
    CUNEO IMPORTING CO. v. AMERICAN IMPORTING & TRANSPORTATION CO. et al.
    (District Court, S. D. New York.
    December 30, 1916.)
    Judgment <®=j695 — Persons Concluded — Privity—Agent of Party.
    In an action by the owner of a vessel against a time charterer to recover charter hire, defendant pleaded as a set-off a claim for damages because of the unseaworthy condition of the vessel during a part of the charter period, which claim was adjudicated. Helé, that such matter was res judicata, not only between the parties, but also between the charterer and the managing owner of the vessel, who as agent executed the charter, and that in a subsequent suit by a subcliarterer against the charterer to recover damages alleged to have resulted from the unseaworthiness of the vessel during the same charter period, the charterer could not bring in the agent under admiralty rule 59.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1218.]
    <§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    In Admiralty. Suit by the Cuneo Importing Company against the American Importing & Transportation Company, with Daniel Bacon, impleaded. On exception by respondent to answer of the impleaded respondent.
    Exception overruled.
    Twyman O. Abbott, of New York City, for the motion.
    James A. Eechtig, Jr., and Ralph J. M. Bullowa, both of New York City, opposed.
   MAYER, District Judge.

The petitioner (hereinafter called American), excepts to the plea of res judicata raised by Daniel Bacon, managing owner of the steamship Banes, in paragraph 10 of his answer to the petition as follows:

“Tenth. That on or about the 1st day of November, 1909, an action was commenced in the superior court, Suffolk county, commonwealth of Massachusetts, by the Banes Steamship Company, as owner of the steamship Banes, against the petitioner. That thereafter said petitioner, on or about the 1st day of’December, 1909, filed its answer and set-off. Said answer and set-off alleged that the Banes Steamship Company did not maintain the steamship Banes in a thoroughly efficient state of hull and machinery, and' as a result thereof the defendant, the petitioner herein, was damaged. Said action was duly tried in the commonwealth of Massachusetts, in said superior court, and a judgment rendered in favor of the plaintiff herein. That the Banes Steamship Company and the respondent are in privity. That the matters herein alleged are res adjudicata.” r

On Ecbruary 27, 1909, Bacon, as agent for the Banes Steamship Company, a New Jersey corporation, owner of the Banes, chartered said steamer to American under the usual government form for a term of seven months in the West India fruit trade, beginning the latter part of March, 1909, when ready. It seems that the vessel was delivered on or about March 17, 1909, so that the charter expired on or about October 17, 1909. The charter required the owners to maintain the hull and machinery in a thoroughly efficient state and to maintain the boilers in a condition to hear a working pressure of at least 60 pounds continuously.

Subsequently American subchartered the Banes to the libelant, Cuneo Importing Company (hereinafter called Cuneo), for the same purpose and under the same conditions and terms upon which American had chartered the steamer from Bacon. On or about November 1, 1909, Banes Steamship Company commenced an action against American •in the superior court, Suffolk county, commonwealth of Massachusetts, for unpaid charter hire under the charter here referred to, and on or about December 1, 1909, American filed its answer and set-off. The action was duly tried in the Massachusetts court and a final judgment rendered in favor of the Banes Steamship Company. The present libel of Cuneo is against American, and American has filed its petition under admiralty rule 59, praying that Bacon may be proceeded against in this suit for the damages alleged to have been sustained by Cuneo, and that Cuneo recover its damages herein against Bacon.

The declaration of the plaintiff (Banes Steamship Company) in the Massachusetts action set forth “that on or about the 27th day of February, A. D. 1909, through its agent in that behalf duly authorized,” it made the charter here under consideration with American. Recovery was sought for charter hire for one month, one day, and two hours. There was no controversy as to the one day and two hours, but the dispute was concerning the one month, beginning September 17 and ending October 17, 1909. The case was tried before the superior court without a jury, and the court found for the plaintiff. The defendant (American) in the Massachusetts action, in addition to a general denial, set up a counterclaim or set-off in the following language:

“And the defendant further says that the plaintiff did not maintain the said vessel in a thoroughly efficient state in hull and machinery for and during the term of said) charter party, and did not maintain her boilers in a condition to bear a working pressure of at least 60 pounds during the whole of said term, but did permit said vessel to become and to remain out of repair and in an improper and inefficient condition, in consequence of which the defendant was unable to use said vessel during a considerable pwrt of said term, to the great damage of the defendant.” (Italics mine.)

It will be noted from the italicized portions of the answer that the issue raised by the counterclaim or set-off went to the whole term of the charter party, and the defendant asserted in its declaration in set-,off that the plaintiff owed it the sum of $3,644.14 according to an annexed account, and this annexed account takes in alleged items for damage occurring in July, August, September, and October, 1909.

By a substituted declaration in set-off, defendant asked “in recoupment and set-off” for $3,644.14; the substituted declaration apparently adding only the words, “in recoupment and in set-off,” and to tire substituted declaration there was annexed an account for the same items, as in the original set-off, but somewhat more elaborately set forth. The court made findings of fact as follows:

“That the- plaintiff [the Banes Steamship Company] maintained the chartered vessel in a condition fit for the service for which it was chartered during ih,e whole time of the charter party, excepting during certain periods when necessary repairs were being made. The parties have agreed to the deductions for all times when such repairs.were being made, before August 1909, with one exception. The defendant claims that it was entitled to a deductlon for the loss of iy2 days at Jamaica.. The court finds that it is entitled to a deduction for the loss of 10 hours at that place.
“The defendant is entitled to a deduction for time lost during repairs and while the owners were securing a competent engineer in Philadelphia, from August 16, 1909, to August 21, 1909, 5 days, a,t $83.87 per day.
“The, court finds that at all other times the vessel was fit for the service it was chartered to perform.
“The court finds that the vessel was in an unscaworthy condition when ordered by the defendant to sail on August 16th, but that this was due to the fact that certain repairs were needed. These repairs were completed within a reasonable time, namely, on August 19th, and the vessel was then in a seaworthy condition, and continued to be so until the expiration of the charter party.
“The court rules that the defendant did not have the right to cancel the contract at this time. It is fully compensated by not being required to pay rent or hire during' this period as provided in paragraph 7 of the charter party.
“On August 28th the defendant ordered the vessel to sail for Port Maria.
“On September 24th the defendant requested the plaintiff to secure freight for return trip from Port Maria.
“This last request was complied with, and the vessel was chartered to the hatiasa & Goffo Steamship Company for this return trip, and the defendant is entitled to have credited to its account the amount received Jby the plaintiff for this trip.
“The court finds that the plaintiff is entitled to recover the amount claimed to be due in its declaration, and that the defendant is entitled to the credits stated in the plaintiff’s declaration, leaving a balance of $1,372.77, to which interest is to be added from the date of the writ.
•‘Upon the defendant’s declaration in set-off it is entitled to recover nothin//.” (Italics mine.)

An appeal was taken from the judgment of the trial court, and that judgment was affirmed; Morton, J., writing the opinion, which is reported in Banes S. S. Co. v. American Importing & Transportation Co., 209 Alass. 96, 95 N. E. 107, and a copy of which is in this record.

Counsel for American contends, in effect, that the only question in issue which was determined by the appellate court was as to the charter hire for the one month and one day and two hours, or rather for the one month beginning September 17 and ending October 17, 1909. In order to determine what is found by a court, we must look to the judgment roll, by whatever name called, in any class of litigation or in any jurisdiction. The opinion of the court may be of assistance, but it does not determine what has been adjudged or decreed. This proposition is so familiar and fundamental that neither authority nor discussion is necessary. It seems to me entirely clear that the judgment of the Massachusetts court disposed, for all time, of the claim that the vessel did not maintain her boilers, etc., and is res judicata as between the parties or privies to the Massachusetts action.

In the case at bar the libel asks for damages for acts asserted to have been done in July, 1909, or, in other words, during the life of the charter here under consideration; but what is alleged to have happened ivas caused by the same breach as that considered in the Massachusetts case, viz., unseaworthiuess, and I am oí opinion that the subject-matter judicially determined in the Massachusetts case is the same as that set forth in the libel in this case. Straus v. American Publishers’ Ass’n, 201 Fed. 306, 119 C. C. A. 544; L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 109 Fed. 411, 48 C. C. A. 455; The City of Lincoln (D. C.) 25 Fed. 835.

The impleaded respondent in this case is the agent of the Banes Steamship Company. The declaration in the Massachusetts case set forth that the Banes Steamship Company was the owner of the Banes at all times mentioned therein, and that Bacon, as its duly authorized agent, entered into the charter party with American. It is evident, therefore, that Banes Steamship Company and Bacon are principal and agent, and, had the Massachusetts case gone against the steamship company, its agent would not have had any cause of action on its behalf for the same matter.

Cuneo, of course, has its cause of action against American; but American cannot, by indirection, defeat the' effect of res judicata by bringing Bacon into this litigation under the fifty-ninth rule.

As appears from the opinion in The Banes, 221 Fed. 416, 137 C. C. A. 214, American by mesne assignment transferred its claim to Cuneo. There is no allegation that Cuneo so assigned the cause of action to American; if it did so, American would be in privity with Cuneo so far as the Banes action is concerned, the assignment being subsequent to the commencement of the suit. In fact, the situation is that Cuneo ■seeks to hold American liable, and is presumably indifferent to the relations of responsibility and liability which may exist between American and Bacon. American, however, has attempted to vouch in Bacon, so that Bacon may be held liable for the very breach disposed of by the Massachusetts action. It is familiar doctrine that the court will not be concerned with the formal title of a suit or action, nor with the manner in which the parties are arranged. It will always look to the true relation of the_ parties, and, this being so, American cannot accomplish with the aid of the fifty-ninth rule what it could not accomplish in a 'direct litigation between it and Bacon.

The exception is overruled.  