G & W TOWING COMPANY v. BARGES CB-1, ET AL.

• Decision Date: 30 June 1966
• Docket Number: No. GC667.,GC667.
• Citation: 256 F. Supp. 410
• Court: U.S. District Court — Northern District of Mississippi
• Parties: G & W TOWING COMPANY, Libellant, v. The BARGES CB-1, ET AL., Their Tackle, Apparel, etc. and BRC, Inc., Their Owners, and Warfield Towing Service, Inc., Their Charterers or Operators, Respondents.

256 F. Supp. 410

G & W TOWING COMPANY, Libellant, v. The BARGES CB-1, ET AL., Their Tackle, Apparel, etc. and BRC, Inc., Their Owners, and Warfield Towing Service, Inc., Their Charterers or Operators, Respondents.

No. GC667.

United States District Court N. D. Mississippi, Greenville Division.

June 30, 1966.

W. G. Beanland, Brunini, Everett, Grantham & Quin, Vicksburg, Miss., for plaintiff.

J. Robertshaw, Greenville, Miss., for defendant.

MEMORANDUM OPINION

CLAYTON, Chief Judge.

G & W Towing Company filed its action against certain named barges and BRC, Incorporated, as owners of the barges and Warfield Towing Service, Incorporated, as charterers or operators of the barges. The action is in rem against the barges and in personam against the owners and the charterers or operators. It seeks to enforce a maritime lien against the barges under 46 U.S.C. § 971, and it also seeks an in personam judgment against the owner and the charterer. Libellant also filed certain supplements to its libel and then the owner and charterer answered the libel and its supplements and also filed a cross-libel in rem against the M/V Jamel and in personam against libellant.¹

Certain towing services were performed by libellant as to the named barges for Warfield Towing Service during the fall of 1965, and the suit originated as an effort to collect the charges for these towing services. Respondents' cross-libel seeks recovery of the value of the barge CB-3 and of its cargo which was sunk on November 26, 1965, in the Ohio River while it was in tow of the M/V Jamel, which was then under charter to G & W Towing Company, and libellant filed exceptions thereto. Exceptions for the owner of M/V Jamel were also filed and all exceptions are before the court on briefs of the parties.

Cross-respondents urge that the exceptions are well taken, saying that the cross-libel is not germane to the original libel, since it alleges a cause of action for negligent towage of the barge CB-3 which they say is not involved in the original libel and that no claim for towage of the CB-3 is made by libellant and that no lien is sought on the CB-3.²

Consistent with their position, cross-respondents invoke and rely upon the very narrow rule which has been consistently applied in admiralty practice as announced in such cases as United States v. Isthmian Steamship Company,³ Solomon v. Bruchhausen⁴ and the authorities cited in those cases. It is undoubtedly true that admiralty practice places very strict and narrow limitations upon the bringing of cross-libels and that under Admiralty Rule 50 a claim must arise out of the same contract or cause of action for which the original libel was filed for it to be maintained by cross-libel in the original suit.

However, cross-libellants insist that the claims asserted in the cross-libel arise out of the very contract sued upon and that they are...