The opinion of the court was delivered by: BYERS
It is necessary to pass upon exceptive allegations to an impleading petition under the 56 Admiralty Rule, 28 U.S.C.A., as to which a hearing was conducted on June 25, 1958.
The opinion filed on July 14 is hereby withdrawn, counsel for the charterer having properly pointed out erroneous recitals therein; the latter are to be accounted for because of certain confusion in the motion papers which I should have detected but failed to, in the press of business in the motion term.
The similarity of names on the part of the time charterer and the stevedore may have contributed to the lapse.
There are two impleading petitions in this cause filed by the owner of the ship: One against the stevedore, and the other against the time charterer.
The former is not challenged by the exceptive allegations now under examination.
The court is informed that while the charterer was named as a respondent in the libel of Lavino, service of process was never effected, and therefore the charterer has not appeared in this cause.
A copy of the libel (filed July 6, 1956), is annexed to the petition now being challenged.
It is therein alleged that Lavino was in the employ of the stevedore on September 16, 1954 and was lawfully on board the M/V Hav while the latter was moored at Pier 2, Erie Basin, in this District; that while at hatch 2 he was struck by a hatch cover and sustained severe injuries because of 'the carelessness, negligence and recklessness of the respondents, their agents, etc.'
As stated, the charterer and the ship are named as respondents. It also appears from the libel that the libelant's employer, the stevedore, was under contract with the charterer for the purpose of discharging the cargo laden on the said vessel.
The impleading petition sets forth:
1. That the ship was under time charter to the charterer at the time of the libelant's injury.
2. That the charterer 'agreed to perform all the necessary stevedoring operations aboard the M/V Hav and by law assumed certain obligations and warranted to respondent that the aforementioned stevedoring operations would be properly and carefully performed.'
3. That at the time of the libelant's alleged injury, the ship had given to the charterer 'or those for whom it was responsible, their agents, etc.' The custody and control of the necessary parts of the M/V Hav and her appliances, which were incident to and necessary for the stevedoring work being done.
4. That at the time of delivery of custody and control, all parts and appliances were in a safe condition and proper for use in performing the ...