Before FRANK, MEDINA and HINCKS, Circuit Judges.
This proceeding was brought to recover sums of money paid by libellants*fn1 for passage upon the vessel City of Athens on a sailing to Europe scheduled for July 15, 1947, no part of which was repaid, despite the fact that the voyage was abandoned. When first before us we dismissed for lack of admiralty jurisdiction and this holding was reversed by the Supreme Court and the case is again here for consideration of the contentions of respondent which were not previously passed upon. Archawski v. Hanioti, 350 U.S. 532, 76 S. Ct. 617, reversing, 2 Cir., 223 F.2d 406.
Due in no small measure to various maneuvers and dilatory tactics by respondent, to whom the court below with considerable justification referred as "an unbelievable scoundrel," but also to confusion stemming from the allegations contained in the libel, the method of proof pursued by libellants and their determination at all hazards to enforce the decree by putting respondent in jail, what should have been a simple case comes to us encased in a mass of procedural complexities.
To bring some order out of this seeming chaos, we shall discuss only the following questions, which we think dispositive of the appeal:
1. Were the proceedings in the District Court regular?
2. Was the evidence sufficient to sustain a recovery by libellants against respondent for the passage money?
3. Was the provision in the decree for a body execution authorized by law?
Respondent, through his proctors of record, filed a notice of appearance and a personally verified answer denying the allegations of the libel. When the case was reached for trial in due course, one of respondent's proctors of record appeared and requested in adjournment. When this was denied, he stated, "Then I will sit here and just see what is happening." The court proceeded to conduct an inquest, disavowing any intention to take advantage of the presence of respondent's proctor, who declined to take part in the proceeding. Under these circumstances it is clear that respondent was not represented at the inquest, and it is not necessary to consider whether respondent's proctor in fact represented him at that time. It is not material whether or not respondent personally knew that the case was about to be reached for trial. It was his business to keep track of the case and assert whatever defense he had.
While respondent's failure to appear may be referred to in a colloquial sense as a default, it was not properly speaking a default and did not admit all the properly pleaded and material allegations of the libel. His answer had put all these allegations in issue and libellants were accordingly put to their proof. Bass v. Hoagland, 5 Cir., 172 F.2d 205, certiorari denied, 338 U.S. 816, 70 S. Ct. 57, 94 L. Ed. 494. The court below was entirely justified in taking the inquest.
Following entry of the decree, respondent appeared by his present proctor and in effect moved for a new trial. The motion was denied in an opinion reported at 129 F.Supp. 410.
We proceed to consider the sufficiency of the proofs adduced on the inquest in support of libellants' claim.
The Supreme Court has held "that the obligation to pay the moneys arose because of a breach of the contract to transport passengers" and that even where the libel reads like indebitatus assumpsit at common law, admiralty has jurisdiction "provided that the unjust enrichment arose as a result of the breach of a maritime contract." Archawski v. Hanioti, supra, 350 U.S. at pages 534, 536, 76 S. Ct. at pages 620, 621.
Thus libellants, in order to recover, were obliged to establish no more than the making of the contracts of passage, the receipt of the passage money by respondent, the abandonment of the voyage and ...