Galban Lobo & Co. v. United States, 285 F. 665 (S.D.N.Y. 1922)

AUGUSTUS N. HAND, District Judge. [1] This' is a suit in admiralty in personam for damages flowing out of a breach of á charter party. It is brought against the United States under the so-called Suits in Admiralty Act (41 Stat. 525). The respondent has filed exceptions upon the ground that the party suing does not reside or hhve its principal place of business in the United States. The libelant is a Cuban corporation, and is not alleged to reside or have its principal place of business in this country. This, in my opinion, is a fatal objection to the suit, which is purely 'statutory, and must conform to statutory requirements. The contrary opinion was expressed in the case of Middleton & Co. v. United States (D. C.) 273 Fed. 199; but there the suit was in the name of a resident agent, and I cannot understand how the fact that a nonresident alien, having no place of business in the country, cannot take advantage of the statute, unless the provision as to' venue is disregarded, can justify a disregard of its requirements. The clause in the statute (section 2) permitting suit to be brought in the district in which the vessel “charged with liability is found” is also unavailing. While the Elmac was in this port at the time the libel was filed, there could be no liability in rem in such [p. 666] a case as this for libelant’s merchandise was never placed on board the vessel (The Saturnus, 250 Fed. 407, 162 C. C. A. 477, 3 A. L. R. 1877), and the charter was canceled by libelant pursuant to its terms, because the Elmac was not in readiness to receive it. I think “charged with liability” does not mean “attachable by foreign process,” but charged with a maritime lien.