170 F. Supp. 793 | S.D.N.Y. | 1958
Eed Star Towing & Transportation Corporation, one of the respondents, excepts to the second amended libel on the ground that it fails to allege a cause of action against it. The question presented is whether the obligation of seaworthiness extends from a tug owner to a seaman, who is not his employee, and who is injured on board a scow which is in tow of the tug, such injuries allegedly being due to the unseaworthy condition of the tug with respect to which the seaman performed no service.
The facts are as follows: Flanagan, the libelant, was employed by the respondent New York Trap Rock Corporation as captain aboard its scow, the “H. F. Gilligan”. He alleges that he was injured on December 14, 1953 while the “Gilligan” and three other scows were in tow by the “Boston”, a tug owned by
The respondent Red Star filed exceptions to the amended libel which were sustained by Judge Edelstein who held that there was no basis for a claim against it grounded on unseaworthiness.
Since the amended libel also alleged negligence, the libelant was granted leave to file a further amended libel pleading facts showing special circumstances excusing the delay,
In substance, the second amended libel charges that Red Star’s tug “Boston” was towing four scows including the one on which libelant was employed; that libelant was injured on the scow in the course of his employment “while attempting to attract the attention of the tug ‘Boston’ during a storm and while libelant’s scow was rolling and pitching”. The libelant further alleges that the occurrence was due to the tug “Boston’s” unseaworthiness in that the respondent Red Star failed to provide it with an adequate, competent and efficient crew. The libel contains no allegation that libelant rendered any service aboard, or to, the tug “Boston”.
The basic question is whether the respondent Red Star, as the owner of the tug “Boston”, owed libelant the duty of seaworthiness. I think not. While the warranty of seaworthiness has been expanded in recent years to include within its scope longshoremen and others who, though not in employ of the shipowner, performed the traditional services of crew members,
Cases permitting recovery against nonemployer shipowners such as Imperial Oil, Ltd. v. Drlik, 6 Cir., 1956,
The libelant in his claim against respondent Red Star fails to allege any facts as to the nature of his services. It may well be that the services required of him were such as to bring him within the protection of the seaworthiness doctrine. Under the circumstances, if the facts warrant it, he is given leave to serve a further amended libel. Cf. Nagler v. Admiral Corporation, 2 Cir., 1957, 248 F.2d 319, 322.
. Flanagan v. The H. F. Gilligan, D.C.S.D.N.Y., 158 F.Supp. 393, 1958 A.M.C. 899.
. In not filing the libel within three years under the negligence count. Redman v. United States, 2 Cir., 1949, 176 F.2d 713. The alleged injury occurred in navigable waters in New York State.
. See N.Y.Civil Practice Act, § 48, subd. 3. See also Le Gate v. The Panamologa, 2 Cir., 1955, 221 F.2d 689; Oroz v. American President Lines, 2 Cir., 259 F.2d 636.
. Alaska Steamship Co. v. Peterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143.