Cavanaugh v. Starbuck Towing Corp.

E.D. New York

Cavanaugh v. Starbuck Towing Corp.

261 F. 656, 1919 U.S. Dist. LEXIS 777

CourtDistrict Court, E.D. New York

DecidedOctober 31, 1919

DocketNo. 4367

StatusPublished

Cited by1 cases

This text of 261 F. 656 (Cavanaugh v. Starbuck Towing Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cavanaugh v. Starbuck Towing Corp., 261 F. 656, 1919 U.S. Dist. LEXIS 777 (E.D.N.Y. 1919).

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Opinion

CHATFIELD, District Judge.

On exceptions to the libel, the respondent questions the right of the libelants to invoke admiralty jurisdiction in this district by an action in personam, when both parties reside in another district, which happens to be the adjoining district. The record shows no difficulty which would be experienced by the libelants in bringing their action in personam in the district within which they and ffie respondent reside. It is charged that the libelants’ sole motive was to obtain security by way of foreign attachment of the respondent’s vessel, which was then in this district, and which was frequently in both districts.

The respondent cites the case of Shewan v. Hallenbeck (D. C.) 150 Fed. 231, in which the libelant had begun action, but carefully avoided serving process (in a district where neither resided) until the respond^ ent had left the district, in order to obtain a seizure of a boat which was then in that district. It wits held that this was palpable misuse of process in order to embarrass the respondent and force him to give security, by a literal application of the rule equivalent to a trick. In The Athanasios (D. C.) 228 Fed. 558, the Hallenbeck Case is referred to, and the court discountenanc.es the practice of avoiding the making of personal service for the mere purpose of obtaining security.

But in the present case there is no evasion of the rule, nor is there palpable avoidance of the spirit of the rule by holding strictly to the letter. The libelant has seen fit to bring his action in a district where he can obtain security. There is no way of going into his good faith, and he has indulged in no trick. As was said when this question was raised In the suit of Shamrock Towing Co. v. Manufacturers’ & Merchants’ Lighterage Co. and the Hax Trading Co., 262 Fed. 844, decided February 9, 1918, no legal distinction is presented because the two districts happen to be adjoining, rather than remote from, each other.

The exceptions will be overruled.

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CHATFIELD, District Judge.

On exceptions to the libel, the respondent questions the right of the libelants to invoke admiralty jurisdiction in this district by an action in personam, when both parties reside in another district, which happens to be the adjoining district. The record shows no difficulty which would be experienced by the libelants in bringing their action in personam in the district within which they and ffie respondent reside. It is charged that the libelants’ sole motive was to obtain security by way of foreign attachment of the respondent’s vessel, which was then in this district, and which was frequently in both districts.

The respondent cites the case of Shewan v. Hallenbeck (D. C.) 150 Fed. 231, in which the libelant had begun action, but carefully avoided serving process (in a district where neither resided) until the respond^ ent had left the district, in order to obtain a seizure of a boat which was then in that district. It wits held that this was palpable misuse of process in order to embarrass the respondent and force him to give security, by a literal application of the rule equivalent to a trick. In The Athanasios (D. C.) 228 Fed. 558, the Hallenbeck Case is referred to, and the court discountenanc.es the practice of avoiding the making of personal service for the mere purpose of obtaining security.

But in the present case there is no evasion of the rule, nor is there palpable avoidance of the spirit of the rule by holding strictly to the letter. The libelant has seen fit to bring his action in a district where he can obtain security. There is no way of going into his good faith, and he has indulged in no trick. As was said when this question was raised In the suit of Shamrock Towing Co. v. Manufacturers’ & Merchants’ Lighterage Co. and the Hax Trading Co., 262 Fed. 844, decided February 9, 1918, no legal distinction is presented because the two districts happen to be adjoining, rather than remote from, each other.

The exceptions will be overruled.

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261 F. 656, 1919 U.S. Dist. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavanaugh-v-starbuck-towing-corp-nyed-1919.

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