MacDonald v. United States
| Decision Date | 17 May 1948 |
| Docket Number | No. 18093.,18093. |
| Citation | 79 F. Supp. 953 |
| Parties | MacDONALD v. UNITED STATES (CALLY, Respondent-Impleaded). |
| Court | U.S. District Court — Eastern District of New York |
Jacob W. Abraham, of New York City, for libelant.
J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y., and Haight, Griffin, Deming & Gardner, of New York City (John J. Foley, of New York City, of counsel), for respondent United States.
Gay & Behrens, of New York City (Mack Kreindler, of New York City, of counsel), for respondent-impleaded, for the motion.
William Cally, doing business as Victory Machine Company (Victory) excepts to a petition to implead him in this suit. Libelant MacDonald alleges that on April 18, 1946, while employed as a carpenter by Victory he boarded S. S. Adrian Victory, owned and operated by respondent United States of America, and sustained injuries because of the greasy, slippery and unsafe condition of a certain hatch cover. The impleading petition (attacked by this motion) alleges that Victory was under contract with respondent United States of America to convert Adrian Victory from a cargo vessel to a mule carrier, that the machine company had control of certain parts of the vessel, and that under this agreement with the United States of America the machine company was under a duty to avoid the creating of dangerous conditions and to eliminate them, if discoverable, by reasonable care and inspection. It is further alleged in the impleading petition that respondent United States of America is entitled to indemnity from Victory in respect of any recovery had by libelant.
Seemingly, the exceptions to the impleading petition rest on two grounds: (1) that the contract between Victory and the United States of America, which is the basis for the impleading petition, is not one under which an indemnity can be had, and (2) that this contract is not maritime.
But I think that the effect of the contract upon any possibility of liability on the part of impleaded respondent to the United States of America, or upon the duty to discharge any liability, will depend upon the resolution of questions of fact at the trial. Were I to sustain the exceptions, I would be making a premature determination without the materials for decision.
As for the second ground mentioned, citation of authority is surely unnecessary on the point that a contract to convert a vessel is a maritime contract. The traditional test is, of course, whether the agreement has to do with the business, commerce, or navigation of the sea. There has been some difficulty about some so-called "mixed contracts". The better opinion seems to be that if the maritime feature of the agreement is the dominant feature, then admiralty will take jurisdiction. But I have never seen it suggested that a contract...
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Finley v. United States
...maritime? (b) If it is, nevertheless, ought the court sever the indemnity provision? and (c) Is that provision maritime? MacDonald v. United States, D.C., 79 F.Supp. 953, held that a contract to convert a dry cargo vessel into a mule carrier is a maritime contract so as to allow the contrac......
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