Opinion
No. 14177.
September 30, 1940.
Jones Bronson, of Seattle, Wash., for libelant.
Allen, Froude Hilen, of Seattle, Wash., for respondent.
In Admiralty. Libel by the St. Paul Fire Marine Insurance Company against the Petroleum Navigation Company, to recover the sum paid to the respondent in reliance upon alleged false representations in connection with a general average distribution.
Libel dismissed.
The libelant "St. Paul Fire Marine Insurance Company, a corporation, as `subrogee' of the Shell Oil Company * * *", brings a libel against Petroleum Navigation Company, and alleges that the respondent was the owner of the barge "W.T. B. No. 62"; that the Shell Oil Company as owner loaded on board 73,376 gallons of gasoline pursuant to affreightment contract; that while in the course of transportation of said gasoline, the tug towing the same and the barge became stranded and that the cargo of gasoline was lost, and the barge damaged to a large amount; that as a result of said stranding and for the damage, respondent caused to be prepared a general average statement for sums due from the Shell Oil Company or "its cargo underwriter, libelant herein"; that the amount determined to be due, by a general average adjuster from the libelant for the account and benefit of respondent, was $933.67, which was paid; that the statements made were false and fraudulent; that libelant relying on the representation paid Shell Oil Company's share of the general average in the sum named; that the said general average distribution was made by libelant to respondent under mutual mistake of fact; that in fact respondent was not entitled to receive such general average contribution, and prays judgment for the sum so paid with interest from the date of payment.
Respondent excepts to the libel, 1st, that the statement of the libel does not constitute a cause of action within the admiralty and maritime jurisdiction.
The relief sought is from fraud practiced by respondent upon the Shell Oil Company principal and upon libelant its underwriter. The relief claimed is clearly equitable. The libel is not upon the policy of Marine Insurance; nor, on the contract of affreightment referred to in the libels; the action seeks to recover money paid to respondent upon its false and fraudulent representations.
Courts of Admiralty have no general jurisdiction to administer relief, 28 U.S.C.A. § 371; Turner v. Beacham, 24 Fed. Cas. p. 346, No. 14,252.
The doctrine of subrogation is one of equity and springs out of the right to contribution. Dowdy v. Blake, 50 Ark. 205, 6 S.W. 897, 7 Am.St.Rep. 88; Bisph. Eq. Sec. 335. Subrogation comes from the civil law, it was called by the Civilians "a `species of spontaneous agency'", Durante v. Eannaco, 65 N.Y.App. Div. 435, 72 N YS. 1048, 1050, and its object is to prevent injustice. It is the creation of Courts of Equity, conceived and administered to do justice or prevent an injustice being done, and is within its jurisdiction. Berdie v. Kurtz et al., 9 Cir., 88 F.2d 158. The issue clearly is relief from fraudulent conduct, United Transportation Lighterage Co. v. New York Baltimore Transp. Line, 2 Cir., 185 F. 386, and is not within the jurisdiction of the Admiralty Court, Andrews and Stephens v. Essex Fire Marine Ins. Co., 1 Fed. Cas. p. 885, No. 374; Ward v. Thompson, 22 How. 330, 332, 63 U.S. (3 Miller) 361, 16 L.Ed. 249. In any event, Home Ins. Co. v. Merchants' Transportation Co., 9 Cir., 16 F.2d 372, this Circuit, is authoritative on me, and controls. Exceptions to the libel sustained. Assuming libelant does not wish to amend, the libel will be dismissed for lack of jurisdiction.