Opinion
No. 118.
November 27, 1944.
Appeal from the District Court of the United States for the Southern District of New York.
Admiralty suit by the Defense Plant Corporation against United States Barge Lines, Inc., to recover charter hire, wherein Ida W. Barnes and Thomas C. Fisher filed a petition for leave to intervene. From an order, 57 F. Supp. 14, denying the petition for leave to intervene, Ida W. Barnes and Thomas C. Fisher appeal.
Affirmed.
In May 1943, Defense Plant Corporation chartered a towboat and two barges to United States Barge Lines, Inc. On failure of the United States Barge Lines to pay the hire, appellee repossessed the vessels and, on August 10, 1943, filed a libel in the Southern District of New York against the respondent, a non-resident Kentucky corporation, and procured jurisdiction by attaching funds in the hands of Standard Oil Company of New Jersey. The funds so attached were due respondent as unpaid freight earned by the transportation of oil in the barges above mentioned. On September 29, 1943, the court in that suit entered an interlocutory decree in favor of Defense Plant Corporation, and on March 6, 1944, entered final decree in its favor for $7,846.42.
On January 22, 1944, an involuntary petition in bankruptcy was filed against the United States Barge Lines in the United States District Court for the Western District of Kentucky, Louisville Division; United States Barge Lines was adjudicated a bankrupt and one Brent became its trustee in bankruptcy.
On March 20, 1944, Standard Oil Company of New Jersey, the garnishee in the admiralty suit, began an interpleader action in the United States District Court for the Southern District of New York, pursuant to 28 U.S.C.A. § 41(26) as amended, and deposited $12,977.96 in the registry of the court; there were joined, as defendants, Defense Plant Corporation, Brent, as trustee, and Kosmos Towing Company, an assignee of United States Barge Lines, under an assignment made in July 1943 to secure a loan of $6,000 from Kosmos to United States Barge Lines. On March 20, 1944, the court, in the interpleader action, entered a temporary restraining order enjoining Defense Plant from enforcing the final decree previously entered in the admiralty suit.
Thereafter, on March 25, 1944, appellants, with knowledge of what had occurred in the interpleader action, made a motion in the admiralty suit for leave to file in that suit (but not in the interpleader suit) an intervening libel asserting a maritime lien based upon an alleged respondentia loan, i.e., on account of alleged advances to enable the vessels to complete the voyage by which the freight moneys owed by Standard Oil were earned. The court entered an order denying the motion, and appellants have brought this appeal from that order.
Maurice A. Krisel, and Roman Beck, of Washington, D.C., for intervenors-appellants.
Bigham, Englar, Jones Houston, of New York City (F. Herbert Prem, of New York City, of counsel), for appellee.
Before SWAN, CLARK, and FRANK, Circuit Judges.
1. Intervention is permissible in an admiralty suit only if (a) the suit is in rem (Admiralty Rule 34, 28 U.S.C.A. following section 723) or (b) the intervenor has an interest in proceeds in the registry of the court (Admiralty Rule 42). The admiralty suit here was in personam with a claim for foreign attachment; the garnishment did not convert the suit into one in rem. Brown v. C.D. Mallory Co., 3 Cir., 122 F.2d 98, 104. For Admiralty Rule 36 does not require the garnishee to pay into the registry of the court but permits the garnisheed debts or credits to remain in the hands of the garnishee, and that is what was done here. Even assuming, arguendo, that the final judgment in that suit, had it been enforced, would have been the equivalent of payment into the registry, the fact is that that decree was not enforced because of the injunction issued in the interpleader suit.
It will not do to say that the payment into the registry in the interpleader suit satisfies Rule 42 since it was a payment in the same court sitting one moment in admiralty and another in "equity." For it is a mere coincident that the interpleader action was brought in the district in which the admiralty suit was pending; had the interpleader action been brought in another district court, the payment would have been into that court's registry, and yet that court could properly have issued a similar injunction.
2. But, assuming that the court below could properly have permitted the intervention, it was not required to do so. True, the mere fact that a final decree had been entered would not necessarily be a bar to intervention on the ground of tardiness. The admiralty court has wide discretion as to the time of intervention. But here the court denied the intervention for specified reasons, and also said that "there are additional reasons for refusing the relief sought." We construe this statement to mean that, inter alia, the district judge exercised his discretion. As there was no abuse of it, we cannot review his decision.
Cf. Cincinnati I. W.R. Co. v. Indianapolis Union R. Co., 6 Cir., 279 F. 356, 363; United States v. Northern Securities Co., C.C., 128 F. 808; Baltimore Trust Co. v. Interocean Oil Co., D.C., 30 F. Supp. 484, 485.
3. As either of the foregoing grounds is sufficient to dispose of this appeal, we need not consider whether the intervention was improper because appellants did not procure the permission of the bankruptcy court.
Affirmed.