Christman v. Maristella Compania Naviera

• Decision Date: 26 November 1968
• Docket Number: No. 65 Ad. 639.,65 Ad. 639.
• Citation: 293 F. Supp. 442
• Parties: George V. CHRISTMAN et al., Plaintiffs, v. MARISTELLA COMPANIA NAVIERA, Defendant and Third-Party Plaintiff, v. BOYD, WEIR & SEWELL, INC., Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

293 F. Supp. 442

George V. CHRISTMAN et al., Plaintiffs, v. MARISTELLA COMPANIA NAVIERA, Defendant and Third-Party Plaintiff, v. BOYD, WEIR & SEWELL, INC., Third-Party Defendant.

No. 65 Ad. 639.

United States District Court S. D. New York.

November 26, 1968.

Kirlin, Campbell & Keating, New York City, for plaintiffs; Edward L. Smith and Walter P. Hickey, New York City, of counsel.

Healy & Baillie, New York City, for defendant and third-party plaintiff; N. J. Healy, Jr., New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for third-party defendant; Wharton Poor and R. Glenn Bauer, New York City, of counsel.

OPINION

MacMAHON, District Judge.

This action involves an alleged breach of a charter party for the s/s ERETRIA. Defendant admits that its vessel never performed the voyage for plaintiff, but claims that the charter party, as written, does not reflect the terms of the actual agreement and that the charter party was signed by its agent, third-party defendant, without authority.

Defendant filed a third-party complaint seeking indemnity from its agent, alleging that third-party defendant acted without or in excess of authority in negotiating and entering into the charter party. Plaintiff then filed a cross-complaint, alleging that third-party defendant breached its warranty of authority to execute the charter party.

Third-party defendant moves to dismiss the third-party complaint and the cross-complaint for failure to state a claim within admiralty jurisdiction. We will consider the motions in order.

Although defendant and third-party defendant contest whether an agent, signing a contract without authority, constitutes a tort or breach of contract, there is no doubt that the agency agreement between defendant and third-party defendant is non-maritime in nature. Breach of this non-maritime agreement is not within admiralty jurisdiction. Aktieselskabet Fido v. Lloyd Braziliero, 283 F. 62 (2d Cir.), cert. denied, 260 U.S. 737, 43 S.Ct. 97, 67 L. Ed. 489 (1922); 2 Benedict, Admiralty § 350 (6th ed. 1940).

The third-party complaint, therefore, must be dismissed unless there is another basis for federal jurisdiction over the third-party complaint. 3 Moore, Federal Practice ¶ 14.20 (2d ed. 1968). The pleadings establish that defendant is a citizen of Greece, third-party defendant is a citizen of New York, and the amount in controversy is in excess of $10,000. There is therefore diversity jurisdiction. 28 U.S.C. § 1332.

Dismissing the third-party complaint for want of admiralty jurisdiction, only to have defendant reinstitute the action in diversity and then consolidate it with the admiralty action under Rule 42(a), Fed.R.Civ.P., because of the common questions of law and fact, would be needlessly circuitous. We therefore avoid the unnecessary fragmentation and decline to dismiss the third-party complaint. David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295, 300 (2d Cir. 1964), cert. denied, 380 U.S. 976, 85 S.Ct. 1340, 14 L.Ed.2d 271 (1965).

Third-party defendant's fear that a jury will be confused if the admiralty claim is tried with the alleged breach of agency agreement is unfounded. The jury, with the assistance of court and counsel, will be able to focus on the single issue which it must determine, namely, whether third-party defendant breached its agency agreement with defendant.

Plaintiff's...