(271 F.) [3] The main argument in the case centers about the right of defendant to assert herein his counterclaim for damage done to the property in transit. In this behalf, plaintiff's contention is that under the decisions in Illinois Central Ry. v. Hoopes (D. C.) 233 Fed. 135, C. & N. W. v. Stein (D. C.) 233 Fed. 716, Johnson-Brown v. D., L. & W. R. R. (D. C.) 239 Fed. 590, and D., L. & W. R. R. v. Nuhs, 93 N. J. Law, 309, 111 Atl. 223, a counterclaim for damage done to the goods in transit may not be interposed as a defense or set off to a claim for unpaid carriage charges. The reason for the holding made is stated by the District Court of Nebraska in the Stein Case, and is followed by the three other cases cited. It is to the effect that, maintaining inviolate the public policy hereinabove mentioned, to permit the counterclaim to be pleaded would be to prevent "the usual right to make compromise" with respect to damage claims against railroads, and cause the court to "undertake the impossible task of holding the carrier to diligence and good faith in preparing and presenting its defenses, in order to prevent the granting and receiving of rebates by insidious agreement between parties with reference to the disposition of the suit." Upon careful consideration of the subject-matter, however, I am more attracted by the reasoning indulged in by the courts in WellsFargo Co. v. Cuneo (D. C.) 241 Fed. 727, and Ć. & N. W. v. Tecktonius (D. C.) 262 Fed. 715, to the general intent that, if there be a disposition to work a discrimination and secure a rebate through the consummation of a fraudulent compromise of a suit for damages to goods in transit, the same may be effected with equal ease in a separate suit as in the suit for the recovery of unpaid carriage charges. In other words, if the parties are intending to arrange for a rebate from the established tariff through the medium of the compromise and settlement of a fraudulent claim for damages, they can do this as well in one suit as in another, and as a matter of fact the possibilities of fraud would be greater if the parties were remitted to an independent forum for the consideration of the mere damage claim. There, in the absence of some circumstance involving it, the court would have no concern with the bona fides of the claim. When pressed as a counterclaim to a suit for unpaid carriage charges, however, in order that the public policy involved might be best maintained, the trial court would be unusually astute to see that every item of damage claimed was bottomed upon persuasive proof. In my judgment the mere possibility of compromise and settlement works toward a negation of the principle of public policy involved. It admits of a payment by the carrier, as for damages, upon a fraudulent claim, of a part of the moneys theretofore received in satisfaction, of the carriage charges lawfully due. Whenever and under whatever guise that fraud is perpetrated, the principle striven for in the cases relied on by plaintiff is completely set at naught. The courts must presume in advance that the parties will act in good faith in whatever form the litigation may come before the court for consideration, and it must also be presumed that no counterclaim for damages will or can be allowed, except in the event of due proof of the same being made to the court, and the court passing affirmatively upon it. The pleading of the counterclaim herein is in accordance with the established practice in California, section 438, Code of Civil Procedure, and as a matter of fact, if defendant has a claim and does not plead it herein, there is grave doubt if under California practice he would not be denied the opportunity of asserting it hereafter in any form. California Code of Civil Procedure, § 439. Finally, commendable economy and efficiency in judicial procedure would seem to justify the disposition of the entire related controversy in the one action. If the theory of the plaintiff were correct, upon an agreement to pay the entire freight charges in advance and a payment through mistake or otherwise of only a portion thereof, plaintiff would be entitled to recover the full amount of the asserted unpaid freight charges, even though there should have been a complete failure to deliver the merchandise carried. If defendant by way of defense in the same suit could not show a partial damage to the article carried, he could not show its entire loss. The difference is one of degree only. The motion to strike, being a single motion directed to all of the averments in the answer, is denied, and the demurrer is overruled. GOWANUS STORAGE CO., Inc., v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. (District Court, E. D. New York. March 21, 1921.) 1. Admiralty 12-Contract for storage of cargo not "maritime contract,” within admiralty jurisdiction. A contract to furnish storage for the cargo of a vessel is not maritime, and a court of admiralty is without jurisdiction of a suit for preventing the carrying out of such contract, or for its breach. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.] 2. Admiralty 10-Where cause of action is separable, admiralty has jurisdiction of part which is maritime. A court of admiralty is without jurisdiction of a cause of action which is maritime only in part, unless it is separable, in which case relief may be given on the part within the jurisdiction. In Admiralty. Suit by the Gowanus Storage Company, Incorporated, against the United States Shipping Board Emergency Fleet Corporation. Decree for libelant on part of cause of action. Foley & Martin, of New York City, for libelant. Leroy W. Ross, U. S. Atty., of Brooklyn, N. Y., for respondent. GARVIN, District Judge. At the close of the trial the court announced that on the facts libelant had established its cause of action by a preponderance of evidence. The respondent, by timely objection, questioned the jurisdiction of the court. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (271 F.) The libel was filed against the United States Shipping Board Emergency Fleet Corporation, and alleges that the libelant was in possession of a certain dock and pier at the foot of Twentieth and Twenty-First streets in the borough of Brooklyn, city of New York, as lessee; that because of the manner in which the steamship Western Belle, in possession and control of and operated by the respondent, was moored in Gowanus Bay, libelant was deprived of the rent and use of its said dock from February 4 to February 10, 1920, was prevented from carrying out a contract which it had with the steamship Mermoquowa and respondent, and from arranging for storing and handling the cargo of the latter vessel under said contract. The Mermoquowa had arranged to dock at the libelant's pier, and was unable to do so because of the position of the Western Belle. The libelant had made a contract with the steamship Mermoquowa and respondent, whereby the steamship and the respondent agreed with the libelant to take and use said pier from and after February 4th, for the purpose of discharging the cargo of the steamship, at a rental of $100 a day for the dock, with $100 additional per day for the use of the shed. on the said pier or dock. The agreement further provided for the procurement of storage by the libelant of 18,000 bales of cork wood, the cargo of the vessel, for which libelant was to receive 35 cents a bale. The damage sustained by the libelant is represented by the benefit and profit which it would have obtained under the agreement with the steamship Mermoquowa aforesaid. The respondent suggests that, in determining whether an action of this character is within the jurisdiction of admiralty, the court must first consider the agreement between the libelant and the Mermoquowa and its owners, in order to ascertain if it was of such a nature that a court of admiralty would have jurisdiction of an action for a breach thereof, and refers to authorities which hold that admiralty has no jurisdiction over a cause of action that is only partly maritime in character. The Belfast, 7 Wall. 637, 19 L. Ed. 266; The Pennsylvania, 154 Fed. 9, 83 C. C. A .139; Plummer v. Webb, 4 Mason, 380, Fed. Cas. No. 11233. The libelant urges that the obstruction of the channel of the waters of Gowanus Bay by the Western Belle was unlawful, and that where the owner of a dock fronting on navigable waters sustains injury by reason of an obstruction in such navigable waters he may recover damages from him who commits the wrongful act, citing Rivers and Harbors Act, § 15, 30 Stat. 1152 (Comp. St. § 9920), The Grand Manan (D. C.) 208 Fed. 583, The Pocohuntas (D. C.) 217 Fed. 135, and other authorities. This may be quite true, but it does not follow that an admiralty court has jurisdiction, although libelant would unundoubtedly have a cause of action at common law. The following cases upon which libelant relies to support its contention that the admiralty court has jurisdiction are distinguishable from the case at bar: The Grand Manan (D. C.) 208 Fed. 583, was a collision between a moving steamer and a dredge at anchor. Philadelphia & Wilmington R. R. Co. v. Philadelphia, etc., Steamboat Co., 271 F.-34 23 How. 209, 16 L. Ed. 433, involved an injury to a vessel by piles left in a river. Braisted v. Denton (D. C.) 115 Fed. 428, and The Vanderbilt (D. C.) 86 Fed. 785, were cases where it held that a recovery may be had for wharfage actually furnished to a vessel. On the other hand, a lease of a wharf is not a maritime contract on which may be maintained an action in admiralty for the collection of the rent. The James T. Furber (D. C.) 129 Fed. 808. In The Richard Winslow (D. C.) 67 Fed. 259, it is held that an action for damages to a cargo of goods carried by a vessel and stored therein after her arrival at her port of destination cannot be the basis of a claim enforceable in a court of admiralty. In H. S. Pickands (D. C.) 42 Fed. 239, and in The Mary Stewart (D. C.) 10 Fed. 137, it was held that the damage must happen on the water. [1] Many years ago it was held by Judge Story, in Andrews v. Essex Insurance Co., 3 Mason, 6, Fed. Cas. No. 374, that an action will not lie in admiralty for breach of a contract leading to the execution of a maritime contract. From the foregoing authorities I think it is clear that an admiralty court would have no jurisdiction over a contract to procure permanent storage for all or a part of a cargo after it had been unloaded. The contract which the libelant had with the Mermoquowa was, in part, not within the jurisdiction of an admiralty court, and under the authority of The Belfast, 7 Wall. 637, 19 L. Ed. 266, supra, it follows that libelant would not have an action in admiralty for a breach, if the part referred to is not separable. [2] The agreement to procure permanent storage, however, appears to be easily separable; in its other provisions the contract is a maritime contract within the jurisdiction of this court. The Vanderbilt (D. C.) 86 Fed. 785, Braisted v. Denton (D. C.) 115 Fed. 428, Terminal Shipping Co. v. Hamberg et al. (D. C.) 222 Fed. 1020. Where jurisdiction has been questioned, a contract has been held to be separable. Pacific Coast Steamship Co. v. Moore et al. (D. C.) 70 Fed. 870. If the foregoing conclusions are correct, there must be a decree for the libelant, with the usual reference to a master. No recovery, however, may be had for damages connected with the storage of the 18,000 bales of cork wood; this being without prejudice to libelant's rights, otherwise, in respect thereto. Damages (271 F.) THE NO. 223. Petition of CENTRAL R. OF NEW JERSEY. (District Court, S. D. New York. March 8, 1920.) No. 561. 132 (6) —$5,778, for crushed leg, not excessive. Claimant awarded $5,778 damages for the crushing of his leg; it being shown that he was a longshoreman, 45 years old, earning from $22 to $25 per week, that he was in hospital 74 days, had three operations, was confined to his house over a year, and is permanently disabled for doing anything except light work. In Admiralty. In the matter of the petition of the Central Railroad of New Jersey, owner of the lighter No. 223, for limitation of liability. On exceptions to report of special commissioner awarding damages to claimant, John Spillan, for personal injury. Report confirmed. Decree affirmed 271 Fed. 532. De Forest Bros., of New York City (James T. Kilbreth, of New York City, of counsel), for petitioner. J. Arthur Hilton, of New York City, for claimant. AUGUSTUS N. HAND, District Judge. John Spillan, the claimant, according to the decision of this court, suffered injuries from the negligence of the petitioner. The matter was referred to Edward L. Owen, as special commissioner, to report on damages, and it now comes before me on exceptions to the commissioner's report allowing damages in the sum of $5,778, the full amount realized from the sale of lighter No. 223, in the limitation proceeding. Spillan's left foot was caught by a hawser on his boat, and as a result the bones were broken and the leg crushed. He was in a Long Island hospital 74 days, went from there to his home, and remained confined to the house over a year. During this period he had three different operations upon the wound and it remained open for about one year and three months after the date of the injury, which was on April 12, 1917. He testified that prior to the time of the accident he was earning from $22 to $25 a week wages as a longshoreman; that after the accident he attempted to do light work as a porter, and obtained employment for 10 weeks at wages from $14 to $16 a week, but could not continue, owing to pain and disability of his leg. He testified, likewise, that he had not tried since the time of this employment to secure other work, because he knew it was useless. The physician who attended him in the hospital has been abroad, so that he was not called. A physician whom he employed to examine him during the trial testified that his ankle was permanently disabled, that there was a general inflammation of the ankle joint, interference with the circulation, a limp in walking, and that the conditions were permanent. He identified four scars due to operations. I have no doubt that the disability of the claimant is exaggerated, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |