Citations
- 28 F.2d 744
Full opinion text
DAVIS, Circuit Judge.
This is an appeal from an amended interlocutory decree limiting libelant’s recovery to its pro rata share of the interest of the United States in the hull Aberfoil at the time the libel was filed, July 26, 1922.
Four libels were filed in the District Court, one by each of the following four libelants: The Hudson Trading Company, Inc., the Havana Central Railroad Company, Pedro Montardit y Maurie et ah, and Al-vara Crespo et al. Interlocutory deerees were entered in each case, and the cases were all consolidated, and by agreement only one appeal was taken to this court.
The Aberfoil is a hull or vessel belonging to the United States Shipping Board, which holds title for the United States. Between October 11 and December 1, 1920, a cargo of 328 bundles of iron bars, containing 2,453 pieces, 2,296 lengths of iron pipe, 10 boxes of couplings, 41 boxes of bolts, and 4 boxes of rubber packing devices, was loaded upon the Aberfoil at the port of New Orleans to be transported to Havana, Cuba, and the freight of $2,552.97 was paid. The Aberfoil, however, did not proceed to Havana, but remained at New Orleans, and the cargo lay in her holds until July 23, 1921, “when it was removed by the libelant at its own expense in greatly damaged condition.”
On or about December 3, 1920, while the cargo was in the holds of the Aberfoil, the Menge Marine Hardware & Supply Company, “noon the order of the owners of said vessel and agents of said owners, furnished certain supplies, materials, and equipment, and performed certain work upon the credit of said vessel,” amounting in all to $3,264. Upon the failure of the owners to pay this bill, the Menge Company filed its libel in rem against the Aberfoil on January 26, 1921. She was seized by the United States marshal immediately thereafter, and kept under seizure in his custody for over nine months. The United States Shipping Board not only failed to oppose these proceedings in rem, but its chairman directed that the Aberfoil “be abandoned to the persons having liens against” her. Accordingly she was sold on October 25, 1921, three months and two days after the cargo had been removed, for $1,200.
Thereafter she came into the district of New Jersey in July, 1922, and- the four libels mentioned above were filed against the United States as owner of the Aberfoil, under the provisions of the Act of March 9, 1920 (46 USCA §§ 741-752), to recover damages for delay and failure to transport the cargo as above stated from New Orleans to Havana, from October, 1920, until July 23, 1921, on the theory that the proceedings resulting in the sale of the Aberfoil on October 25, 1921, in New Orleans, were