Opinion · Court of Appeals for the Second Circuit

Ex parte De Simone

36 F.2d 773

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1929-12-02
Topic
general

PER CURIAM. A libel in rem in admiralty was filed in the district court by Czamikow-Rionda Company, a New York corporation, against. the Italian steamship Volsinio, to recover for damage to a shipment of sugar during its transportation by the steamship from a port in Cuba to a port in France. The master of the steamship filed a claim to the vessel on behalf of her Italian owners and a stipulation for value for her release. Thereafter and before answer he sought by various motions, of which the details need not be specified, to procure a stay of further proceedings until arbitration should be had in accordance with the agreement of the parties contained in the contract of affreightment. He asserts a right to such a stay by virtue of section 3 of the United States Arbitration Aet (43 Stat. 883 [9 US CA § 3]).

Citator

UpLaw has not yet analyzed Ex parte De Simone. The absence of a flag is not a finding that it is good law.

Cited by
3 opinions
EX PARTE DE SIMONE,36 F.2d 773(2nd Cir. 1929)
Ex parte DE SIMONE.
No. ____.
Circuit Court of Appeals, Second Circuit.
December 2, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.

Motion by Luigi De Simone, master of the Italian steamship Volsinio, for writ of prohibition or mandamus to the District Court of the United States for the Eastern District of New York to require said court to stay proceedings in cause pending therein, and to abstain from exercising further jurisdiction in such cause until arbitration shall be had pursuant to agreement of the parties. Writ denied.
Bigham, Englar, Jones Houston, of New York City (T. Catesby Jones and James W. Ryan, both of New York City, of counsel), for the motion.

Harry D. Thirkield, of New York City, in opposition.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
PER CURIAM.
A libel in rem in admiralty was filed in the district court by Czarnikow-Rionda Company, a New York corporation, against the Italian steamship Volsinio, to recover for damage to a shipment of sugar during its transportation by the steamship from a port in Cuba to a port in France. The master of the steamship filed a claim to the vessel on behalf of her Italian owners and a stipulation for value for her release. Thereafter and before answer he sought by various motions, of which the details need not be specified, to procure a stay of further proceedings until arbitration should be had in accordance with the agreement of the parties contained in the contract of affreightment. He asserts a right to such a stay by virtue of section 3 of the United States Arbitration Act (43 Stat. 883 [9 US CA § 3]). The District Court held that the United States Arbitration Act did not apply for reasons stated in its opinion which appears under the title of The Volsinio,32 F.2d 357.

Upon the motion, the correctness of the district court's construction of the Arbitration Act and the question of our jurisdiction to correct it by writ of prohibition or mandamus were seriously disputed. Neither of these questions, however, need be decided. The Arbitration Act was approved February 12, 1925, and section 15 (43 Stat. 886, 9 US CA § 15) thereof provides:

"* * * This act shall take effect on and after the 1st day of January next after its enactment, but shall not apply to contracts made prior to the taking effect of this act."

The contract of the parties bears date December 15, 1925; consequently, it is apparent that the Arbitration Act can not apply to it and the interesting questions presented upon the argument are moot. Accordingly the writ is denied.Page 774