The opinion of the court was delivered by: MOSCOWITZ
The Cardinal Engineering Company, the respondent-impleaded, has excepted to the libel and the petition of the respondent, the United States of America.
Libellant brought this action against the United States of America for personal injuries which he alleges were sustained on the S.S. Andrew W. Preston, owned and operated by the United States of America. The libel alleges that he was employed by the Cardinal Engineering Company as a rigger and that, while repairing the vessel, due to its negligence he fell and was injured.
Pursuant to Rule 56 of the Admiralty Rules, 28 U.S.C.A.following section 723, respondent United States of America impleaded Cardinal Engineering Company, libellant's employer, the respondent-impleaded, which was making repairs pursuant to a contract with the respondent, the United States of America.
The petition of the respondent is short and reads as follows:
'First: At all of the times hereinafter mentioned petitioner was and now is a corporation sovereign and owner of the steamship Andrew W. Preston.
'Second: Respondent-impleaded Cardinal Engineering Company was at all of the times hereinafter mentioned and now is a foreign corporation with an office and place of business within this district.
'Third: On or about September 11, 1945, Daniel Green filed a libel in this Court for damages in the sum of $ 50,000 against United States of America, petitioner herein, alleging that libellant while employed by Cardinal Engineering Company aboard the steamship Andrew W. Preston fell and was injured while working on the cross tree of the masthead on the mizzen mast by reason of the negligence of respondent herein.
'Fourth: Petitioner alleges that on September 15, 1944, pursuant to a written contract with petitioner, the respondent-impleaded Cardinal Engineering Company was engaged as an independent contractor in making certain repairs on the steamship Andrew W. Preston lying at Pier 3, North River, New York, New York. Said contract provides in part as follows:
"(f) The Contractor shall place proper safeguards for the prevention of accidents * * * and use its best efforts to prevent accidents or injury to persons or property.
"(m) The Contractor shall indemnify and save harmless the Government and its agencies and instrumentalities, the vessel and the owner of the vessel, from all suits or actions and damages or costs of every name and description to which the Government and its agencies and instrumentalities, the vessel or the owner thereof may be subject or put by reason of injury (including death) to the person or property of another arising or growing out of the fault or negligence of the Contractor or any subcontractor, its or their servants, agents or employees.'
'Fifth: If said injuries were caused or contributed to by any fault or negligence other than that of libellant, the fault and negligence of Cardinal Engineering Company, its agents, servants and employees in the course of performing its duties under such contract caused or contributed to said injuries.
'Sixth: By reason of the premises Cardinal Engineering Company is solely liable for whatever amount, if any, may be decreed herein and moreover is answerable to petitioner for any amount which may be awarded under the libel against petitioner, and is, therefore, a necessary and proper party in this suit and ought to be proceeded against as if originally named in the libel herein. Petitioner files herein its answer to the libel herein.
'Seventh: All and singular the premises are true and if this Court has jurisdiction of the cause set forth in said libel and the parties named therein, the matters herein alleged are within the admiralty and maritime jurisdiction of the United States and of this Honorable Court.'
Respondent alleges that any injuries suffered by libellant were not caused by its negligence but that of the Cardinal Engineering Company in carrying out its duties under the ...