Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 290 U.S. 117 (1933)
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U.S. Supreme Court KRAUSS BROS. LUMBER CO. v. DIMON S.S. CORP., 290 U.S. 117 (1933)
[Page 290 U.S. 117, 124]
conclusion is obviously inconsistent with the view that the affreightment lien in favor of the cargo is dependent on the failure of the vessel to carry and deliver. The right to a lien for the mistaken overpayment of freight was involved in The Oceano (D.C.) 148 F. 131, where the charterer advanced charter freight to provide a fund for the vessel's disbursements, under stipulation that the advance should be deducted from the freight earned under the charter party. Upon settlement at the port of destination the libelant's agent, by mistake, deducted less than the advances made. The court, Judge Hough writing the opinion, held, treating the settlement as an overpayment of the charter freight, that the cause was one of affreightment and that a lien attached to the vessel for the amount of the overpayment.
It was argued to us, as it has been in other cases, that as the payment for excess freight was made under mistake the demand is upon a cause of action for money had and received, which lies only at common law and not in admiralty. The objection applies with equal force to the liens allowed for excess freight, payment of which was procured by fraud or duress, or for freight paid in advance where the voyage was abandoned after the ship was loaded. [Footnote 2] Admiralty is not concerned with the form of the action, but with its substance. Even under the common law form of action for money had and received there could be no recovery without proof of the breach of the contract involved in demanding the payment, and the basis of recovery there, as in admiralty, is the violation of some term of the contract of affreightment, whether by failure to carry or by exaction of freight which the contract did not authorize. See The Oceano, supra, 132 of 148 F.; but cf. Israel v. Moore & McCormack (D.C.) 295 F. 919.
[Page 290 U.S. 117, 126]
breach of those obligations. The one lien may come into existence without the other and the lien on the ship in favor of cargo, not being possessory, see Dupont de Nemours & Co. v. Vance, 19 How. 162; Tatsuuma Kisen Kabushiki Kaisha v. Robert Dollar Co., supra, may survive the lien of ship on cargo which is terminated by unconditional delivery. [Footnote 3] Four Thousand Eight Hundred Eighty-five Bags of Linseed, 1 Black, 108.
We note, but do not discuss the objection that the libel may be taken to allege only a voluntary overpayment of the freight without mistake. We think it may be construed to mean that the payment was made without knowledge at the time that a lower rate controlled. The court below took that to be its meaning. Certiorari was granted to review the question decided below and not the sufficiency of the pleadings to raise it.
REVERSED.
Mr. Justice McREYNOLDS, Mr. Justice SUTHERLAND, Mr. Justice BUTLER, and Mr. Justice ROBERTS are of opinion that the challenged judgment should be affirmed.
Secret liens are not favored, they should not be extended by construction, analogy, or inference, or to circumstances where there is ground for serious doubt. Osaka Shosen Kaisha v. Pacific Export Lumber Co., , 43 S.Ct. 172. Footnotes
Footnote 1 Lien for freight paid in advance but not earned under the terms of the contract of affreightment: The Harriman, 9 Wall. 161; The Panama, 18 Fed. Cas. page 1073, No. 10,703; cf. The A. M. Bliss, 1 Fed. Cas. page 593, No. 274; Church v. Shelton, 5 Fed. Cas. page 674, No. 2714. ( See, also, Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U.S. 377, 39 S.Ct. 147, 3 A.L.R. 15, and International Paper Co. v. The Schooner Gracie D. Chambers, 248 U.S. 387, 39 S.Ct. 149, where the lien was denied because the freight was held to have been earned .) Lien for charges or purchase price of the cargo, collected by the master from the consignee for account of the shipper as provided in the contract of affreightment: The Hardy, 11 Fed. Cas. page 503, No. 6056; The St. Joseph, 21 Fed. Cas. page 176, No. 12230; Zollinger v. The Emma, 30 Fed. Cas. page 939, No. 18218; cf. The New Hampshire (D.C.) 21 F. 924, 925; Krohn v. The Julia (C.C.) 37 F. 369. Lien in favor of the charterer for freight earned in violation of the charter party by the ship manned and officered by the owner: The Port Adelaide (D.C.) 59 F. 174. Lien for freight overpaid, as dead freight, for shortage of cargo wrongfully exacted by threat of attachment of the cargo actually shipped and delivered according to the contract: St. Lawrence Suggar Refineries v. United States (The Lake Eckhart) (D.C.) 31 F.(2d) 804. Lien for salvage, payment of which by the cargo was fraudulently procured by the master, who had wilfully stranded the vessel: Church v. Shelton, supra. Lien for the excess of a deposit by the cargo owner in a general average fund, the right of recovery being founded on the master's duty, and hence the ship's to make the general average adjustment: The Emilia S. De Perez (D.C.) 22 F.( 2d) 585.
Footnote 2 See note 1, supra.
Footnote 3 The statement that liens of affreightment on ship and cargo are mutual and reciprocal is based on the frequently quoted phrase of Cleirac ( 597): 'Le batel est oblige a la marchandise et la marchandise au batel.' Judge Hough indicated in The Saturnus (C.C.A.) 250 F. 407, 412, 3 A.L.R. 1187, that Cleirac's 'clever phrase' referred to the mutual obligations flowing from the union of the personified ship and personified cargo.
It has often been pointed out that the lien on cargo is not strictly a privilege (see Pothier, Maritime Contract, Translation by Caleb Cushing, Boston, 1821, 94-50; Hennebicq, Principes de droit Maritime, Brussels, 1904, 316) as is the lien on the ship, but is more like the possessory lien of the land carrier and, like it, does not survive the unconditional delivery of the cargo. See Cutler v. Rae, 7 How. 729, 8 How. 615 Appx., 1221; Four Thousand Eight Hundred Eighty-five Bags of Linseed, 1 Black, 108, 113; The Bird of Paradise, 5 Wall. 545; The Eddy, 5 Wall. 481, 494; and the full discussion in Wellman v. Morse (C.C.A.) 76 F. 573.
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