
42 F.2d 58 (1930)
EASTERN MASSACHUSETTS STREET RY. CO.
v.
TRANSMARINE CORPORATION et al.
No. 2451.
Circuit Court of Appeals, First Circuit.
June 30, 1930.
*59 *60 *61 *62 Fitz-Henry Smith, Jr., of Boston, Mass., for appellant.
Eugene P. Carver, Jr., of Boston, Mass., and Carroll Single, of New York City (Carver & Schell, of Boston, Mass., and Single & Single, of New York City, on the brief), for appellee Transmarine Corporation.
Albert T. Gould and Edward A. Neiley, both of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for appellee Fore River Coal Co.
Before BINGHAM and WILSON, Circuit Judges, and MORTON, District Judge.
BINGHAM, Circuit Judge (after stating the facts as above).
We are satisfied that, on the evidence, the District Court did not err in finding the libelant was not at fault either in the manner or the means it employed in tying up the vessel to the wharf, or otherwise; that her breaking away was not due to an act of God or any unusual circumstance, either in the character of the weather or of the tide, that could not reasonably have been foreseen and provided against; that the coal company broke its covenant to provide a proper and suitable berth, in that the one provided was unsuitable; and that it was liable, independently of whether it was negligent or not in failing to ascertain that the berth was unsuitable.
We are also of the opinion that the railway company was properly impleaded under Admiralty Rule 56; that its covenant in the lease wherein it contracted to "maintain said berth * * * in good condition to receive and accommodate vessels" of the capacity and type stipulated, with which the Surico complied, rendered the railway company liable over to the coal company, if the wharf was unsuitable; and that its contract to maintain a safe berth was a maritime contract, the provisions of which, so far at least as this case is concerned, could be enforced *63 in an admiralty court without regard to and independently of the other provisions of the lease; that, as its contract contemplated that the coal company would invite vessels of the type and capacity of the Surico to berth at the railway company's wharf, it was an express or implied agreement that, if the coal company did invite such vessels, it would maintain for them a suitable berth. The berth being found to be unsuitable, it breached its contract with the coal company and became liable over to it, irrespective of whether it was negligent, as the District Court found it was; and being impleaded and found in default in regard to the very matter as to which the coal company was found liable and in default to the libelant, the District Court, by reason of the railway company's liability over to the coal company, and rule 56, was authorized to enter the decree that it did, holding the railway company primarily liable; for Rule 56 provides: "That such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain." In this situation law and justice required that the decree entered should hold the railway company primarily and the coal company only secondarily liable.
Rule 56 in admiralty provides: "In any suit * * * in personam the * * * respondent * * * shall be entitled to bring in any other * * * person (individual or corporation) who may be partly or wholly liable * * * to such * * * respondent by way of remedy over, contribution or otherwise, growing out of the same matter. This shall be done by petition, on oath, presented before or at the time of answering the libel, or at any later time during the progress of the cause that the court may allow. Such petition shall contain suitable allegations showing such liability [by way of remedy over, contribution, or otherwise], and the particulars thereof, and that such other * * * person ought to be proceeded against in the same suit for such damage, and shall pray that process be issued against such * * * person to that end. Thereupon such process shall issue, and if duly served, such suit shall proceed as if such * * * person had been originally proceeded against; the other parties in the suit shall answer the petition; * * * such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain."
This case falls clearly within the rule, if the covenant of the railway company, wherein it agreed that it would maintain a suitable berth at its wharf, was a maritime contract and could be enforced independently of the other provisions in the lease. The covenant related to the same subject-matter as did the coal company's covenant with the libelant, for the berth in controversy under both covenants is the same. If the covenant in the charter is maritime, the one in the lease is equally so. Indeed, there can be no doubt that both are maritime. In re Easton, 95 U. S. 68, 24 L. Ed. 373. Each covenant is as broad as the invitation given, and includes the facilities (the bitts) provided for tying up the vessel to the wharf. Dougherty Co. v. Bader Coal Co. (D. C.) 244 F. 267. As an independent suit could have been maintained on the railway company's covenant to maintain a suitable berth [Compagnie Francaise de Navigation a Vapeur v. Bonnasse et al. (D. C.) 15 F.(2d) 203, 204], it presents a clear case for impleading under the rule. It is undoubtedly true that, where an instrument embodies a contract containing provisions, some of which are maritime and some nonmaritime, which are so interrelated as to be indivisible and to render a separate adjustment of those that are maritime impracticable, admiralty will not take jurisdiction. But where the respective provisions of the contract are divisible and the maritime obligations may be separately adjudicated, admiralty may take jurisdiction and enforce them. This question has been recently passed upon by the Court of Appeals in the Second Circuit, in Compagnie Francaise de Navigation a Vapeur v. Bonnasse et al. (Irving Bank-Columbia Trust Co., Garnishee), 19 F.(2d) 777, 779. It was there contended, as it is here, "that a contract to be within the jurisdiction of the admiralty must be wholly maritime." In answer to this contention, the court said at page 779 of 19 F.(2d): "The rule has at times been so stated in the books, and the statement is usually not misleading. Grant v. Poillon, 20 How. 162, 15 L. Ed. 871; The Ada, 250 F. 194 (C. C. A. 2); The Pennsylvania, 154 F. 9 (C. C. A. 2). The reason for it is plain enough. A contract both maritime and nonmaritime is ordinarily indivisible, so that the rights of the parties cannot be adjusted separately, those maritime in the admiralty, and the rest elsewhere. Admiralty must refuse to assume any jurisdiction over it at all, because it must either ignore the principles of the law of contract, or extend its powers beyond their constitutional scope. But in so far as the maritime obligations may, consistently with those principles, *64 be separately adjudicated, there is no objection to the jurisdiction of the admiralty pro tanto. This is clearly intimated in Turner v. Beacham, Fed. Cas. No. 14,252, and The Pennsylvania, 154 F. 9 (C. C. A. 2), though the decision did not require such a holding. The mere fact that the contract covers a subject-matter of both kinds is not therefore decisive; that would make the mere form control. The substantial question is whether the maritime obligations can be separately enforced without prejudice to the rest." In this case certiorari was denied. See American Exch. Irving Trust Co. v. Bonnasse, 275 U. S. 551, 48 S. Ct. 114, 72 L. Ed. 421.
Chief Justice Taney, sitting as Circuit Justice, in Turner v. Beacham, supra, stated the rule as follows: "And I consider it to be a clear rule of admiralty jurisdiction, that although the contract which the party seeks to enforce is maritime, yet, if he has connected it inseparately with another contract over which the court has no jurisdiction, and they are so blended together that the court cannot decide one, with justice to both parties, without disposing of the other, the party must resort to a court of law, or a court of equity, as the case may require, and the admiralty court cannot take jurisdiction of the controversy. The case of Grant v. Poillon was decided upon this ground, at the last term of the supreme court."
The Grant Case does not militate against the position here taken. In that case, the libelants, owners of the ship, brought an action on a contract of affreightment to recover the freight, against the shippers, a partnership. One of the owners was a partner in the defendants' firm. To give full relief an accounting between the partners was necessary. This admiralty could not give, and for this reason jurisdiction was declined.
In Aktieselskabet Fido v. Lloyd Braziliero (C. C. A.) 283 F. 62, the contract, with reference to which the respondent sought to implead the third party, was a contract of purchase and sale of coal for stiffening, a purely nonmaritime contract which was solely within the jurisdiction of a court of common law, and all that case really decided was that the third party could not be impleaded under Rule 59, now Rule 56, on such a contract, a question we are not called upon to consider.
The other cases cited and relied upon by the railway company as to this question are of like character and need not be further commented upon.
The covenant of the railway company, although contained in a lease, was not inseparately connected with its other provisions, so that a court of admiralty could not decide the controversy here raised on the covenant, without disposing of other provisions in the lease.
The lease was properly admitted in evidence. It contained the covenant that fixed the responsibility of the railway company to the coal company, and disclosed the right of the coal company to invite vessels, of the class and type in question, to berth and discharge at the wharf.
The decree of the District Court is affirmed, with costs to the appellees.
MORTON, District Judge (dissenting).
On the question of pleading I concur in the result.
The case really turns on whether the accident was caused by carelessness in tying up the steamer, or by a defective condition of the wharf, or by both. These points are not discussed either in the opinion of the District Judge or in that of this court. The Surico, in breaking away, pulled bodily off the top of the wharf the stone to which the mooring bit was attached and two other stones in front of it, the three having a combined weight of about fifteen tons; a stone under these, the weight of which is not given, was moved out about a foot. All these stresses, it will be noticed, were outward, i. e., towards the river. But heavy stresses in the opposite direction were also involved. The cap log of the wharf, which was twelve inches square, was backed by heavy planking laid endwise to it. After the accident it was found that the cap log had been pushed up about ten inches, and the ends of the planks behind it had been "crushed" back and splintered upwards. As the wind blew from the wharf toward the vessel it does not account for pressure against the wharf. The highest estimate of its velocity was from forty to forty-eight miles per hour; there is no claim that it was of unprecedented, or even of extraordinary, severity. I find great difficulty in believing that it was capable of exerting sufficient force to drag off the wharf these heavy stones which had held many larger vessels. Moreover, such an explanation of the accident in no wise accounts for the "crushing" of the cap log and the adjoining planks; that damage was evidently done by a force acting inward against the wharf and the wind.
*65 The correct explanation of an accident, as well as of a crime, must necessarily be consistent with all established facts. The libelant's interpretation of what occurred, viz., that the steamer broke adrift from the mere pressure of the wind, which was accepted in the District Court and is approved without discussion in the majority opinion, ignores entirely the crushing of the wharf, and is inconsistent with that fact. The suggestion offered by the street railway company is that the steamer was tied up too short on a rising tide; that her lifting with the tide and with the removal of cargo shortened the lines and brought her solidly against the wharf; that as she continued to lift the stresses involved became extreme and were finally resolved by the "crushing" of the wharf, the forcing up of the cap log, and the pulling out of the stones to which the bow line was fastened. This explanation of the accident harmonizes all the established facts and is supported by many things in the testimony. The lines were last tended at 8:30. After that the tide rose more than two hours before the accident; and it rose a foot and one-half higher than was normally expected. The unloading of cargo which was going on also lifted the vessel. She broke away just at the top of the tide. There was no noticeable increase in the wind to account for the accident just at that time.
The mooring may have pulled loose, either because the wharf was unsuitable, or because the vessel was improperly tied to it in such a manner as to produce extraordinary strain on her lines. But for the contrary view of my associates, I should think it too clear for argument that under these circumstances the principle of res ipsa loquitur on which the District Judge relied had no application, and that the happening of the accident afforded no inference that the wharf was unsafe or improper. On this point the case is curiously similar to Girard Point Storage Co. v. Roy, 93 F. 574 (C. C. A. 3d), where the failure of a mooring post was held not evidence of negligence. The weight of the District Judge's finding is greatly diminished by the fact that it was based on the view that the failure of the mooring to hold was itself evidence of negligence on the part of the wharf owner. We should examine the testimony and arrive at our own conclusions. It seems to me clear that something more than the force of the wind entered into the accident, i. e., that the vessel was negligent as to her mooring lines. I incline to think that she was solely at fault; but as my brethren do not think that she was at fault at all, it is unnecessary for me to express a definite opinion on that point.
