Before Medina and Hincks, Circuit Judges, and Leibell, District Judge.Before Clark, Chief Judge, and Medina, Hincks, Waterman and Moore, Circuit Judges.
Each of the libelants herein chartered ships from the Government pursuant to the Merchant Ship Sales Act, 50 U.S.C.A.Appendix, § 1735 et seq., and agreed to various terms of a standard charter, which made the rental price depend in part on the amount of the profit realized by the charterer. The libelants claim that the Maritime Commission, contrary to provisions of the Act, exacted from them too great a percentage of the profits and these actions were brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., to recover the illegally collected amounts. The foregoing cause of action is asserted in each of the libels. In several of the cases some payments were made by the shippers after redelivery of the ships and within two years of the filing of the libel. And some of the libelants sought to obtain refund of certain alleged overcharges caused by the Commission's refusal to allow certain expense deductions and its refusal to permit cumulative accounting under certain circumstances.*fn1
In each case, the Government moved to dismiss the libels because of lack of jurisdiction, on the ground that all of the claims stated therein were barred by the two-year limitation of the Suits in Admiralty Act, 46 U.S.C.A. § 745. As to this, the Government's position was that the causes of action accrued as of the time the libelants returned their ships to the Commission, and that this 'redelivery' date in all cases was more than two years prior to the commencement of suit. We append to this opinion a chart showing the dates pleaded in the libels and, in some cases, in the Government's exceptive allegations. Since the dates in the exceptive allegations were not challenged, we accept them as true.
Judge Palmieri, in an opinion reported at D.C., 141 F.Supp. 58, dismissed all the libels, except those of Blidberg Rothchild and Fall River Navigation Co., and denied leave to amend because, however pleaded, the actions were time-barred. Judge Herlands, in a memorandum opinion set out in the margin,*fn2 dismissed the Blidberg Rothchild and Fall River Navigation Co. libels for the same reason. The sole question presented on this appeal is whether it was correct to dismiss the libels and deny amendment because jurisdiction was lacking.
Before dealing with this question, we note that we are without appellate jurisdiction over the Dichmann, Wright & Pugh appeal. Dichmann, in its reply brief, conceded that, since the second count of its libel was still pending in the District Court, its appeal from the dismissal of the first and third counts was interlocutory. It cited 28 U.S.C.A. § 1292(3) as express statutory authority for us to entertain this appeal. But our authority to entertain interlocutory admiralty appeals is limited by the requirement of 28 U.S.C.A. 2107 that the appeal be filed within 15 days after entry of judgment. Here, the judgment appealed from was filed on May 22, 1956 and the appeal was not filed until August 10, 1956, -- more than 15 days later. The appeal therefore is too late, and must be dismissed. The Fanny D (Eggers v. Southern Steamship Co.), 5 Cir., 112 F.2d 347, certiorari denied National Union Fire Ins. Co. v. Eggers, 311 U.S. 680, 61 S. Ct. 49, 85 L.Ed, 438; Blaske v. Dick, 7 Cir., 126 F.2d 96, 98.
In the appeals which are properly before us, the following facts are pertinent to the issues raised. The Maritime Commission in 1946 was authorized by statute to charter vessels owned by the Government. The statute, 50 U.S.C.A.Appendix, § 1735 et seq., provided for rental rates in § 1738, which incorporated by reference § 709(a) of the Merchant Marine Act, 46 U.S.C.A. § 1199(a). This latter section provided that every charter executed by the Maritime Commission should contain provision that, whenever the charterer's adjusted profits exceed a certain amount, the charterer must pay as additional charter hire one-half of the profits in excess of a 10% return of employed capital. The Commission, claiming that § 709(a) merely set a minimum additional charter hire, proceeded to charter its ships pursuant to charters which provided a sliding scale for the additional charter hire depending on the amount of profit per day in excess of the 10% return. The libelants, as charterers, agreed to progressive rates which allowed the Commission to recapture 90% of the profits in excess of $300 per day, per vessel, above the 10% return, and made payments accordingly.
However, the libelants objected to the sliding scale rate as illegal before making payment thereunder and obtained from the Maritime Commission the assurance that payments of charter hire were to be deemed preliminary and subject to adjustment until final audit. In recognition of this the Commission inserted Clause 13 in the charters.*fn3 In addition, the libelants claim that all parties to the charters operated under the assumption that, until final audit, charter hire payments were merely preliminary. To support this, they point to Commission regulations, 46 CFR §§ 299.31(k)(1), 299.37-2(a)(1), (2) and (b)(3), to instructions such as the one set out in the margin,*fn4 and to the Commission's routine procedure, established pursuant to instructions from the General Accounting Office, of depositing the additional charter hire in an 'unearned money' account rather than in the 'miscellaneous receipts' account required by statute, 50 U.S.C.A.Appendix, § 1745(d).
The libelants argue that the cause of action for return of charter hire illegally exacted accrued as of the date of final audit, or -- at the earliest -- when the last payment or credit entry in their account with the Commission was made. In all cases this would avoid the time bar. The Government contends that the statute commenced running as of the date when each libelant redelivered the chartered vessels to the Commission. If this be so, these libels would be time-barred.
We agree with the judges below that the basic issues in this appeal were decided adversely to the appellants in our decision in Sword Line v. United States, 2 Cir., 228 F.2d 344, affirmed on petition for rehearing 230 F.2d 75, affirmed as to jurisdiction 351 U.S. 976, 76 S. Ct. 1047, 100 L. Ed. 1493, and in American Eastern Corp. v. United States, 133 F.Supp. 11, affirmed 2 Cir., 231 F.2d 664, certiorari denied 351 U.S. 983, 76 S. Ct. 1050, 100 L. Ed. 1497.
The Sword Line case held that a cause of action, such as that presented in these appeals, accrues as of the redelivery date. See 228 F.2d 344, 347; 230 F.2d 75, 76. In so holding, the majority in that case carefully considered and explicitly rejected the argument that the effect of Charter Clause 13 was to delay the commencement of the running of the statute until final audit. This was also the holding in American Eastern, supra, 133 F.Supp. at page 15.
To avoid the impact of these decisions, the appellants have restated their theories but even as restated most of them were presented and rejected in Sword Line and American Eastern. The 'mutual account' or 'open account' theory as advanced by Judge L. Hand was rejected by his colleagues in Sword Line, 228 F.2d at page 347, and by the court in American Eastern, 133 F.Supp. at page 15. Nor were the preliminary charter hire payments a 'trust fund' because they were kept in a special account. This argument was forcefully brought to the court's attention in the American Eastern appeal by a letter from appellants' counsel which thoroughly discussed the point and cited the court to Rosenman v. United States, 323 U.S. 658, 65 S. Ct. 536, 89 L. Ed. 535. In its petition for rehearing in Sword Line, the appellant made essentially the same argument but in somewhat more general terms.
There remains the contention, forcefully urged by those appellants to whom it is available, that, even if suits for refund of payments made prior to redelivery of the ships are time-barred, the court had jurisdiction over those libels which demanded refund of post-redelivery payments to the Commission which were made within two years of the filing of the libel. (For libels so situated, see the Appendix hereto.) The Government replies that the libelants cannot now demand refund since such payments were voluntary, citing Railroad Co. v. Commissioners, 98 U.S. 541, 25 L. Ed. 196, and Cunard S.S. Co. v. Elting, 2 Cir., 97 F.2d 373, and that, in any event, since the libelants accepted the ships on the Commission's terms, they are now estopped from disputing them, citing Commissioner of Internal Rev. v. National Lead Co., 2 Cir., 230 F.2d 161, affirmed on other grounds 352 U.S. 313, 77 S. Ct. 347, 1 L. Ed. 2d 352.
This point was unmistakably presented and was disposed of without discussion by another panel of this court in Sword Line in an opinion which did not explain why the court lacked jurisdiction of the claim for recovery of the post-redelivery payments. However, the rationale of the opinion in that case which was equally applicable to payments made before and after redelivery, and the rationale of American Eastern, required the orders of dismissal now before us on review. Indeed, in its briefs and its petition for rehearing in Sword Line, the libelant pointed out that after redelivery and within two years prior to the libel it had paid to the Commission $660,000, which it contended was additional charter hire. Yet the court held that there was no jurisdiction to entertain the claim.
Apparently the only point now pressed which was not determined in Sword Line or American Eastern was raised in the Blidberg libel. This concerned a claim for expenses incurred in repairing latent defects which existed when the ships were received by Blidberg. But this claim was obviously in existence, at the very latest, when the ships were redelivered. Since the libels were not filed within two years of the redelivery these claims are barred. 46 U.S.C.A. § 745.
If the subject-matter of these appeals were res nova, we are by no means sure that our dispositions would coincide with those made by the majority opinion in Sword Line and by American Eastern. However, we will not overrule these recent decisions of other panels of the court. On the authority of Sword Line and American Eastern we hold that these libels also were barred.
Accordingly, the decrees appealed from are affirmed except the Dichmann, Wright & Pugh, Inc. appeal which is dismissed.
No. Name of Libelant Filed Signed
24190 American-Foreign 11/24/54 6/ 6/46
24200 Stockard S.S. Corp. 10/ 5/54 9/ 2/46
24283 ** Dichmann, Wright & 5/13/54 9/ 2/46
24284 Polarus S.S. Co., Inc. 11/10/54 10/18/46
24285 A.L. Burbank & Co., 5/27/54 9/26/46
24286 T.J. Stevenson & 3/16/55 11/18/46
24287 North Atl. & Gulf 12/16/54 10/31/46
24288 Luckenbach S.S. Co., 12/20/55 7/12/46
24289 North Atl. & Gulf 10/21/54 ...