W. P. Tanner-Gross & Co. v. James W. Elwell & Co.

BONDY, District Judge. This is a libel to recover damages for the breach of a contract to carry flour from New York to Gibraltar on the steamship Waukau, sailing from New York, during the month of June, 1920, according to terms set forth in a bill of lading signed by the respondent. The respondent, James W. Elwell & Co., Inc., filed a petition alleging that, as was known to ihe libelant, the Waukau was owned by the United States, and that the contract was made by the petitioner, acting solely for the United States and the United States Shipping Board Emergency Fleet Corporation, and asking that the United States and the United States Shipping Board Emergency Fleet Corporation be impleaded. It appears by the petition and by the copy of the agreement annexed to the petition that the Emergency Fleet Corporation acted in this transaction only as agent of the United States. The United States Shipping Board Emergency Fleet Corporation therefore properly contends that it cannot be held personally liable on a contract made by it as disclosed agent of the United States. See Astoria Marine Iron Works v. United States Shipping Board Emergency Fleet Corp. (D. C.) 1924 A. M. C. 479, 295 F. 415. The further contention of the United States, that the United States cannot be impleaded, because a petition to implead the United States under the fifty-sixth admiralty rule will not lie under the Suits in Admiralty Act of March 9, 1920 (Comp. St. Ann. Supp. 1923, §§ 1251¼-1251¼l), and because the petition was not filed within two years after the cause of action arose, cannot be sustained for the reasons well stated in The Cotati, 1924 A. M. C. 149, 2 F.(2d) 394, The Tug Nonpareil, 1924 A. M. C. 312, The Barge Shamrock (Hidalgo Steel Co. v. Moore & McCormack Co.) 1923 A. M. C. 1203, 298 F. 331, and The Peerless, 1923 A. M. C. 236, 2 F.(2d) 395. The exceptions of the Emergency Fleet Corporation, therefore, are sustained, and those of the United States overruled.