to deliver possession of the vessel during the balance of the charter period and for failure to deliver a bill of sale. Judge Smith, before whom the admiralty cause was tried, held that the owner of the Ada had broken the charter party by the withdrawal of the vessel, and that the charterer was entitled to damages for this breach. - He also held that a court of admiralty was without jurisdiction to award damages for a breach of the contract of sale, and ordered a reference to ascer-' tain damages caused by the unauthorized withdrawal of the vessel from charter hire.
Upon and by reason of such a state of the record the charterer brought this action at common law and attached the ship, claiming damages for failure to deliver the vessel or a bill of sale thereof, which Judge Smith had held the court of admiralty was powerless to award. An attachment issued out of this court at common law, which the defendant moves to vacate on three grounds: (1) That this court cannot interfere with the possession of the admiralty court which has heretofore attached; (2) that the moving papers are defective ; (3) that the right of action here asserted is inconsistent with the decree in admiralty already rendered, because that decree necessarily proceeded upon the assumption that the breach was for withdrawal from charter hire, a breach which could not exist, if the option to purchase the ship had been exercised.
I likewise hold the papers upon which the attachment was granted sufficient. If the original papers were not entirely adequate, all defects have been cured, under section 768 of the Code of Civil Procedure, by the supplemental affidavit.
I think a recovery in this action must take into account the fact that the exercise of such an option would be subject to the privilege of user during the term of the ch«arter party, for which the admiralty court has already provided an award of damages. But it is evident that the deprivation of the exercise of the option caused an element of damage which the admiralty court has held that it did not have jurisdiction to award. It may be that, if a single action at l«aw for failure to deliver the vessel had first been brought, it would have resulted in the recovery of the same amount of damages as can be obtained both in the admiralty cause and in this action at law. As it is, however, a court of competent jurisdiction has already held that it will award damages for loss of the charter privilege, _ and that it cannot aw.ard damages for deprivation of the right to purchase the vessel. The charterer, under the allegations in his pleadings in admiralty, sought to recover all elements of damages, and was denied bv that court on the ground of lack of power the right to recover for loss of the option to purchase the vessel.
The charterer, therefore, properly brought this action to obtain the relief denied in admiralty, «and obtained an «attachment, which is based upon a good cause of action, and must stand.