The Russell No. 3 , 14 F.2d 642 ( 1926 )

CAMPBELL, District Judge.

Tbis is a motion to overrule tbe exceptions filed herein by tbe boat Sailor Jack to tbe petition filed by tbe steam tug Russell No. 3 to implead tbe Sailor J ack under tbe Fifty-Sixtb rule in admiralty.

Tbe Sailor Jack contends that tbe facts averred in the petition are insufficient to constitute a cause of action against her.

Tbe facts as alleged, briefly, are that the Sailor J ack lay outside of tbe barge Atlantic 54, wbicb lay alongside and was made fast to tbe starboard quarter of tbe steamer Chickasaw, which lay bow in with her portside to tbe pier.

The Russell No. 3 brought in tbe grain elevator Oswego, and, in attempting to maneuver tbe Oáwego so that she could be placed alongside tbe Isonzo II, a steamer that lay alongside tbe pier on the opposite side of tbe slip, ran a line to tbe Sailor Jack so as to use her as a fulcrum around which to shift and warp tbe Oswego.

Tbe petition alleges:

“Instead of tbe Sailor Jack and the barge Atlantic 54 bolding their positions alongside of tbe steamer Chickasaw, they shifted away therefrom, either by tbe fact that some one threw off or slacked their lines, ór that tbe lines were improperly made fast or parted, as tbe result of wbicb tbe grain elevator was carried by tbe then strong wind across tbe slip.”

Tbe Oswego came into contact with tbe propeller blade of the Isonzo II and damaged tbe same.

If tbe lines of tbe Sailor Jack were unable to stand tbe added strain of tbe Oswego, that would have imposed no liability on tbe Sailor Jack, as it was tbe duty of tbe Russell No. 3 to have ascertained whether tbe lines were sufficient when she ran tbe line from tbe Oswego to tbe Sailor Jack. McWilliams Bros. v. Davis (C. C. A.) 285 F. 312, 315; Pennsylvania R. Co. v. James McWilliams Towing Line (C. C. A.) 277 F. 798.

In any event tbe Sailor Jack cannot be held liable for any act of tbe Atlantic 54.

I do not bold with the proctor for the Sailor Jack that tbe Oswego was a trespasser and that tbe Sailor Jack bad tbe right, without notice, to cut tbe line which was made fast on her, but that the line having been made fast to her without objection on her part, tbe Oswego became a mere licensee and tbe Sail- or J aek was not liable to tbe Oswego or Isonzo II for the act of third persons in throwing off the lines from the Atlantic 54 to the Chickasaw, or from the Sailor Jack to the Atlantic 54 or the Chickasaw. Carfloat C—4 (D. C.) 300 F. 757, 1924 A. M. C. 244, affirmed (C. C. A.) 300 F. 761; The Beeko (The May) (D. C.) 10 F.(2d) 884, 1926 A. M. C. 164.

The Oswego being a licensee, the Sailor Jack would not have the right, without warning the Oswego of her purpose, to east off her own lines and shift away from the steamer Chickasaw, carrying the Oswego across the slip, but she could only be held liable for the act of her captain or some one acting under his orders or with his consent.

While I realize that the same strictness in pleading is not required in admiralty as at common law (The West Keats, 1924 A. M. C. 104), yet it does not seem to me that, where liability can be found as to the Sailor Jack only by showing that she was allowed to shift out without warning to the Oswego, by the act of her captain or some one acting under his orders or with his consent, and could under no condition be liable for the unauthorized acts of third persons, a good cause of action is not alleged when in the fifth allegation of the petition it is alleged, “that some one threw off or slacked their lines,” because, in order to allege a good cause of action, it should be alleged that the line was thrown off by the captain of the Sailor Jack, or by his orders or with his consent, without warning to the Oswego.

The motion to overrule the exceptions is denied, the exceptions are sustained, and the petition dismissed, without costs.