THE YANKEE, 16161

• Decision Date: 11 March 1941
• Docket Number: No. 16161,16174.,16161
• Citation: 37 F. Supp. 512
• Parties: THE YANKEE. COMET S. S. CORPORATION v. BREWER DRY DOCK CO.
• Court: U.S. District Court — Eastern District of New York

37 F. Supp. 512

THE YANKEE.

COMET S. S. CORPORATION v. BREWER DRY DOCK CO.

Nos. 16161, 16174.

District Court, E. D. New York.

March 11, 1941.

Foley & Martin of New York City (Christopher E. Heckman, of New York City, of counsel), for libellant Brewer Dry Dock Co.

Emil K. Ellis, of New York City (Jonas Ellis, of New York City, of counsel), for claimant and cross-libellant.

GALSTON, District Judge.

The Brewer Dry Dock Company filed its libel against the Yankee on January 16, 1941, alleging that at the request of the owners of the vessel it performed certain work and furnished wharfage and storage to the vessel in the reasonable value of $2,900.

The Comet Steamship Company, as claimant, answered the libel, denying knowledge or information sufficient to form a belief as to the allegations contained therein, and for a separate, distinct and complete defense as a set-off alleged that some time in May, 1940, the claimant and the libellant entered into a contract whereby the libellant agreed to make any and all repairs upon the vessel Yankee which would be required to enable that vessel to pass inspection by the United States Government in due time for the operation of said vessel for the 1940 season; that thereafter the libellant, without cause, repudiated the agreement in failing to make any repairs upon the vessel; and alleged that by reason of the breach the claimant had been damaged in the sum of $35,000.

On February 5, 1941 the Comet Steamship Company filed its cross-libel alleging the breach of the aforesaid contract and seeking a judgment in the sum of $35,000.

Such being the pleadings, the Brewer Dry Dock Company excepted to the answer on the ground that the allegations do not constitute a defense, and that it does not fully answer the allegations of the libel. The libellant also filed exceptions to the cross-libel on the ground that it does not state a cause of action within the admiralty and maritime jurisdiction of the court. The remaining motion is that of the claimant and cross-libellant, which seeks an order consolidating the libel and cross-libel.

It is contended that the answer to the libel is improper because it does not plead fully with respect to the allegations therein. Admiralty Rule 26, 28 U.S.C.A. following section 723, provides in part that all answers shall be full and explicit and distinct to each separate article and separate allegation in the libel. To deny knowledge or information sufficient to form a belief as the claimant does in paragraphs numbered 1 and 2 of the answer is not compliance with the foregoing rule, for the claimant certainly must know something about the location of its own vessel during the period in question. The exceptions to paragraphs 1 and 2 must therefore be sustained, following The Commander-in-chief, 1 Wall. 43, 68 U.S. 43, 17 L.Ed. 609; Smith, Murphy Co., Inc., v. Dwyer, D.C., 7 F. Supp. 38; In re Davidson S. S. Co., D.C., 133 F. 411.

As to the separate, distinct and complete defense, since no affirmative relief is sought, the defense is in form properly interposed, but it is insufficient in substance. In Davidson v. Green, D.C., 127 F. 999, it was said that it is well settled in admiralty that an independent set-off or counterclaim cannot be considered to reduce or diminish a claim for maritime services unless the damages on which the setoff or recoupment is directed arise out of the same transactions. See, also, The Jane Palmer, D.C., 270 F. 609. In the case at bar, the paucity of allegation results in a failure to show that the set-off arose from the transactions recited in the libel. It is true that the same vessel is referred to but beyond that the defense in set-off cannot be read as connected with the allegations of the libel. Claimant's brief refers to matters not pleaded and cannot now be considered. It may very well be that the defects of the answer can be readily cured by amendment. Accordingly the exceptions to the answer will be sustained and the claimant may have ten days after the entry of the order to file...