The opinion of the court was delivered by: GALSTON
The respondent, Empire Electric Co., Inc., filed exceptions to the amended libel, and now seeks by motion an order for the dismissal of the amended libel on the grounds set forth in the exceptions.
The libelant, which operates dry-docks and ship repair yards, was employed in September 1948 to fit out and reconvert six vessels, four of which were at its Brooklyn plant, and two at its Hoboken plant. The libelant was required to install on each of these vessels two motor auxiliary generator units properly equipped for ship's lighting.
The Harbor Side Trading & Supply Co., Inc. supplied these units to the libelant for that purpose, having purchased them from the respondent, Empire Electric Co., Inc. That company had assembled or re-conditioned the units.
It appears that after installation of the equipment, some of the vessels, because of failure of the installed equipment, suffered a break-down after having left the repair plant.
It is alleged that the damage and injury were solely due to and caused by the negligence of the Empire Company in the 'manufacture, design and assembly of such equipment, and by the failure and neglect of the respondent, Harbor Side Trading & Supply Co., Inc. to furnish proper and sufficient equipment of represented capacity and fit for the purpose of becoming a part of said ship's lighting assemblies as aforesaid.'
The answer of the Empire Company contains exceptions to the libel which recite the making of a contract on October 21, 1948 with the Harbor Side Trading & Supply Co., Inc. which provided for the purchase and sale of twelve motor generator sets. Pursuant to the terms thereof, the motor generator sets were guaranteed by Empire to the purchaser for one year from the date of shipment. The exceptions recite that the libelant was not a party to the agreement,and did not negotiate with the Empire Company in connection therewith; nor was the merchandise sold specified to be used in connection with maritime use, or for any particular ship, or in connection with ships. So the exceptions assert that there is no privity between the libelant and Empire, and that the subject matter of the contract between Empire and Harbor Side Trading & Supply Co., Inc. is not within the admiralty jurisdiction of this court.
The original libel in this action was dismissed by Judge Byers in D.C., 91 F.Supp. 462. In the course of the opinion, Judge Byers wrote concerning Article Ninth of the libel that it was compatible with an alleged breach of contract. The article read: '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.'
Consequently, so far as the amended libel is grounded on a contract right, if any, against Empire, the decision of Judge Byers is the law of the case, for there is nothing in the amended libel to show any privity of contract between the libelant and the respondent, Empire. Judge Byers wrote that 'The use of the adverbs 'negligently' and 'carelessly' does not serve to transmit the essential nature of the claim into a cause sounding in tort.' The opinion also recites that the libel fails to allege injury to person or property, 'thus distinguishing the cause as pleaded from Todd Shipyard 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'.
Articles Seventh, Eighth and Ninth of the amended libel seek to avoid the infirmities of the original libel.
Article Seventh of the amended libel is a recital of break-down and damage caused by a failure of the equipment supplies by Empire.
Article Eighth alleges that the damage and injury were caused solely by the negligence of the Empire, 'in the manufacture, design and assembly of such equipment, and by the failure and negligence of the respondent, Harbor Side Trading & Supply Co., Inc. to furnish proper and sufficient equipment of represented capacity and fit for the purposes of becoming a part of said ship's lighting assemblies as aforesaid.'
The libelant argues that the amended libel as to the respondent Empire sounds in tort.
In Netherlands American Steam Navigation v. Gallagher, 2 Cir., 282 F. 171, 176, the then Circuit Court of Appeals of this Circuit stated:
'The admiralty has jurisdiction of a suit to recover damages for a maritime tort that occurs on navigable waters, * * *. And the test by which it is determined whether the tort is a maritime one depends upon the locality of the person ...