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IN RE SABRE SHIPPING CORP.

April 1, 1969

In the Matter of SABRE SHIPPING CORPORATION, Debtor


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 In this Chapter XI Arrangement proceeding the debtor, Sabre Shipping Corporation ("Sabre"), seeks review of the Referee's allowance of the claim of Judson Sheldon International Corporation ("Judson"); the claimant has also brought on a petition for review claiming that interest on its claim should have been allowed. The proof of claim in the bankruptcy proceeding stated:

 
"By mistake, claimant paid a bill of the bankrupt twice. Bankrupt refused to refund on demand. Amount is $3,896.10 with interest from Apr. 27, 1962 to date of bankruptcy Oct. 16, 1964 $578., total $4,474.10."

 In his decision Referee Ryan held that "the debtor is required to restore to [Judson] the sum of $3,896.10, the amount by which it has been unjustly enriched, without interest."

 The Referee, in a decision which was justifiably critical of the parties for their failure to present proof in an organized and concise manner, found the following: In 1962 Sabre, then engaged in ocean transportation of cargo, operated a vessel, the "Nordstern," between Japan and the United States. In January of 1962 Sabre issued eight bills of lading to Pacific Wood Products Co. ("Pacific"), *fn1" as consignee, covering shipments transported by Sabre from Japan to the United States; arrival notice as to six of the bills was sent to Judson, Pacific's freight forwarder, at a California address, and as to the other two to Pacific, also in California.

 The total freight of $3,896.10 for the foregoing shipments was paid by Judson to Sabre on March 21, 1962 in New York. Shortly thereafter (March 27, 1962) Sabre received a second payment of $3,621.42 from Western Maritime Agency Incorporated ("Western"), which served as Sabre's agent in transactions with Pacific, covering the $3,896.10 freight charges for the same shipments, less Western's commission of $274.68. The $3,621.42 payment was returned by Sabre to its agent Western for the reason that it duplicated the payment received by it directly for the same shipments, which Sabre had already collected in New York from Judson.

 The Petition of Sabre

 Sabre claims that it was clearly erroneous for the Referee to find:

 
(a) that there was a duplicate payment by mistake;
 
(b) that payment was made to Western by either Judson or Pacific;
 
(c) that Western was acting as agent for Sabre;
 
(d) that Pacific or Judson was not repaid by Western.

 There is some controversy between the parties here as to the effect of the sworn proof of claim in these proceedings. A leading case, Whitney v. Dresser, 200 U.S. 532, 26 S. Ct. 316, 50 L. Ed. 584 (1906), held that a proof of claim cannot be defeated by mere formal objection and that the sworn proof is to be treated "as some evidence even when it is denied." 200 U.S. at 536, 26 S. Ct. at 317. This rule does not, however, affect the burden of proof. Therefore, if substantial evidence is introduced in opposition, the claimant must still prove its claim by a preponderance of the evidence. In re George R. Burrows, Inc., 156 F.2d 640 (2d Cir. 1946). The sworn proof of claim, however, does not disappear from the case; like a deposition of the claimant, it is still entitled to some weight as a sworn statement with respect to the matters asserted therein. In re Falk, 83 F. Supp. 817, 820 (S.D.N.Y.1949). See also Whitney v. Dresser, supra, 200 U.S. at 534-535, 26 S. Ct. 316. Absent contradictory evidence, the Referee is entitled to rely upon the proof of claim itself as establishing those facts in issue.

 There was evidence in the record from which it could be inferred that a duplicate payment was made. There was direct proof of payment by Judson to Sabre in New York, together with adequate circumstantial evidence in the form of a letter from Sabre to Western returning the remittance and explaining that payment had already been made, from which it could reasonably be inferred that another payment had been made by either Judson or Pacific to Western. The fact that, according to the testimony of Sabre's president, there was no actual ...


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