Rosasco v. Bark "Launberger"

HAMILTON, Judge, delivered tbe following opinion: This cause comes on to be heard upon motion for personal oath and also upon exceptions to the libel. 1. The personal oath of the claimant would be a hardship in this case. He is alleged to be an American citizen residing in Italy, and it would talie a good deal of time and trouble, if it would be possible at all, to secure his personal oath. The rule of court does not require it. Admiralty rule 1 requires that libels “shall be verified by the oath or affirmation of the libellant, or, in his absence from the district, by his proctor or authorized agent,” and in fact the oath may be dispensed with by a special order of the judge for sufficient cause. Sufficient cause seems to be shown to dispense with personal oath. This motion is overruléd. [151] 2. Tbe first exception to tbe libel sets up that it is not properly verified by tbe proctor although tbe libellant is not within tbe district. Tbe verification states that tbe libel has been prepared from documents, letters, and facts within bis personal knowledge, and that be believes all tbe matters set forth are true. Is this sufficient? Tbe form of verification of a' libel given at tbe end of tbe first form of libel in Benedict’s Admiralty, p. 555, is that tbe affiant “has read tbe foregoing libel and knows tbe contents thereof, and that tbe same is true of bis own knowledge, except as to tbe matters therein stated to be alleged on information and belief, and as to those matters be believes it to be true.” In Cohen, Admiralty Law, p. 356, tbe verification is, “appeared personally tbe libellant and was sw7orn to tbe truth of tbe foregoing libel.” Tbe same form is found in 2 Conkling, Admiralty, p. 488. In Dunlap, Admiralty Pr. p. 423, tbe form is, “Sworn to by the libellant before me.” In some jurisdictions verification is not required in any form. And in tbe southern district of New York, on tbe other band, all libels must be supported by oath. Dunlap, Admiralty Pr. pp. 126, 121. There cannot be said to be any special form required by law except that tbe oath must be made to tbe truth of tbe facts stated. This in pleadings generally is usually varied by limiting tbe oath of truth to what is stated as of knowledge, as in tbe form in Benedict. There seems' to be no reason why this should not be followed as tbe usual practice; and tbe exception, therefore, to tbe verification is sustained. Let the affiant follow the form given in Benedict as nearly as possible. 3. Tbe damages sustained are not stated except in general terms, but this seems to be sufficient in admiralty practice. [152] In admiralty, proceedings are more informal and more quickly disposed of than in any other kind of judicial proceedings. Norm, therefore, is less important and the particularity ordinarily required of pleadings is less insisted upon. The form given in Benedict is in substantially the wording of the one at bar. Benedict, Admiralty, 4th ed. pp. 576, 584. 4. An exception is urged on the ground that the libellant, on the face of the libel, is an assignee of the charter party; and it is insisted, therefore, that he is not a party to the contract, and cannot bring action. Minturn v. Alexandre, 5 Fed. 117; The Prussia, 100 Fed. 484; The Trader, 129 Fed. 462. On the other hand, the party entitled to relief is the one who should bring the suit. Benedict, Admiralty, 4th ed. § 309. If the cargo in question belongs to the consignee, and that would seem to be shown by the assignment of the bill of lading to the consignee, he is the one to sue for nondelivery. The libel does not show that the libellant is the owner of the cargo, in so many words, but it may be a proper inference from the fact of assignment. However that may be, the contract itself, that is to say, the bill of lading, expressly says that the goods “are to be delivered in the like good order and condition at the Port of Genoa (the dangers of the seas only excepted) unto order of shippers, or to their assigns, and all other conditions as per charter party. Freight prepaid. . . .” So far as concerns the law of the case it would seem that the party really interested is the consignee, that is to say, assignee of the bill of lading, who is the libellant, and such is contract. If the facts develop otherwise, there will be opportunity to raise objection in another form. 5. A further exception alleges that the allegations of the [153] libel show that the cause of action is not in admiralty. Admiralty jurisdiction depends as to contracts upon the nature of the subject-matter, not on locality. Benedict, Admiralty, § 181. As to torts it depends upon the place where the wrong complained of occurred. -Id. §§ 231, 232. If this be a libel for nonfulfilment of contract to deliver cargo, the basis is a maritime contract; if it be for the wrongful conversion of the cargo, this is a tort which necessarily occurred while the vessel was afloat, whether on the high seas or in the harbor of San Juan. In either view of the case the libel, although very brief in its terms, seems to relate to a matter within admiralty jurisdiction. 6. The next exception is that in the libel are improperly joined a cause, of action sounding in contract with one sounding in tort. It is not clear that this is so. One construction of the libel is that it complains of an act which may be either contractual or tortious, but it hardly amounts "to a joinder of the two causes of action. However, this is not material, as it has been held that both tort and contract may be joined in one libel. 1 Cyc. 849. The policy of the law is indicated in Revised Statutes, § 978, Oomp. Stat. 1916, § 1619, which in some cases requires that all causes of action growing out of one transaction shall be joined. 7. It is claimed that an allegation of sale of goods without rendering account is important and scandalous. This, however, seems to be a detail of the damage complained of, and tends to show that the bark has put it out of her power to comply with the contract to deliver the goods in general. While it may not be essential, it cannot be said to be impertinent to the issue. [154] Tbe exception as to verification is sustained; tbe others are overruled. It is so ordered, and five days allowed to amend.