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CAVANAUGH v. THE LENCO II

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


August 21, 1951

CAVANAUGH
v.
THE LENCO II et al.

The opinion of the court was delivered by: NOONAN

This is an action in admiralty. A libel was filed on August 6, 1948, to recover for salvage services rendered on March 27, 1948, on behalf of six lighters found adrift.

On June 8, 1951, a respondent in this action, Gallagher Brothers Sand & Gravel Corporation, claimant of one of the lighters, Lloyd Point, filed a petition under Rule 56, Admiralty Rules, 28 U.S.C.A., *fn1" to implead the Baltimore and Ohio Railroad Company as charterer of the aforesaid lighter on the date of salvage. The respondent-impleaded has excepted on the ground that the petition, which was served approximately 3 years and 2 months after the date of the salvage operations, is barred by Sec. 730, Title 46 U.S.C.A. *fn2"

 The respondent urges that this exception be overruled, though not submitting any papers in opposition. Therefore, the court is not aware of any special or unusual arguments in opposition to the granting of the relief sought here.

 Perhaps the respondent takes refuge in the phrasing of Rule 56, to-wit, 'Thereupon such process shall issue, and if duly served, such suit shall proceed as if such vessel or person had been originally proceeded against; * * * '. However, the respondent-impleaded does not become a party 'as if * * * originally proceeded against' until such time as the petition is served. Tice Towing Line v. James McWilliams Blue-Line, 2 Cir., 57 F.2d 183, 184.

 The claim in the impleading petition is not for indemnity, but is clearly one for salvage. It is, therefore, the conclusion of this court that any direct liability of the respondent-impleaded for salvage is precluded by the provisions of Sec. 730 supra. Accordingly, the impleading petition is dismissed.

 Settle order on notice.


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