The opinion of the court was delivered by: BYERS
Hearing on Exceptions to libel. The pleading is challenged by Exceptive Allegations filed by Empire Electric Co., Inc., in that the Todd Shipyards Corporation was not a party to the contract for twelve motor generator sets which were furnished by Empire to Harbor Side Trading & Supply Co., Inc., under a written contract of October 21, 1948, between those two corporations, containing a guarantee. It appears from the latter that no maritime use, general or special, was stated therein.
Thus it is evident that there was no privity of contract between Todd and Empire, nor has a maritime contract been pleaded.
Article Ninth of the libel states: "That said generator units were negligently and carelessly constructed and were inadequate, defective and unfit for the uses and purposes intended and failed under normal usage."
The foregoing is compatible with an alleged breach of contract; the use of the adverbs "negligently" and "carelessly" does not serve to transmute the essential nature of the claim into a cause sounding in tort.
This is so because there is no allegation of injury to person or property, thus distinguishing the cause as pleaded from Todd Shipyards Corporation v. United States et al., D.C., 69 F.Supp. 609, and Seas Shipping Co., Inc., v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099.
The case of Reichert Towing Line, Inc., v. Long Island Machine & Marine Const. Co. et al., D.C., 287 F. 269, which cites and follows, on this point, Aktieselskabet Fido v. Lloyd Brazileiro et al., 2 Cir., 283 F. 62, at page 74, certiorari denied, 260 U.S. 737, 43 S. Ct. 97, 67 L. Ed. 489, seems not to have been rendered obsolete by the cases above referred to.
Exceptions sustained. Settle order.
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