Morse Ironworks & Dry Dock Co. v. Luckenbach

• Decision Date: 01 June 1903
• Citation: 123 F. 332
• Parties: MORSE IRONWORKS & DRY DOCK CO. v. Luckenbach. LUCKENBACH v. MORSE IRONWORKS & DRY DOCK CO.
• Court: U.S. District Court — Southern District of New York

123 F. 332

MORSE IRONWORKS & DRY DOCK CO. v. Luckenbach.

LUCKENBACH v. MORSE IRONWORKS & DRY DOCK CO.

United States District Court, S.D. New York.

June 1, 1903

Blandy Mooney & Shipman (Martin A. Ryan, advocate), for libellant and respondent.

Peter S. Carter, for respondent and cross-libellant.

ADAMS District Judge.

This is a motion on the part of Lewis Luckenbach, the cross-libellant, to stay the libellant's proceedings until it shall, as respondent in the cross-libel, give security for the damages claimed in the cross-libel.

The action is in personam to recover from Luckenbach (1) a balance of $950, claimed to be due for work, &c., on the steamship 'Saale,' and (2) a balance of $34,803.45 claimed to be due for work, &c., on the steamship 'Styria.'

The defences seem to be, (1) an offset claimed to amount to $800 for damages arising from delay in performing the work upon the Saale, and, (2) a denial that $34,803.45 was the balance due on the Styria and a claimed offset of $22,100 for damages arising from delay in performing the work upon her and a further sum of $248.98 for materials furnished the libellant making a total claimed offset of $22,348.98, as opposed to the libellant's claim of $34,803.45, which is denied to be correct, but what balance is due, apart from the offset is not stated.

It is urged by the cross-libellant that he is entitled to security under Admiralty Rule 53, which provides:

'Whenever a cross-libel is filed upon any counterclaim, arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given.'

The argument advanced is, that the rule provides alike for action in rem and in personam and that, therefore, in the latter class of actions, notwithstanding the libellant has no security for his claim, the respondent can stay the proceedings until security be given to him. The following cases have been referred to me in support of the contention, viz.' The Steamer Bristol, Fed. Cas. No. 1,889, 4 Ben. 55; Compagnie Universelle du Canal Interoceanique v. Belloni et al. (D.C.) 45 F. 587; The Electron (D.C.) 48 F. 689.

In The Bristol, a libel in rem was filed against the steamer to recover damages sustained by the owner of the bark George S Brown, in a collision between those vessels. A cross-libel in rem was filed by the claimants of the steamer to recover the damages sustained by them in the collision and they moved for a stay of proceedings under the rule, until security should be given by the respondent (the original libellant). It was held that it was not intended by the rule to give the court jurisdiction of a vessel without a seizure and, as there were no proceedings in personam, the...