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March 12, 1957

Raffaele MANGONE, Plaintiff,
MOORE-McCORMACK LINES, Inc., Defendant and Third Party Plaintiff, AMERICAN STEVEDORES CO., Inc., and United States of America, Third Party Defendants

The opinion of the court was delivered by: BRUCHHAUSEN

The defendant, United States of America, moves for an order dismissing the third party complaint as to said defendant, pursuant to Rule 12(b)(1) and (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

The question involved is whether the said defendant is properly joined as a third party defendant in a cause of action in admiralty, alleged in the third party complaint where the original complaint pertains to a civil jury claim.

The plaintiff, a longshoreman, in his original complaint against the shipowner, Moore-McCormack Lines, Inc., alleged causes of action for negligence and unseaworthiness, basing jurisdiction of this court upon diversity of citizenship, 28 U.S.C.A. § 1332.

 Subsequently, the shipowner obtained leave to serve a third party complaint against the third party defendants, The United States of America, as time charterer of the vessel, S.S. Mormacmoon, and American Stevedores Co., Inc., the plaintiff's employer.

 It is alleged in the third party complaint that the shipowner and the Government entered into a contract of time charter party for the transportation of military and government cargoes and that pursuant thereto the Government's agents installed a certain padeye for loading this cargo; that the Government engaged the stevedores to load the cargo; that the wrongful installation of the padeye by the Government, and the negligent use thereof by the Government and/or the stevedores were the primary cause of the injuries alleged in the complaint in that the vessel was in a seaworthy condition when delivered to the Government or the stevedores pursuant to the time charter, and that the said equipment was so used without the knowledge or consent of the shipowner. It is further alleged that by the terms of the time charter the Government was obligated to the shipowner to perform its work in a proper manner; that under the contract between the Government and the stevedore, the latter was obliged to perform its work thereunder in a proper manner, which obligation inured to the benefit of the shipowner; that the stevedore also undertook with the shipowner itself, while performing its stevedoring work, to do so in a proper manner. Finally, it is alleged that jurisdiction herein is based on either the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., the Public Vessels Act, 46 U.S.C.A. § 781 et seq., or the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq.

 It is not alleged that any of the aforesaid agreements or contracts contain any express provisions for indemnity. If that were so, the third party action could be purely a contract action. See Chicago, R.I. & Pac. R. Co. v. Dobry Flour Mills, 10 Cir., 211 F.2d 785; Compare Chicago, R.I. & Pac. R. Co. v. United States, 7 Cir., 220 F.2d 939.

 The third party complaint, however, is based upon the aforesaid contracts, and thus the cause of action, in this respect, is for breach of contract, although no specific provision of indemnification is included in the agreement. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, at pages 133, 134, 76 S. Ct. 232, at page 237, 100 L. Ed. 133.

 Although in this latter respect the action is for tortious breach of contract, nevertheless the action is in contract. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S. Ct. 516, 83 L. Ed. 784; United States v. Huff, 5 Cir., 165 F.2d 720, 1 A.L.R.2d 854.

 Thus, the District Court would have no jurisdiction under the Tucker Act for the said action, in contract, is in excess of $ 10,000. Hammond-Knowlton v. United States, 2 Cir., 121 F.2d 192, certiorari denied 314 U.S. 694, 62 S. Ct. 410, 86 L. Ed. 555.

 The third party complaint also contains allegations upon which a claim for common law indemnity is based. It is often stated that such a claim is based upon implied contract or quasi-contract. However, it has been held that the 'implied contract' referred to in the Tucker Act is a contract 'implied in fact' and not a contract 'implied in law', or quasicontract. C. F. Harms Co. v. Erie R. Co., 2 Cir., 167 F.2d 562, 564, Cf. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra. It is has been held that such actions for common law indemnity are tort claims under the Tucker Act. Chicago, Rock Island & Pac. R. Co. v. United States, supra, and cases cited.

 On the other hand, whether in contract or tort, this third party action is maintainable in admiralty. A stevedoring contract is maritime, American Stevedores v. Porello, 330 U.S. 446, 67 S. Ct. 847, 91 L. Ed. 1011; a charter agreement is maritime, Matson Navigation Co. v. United States, 284 U.S. 352, 52 S. Ct. 162, 76 L. Ed. 336; a common law claim for indemnity is likewise cognizable in admiralty. The No. 34, 2 Cir., 25 F.2d 602, reversing Petition of L. Boyer's Sons Co., D.C., 23 F.2d 201, certiorari denied T. Hogan & Sons, Inc., v. L. Boyers' Sons Co., 278 U.S. 606, 49 S. Ct. 11, 73 L. Ed. 533. Cf. Canale v. American Export Lines, D.C., 17 F.R.D. 269.

 Both the Suits in Admiralty Act and the Public Vessels Act are to be construed together. United States v. Caffey, 2 Cir., 141 F.2d 69. They are complementary jurisdictional statutes providing for admiralty suits against the United States. Aliotti v. United States, 9 Cir., 221 F.2d 598; Phalen v. United States, 2 Cir., 32 F.2d 687; 46 U.S.C.A. § 782.

 Since the remedy sought by the third party complaint is one that may be maintained under one of these acts, jurisdiction is given under them to the exclusion of the Federal Tort Claims Act. Prudential Steamship Corp. v. United States, 2 Cir., 220 F.2d 655; Isbrandtsen Company v. United States, 2 Cir., 233 F.2d 184; Johnson v. United States Shipping Board Emergency Fleet Corp., 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451; Simonowycz v. United States, D.C. Ohio, 125 F.Supp. 847.

 Since the admiralty court would have jurisdiction, and since jurisdiction would be excluded on the civil side, the question remains whether the Federal Court can try the civil and admiralty actions together, or more particularly, whether the Court can at the same time sit as a court of law and a court of admiralty.

 The decisions of Judge Dimock in Cornell Steamboat Company v. United States, D.C.S.D.N.Y., 138 F.Supp. 16, and Dell v. American Export Lines, D.C.S.D.N.Y., 142 F.Supp. 511, are followed rather than those of Judge Murphy in Skupski v. Western Navigation Corp., D.C.S.D.N.Y., 113 F.Supp. 726, and Judge Kaufman in Canale v. American Export Lines, supra. See also McKenna v. United States, D.C.S.D.N.Y., 91 F.Supp. 556.

 It has been held that a third party libel under the 56th rule must be maritime in nature. Soderberg v. Atlantic Lighterage Corp., 2 Cir., 19 F.2d 286, certiorari denied 275 U.S. 542, 48 S. Ct. 37, 72 L. Ed. 416; Benedict on Admiralty, Vol. 2, 6th Ed., Sec. 350. It seems conversely that a third party complaint, under Rule 14 of the Federal Rules of Civil Procedure, should be civil in nature. In Rule 81(a)(1) of the Federal Rules expressly provides that said rules do not apply in admiralty.

 While there are some decisions permitting a joinder of jury and non-jury causes, the difficulties encountered therein are minimal by comparison to those in the case at bar. To combine these two jurisdictions together in one litigation seems improper and not feasible.

 Under Civil Rule 14 a party may not be impleaded simply because it is or may be liable to the plaintiff, but only, since the 1946 amendment, upon the ground that it is liable to the impleading defendant; under Admiralty Rule 56, 28 U.S.C.A. a party may be impleaded upon either ground. ...

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