Waterman and Feinberg, Circuit Judges, and Levet, District Judge.*fn*
Compagnie General Transatlantique (hereinafter "French Line") has appealed from a judgment by Metzner, D.J., dismissing upon motion a third party claim of the French Line against the third-party defendant, United States of America. We affirm.
The primary action is a claim made by plaintiff, Robert Schwartz, an Immigration inspector employed by the United States, who alleged that on October 28, 1964 he suffered injuries while aboard the SS France, owned by the French Line, in New York Harbor during the course of his official duties. Schwartz alleges that while working in the main lounge clearing passengers for admission into the United States, he was caused to trip and fall by reason of the ship's maintaining its piano platform and the carpeting thereof in a dangerous and defective condition, etc. The claim is based upon negligence.
THE THIRD PARTY COMPLAINT AGAINST THE UNITED STATES
A third party complaint against the United States was filed by the French Line on May 8, 1967. The French Line alleged jurisdiction based upon the provisions of Title 28 U.S.C.A. §§ 1346(b) and 2671 et seq. and Title 46 U.S.C.A. § 781 et seq. The gist of that complaint is that plaintiff boarded defendant's vessel in the exercise of his official functions; that thereby his employer, the United States, agreed and was obligated by the operation of law to conduct its immigration inspection in a reasonable and proper manner, exercising all supervision and maintaining all equipment in a proper manner; and that the United States warranted that the personnel who boarded defendant's vessel would perform their work in a reasonable and workmanlike manner. The complaint further alleged that the injury to Schwartz was without fault or negligence on the part of the French Line and that if Schwartz sustained injuries as alleged in his complaint these were caused by the "active negligence and breach of third-party defendant," requiring indemnity to the French Line.
THE MOTION BY THE UNITED STATES
The United States moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the third party complaint. Prior to this motion, the French Line and the United States stipulated that the third party complaint seeks recovery "solely upon an implied contract of workmanlike performance arising out of the status existing" between them on the day the accident happened. It is also noted that the stipulation above mentioned contained this further statement:
"The execution of this stipulation is without prejudice to the position of the United States of America that there was not any such implied contract and that there was not any status which gave rise to such an implied contract."
In its complaint against the United States, the French Line does not state the nature of the warranty; the complaint states neither what the United States was required to do nor what the United States failed or neglected to do. Although the third party complaint alleged that the third-party defendant, the United States, was "obligated by the operation of law to conduct its function in a reasonable and proper manner and to provide all supervision necessary for the reasonable conduct of its work" (Par. Sixth) and further asserted that if the plaintiff, Schwartz, sustained injuries through any fault other than his own it was caused by failure of the United States to perform its functions in a reasonable manner, etc. (Par. Tenth), not one word of specific fact to sustain these contentions was presented by the French Line.
The motion was made upon an affidavit of John J. McKeon, which set forth the official character of the acts in which Schwartz was engaged in the SS France, and further stated that "There was no contract between the Service [i.e., Immigration and Naturalization Service] and Compagnie General Transatlantique or SS France pertaining to the presence of Immigration Inspectors aboard the vessel." The French Line submitted no opposing affidavits.
The record on this appeal contains interrogatories by the United States addressed to the French Line and answers by the French Line; but these answers in this instance are not affidavits as required by Rule 56 of the Federal Rules of Civil Procedure. The answers are alleged on "information and belief" and contain these words: "This statement is a mere gratuity on third-party plaintiff's behalf. Further answers shall not be forthcoming * * *." The answers were not verified by the French Line. Such answers may not be considered in opposition to the motion of the United States for summary judgment.*fn1
The affidavit submitted by the United States in support of its motion contained no factual statements as to the basis, or lack of basis, of the claim of Schwartz against the French Line. Neither party to this motion has sought judgment on any factual issue with regard to liability of the French Line to Schwartz, and no trial or verdict has yet been had upon the claim of Schwartz against the French Line. The French Line failed to present on the record any evidence indicating the existence of a genuine issue of material fact as to its claim against the United States. Appellant confines its argument to its contention that the ...