*3 element, involve a been said to time has FRANK, SWAN, Before CHASE and of a “fourth dimension— consideration Judges. Circuit ap- namely it also that of time.” 2Since attempt parently an to coordinate involves - FRANK, Judge. Circuit two different national the currencies of occurred in British ter- The collision legal phi- systems, a mathematical-minded between British and Ameri- ritorial waters lospher might suggest application of the The British is can vessels. vessel owned general theory relativity,8 seeks corporation which has libellant, a British physi- formulate “laws” for all coordinate London, place of business office and systems uniformity.3 cal thus to attain stipulated parties have England. The Happily, spared this court is such Ein- claimant-appellee, owner of the Ameri- effort,4 Supreme for the steinian Court of the vessel, is liable for can has out solution worked which we must vessel. owner accept. item con- around one dispute centers The repairs, money It well settled that is sisting of the amount by judgment by an American court must be ship, country made in this to libellant’s currency.5 question in issue there The other items Shipyards. Todd 1. Lord Volturno, Liberty E.D.Pa., Wrenbury Nat. ^[1921] Bank of N. Y. v. F. 2 A.C. S. 252. S. Celia Burr, 563. S. S. D.C. Cf. 4. Cf. Uniform Commercial 131. Contemp. Rheinstein, Problems Conflict of Laws In the (1951) 114, 129, Code, 16 Law ISO- g., anti-relativity, See e. Liebeskind v. Mexican really 5. L. P. uni- 2. It Cir., 971; 116 F.2d theory. Guinness v. formity, Miller, D.C.S.D.N.Y., 291 F. 770- Infeld, The Evolution Einstein See 771; Transport Frontera Co. v. Abaun (1938) Physics za, Cir., Nussbaum, Money 271 F. (1950) in the Law 364-365. Cf. 31 U.S. applicable this, rules are as to The same like arises, in a case fore Con obligations. Restatement tort proper date for L. Harvard controlling Laws, flict of own. currency into our “Upon 619', Hicks Rev. 625 it said: the federal courts authorities right arises dam 70 commission of a tort a 269 U.S. Guiness, money expressed ages, Fialiale in units Bank Die Deutsche L.Ed. 517,6 47 occurred.10 country in which the tort Humphrey, 272 U.S. Nurnberg v. They expressed in primarily have been damages, These L.Ed. 383. 5. Ct. country, money as follows.7 Williston summarized as of money that the of the forum Supreme “has held translated Court *4 in a obliga merged right date when for breach the the value of a currency Conversely, the where in performable foreign judgment.11 forum tion in time the forum, tort is taken at occurs in dam but where * * breach, *; obliga ages but where the must in for be reckoned terms country performable in foreign tion is in a eign money, reparation right is ex country, judgment money of that pressed forum at money in day applicable, rule has been held arises, and the date the cause of action ground obligation that ‘an in terms of exchange existing on hence rate of currency country of that takes the risk prevail.” such date With ** * If the debt fluctuation agree. statement we due here the value of dollars been had dropped brought, was before suit tort, foreign a a Here we have on plaintiff more dollars could recover no ” 8 collision in British territorial waters.12 has held that account.’ This court relating Accordingly, cases to collisions applies to judgment-day the so-called rule high in our waters13 on seas14 are or unliquidated damages the cause of where foreign origin.9 inapposite. English action was of The courts seem 371; applying liberty Bank of National C.A. 9. For cases in this Circuit § Burr, D.C., rule, judgment-day F. N. v. 270 Det Forenede Y. see Dampskibs Selskab v. Ins. Co. of North 253. judg- 659; America, Cir., 658, 2 continental countries F.2d Thorn- In some 31 City York, in for is often ton v. National Bank of New ment 374ff; currency. Nussbaum, 130; Cir., 127, See loe. cit. 2 45 F.2d v. Tillman Bank, Cir., 1023, Fraenkel, Foreign Moneys 2 in Domestic Asiatic 51 F.2d Russo 1025, 1368; Arrow, Courts, (1935) The 80 A.L.R. West 35 CoLL.Bev. 360 and 386- 838; 387; (Rev.ed.) Cir., 853, Williston, 2 F.2d Booth & § Contracts 80 cf. Merchant Co. v. Canadian Government Marine, Limited, 1410A. 240, part probably Cir., 2 63 F.2d 241. in due The difference is systems, that, in to the fact civil law Mandu, Cir., 459, 2 F.2d 10. See The 102 remedy. specific See relief is the usual 463; Laws, of Conflict of Restatement Huston, The Enforcement of Decrees in 409, Sections 424. 6-7, 39-53; Nussbaum, Equity (1915) Macdonough-Werfa, 11. 152ff; Pekclis, Legal 1934 A. M. C. cf. Tech- loe. cit. niques Dampskibs Det Ideologies, cf. Ferenede Sel Mich. Political 41 America, 665, 669f£., skab v. Insurance Co. of North the ineffi- L.Rev. Cir., 31 F.2d 658. cacy the Continental method. Anglo-American “compul- reason Laws, 12. Restatement of Conflict of sory rule said to the ob- conversion” 409. of the action of “debt in the solescence g., Verdi, D.C.S.D.N.Y., 13. See e. cit., Nussbaum, detinet”; 365. loc. breach-day 908. There the rule F. Sutherland, 274 Zimmerman v. See also 6. applied. Compare Ilurona, it with The 71 L.Ed. 1034. 47 S.Ct. U.S. D.C.S.D.N.Y., 268 F. decided tho (Rev.ed.) day, same where breached contract was 3929- Contracts 7. Williston France; judg in to ment-day francs there the applied. rule Quoting Bank Filiale Deutsche Die Hawaiian-Larchgrove, Humphrey, Nurnberg 1935 A.M.C. U.S. 813; Quevilly-Sampson, page A.M.C. 71 L.Ed. 383. 47 S.Ct. adopted have breach-day rule.15 But judgment-day yields rule just we not deci consider those result in this case :19 As libellant sions, place has since the date of England, business is to law award it be determined into dollars translated of the forum.16 courts at the The New existing in 1944 perhaps have adopted breach-day rule 1945, merely happen because of the circumstances,17 although most a dictum stance that it libelled vessel claimant’s Whether, a recent decision is contra.18 the United give would be to it a circumstances, should, some in obe £10,000.20 $36,000. windfall some or over dience Tompkins, For, to Erie Railroad if this suit Eng had been brought U.S. ap land, L.Ed. the judgment have been ply rule, £29,525.9.6, the state we need here con £29,525.9.6 and not for trans sider, question since we here lated —as 1944 or 1945—into dollars general maritime pounds, law. and then retranslated so as. 18. Matter of United Shellac 17. 16. Restatement of 15. S. S. American try judgment. Nurnberg arises under foreign exchange the amount breach of contract or the 277 abroad, 71, 193 N.E. 897. creditor question, Parker v. Equitable Bank, N.E. A.L.R. Union N.E. debtor National 37, A.C. Bank v. Wills, Comment. solves *5 354; N.E. §410. Hoppe is based 138 N.E. App.Div. 147, 822. 544; 745; 338, Restatement Bank, here,’ (Die itself merely 253 N.Y. [1940] 1 K.B. foreign law, 667; Celia v. and the happens v. Russo-Asiatic Chakarian, City 178 N.E. Life Assurance 80 A.L.R. v. There Where the suit 43 Madeleine Vionnet et Cie v. Hoppe, Richard v. to be awarded upon 241 N.Y. Parker v. such Humphrey, 497; Bank, of another from A.L.R. jurisdiction S. S. 166, to be whether, Deutsche Conflict the court 152-153, as cases, ordinarily Richard of Conflict 258 250 [1930] A.C. 277. 1359; Dougherty ‘the Volturno, obligation existing 72; 170 N.E. 163, 167, 168, be 512; able to catch his Hoppe, American Union 80 A.L.R. N.Y. the date of the N.Y. Bank, 272 U.S. translated into of Soc., fact Bank Fialiale The Ottoman country, measured Corp., 1950, v. 97 N.Y.S.2d Laws, day said: “The Sokoloff arriving 69, 82, our courts performed this coun American 257 N.Y. 266 N.Y. of 235 N.Y. ^[1921] 532, 1359; Laws, 424, 164 179 149 re 69 v. v. 2 20. See 19. in The it will Choice-of-Law Law ment-day 130-131; Cavers, flict of Contracts Proper as 537-538, no Union so Sirie v. Hoppe Limited v. 614, 211 (1933) 173, 269 tained contract was broken Y. be rate to be 519, which tracts, L.Rev. (1935) 273-277. amount of the adjusted according Godfrey, On the 52; (Richard 37, Metcalf Co. v. Rifkind this a Device for rigid 163, performed here, 138 U.S. Deutsche Bank v. 47 Nussbaum, Bank, supra; [Rev.ed.], prevails distinction in v. Russo-Asiatic work Law of a (1926) 558, other rule of N.E. Uniform N.Y.S. Laws, 149 N.E. Contemp. v. S.Ct. 71, 188 N.Y.S. 196 rule should suggests Mayer, (1951) 55-56; Morris, American Union 192-193. Godfrey, Rheinstein, applied 46 497, injustice. hand, time of App.Div. 529, Problem, thumb, 166, Measuring Value, judgment 53; on the Mayer, S.Ct. section loc. eit. 405. 213 Commercial explained Tort, Problems 338, A if the Richard v. American 559. Restatement 5 Williston on Con 71 L.Ed. is that (Hicks then the 196 App.Div. Humphrey, 52; 46, be and that the default, Critique day 1410A).” Conflict there should be Bank, Rifkind, 43 A.L.R. supra; 64 Harv.L.Rev. rejected (or App.Div. 529, 70 L.Ed. exchange rate Cf. 5 contract Bank, Metcalf Harv.L.Rev. v. on the of Annotations (1951) 114, 188 award) when Code, Guinness, 383), 235 judgment of Laws Sirie Corbin, 26 supra). Money See 241 N.Y.S. when judg basis is to 613- Con N.Y. 168; 512; Col. ob al N. v. Libel pounds.23 repair £42,442.17.6.21 In approximately to become gain lant should not some in which the each cases £10,000 suit merely bringing over used, were been there breach-day rule has “obligation en country. is not this compelled facts which consideration hap larged fact the creditor foreign currency;22 here, by the a had the suit pens here.” to be able to catch -his debtor been England, been in would have there because Insofar as libellant suffer wa The tort occurred in British none: shrinkage purchasing internal ters, corpora a British and the power pound,25 libellant would England, paid tion doing business in 21. . 43 But we need lire A.C. Vionnet et Cie 72, Chakarian, operating. payable loss ent Cf to the Italian abroad Bank, breach of a contract In S. Conceivably A.L.R. there was for if price 235. Macdonough-Werfa, business 241 N.Y. in Turkish lire S. Celia in French . Richard v. American Union one item of damaged party 512; Fraenkel, [1930] A.C. period In The Ottoman Bank v. not government, goods the result an Italian v. Wills 163, 175, and do not so decide. breach currency. when the S. S. dealing currency. sold for Volturno, might ship ^[1940] which deducted' in 149 N.E. were loc. cit. 364 In Madeleine ship sum contract France and there was a under be differ was the engaged payable A.M.C. ^[1921] K.B. hire exchange. 24. it internal, Nations for Kingdom and the United States took effect. These statistics are as follows: whole, shrinkage parative September, 1949 when the devaluation the dollar has decreased cites tables Statistics, Statistical Humphrey, curiae, and for wholesale support Die Deutsche Bank Filiale Which points than has that of the L.Ed. 383. has apparently of its figures domestic out that since in its March, 1951, submitted point, U.S. appearing purchasing power of *6 prices is far less than Office Monthly the United States devaluation, brief cost in the United more, showing of the United value. Nurnberg pound. Bulletin of in which amicus in living com- part Kingdom Living Cost of Wholesale Prices All Raw Finished Items Food General Materials Goods 1949 . 112 Sept. 212 200 117 236 . 113 120 222

Dec. 250 204 1950 121

.Mar. . 113 226 262 204 . 114 . 123 236 294 208 June Sept. 122 114 . 250 377 213 Dec. . 116 125 269 462 219

United States Living Wholesale Cost Prices Raw All Finished Items Food General Materials Goods 1949

Sept. 165 . 178 191 172 194 . 188 Dec. 163 187 175 170 1950 . 163 192 186 177 171

Mar. . 166 194 182 198 176 June Sept. . 469 214 . 174 Dec. Appendix England,26 no redress in and therefore should have none here. part stipulation as fol- reads in repair If bill in libellant had on having lows : “Libel been filed herein dollars, obligated so, or were to do it still by Shaw, Savill, Albion might perhaps arguable that be Co., Ltd., the amount of recover be to be that entitled reimbursed damages colli- sustained reason of a precise e., $118,- dollars, i. amount of sion which between its steam- occurred 840.03; consider that but need not we ship Tamaroa vessel Fredericks- tank problem, is not us here. since it before burg at anchor lay while the Tamaroa payment of the Because of libellant’s Bangor Ire- Anchorage, Lough, Belfast pounds, payment to Todd dol- land, January on the morning drops equation, so to lars out of the having cross-libel on been filed herein speak. Inc., Tankers, October by Paco Fredericksburg, owner of tank The United a 'brief filed as vessel

amicus, suggests recover the said the result here is sustained vessel, peculiarly as a result- colli- fair because the devaluation of the aforesaid sion; pound parties part “managed respective and the cur hereto having rency” plan, agreed April 6, so that the to a set- decreased to, tlement of no the above-entitled rate bore relation suits Inc., Tankers, basis of Paco affect, purchasing bearing the not the domestic did damage power although sustained it and Fred- pound.27 But ericksburg withdrawing any some claim conceivably fact relevant against therefor steamship Tamaroa other kinds of cases where conversion claimant, her pay- and in addition foreign currency necessary, thereto ing provable damages sus- deciding it in this case. considered 75% tained by steamship Tamaroa in- argues parties Libellant in- both terest computed thereon to be at the rate conversion into American tended cur- per annum year from one after the rency existing to be at the expendi- Tamaroa’s date various at the date of the to Todd be- *7 paid; tures losses until Paco and and intention, cause, that not been the Inc., 7, having Tankers, 1949, on March willing been not have the claimant would partial payment made a sum of the 7, account, on March payment on to make $100,000 damages on account of the sus- $100,000. The large a sum as so Tamaroa, by tained in order to avoid the persuasive, argument, at best too the further of interest on said accrual n omits amount important an fact: pending agreement amount final decree, claim- before crediting in the fixed damage n ant with the the items total of individual $100,000 payment on ac- Tamaroa; sustained the re- and the amount, e., of that i. count, in excess was spective parties having hereto thereafter principal interest 4101,750.02 and for agreement on the reached an nature and payment. of that the date damages amounts of the sustained by properly for therefore decree was Shaw, libellant, Savill, Ltd., Co., Albion & plus e., $1,750.02, interest difference, i. forth, as set hereinafter $1,- or total March from stipulated (cid:127)911.24. agreed hereby “It is and proctors respective and between Affirmed. always cases, pound Perhaps “a is domestic all civilized countries always pound,” “commodity” (or “price-index” dollar,” “a or dollar or is have regardless actually currency. power”) “purchasing Cf. decreased value. Nussbaum, Nussbaum, cit., Eng loc. cit. As 299ff. But the loc. Nussbaum, exceptions, see loc. 182- courts, ours, cit. exceptions, and with few lish 48 Col.L.Rev. adopted the so-called “nominalistic 27. See notes 23 supra. according purely theory,” which, and damages ican that such rate of libel- was and parties hereto that $2.80 Co., Ltd., applicable the conversion lant, Shaw, Savill, Albion from in its amounts of items 17 and 20 reason of matters set forth currency. date of British to American together Sterling libel herein with expenditure item applicable each loss stipulated agreed “It is further and are as follows:” Ltd., Shaw, Savill, Co., Albion & reading: items, from Paco last entitled to recover Here follow 36 Tankers, Inc., steamship Fred- claimant of Shipyards Corpo- “36. Todd value, ericksburg, stipulators its and/or ration, repairs at New damages as above amount 75% set York forth, thereon at the interest rate- $118,840.03” July 1945 .......... year per one annum calculated from 6% fol- stipulation continues as then after the each date set forth under lows: individual items until March agreed stipulated and “It is further upon payment partial date of the- which a repairs Tamaroa that the costs of $100,000 Tank- sum of made Paco $118,- sum of effected at ers, Inc., per an- and with interest at 6% under Item 840.03 as set forth above upon num balance between amount said paid by the first instance of libellant’s sum Shipping War Administra- United States until ; debited tion this amount was date of thereof. against Trans- British of War Ministry libellant, Shaw, “It is understood that port Administra- Shipping the War Savill, Ltd., Co., Albion & contends that July tion and thereafter damages expressed amount of its Transport was Ministry of War British Sterling British as above forth, except- set Shaw, amount Sa- reimbursed in such ing Items 16,17 and should be converted’ Ltd., herein, vill, Albion & into American Tamaroa. owner of the $4.025; and that the amount stipulated agreed is further “It constituting repairs Item 36 the cost of ef- damage items of all the times when the Shipyard fected at New York by Todd Cor- expressed Sterling were in British above poration should be allowed and confirmed (excepting items incurred or in the sum of without con- repair 20); at all times when version said sum into Sterling British paid by (Item 36) was reconversion into American currency; Administration, when the amount thereof Inc., Tankers, that Paco contends that the Ministry against was debited the British damage amount of the items of as above *8 Transport, of when the War and British expressed set forth Sterling (ex- British Ministry Transport of was War reim- cept 20) items 17 and should be con- by amount of such bursed the debit currency verted into American at the ex- Co., Shaw, Savill, Ltd., Albion libel- & change rate of and that the amount $2.80 herein; at times when lant the the terms of Item in the sum of agreed up- the suit were of settlement of currency be converted from American to respective parties the hereto on on between British at the Sterling exchange of rate payment and when the April $4,025, rate being exchange applica- the account was made Paco on ble at the time said amount was debited Inc., Tankers, on the rate against Ministry the British of War Trans- the exchange for conversion of British port by the United States War Sterling into was $4.- Administration the time and said debit was Ministry the to British of War Trans- herein, stipulated port agreed making the that sum of “It is further £29,525.9.6, that subsequent September 19, this amount to times should be the at all into exchange applicable reconverted American currency at the rate the- exchange the rate $2.80, applica- rate of Sterling of British to Amer- agreed mak- lower are that the upon stipulation, court decisions ble the date this amount to reference ing $82,671.33, said “the moment when the suit sum of thereby brought” was carry July inadvertence interest from was an judg to claimant what was moment of giving effect to the allowance meant was the judgment- of one from the date of year’s interest ment. This is the source of applied item libellant as owner day by my of said rule brothers. theory it, is rule, of the Tamaroa. as I understand that our an amount judgment should be for agreed “It that understood and further equal greater just neither nor less but applicable rate of ex- the issue as to the which be rendered under change left to the Court for determina- law, law. Under Savill, libellant, Shaw, Albion tion and that seas, high case of a collision on the it is Ltd., enter a final thereafter held that cur stated such determi- decree herein on the basis of rency (Italian lire) should be converted prejudice right of ei- nation without sterling exchange into at the rate exist appeal party ther therefrom. loss, ing at the date of the i. e. the date of York, Y., May 12, N. “Dated: Volturno, 1921, the tort. Celia A.C. 1950.” British Had that collision occurred in high territorial waters rather than dissenting. SWAN, Judge, Circuit as to seas, I cannot conceive that rule we are bound I am convinced converting foreign the date for accept judg- controlling authority to sterling into would have been different. tort, date, than the date of ment rather bar, war, the re In case at due to exchange to be the rate of determine pairs be made in the United States. had to dollars; pounds into applied converting dollars, paid in bill was which the Todd’s agree my brothers’ view that I with nor do Transport con Ministry British yields just result judgment-day rule $4.025, pounds at rate verted in this case. at the date of the tort as well as rate Nurnberg Bank Fialiale Die Deutsche conversion, the date were Humphrey, 517, 47 272 U.S. S.Ct. from the then collected libellant. rate think my brothers L.Ed. pay at which the dollars to dam action controlling, was an to recover purchased, bill were was one of Todd’s ages breach of a contract German damages. of the libellant’s the elements pay marks Germany bank to demand. opinion the same should be my rate held courts debt should lower pounds paid by the libellant used when be translated at the rate of into dollars converted back into dollars exchange existing when the demand authority has been decree. No court’s Writing for the court Mr. made. Justice support one converting at cited to liability that the was to Holmes said reconverting at change another. If a open “and to satisfaction marks must result in marks, payment of that number parties, a windfall for one it seems time, might have ac whatever interest injured party to me fairer to let the benefit might have crued, the mark much however than the An rather tort-feasor. additional *9 compared with other in value .fallen why seems this fair in the reason case at opinion “Here His concluded: things.” bar still $4.025 lending Courts to enforce an our parties agreed effect when the to settle the put it, (as we obligation partial payment and when the suit arising from German law alone damages,) I obligation made. would reverse the greater to enforce no ought recomputation decree and direct moment by that law at the when exists than amount. brought.” Commentators and suit is