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April 8, 1975

The M/V MARATHONIAN, her engines, etc., and Europa Shipping Corporation, Defendants

Cannella, District Judge.

The opinion of the court was delivered by: CANNELLA


CANNELLA, District Judge:

 Upon the authority of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L. Ed. 290 (1927), the defendants have moved the Court for an order dismissing the complaint for failure to state a claim upon which relief can be granted. *fn1" As we find the decision in Robins controlling, the motion is hereby granted.

 Accepting, as we must on motions of the instant nature, the allegations of the complaint as true, the facts giving rise to this controversy are easily stated. At all times here relevant, the plaintiff, Federal Commerce & Navigation Co., was the time charterer of the M. V. ROLWI under a time charter dated January 21, 1970. On October 2, 1973, the M. V. ROLWI was involved in a collision on Lake Michigan with the M. V. MARATHONIAN, a vessel owned and operated by the defendant Europa Shipping Corporation. Plaintiff alleges that "[the] aforesaid collision was not caused or contributed to by any fault or negligence on the part of Plaintiff, but was caused in whole or in part by fault and negligence of Defendant, the M. V. MARATHONIAN, and those in charge of the said vessel, and in particular by the operation of the said vessel at a highly excessive rate of speed in dense fog." (Complaint at para. 6.) It is further alleged in the complaint that as the result of this collision, "Plaintiff has sustained damages consisting of the loss of use of the M. V. ROLWI, and expenses incidental thereto, which, as nearly as can be estimated at present, will amount to approximately Seven Hundred Thousand ($700,000.00) Dollars . . . ." (Complaint at para. 7.)

 To these facts, the Court's decision in Robins squarely applies. In Robins, a time charterer sued a drydocker to recover damages (loss of use and profits) arising from a delay in the release of the chartered vessel from drydock, such delay having been caused by the drydocker's negligent injury to the ship's propeller. Mr. Justice Holmes, after first rejecting the notion that a recovery might be had by the charterer under contract and third-party beneficiary principles, posed the question of the case in these terms: "whether the [charterers] have an interest protected by the law against unintended injuries inflicted upon the vessel by third persons who know nothing of the charter." 275 U.S. at 308, 48 S. Ct. at 135. To that question the Justice, writing for a unanimous Court, answered:

Their loss arose only through their contract with the owners -- and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. The law does not spread its protection so far.

 Id. at 308-09, 48 S. Ct. at 135.

 The Supreme Court's holding in Robins was later summarized by Judge Learned Hand in the following fashion:

[The Supreme Court] thought that the only basis for charging the drydocker with liability was because he had prevented the performance of the charter party by the promisor -- the owner -- and that interference by a third person with the performance of a contract was an actionable wrong only if it was intentional. The Court thought it irrelevant that this resulted in exonerating the drydocker from nearly all liability through the fortuity that the profitable use of the ship had been divided between the owner and the charterer: the difficulty went deeper; the drydocker had committed no legal wrong against the charterer at all, though he had caused it serious damage.

 Agwilines, Inc. v. Eagle Oil & Shipping Co., 153 F.2d 869, 871 (2 Cir.), cert. denied, 328 U.S. 835, 66 S. Ct. 980, 90 L. Ed. 1611 (1946). Simply put, the rule of Robins is clear: A time charterer (who is without any property right in the vessel) *fn2" cannot recover pecuniary losses sustained as the result of a third-party's negligent interference with the performance of the contract between the charterer and the vessel's owner.

 Mr. Justice Holmes' decision in Robins and the principle of law established therein were followed by the Court of Appeals for this Circuit in the Agwilines case, supra, and this view has been consistently adhered to by other federal courts. *fn3" Contrary to plaintiff's assertion, Robins correctly reflects the present state of law concerning negligent interference with contract, as evidenced by the Restatement (Second) of Torts ยง 766B (Tent.Draft No. 14, 1969), which states in relevant part:

(1) Except as stated in subsection (2) [concerning the negligent failure to transmit a telegraph message], and in the case of bodily harm to a servant, there is no liability for pecuniary harm caused by
(a) negligent interference with the performance of a contract, or
(b) negligently causing a third person not to enter into or continue a business or other advantageous relation with another. ...

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