Petition for Writ of Certiorari — Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of Cal.

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Supreme Court of the ‘Muiter “States

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PAMESRIBSSEESRABET PANNE three, eS oy ation.

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AWTS Ane Pokersr vn. a eorperation, Claim -

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“PETITION

For a Writ of Certiorari to the United States Circuit’

Court of Appeals for the Ninth Circuit. and @

BRIEF IN SUPPORT THEREOF

LANE ON WATERSS”

Proclor feo P's liltamers.

Contral Pusihdine.

Seattle. Washineton,

WL Hivies, ;

PT. Meunrer,

ep eter y.

Ot Cumusel.

Central UBraillinve.

Seattle. Washines

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IN THE |

Supreme Court of the United States

Octobe Ben aR —1Ou9

Weave Groth: a

DAMPSKIBSSELSK ABET

Claimant of the

AKTIESELSK (Bier

DANNEBROG. 4

Corporat ion,

Motorship

“STMERNEBORG Sand

DOKGESTAD, a corporation, (laim-

ant of the Motorship “Bran,

Pelitioners,

Ve,

SIGNAL OW Ax Gas Company or CALIPORNEA,

al corporation,

Ie spond wl,

PETITION

; *

For a Writ of Certiorari to the United States Circ:

cuit

Court of Appeals for the Ninth Circuit, and

BRIEF IN SUPPORT THEREOF

Lane SumMMens, on

Proctor. for Pelitions rs,

Central Building,

Seattle, Washington,

OWT Haypexs | ah

FLT. Mernrrr, Ue. .

fi. Brey, |

Of Counsel,

. Central Building,

/ Seattle. Washington,

The Covry Pures.

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"PETITION

na emsaech LEE ENTS ee SPS

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Decree Below CC: CA Es Tey paca were nares

Question Presented 2.000000. eas Sone kes .

Summary of- Facts 00... entrees ores Segoe n :

Rulings of Lower Courts ...52...000.00.....2

Reasons for Gy EOS ns ee.

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Courtscof Appeals 2.02... ,

2. ¢ ie with Applicable Deei ‘Isions of this

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Question Presentege 20.00 pet:

Specitic ‘ation of Errors Assigned o 0002.00.00 00

Summary. of Argument: .........: ede ame aay Aes

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1 Contliet with Deei ‘isious® hetween irenit

Courts of Appeals SEP Ee one eee ee

=. Contliet with Applic able Decision of this

3, ea [eee ow oe ees we ce ele a. i

Question Justifies Settlement. by this ourt

Cone — np les MORK ee eS Ub we ee Ushi beeen.

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. Bverasa, The » 93 Fed. (2d) 733 (CC. ACY ‘ees

hlolden Gate, Phe 52 Fed. (2d) 397 (¢. ©. & B).:

2 7 .

TABLE OF STATUTES |

et PAGE

Act of Feb. 13, I925 eeh-229, see, 8 (28 UL S.C. A.

See, nid LLY Po eee Te ea 14

ST. 1928, eho 14, see, 1, 4> Stat. He June 7.

OTYSE ch. 426. 48 Stat. 926 (“Sg S. CLAY see,

* edidiia dl gd aOR Ga Mle ae Bo) Sennen ++eaey 14

Merchant Marine Act-of June 9 1920,see, 30 (46

SOA, 971-975) 20. REMY erie ners 4,14

> Benedict Admiralty (5th ed) i eee ao 10, 22

Cases oj Admiralty, Lord & Sprague (2nd ed. )

Seal Oe aya am al reese 4-10, 29

s Nichols Cyclopedia of Legal Forms, p. 439... -10, 22...

Pooron Charter Parties (2nd ed.) p. 223.2... .10, 99°

TABLE OF CASES o

Lh. OS: She rman, The 2 OL Fed, (2d ) TS2 (De,

eee A) ER eae ee ee ees

Aayusta We. Snow, The, 46° Fed. (2) 992 |

<n Mer oe ee real eee TA nee

Bankers Trust ¢ 0, NV. Mudsow Birer Day Line,

4 Ped. (2d) 457 0€. oS | a ae fh

Cilu of Helena, The 225 Fed. Supp. 864. (D, €.

Mee sete =, Meeu a, ena ae ee ie 4 Sieve ..8), 22

Cratheus, The, 2063 Red. 693) | Cert. denied 253

. 8. 492) ...... Pete ip Seats 8.10, 16, 17, 22. :

Wictator, The, US Fed. (2d) 1 (DL, La.) ....10,

7.8.10, 16, 22, 2:

a : . Page: *

Henry W, Bre yer, The, - hed, (2d) yoni [

| tees ee ane op PPOE ay rere hear gis: 11, 22

J. OW. Hennessey, The, “ST Fed. (2a) :

SC hy AO ve peo neae 10, 22

Luddeco, Tie, 66 Fed. ( 21) Pees . a ie 16

| Millinocket, ye 266 Fed. 392 (D. €. N, y. )-. 1, 22

Pajala, The, ‘Bed. Supp. 618 (D.C. BE, -

ge Saag ey tend Ftan latter pmo, » Tl, 17, 22, 23°

Pousacola S..Co, ¥./l Ss: Shipping Board, 277

Te Sec sr ND te ey, . 8.16

Piedmont; ele. Coal C On. Scubourd Fisheries, 2? o4

U: Ah Sarena nN ee NSA OL 2 We eatan o ores 9, 18, 20

Portland, The, 273 Fed: 401 Seat gmat de 7.8.10, 16, 23

‘President - Arthur, The, 279 U.S. og EER Ee : a

Sauth Coast, The , 251 U. eS. S20... 3; Pe Ae ae he

Thordis; The, 290 Fed. 255 (D. C. N, ¥s) 20... .0), 220"

U.S, The, 219, 21 - Fed. Supp. 463° (D.C.

Senet RE EE NT DAH Sots Mee IT, 22

United States v. CC areer, 260 U.S. 482. Pine ae was ?1

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“IN THE

ie Court nf ° the United States

“Ocronen Tern, #1929 *

Te ceveceas

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DAMPSKIBSSHISK | WET DANNEBROG, oa corporation,

Claimant of the Motorship “Sraprxenora’’, and

AKTIFSELSK ABET Bora ‘ESTAD, a corporation\ C ‘Taim-

ant of the Motorship'™ Braxp’ i

Petitions rs,

Vs.

oSmGNAL Oi axnp Gas Company OF W CALIFORNIA,

a. a corperiition, rere

Respondent,

Se OOOO - : a —s—

PETITION FOR WRIT. OF CERTIORARI

To the United States Circuit Court ‘of Appeals for the

Ninth Circuit * ;

is Lank SUuMMeEnS, :

, iia Proctor for Petitioners,

Control Luilding, :

Fa eigs 7 Seattle. Washington.

Woo. Hayors,

LOTS Mernrrr,

G.Th Brerys

Of Counsel,

* Central Pouitelinig,

Seattle. Washington. . _ 5 :

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: IN THE

Supreme Court uf te United ‘Piates

| Oc ToRER TER mM, 19: oe .

Me Sc a,

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DAMPSKIBSSELSKABET — DANNEBUGOG, a corporations,

Claimant of the Motorship “Steyn eon”, and -

AKTIESELSKABET BorGESTAD,- a corporation, Clain-

ant of the Motorship “Brann”, ea :

- ) _ Petitioners,

SIGNAL OL AND Gas Company OF CALIFORNIA,

é a corporation, | | me

Respondent,

- > a

PETITION FOR WRIT OF CERTIORARI.

To the United States Circuit Court of ‘Appeals for the

Ninth Circuit Pe, tel

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- - £ — - _

To THE bntabagrtaes CHannes EK. Heaurs, € HIKE Jts-

TICE OF THE UNreed Srares. axp TO, THE Assoc IATE

JUSTICES OF THE Supreme Cover or PHE UNrrep

STATES: | Ee ‘ ec ; co 4

a 0 eer ee PRAYER a

The petitioners, Daweskipssensk Ber Daxsxepron,

a corporations) AKTIESELSKABET BorGESTAD, a cor-

poration, pray that a writ of éertiorari be issued to

review the deeree-ciutered: October 26, 1959, byw the

6 -

; |

: a

United Stat@ irenit Court of Appeals: for the Ninth

— Cirenit) in’ the cabove cititled consolidated cause

» (R: 228).

DECREE BELOW

Such decree of the: United States Cireuit Court of

Appe als for the Ninth Cireuit affirmed decrees of the

_Distriet Court of the United States for the Western,

District of Washmeton, Southern’ Division, in favor

Of respondent) Signal Oil and Dig Company ot

y judgment and.

California, a corporation, grantil

foreélosing a-maritime lien against the motorship

“Stjerneborg™. owned by the petitioner Datnypskib-

sselskabet Dannebrog, a corporation, and against the

motorship * Bragd"’, owned ly the petitioner Aktie-

ee Borgestad: (R. 22s, 170-174).

‘ QUESTION PRESENTED

W hether, under the maritime lien PEOVESIONS - « :

section 30 ef the Merehanit Marine Act of June .:

120 (46° UL S. Code. 971-975 >) a maritime lien exists

/agalnst a’ Vessel in fayor .of a supplier of fuel oil)

“ordered solely, by ao Inver, who was itself: obligated

by the vessel's charter party to “prov ide and pay for

all fuel oil, whe sueh supplier, before the execution

of said charter: party; had previously. become legally

hota by vontract to sell to sueh mayer on its personal

credit all fuef oil required for “any and. all vessels

owned, -chartered and or operated” subsequently by

the buver.

“sigs OF FACTS

In Se spleayber, 1952, the respondent Signal Oil an

Gas € ompany, as seller, entered into a formal blanket

long-term: contract (Ex. AZ Re 45-52). with. “Anglo:

Canadian Shineiie Co, Ltd., as. buyer, for the future

sale and purchase of fuel oil for all vessels “which the

buyer may .own, charter, operaté or be agents for”’

(R.°31).

In May, 1933, said contract Was thodified by letters

to permit W. L. Comyn & Sons, a corporation, as

buyer, to purchase fuel oil for ‘tany and all vessels

owned, chartered, and/or operated’’ by it. Under

said contract uk modified the respondent Signal Oil

and Gas ¢ andes sie obligated to sell, and .W. L.

- Comyn & Sous became entitled to buy upon its own

order and upon its own credit CR. 32, 33, 58, 59, 60,

61, 62).

Said contract, as or iginally exec ate and as there-

after modified, used no° language which stated

implied that the yespondent in obligating itself .

future sales and deliveries of fuel oil was relying ou

the credit of any vessel or upon a maritime lien

CR. 45-53, 58-629 ; and said contract, as the respend-

ent’s exclusive protectiot against non- -payment for

past -eredit deliveries, provided that. the 4 respondent

as to- further de liveries might require the- buyer to

pay cash or might suspend, deliveries pending full’ |

_ payment, or might terminate:-the contract (R. 49).

‘Both before and after said ‘contract was moditied

to constitute W. LL. Comyie& Sons as T buyer there-

under, the respondent either actually nae Ww, or easily

could have ascertained, that W. L. ( ‘ony & Sons

Was In business not as a vessel owner, but merely.

an operator of vessels, scmetimes for owne KS eS

and semetimes for. charterer’s account (R. 41).

Later, W. 4. Coffivn & Sons became the Charterer

ef the motorslip “Stjerneborg’’ in Jagmary, 1934,

and of the: motorebip Brand’ in’ Mareh, 1934

CR.-414.°126):. Both charter parties obligated the

. (

charterer to “provide and pay for RIE* fhel oil

CR. 40. 116: Ts). ;

Subséquently, under said contract as modified, the

respondent filled two orders by W. 1. Comyn & Sons

for delivery to the * Brand” of fuel oil upon April 26,

It. and upon May 11, 1934 (OR. 87. 38): and also,

tnder said’ contract as modified. the respondetit filled

‘another order by WLLL. Comyn & Sons for delivery

to the “Stjernebore’™ of fuel oil upon May 15, 1954

CR. 38, 39). Shieh orders were made soleiv by

W: LL, Comyn & ‘Sons. whiel vas related to. said

Vessels only as charterer under sd charter partie

-CR. 89. 40), . \ |

WoL. Comba & Sons, due to its insolVeney, never

mae payment to respondent for fuel oi so farnished’—

(R. 41). as ff |

Asca result, respondent asserted a Maritime. lien

against the “Stjerneborg’’ hy libel in rem filed Mav

11, 1935, and against the Brand’? by similar libel

filed Tune 5, 19385,-CR. 4-10). The vessels after seizure

Upon process were duly released on honds by the

petitioers as owners thereof (R. 10-19), . ;

By their answers the petitioners appropriately de-

med the allegations of said libels, and affirmatively

alleged Jin’ defense that (pe Inaritime ‘lien existed.

(1). beeatise under all the terms of said contract the

fel oil was supplied upon the sole credit of W. L..

Comyn & Sons, and not npon the credit of the vessels,

amd, (2) because under said charter party W. LL.

Comyn & Sons was obligated to ‘provide and pray

for all” fuel oil and hence was Without authority te

pledge the credit ef the. vessels: 4 R. 21,-22,-27, 28),

Because of the. similarity of facts Involved and the

identiay of questions presented. the two causes were

consolidated for trial and.ater for appeal CR. 31,207),

+) at emma!

LN Re ett y line nna Se NE Saati ot

RULINGS: OF LOWER COURTS

On the trial the facts were submitted by stipulation *

in liew. of evidence (R. 31-153). sole ae

In the -Distriet Court as to the two questions ten-

dered) for. reviewi here, the memorandum decision

merely said: **The stipulated facts show that. the oil

was furnished upon the credit of the vessels and that,

in consequence, the asserted felis were created”

.) & ) oe 2

The appellate court, after rec seltiiag br iefly the coar-

tentions of petitioners that a maritime lien did net

exist because the fuel oil contract disclosed respond-

ent’s intention not’ to’ rely upon the credit of tlie

vessels but. to. rely solely noon the credit of W. L.

Comyn & Sons, and because the charter party failed .

to confer upon W. L. Comyn & Sons authority to

pledge the credit of the -vesse Is, ruled to the contrary

(R. 225, 226). The Circuit ‘Court. of Appeals COn-

sidered that the casé of the Preside nt Arthur, 279

U.S. 564, was not applicable. and concluded that its

own fornier decisions in The Portland, 273 Fed. 401,

and ‘in The Golden Y Gate, 92 Fed, (2d) 397, -were éon-

trolling (R. 225, 226). , , |

Both the lower court and the higher court seem to

commingle and confuse petitioner's contentions—one

as to eredit aris ing out of the contract: the other as

to anthority arising out of the charter party.

REASONS FOR GRANTING WRIT . **

Appeals

The decision of the Cireuit Court of Appe als for

the Ninth Cirenit: in this Case is in confliet with the

decisions of the Circuit: Court. of Appeals for the

~ Fifth pag in The Cratheus, 263 Fed. 693 (Cert.

denied, 255 U.S. 492); and in Pensacola S. Co. Vv.

a, Picenes Board, 277. Fed: 889. 0°.

ln The Cratheus, supra (pp. 693, 694), the supplier

‘Was nuder written ceantract With the charterers .to

furnish ‘all the bunker coal required by thein * * * for

steamers of whic h they are owners, charterers! or time

charterers, or in which they are. otherwise. inter’

ested’ ""; and the charter party required the char.

terers “to provide and pay, for all coal’ and ‘tcon-.

tained | nothing -on the subject of “the charterers

creating or discharging liens on the vessel’. On

consideration of these facts the Cirenit®@Court of

Appeals for the Fifth Cireuit held that no maritime

lien arose in favor of the supplier and affirmed. the

lower court in a dismissal of the libel asserting such

aw lien, ;

This pmiilint of decision oon been coneeded by the

Cirenit Court of Appeals for the Ninth Circuit. Iu

thes present pagers it vited its own former decisions in

The Portland, 273 Féd. 401, and in The Golden Gate.

92 Fed. (2d) ms us controlling (R. 226): and stated

- that the question was re-examined pon its. own later

decision in The Luddeo, 66+ Fed. (2d) 997, wherein

its opinion (p. 998) - recites the contligt with The

— Cratheus, 263) Fed. 693 (@. (l-AL 5) aha with the

Pensacola S. Co. vy US Shipping Board, 277. Fed.

S89 (©. AL.5).

2. Conflict with Applicable Decision of this Court

The decision of the Circuit: Court of Appe als. for

the Ninth Circuit in this cause is probably in contliet

ST POND Ph MANAG Mn MB Selns nar os Ma

)

With the applicable decision of this court in fg ae

ete, Coal Co. Vv. Seaboard ‘Fisheries, D4 U.

In that ease (254 U.S, 9) this court’ categor ically

classified the elements of a Inaritime lien by saving:

Because the ship's weed was the: source of the

maritime lien, it could arise only (1) if the ri-

pairs or supplics were necessary; (2) if the

pledge of her credit was necessary to the obtain-

ing of them; (3) if they were actually obtained ;

and (4) df they were furnishe d upon her credit: ;

(Numerals supplied. }

In the present cause ‘two of these essentials - to a

maritime lien were absent: First, the respondent

under its contract sold the fuel oil to We TL. Comyn

& Sons upon its individual credit solely. Henee,

such fuel oi] was not furnished upon the credit of

the vessels. Second, by sneh contract the respondent .

was legally bound to sell fuel oil to W. 1. Comyn &

Sons for ‘tany and all-vessels owned, chartered and /or-

operated” hy it—wholly irrespective of its authority

or lack of authority by subsequent midetermined

charter party or operating agreemeut to pledge the

-eredit of such vessels. Hence, it was not HECOSSALY.

that the credit of the vessels he pledged for, such

Vessé]s to obtain fuel oil from respondent.

3. Cindtion Justifies Settlement by this Court

important provis lons of respondent's blanket sales

contract with W. EL. Comyn & Sons dre in common

Usage by distributors of oils to vesse ‘ts for fiel pure

poses, ‘The anost vital and the most usual provision.

of said contract, which obligated respondent te sell

fuel oi) to WL LL. Comyn &- Sens for ‘anv and all

10 :

dessels owned, chatriered and-or operated”’ by it, has

been considered in maritime lien cases in identical —

' Jangnage or meaning by infe ‘ior ederal Courts with

Varving -resdits,—_ : ie

_ As te the form of the charter parties involved’ in

this cause, it is the Time Charter Gevermnent Form.

tpproved by the New York Produce Exchange’ (R.

H4, 126), whieh is of: such frequent adoption as to

be quoted in Many texts and publications for resort

of both lawyers and laymen interested in shipping.

The essential provision of the charter. party form

Which obligated WL, Comyn & Co. to “provide

S Nichols Cyclopedia of Legal Forms, p. 439.

The Crathe us, 263 Fed. 693 (C..C. A. D):

The Portland, 273 Fed. 401 (C, (. A. 9):

The Golden (role, 92 Fed. (2d) 38 -(C'. @, A

bo.

> Benedict Admiralty (Sth edt.) p. 88;

Poor on Charter Parties (2nd ed.) p. 223;

Cases-on -Adiniralty, Lord & Sprague (2nd

ed.) ps 967;

and pay for all’ fuel OM, has been so, Tong a faetor

in) maritime relationships as. to receive, with differing

resulfs, interpretation hy a number of admiralty opin-

ODS,

The Cratheus, 263 Fed. 693 (0. CL A. OD):

The Angusia W. Snow, 46 Fed. (2) 992”

{OL A Be ; mined ane

The DoW. Hounense W970 Fed. (20) 77 « ..e

A..os eee

Vhe Golden Gate. 52 Fed. (20) 397.44 lo rao

Y) s-° a

Tfosmentiemrs

Lhe Millinocket, 266 Fed. 392 (D.C. NL Y.):

The Thordis, 290 Fed. 255 (D..C., N. Fy

The ALS. Sherman, 51 Fed. (2d) 782 (D.C.,

The Pajala, 7 7 Fed, Supp. 618 (DOL N.Y.) 3

The Henry W. Breyer: 17 Fed. (2d) 423

(CD. (.. Md: ie Se, ao

~ Penn.)s .

Phe City of Welena, 25 Fed. a 864 (D. C.,

Mo. ).

However, ho maritime lien decision of this court.

las placed fitial construction on the controlling clause

in either the contractor the charter party. Hence

the question decided by the appellate court as to the

. existence of a maritime lien in this cause, both as

affected by respondent’s blanket oil contract and as

affected by W. 1. Comyn & Sons’ charter party, jus-

lifies consideration and settlement by this court .as

a omatter of broad: coneern in water commerce,

CONCLUSION

Wherefore, it is respectfully submitted that) this

petition shoul he granted. °

Lane, Se Meters,

Proctor for Pililioncrs.

WL. Haynes,

oT. Merntrr,

(i. Wf. Sra,

Or Counsel,

; Central Building,

Seattle, Washington,

United States af ede: |

District: of: Columbian 7 SS.

City of Washington. ee

Lane Summers, being first duly sworn, on oath de-

poses and . SVS: :

That he is an attorney at law, admitted to practic e

before the Supreme Cour Yot the United States; that

he is one of the proctor’ for. said petitioners: that

he prepared the foregoing petition in good faith and:

not tor delay ; that said petition in his opinion is meri- -

torious and well founded in law.

LANE SUMMERS.

. Suliseribed and sworn ene before me this 19th day ‘a

January, 1940.

oy eo

. Bawa WL SCHALLER

Notary, Public in and tor the District of Columbia.

(Seal)

i piniennmemaeicmie <0 Geer ars

y ©

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