Moran Towing & T. Co. v. Navigazione Libera Triestina, SA

• Decision Date: 19 July 1937
• Docket Number: No. 426.,426.
• Citation: 92 F.2d 37
• Parties: MORAN TOWING & TRANSPORTATION CO., Inc., v. NAVIGAZIONE LIBERA TRIESTINA, S. A.
• Court: U.S. Court of Appeals — Second Circuit

92 F.2d 37 (1937)

MORAN TOWING & TRANSPORTATION CO., Inc., v. NAVIGAZIONE LIBERA TRIESTINA, S. A.^*

No. 426.

Circuit Court of Appeals, Second Circuit.

July 19, 1937.

Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Eugene Underwood, both of New York City, of counsel), for appellant.

Loomis, Williams & Donahue, of New York City (Homer L. Loomis and Reginald B. Williams, both of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal from a decree in admiralty dismissing the libel by Moran Towing & Transportation Company, Inc., hereinafter called Moran, against the respondent, Navigazione Libera Triestina, S. A., hereinafter called N.L.T. Diverse citizenship exists between the two parties.

Moran is owner and operator of tugs employed to assist steamers to and from their berths in New York Harbor. N.L.T. is the owner and operator of the steamship Brenta II, and on January 21, 1926, requested Moran to send two tugs and a pilot to assist her from a pier of the Robins Dry Dock & Repair Company, Erie Basin, Brooklyn, into the stream, the Brenta to use her own propelling power. Moran sent the tugs Agnes Moran and C. P. Raymond, and the master of the Agnes Moran boarded the steamer and took charge of the maneuver as pilot. In the course of the maneuver the Brenta struck and damaged a caisson and gate forming an entrance to a graving dock of the Robins Company.

A few weeks before N.L.T. engaged Moran to perform the towing services its general agents received a letter from Moran stating the terms under which such work would be done and including a so-called "pilotage" clause as follows:

"When the captain of any tug engaged in the service of assisting a vessel which is making use of her own propelling power goes on board said vessel or any other licensed pilot goes on board said vessel, it is understood and agreed that said tugboat captain or any other licensed pilot becomes a servant of the owner in respect to the giving of orders to any of the tugs engaged in the assisting service and in respect to the handling of said vessel and neither the tugs or their owners or agents shall be liable for any damage resulting therefrom."

The letter was receipted for by the general agents, and the employment of Moran which is involved in the present case was under the conditions set forth in the letter.

The Robins Company brought an action in the Supreme Court, New York County, against both N.L.T. and Moran to recover damages for the injuries done to its caisson and gate. The complaint in that action alleged that the damages suffered by the Robins Company arose from the negligence of N.L.T., or of Moran, or of both of them, while engaged in the maneuver of undocking the Brenta. The action was brought against both because section 213 of the New York Civil Practice Act permits such a joinder in cases where a plaintiff is in doubt as to which of the defendants is liable. Neither defendant filed a cross-answer against the other for the purpose of determining ultimate liability between themselves as provided in section 264 of such Civil Practice Act. At the close of the trial all parties moved for judgment; findings of fact and conclusions of law were waived by the parties, and Untermyer, J., directed judgment for Robins Company against Moran for $25,895.25 and dismissed the complaint against N.L.T. He filed an opinion, however, which was made part of the judgment roll in the state court. That opinion is reported in Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S. A., 154 Misc. 788, 279 N.Y. S. 257. The Appellate Division affirmed the judgment without opinion, Id., 235 App.Div. 841, 257 N.Y.S. 908. Thereupon an appeal was taken to the Court of Appeals where Judge Crouch delivered an opinion reported in Id., 261 N.Y. 455, 185 N.E. 698, likewise affirming the judgment. Thereafter Moran paid the judgment, amounting to $29,831.36, and seeks in the present suit to recover that sum, together with $8,298.66 of attorneys' fees and disbursements from N.L.T. as indemnitor under the terms of the "pilotage clause" contained in the towing contract. The trial court, after entertaining jurisdiction in admiralty, dismissed the libel on the ground that the state court had determined that the pilot furnished by Moran was its servant and not the servant of N.L.T., that the damages to Robins Company were due to his negligence, and that the issue of liability for his acts had been determined by the state court and could not again be litigated.

The questions raised by this appeal are:

(1) Whether the admiralty court properly entertained jurisdiction of this suit by Moran against the steamship owner based upon the "pilotage clause" in the towing contract.

(2) Whether, in view of the decision of the state court that as between Robins Company and Moran the pilot was the servant of the latter and not of N.L.T., the issue of the liability of N.L.T. to Moran is res judicata, and Moran is now estopped from asserting that N.L.T. is liable under the "pilotage clause."

The question of jurisdiction of the District Court may readily be disposed of. The contract for towage service was maritime. The Supreme Court sustained the validity of a similar pilotage clause and the sufficiency of a defense interposed by a towing company under it in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, which was a suit in admiralty. In the present case N.L.T., by agreeing with Moran that the tugmaster should become its servant, in effect undertook to perform a maritime service and to indemnify Moran for any damage sustained by the tugmaster's negligence. In The No. 34, 25 F.(2d) 602, 607 (C.C.A.2), a stevedore who sustained injuries had sued the contracting stevedore, his employer, and also the owner of the vessel at common law. He recovered from his employer in the state court on the ground that the latter had failed to furnish him a safe place to work. Thereupon his employer sued the owner of the vessel in admiralty and was allowed to recover upon the theory that the employer was entitled to be indemnified for injuries done to his employees through the negligence of the owner of the vessel. So far as jurisdiction in admiralty is concerned, we can see no difference between the situation in The No. 34, supra, and that in the present case. In any event, there is diverse citizenship here so that the court below would have jurisdiction for that reason if a maritime cause of action be thought not to exist. Admiral Oriental Line v. United States, 86 F.(2d) 201 (C.C.A.2). We accordingly sustain the present suit as regards the question of jurisdiction.

The question as to whether the present suit is barred by the decision of the state court in the action by the Robins Company depends on the proper analysis of just what was decided.

For present purposes we shall assume that the statements in the opinions of Untermyer, J., on the trial, and of Judge Crouch in the Court of Appeals are proper sources from which to determine what the several courts decided, though we shall hereafter discuss the correctness of this assumption.

Untermyer, J., said that the injuries to the Robins Company were due to the negligence of Healey, the master of the tug Agnes Moran, who went on board the Brenta and took charge of the undocking operations; that, while Healey was in the general employ of Moran, it was well settled that a servant in the general employ of one person might be transferred to the service of another who would then become responsible for the acts of negligence of such servant. He found, however, that, when Healey was engaged in undocking the Brenta, he was acting for Moran and remained its servant, that Moran was an independent contractor and, under the circumstances, was liable to a third party such as the Robins Company for the negligence of Healey whom it furnished as tugmaster for the...