Opinion
No. 6206.
October 26, 1928.
Bronson, Jones Bronson, of Seattle, Wash., for Hicks-Bull Machine Co.
Huffer, Hayden, Merritt, Summers Bucey, of Seattle, Wash., for California Eastern S.S. Co.
In Admiralty. Libel by the Hicks-Bull Machine Company against the steamship West Katan, her tackle, etc., in which the California Eastern Steamship Company filed a claim, asserting ownership of the vessel, and also filed cross-libel in personam, to which libelant filed cross-libel in personam. Claimant excepts to the service on its proctor in its cross-libel of the citation in the cross-libel in personam of libelant. Exceptions overruled.
The amended libel is one in rem for labor done and material furnished in the removing and replacing of parts of an engine upon the respondent vessel at the request of the master. Libelant is a Washington corporation, with its principal office in this district. Claimant, a California corporation, filed its claim, asserting ownership of the vessel, which was surrendered to it upon the giving of a release bond. Thereafter claimant answered, admitting that the labor done and material furnished was at the request of the master. In an affirmative defense claimant alleges that a preferred mortgage was in effect upon the vessel, under the Ship Mortgage Act of 1920, wherein it was provided:
"That neither the shipowner nor the master of the vessel has or shall have any right, power, or authority to create, incur, or permit to be placed or imposed upon the property or any part thereof, subject or to become subject to this mortgage, any liens whatsoever other than for crews' wages or salvage."
In a cross-libel in personam claimant alleges that the material furnished by libelant was faulty and its work negligently done, because of which the engine was disabled at sea, to cross-libelant's damage in an amount greatly in excess of that claimed by libelant. Full recovery for the damage is asked by cross-libelant.
To this cross-libel of claimant, libelant has filed a cross-libel in personam asking recovery from claimant of the value of the labor and materials for which it sued in its libel in rem. Claimant excepts to the service upon its proctor in its cross-libel of the citation issued upon the cross-libel in personam of the Hicks-Bull Machine Company.
Claimant and cross-libelant cites: The Ethel (C.C.A.) 66 F. 340; The Nora (D.C.) 181 F. 845; The Lowlands (D.C.) 147 F. 986; The Silverway (D.C.) 14 F.2d 154; The Boise Penrose (C.C.A.) 22 F.2d 919, 1928 A.M.C. 235.
Libelant, as cross-libelant in personam, cites: Benedict on Admiralty (5th Ed.) vol. 1, pars. 329 and 332; Eliza Lines (C.C.) 61 F. 308; Id. (C.C.A.) 114 F. 307; Id. (C.C.A.) 132 F. 242; Id., 199 U.S. 119, 26 S. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406; Admiralty Rule No. 17, Southern and Eastern Districts of New York; Ward v. Sebring, Fed. Cas. No. 17,160; Johnson Railroad Signal Co. v. Union Switch Signal Co. (C.C.) 43 F. 331; Lowenstein v. Glidewell, Fed. Cas. No. 8,575.
It clearly appears that all of the claims asserted, not only in the libel in rem, but in both cross-libels in personam, arise directly from the one transaction. The cross-libel of claimant not being limited merely to a set-off of its damage against libelant's asserted claim, but seeking thereby to recover from libelant the total amount of its alleged damage, claimant is, in so far as the present matter is concerned, in no different situation than though it had brought the suit by libel, instead of cross-libel. By so invoking the admiralty jurisdiction in personam, cross-libelant has submitted to that jurisdiction in this matter.
The exceptions are overruled.