B. Turecamo Towing Corp. v. United States

CHASE, Circuit Judge. B. Turecamo Towing Corporation brought its petition under the Tucker Act, 28 U.S.C.A. § 41(20), in the Admiralty of the District Court for the Eastern District of New York to recover a stated balance claimed to be due it from the United States on a towing contract made with the latter and performed by the petitioner. The respondent answered admitting the making of the contract; an attempt by the petitioner to perform; and a partial payment to the petitioner as alleged in the petition. And then it alleged by way of counterclaim the delivery to the petitioner under the towing contract of two catamarans loaded with pilings to be towed from Whitestone, L. I. to Hendrix Street, Brooklyn; and the loss of such pilings to an amount worth more than the balance of the contract price for the towage. The delivery was alleged to have been to the petitioner “as bailee” and the cause of the loss as the “failure of the petitioner to perform the towage in keeping with the terms of the contract * * * and by the negligence of the tug Barney Turecamo or such other tugs as petitioner used in performing the towage and of those in charge of the said tugs.” The petitioner filed exceptions to the counterclaim which were sustained on the ground that under the' rule of Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699, there was no bailment and that the general allegation of negligence was insufficient. Leave to amend was granted and an amended answer was then filed. The petitioner again excepted as before and the exceptions were again sustained, the judge being of the opinion that, “the. amended answer is substantially the same as the answer.” Again leave to amend was granted but this time it was declined and a final decree was entered for the petitioner for the balance claimed. This appeal was taken. Under the ordinary towing contract like that between these parties the liability of the petitioner is not that of a bailee and recovery for such loss as alleged in the counterclaim must be upon [1002] the allegation and proof of negligence. Stevens v. The White City, supra. The judge below was quite right in that- respect and also in treating the vague, general allegation of negligence in the first answer as insufficient, but did, we think, fall into error in failing to give effect to the amplitude in detail by which the amended answer remedied that defect. In it there were eleven so-called particulars in which the petitioner was charged to have failed in its duty. Some of them, it is true, were but broad statements that due care was not exercised but others were definite enough. For instance, there were allegations that petitioner was negligent in that it failed to “conduct the towage continuously but interrupted and delayed the said towage”; that the towing tug “some 24 hours prior to the delivery of the catamarans to the respondent at the foot of Hendrix Street, abandoned the towage and left the said catamarans without anyone watching over the said catamarans and pilings”; that “the said tug towed the catamarans at too high a rate of speed, thereby causing the loss of the pilings”; and that during the towage there was a failure “to keep an adequate watch over the catamarans in order to prevent the loss of piling.” These allegations raise controvertible issues; and staté with reasonable certainty the essential facts relied on by the respondent to show negligence in support of its counterclaim for damages sustained. That is all that is required in the admiralty of such a pleading. The Volunteer, 2 Cir., 149 F. 723; The Nea Hellis, 2 Cir., 116 F.2d 803; The Quickstep, 9 Wall 665, 76 U.S. 665, 19 L.Ed. 767. As the counterclaim raises triable issues on which the respondent is entitled to be heard on the merits, the decree must be reversed. Whatever questions may be raised as to the proof and related matters' will await determination when, if ever, they become issues on appeal. Decree reversed.