# Petition for Writ of Certiorari — Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of Cal. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0276%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1940 - **Citation:** 310 U.S. 268 ## Text ,% fe (v/ Q IN tit Supreme Court of the ‘Muiter “States : On rober “Pri. Taso 5) - ee. MS PAMESRIBSSEESRABET PANNE three, eS oy ation. ‘ hoe beeecenil ol tbe Motershin > “STUPENE BORE citiel AWTS Ane Pokersr vn. a eorperation, Claim - 4 ett of the Mhotorships > aE ‘ 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 | e : ” e ° : \ . ir nedthedi_aiee ie SO ee Ee pee en mee \ \° 5/ “IN THE ie Court nf ° the United States “Ocronen Tern, #1929 * Te ceveceas ‘| 2 -s 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, FD 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 : > e't ° agin - > a PETITION FOR WRIT OF CERTIORARI. To the United States Circuit Court of ‘Appeals for the Ninth Circuit Pe, tel *. _ . ~ a." a, . , & » ‘ - - £ — - _ 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 en 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: Ce . 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 on 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), oe +) 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. a 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 . ** 1. Conflict of Decisions Between Circuit Courts of © 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). é 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 he 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. The Dictator, 18 Fed. (2d) 131 CB. ©. Lat. ). > 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, ry 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 The KBerrosa, O3 Fed. (285 fae (0: ©. A. 1); 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., ae The Pajala, 7 7 Fed, Supp. 618 (DOL N.Y.) 3 The Henry W. Breyer: 17 Fed. (2d) 423 (CD. (.. Md: ie Se, ao : The U.S. 219, 2 Fed. Supp. 463° (0D. ©, ~ 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, ae 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, #2 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 cs y © +o 4 . . . . . ° © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0276%3A2. Public record. Not legal advice.