Soderberg v. Atlantic Lighterage Corporation, 19 F.2d 286 (2d Cir. 1927)

*287 Lord, Day & Lord, of New York City (George De Forest Lord, of New York City, of counsel), for appellant.

Macklin, Brown, Lenahan & Speer, of New York City (Pierre Brown and James M. Gorman, both of New York City, of counsel), for appellee Atlantic Lighterage Corporation.

Eugene Underwood, of New York City, for appellee Soderberg.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

The first point raised is that under our decision in The Southern Cross, 10 F.(2d) 699, the Cunard Steamship Company could not be impleaded because it was not jointly liable with the charterer. This rests upon a misapprehension of the decision in that case, perhaps excusable because of some of the language used. The question there mooted was of the liability of certain ships for the wharfage of lighters, berthed at Brooklyn wharves. These craft had been sued in rem, and impleaded the ships, which had either discharged their cargoes into the lighters, or were to lift the loads which they brought alongside. We considered the merits, which were not before us if the ships were not properly impleaded, and thought the reasoning by which their liability was asserted a "complete non sequitur," and unworthy of serious consideration. It is true that the opinion then went on to say that a passage in our opinion in Aktieselskabet Fido v. Lloyd Braziliero, 283 F. 62, 72, had definitively committed the court to the proposition on which the appellant relies, but it was unnecessary so to decide. The case cited did not itself decide that a party impleaded under the fifty-sixth rule must be jointly liable with the respondent or claimant. It turned upon the fact that the controversy there sought to be introduced into the original suit was not within the jurisdiction of the admiralty. We thought, and still think, that a procedural rule cannot extend the constitutional powers of federal courts, and that the controversy added must at least fall within some part of the substantive jurisdiction granted by the Constitution. It is not necessary here to determine whether the District Court could introduce such a controversy, though it was not of admiralty jurisdiction, if it was within some one of its other grants of jurisdiction. All we need say is that if it be within the jurisdiction of the *288 admiralty, it need not be upon a joint liability of the respondent or claimant and the party impleaded. Indeed, a contrary ruling would be in the very teeth of the rule itself, which allows the claimant or respondent to implead a vessel or person "who may be partly or wholly liable either to the libelant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter." This at least covers any such liability which is cognizable in the admiralty. We hold, therefore, that the Cunard Steamship Company was properly impleaded in the case at bar.

Coming then to the merits, the only question is whether Funch, Edye & Co. were independent contractors, or agents of the Cunard Steamship Company in such sense as to impute liability to it, not only for their faults but even for those of stevedores employed by them. We pass the last, and assume for argument that Funch, Edye & Co. were liable. The upshot of the stipulation is that the whole business of the ship in port, that is, the booking and collection of freights, her lading and discharge, all matters which arose at the berth these were in the hands of ship's "agents," so called, who were to have control of them at their own advices. The owner was only to receive the net proceeds, when the work was done. Perhaps the agents might have been discharged while the work was on at the pleasure of the Cunard Company; that possibility is not important. While the relation continued, the agents had entire autonomy; they were not subject to the immediate direction of the owner in respect of what they should do, or how they should do it; the parties did not mean that he should have power to intervene in the details of the work while it went on. That is the test, plain enough in principle, though not always easy of application. Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S. Ct. 175, 33 L. Ed. 440; Casement v. Brown, 148 U.S. 615, 622, 13 S. Ct. 672, 37 L. Ed. 582; Weinman v. De Palma, 232 U.S. 571, 34 S. Ct. 370, 58 L. Ed. 733; Ch., R. I. & Pac. Ry. v. Bond, 240 U.S. 449, 456, 36 S. Ct. 403, 60 L. Ed. 735; Metcalf & Eddy v. Mitchell, 269 U.S. 514, 521, 46 S. Ct. 172, 70 L. Ed. 384; The Satilla, 235 F. 58 (C. C. A. 2); Foard v. Maryland, 219 F. 827 (C. C. A. 4); The Robert R., 255 F. 37 (C. C. A. 2).

The argument that the ship was bailee of the barge, while she lay in the slip or alongside the ship, though pressed upon the argument, seems to us only to require a mention against the assumption that we may have ignored it.

Decree reversed in so far as it holds liable the Cunard Steamship Company and libel and petition of intervention dismissed as to it. Decree affirmed as against the respondent.