Holmes v. Crowell & Thurlow S. S. Co.

NETERER, District Judge

(after stating the facts as above). Rule

56 provides that:

“In any suit the claimant * * * shall be entitled to bring in any other * * * person who may be partially or wholly liable, either to the libelant or to such claimant * * * growing out of the same matter. This shall *880 be done by petition. * * * Such, petition shall contain suitable allegations showing such liability * *■ * and that such person ought to be proceeded against in the same suit for such damages. * * * ”

The petition alleges that the Western Stevedore Company was the employer of libelant; that the appliances were in its possession and under its direct and exclusive supervision; and on information and belief charges that the worn or defective appliance was the property of such stevedoring company, and that pursuant to its contract with claimant it had obtained insurance indemnifying claimant against damages for such injury, which has been paid. - The libelant obviously had a ca.use of action against both stevedoring company and claimant, or either. The stevedoring company, as employer, was required to furnish the libelant a reasonably safe place within which to work, and reasonably safe appliances with which to work, and this duty extended to working place and appliances owned by the claimant and temporarily in the possession and cpntrol of the Western Stevedore Company. The fact that the appliances were owned by the ship did not absolve the stevedoring company from inspecting and using reasonable care in making the place and appliances reasonably safe. Alaska Pacific S. S. Co. v. Egan, 202 Fed. 867 , 121 C. C. A. 225 .

The service rendered by the libelant was clearly a maritime service. Southern Pacific Co. v. Jensen, 244 U. S. 217 , 37 Sup. Ct. 524, 61 L. Ed. 1086 , L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 , 34 Sup. Ct. 733, 58 L. Ed. 1208 , 51 L. R. A. (N. S.) 1157; The Canadian Farmer (D. C.) 290 Fed. 601 ; Terminal Shipping Co. v. Hamburg (D. C.) 222 Fed. 1020 .

Where a contract which contains covenants both maritime and nonmaritime, in case of breach the maritime may be heard in admiralty or at common law, and the nonmaritime at common law only. The Ada, 250 Fed. 194 , 162 C. C. A. 330 ; Gowanus Storage Co. v. U. S. S. B. E. F. Co. (D. C.) 271 Fed. 528 ; Cal. Atl. S. S. Co. v. Central Door & Lbr. Co., 206 Fed. 5 , 124 C. C. A. 139 ; Pacific Coast S. S. Co. v. Moore (D. C.) 70 Fed. 870 . Admiralty affords relief where the contract involves some. ingredients of a maritime nature, the substance of the whole issue being maritime. Plummer v. Webb, 19 Fed. Cas. 891 , No. 11,233.

The contract between the owner and the stevedore company was for a maritime service, and the insurance obtained, as charged, to cover for injury received in the maritime service, is incidental thereto, and, even though nonmaritime in itself, may be heard and determined by the admiralty court. Benedict on Admiralty, § 143; Union Fish Co. v. Erickson, 235 Fed. 385 , 148 C. C. A. 647 , affirmed 248 U. S. 308 , 39 Sup. Ct. 112, 63 L. Ed. 261 ; North Alaska Salmon Co. v. Larsen, 220 Fed. 93 , 135 C. C. A. 661 ; Reed v. Weule, 176 Fed. 660 , 100 C. C. A. 212 ; Nash v. Bohlen (D. C.) 167 Fed. 427 ; The Conveyor (D. C.) 147 Fed. 586 ; Evans v. N. Y., etc., S. S. Co. (D. C.) 145 Fed. 841 ; Alaska Packers’ Ass’n v. Domenico, 117 Fed. 99 , 54 C. C. A. 485 ; Rosenthal v. Louisiana, 37 Fed. 264 ; The Mil *881 waukee Bridge (D. C.) 291 Fed. 711 ; Eureka Towing Line v. City of N. Y. (D. C.) 283 Fed. 858 ; The Minerva (D. C.) 266 Fed. 598 ; The Cetriana (D. C.) 232 Fed. 175 ; The Wilhelmina, 232 Fed. 430 , 146 C. C. A. 424 . The rule, supra, has application, if either_the libel or the petition alleges right to recover in admiralty. O’Keefe v. Staples Coal Company (D. C.) 201 Fed. 131 .

While the libelant may elect, as he did here, to pursue the owner as tort-feasor, rule 56 grants the right to the owner to have the stevedore company brought in as tort-feasor, or joint tort-feasor. This rule is not intended to enlarge the admiralty jurisdiction by permitting a party to be impleaded; its purpose is to allow a party proceeded against to bring in a party liable or jointly liable for the wrong complained of. Aktieselskabet Fido v. Lloyd Braziliero (C. C. A.) 283 Fed. 62 .

The stevedore company is entitled to know whether the con- . tract charged is oral or in writing, and to be advised of the general terms and legal effect thereof, and, while it is not necessaiy to set out a copy as an exhibit, a copy, if written, would aid in fixing more accurately and definitely the import of the allegations. The petition is sufficient to bring in the additional party. It should, however, state whether the contract is oral or in writing, and set out more definitely the import and legal effect of its terms.

To the extent as herein indicated, the exceptions are denied and sustained.