“It is elementary hornbook law that a contract for the sale of a vessel is not within the admiralty jurisdiction of the district courts.”
How later courts described this case
- “It is elementary hornbook law that a contract for the sale of a vessel is not within the admiralty jurisdiction of the district courts.”
- charter-sale agreement is outside admiralty jurisdiction when charter was only for six months, the purchase price equalled the total charter payments, and charteree had notified the owner of its intent to purchase the vessel and had tendered the purchase price
- see also cases cited in: 1 Benedict on Admiralty (1940 Ed.), § 71; and Gilmore and Black, The Law of Admiralty (1957 Ed.), §§ 1-14
- “The rule is settled that contracts for building a ship, or contracts for selling a ship, are not maritime contracts .... ”
Written by the judges who cited it.
The opinion
HOUGH, Circuit Judge.
In the result announced I concur; my reasons are somewhat different.
The rule that a contract, to be maritime, and therefore within admiralty jurisdiction, must be “wholly maritime,” means that the principal subject-matter of agreement gives character to the whole. This construction of the phrase was adopted by this court in The Pennsylvania, 154 Fed. 9 , 83 C. C. A. 139 . Applying it to this case, I doubt whether the contract made had any of the marks of a charter except the name, but it is certain that in every essential it was an agreement to sell; the right to use pending payment was an incidental matter.
Further, since this appeal in admiralty is a new trial, we must consider the present situation of the parties, from which it seems plain to me that, in the common-law suit, libelants have recovered the value of the ship at date of breach, with interest, while their decree in admiralty represents loss of use of the same ship for a period subsequent to breach, and when, in contemplation of law, the value of the vessel was theirs, and they were earning interest upon such value. There is no difference, I think, in respect of damages for a total loss of vessel’s use by collision, and the same loss by total breach of a contract such as this. The Hamilton (D. C.) 95 Fed. 844 , and The Fontana, 119 Fed. 853 , 56 C. C. A. 365 , apply. The reasoning of The Philadelphia, 1917 Proh. 101, does not convince. Therefore, by recovering damages for loss of use in admiralty and interest on value at law, there has been a double recovery.
Apparently, from the bill of exceptions at law, interest on the verdict was allowed from a later date than that of breach; if this was a waiver of interest, because of the recovery in admiralty, it should make no difference. A party does not become entitled to something he has no legal right to, by waiving something less legally due him.
I also note a disagreement 'with the treatment of Evans v. New York, etc., Co. and Wilhelmsens v. Canadian Co., supra. Neither seem, to me to .have any relation to the case in hand, while if, by reference *199 to the Evans decision, it is meant to express the opinion that admiralty has no power to implead a surety or party responsible over, under the equity of the fifty-ninth rule (29 Sup. Ct. xlvi), I must dissent.