The Milwaukee Bridge
291 F. 711
S.D.N.Y.
1922
Check Treatment
LEARNED HAND, District Judge

(after stating the facts as above). [1, 2] The exception based on the claimant’s answer is not good. The fact that the defense, if true, would leave no cause of action against the respondents, is irrelevant. The claimant may not be able-to sustain the defense, though it of course hopes to be able to do so. If it fails in the defense, it will be subject to a decree, and yet the eventual fault in the discharge may be the respondents’. It is against this possibility that it needs the protection of the petition. The mere allegation of the answer does not, of course, conclude'the libelant, who may succeed in showing either that the bill of lading did not determine the ship’s liability at her tackles, or that the damage was done before tire discharge even if it did. In that case it may turn out that the respondents’ negligence was the cause of the loss, and they should pay. Nor does the pleading of such a defense in any way estop the claimant from protecting itself against its possible invalidity either in fact or law. Were it so, it would be hazardous ever to plead any defense at all; any petition could be met by saying that, if the defense were true, the petition must prove fruitless.

[3] The exception on the score of jurisdiction is not good either. If the discharge did not terminate at the tackles, it was none the less maritime till it did terminate, however much more the contract of carriage required, because in such matters the carriage includes the discharge, though that embrace acts done ashore. The Scotia (D. C.) 35 Fed. 916; The Hattie N. Bain (D. C.) 20 Fed. 389; The Gilbert Knapp (D. C.) 37 Fed. 209. If the libelant recovers, it,will be upon a maritime contract, because that is all that it has pleaded, and its recovery must be secundum allegata. If the defense be true, and the contract terminated before any damage occurred, the libelant cannot therefore hold the respondents any more than the claimant for subsequent and independent loss, even though they might be responsible for it upon other pleadings in this or in another court. The petition does not enlarge the libelant’s case, but only serves to throw upon the respondents the loss, if a recovery can be had against the claimant. Therefore the case is not one where the claimant tries to interject into the litigation an independent nonmaritime controversy.

The exception is overruled.

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