236 F. 361 | N.D. Cal. | 1916
The libel is for repairs and other necessaries, including the use of a marine railway alleged to have been furnished the steamer Alliance upon the order of her owner.
The claimant is the charterer of the vessel, and in a cross-libel seeks to recover damages for a breach of contract between it and libelant, by which contract libelant agreed that on a day certain, for the purpose of making necessary repairs on the vessel, it would have its marine railway in readiness and in such condition as expeditiously to place the vessel in the position where such repairs could be made; that libelant failed to perform its contract, in that it did not have
The exceptions and motion to dismiss are based on two grounds: (1) That the contract is not one of cognizance in the admiralty, as it was a contract to be performed on land; and (2) that the contract is not between the same parties as was the contract upon which the libel is based.
The exceptions will be sustained, and the motion to dismiss granted, on the second ground, unless cross-libelant, conformably with the truth, within 10 days amend its, cross-libel to show that the contract upon which such cross-libel is based is the identical contract upon which libelant sues.