Before MARIS, GOODRICH and MCLAUGHLIN, Circuit Judges.
GOODRICH, C.J.: This case involves a suit on a contract by one not a party to it. Action was brought in the district court, and that court, upon motion by the defendant, dismissed the case under rule 12(b), F.R.C.P.*fn1 We proceed, as did the district court, on the assumption that all statements of fact alleged are true.
Here are the facts. Isbrandtsen Company, Inc., was the time charterer of a ship called the "Nyco." Isbrandtsen in turn chartered the ship to the Scott Paper Company for the purpose of transporting pulp from Nova Scotia to Philadelphia. Under the terms of the charter Scott Paper Company was to load and unload the vessel. Scott in turn hired Lavino Shipping Company to do the unloading. When the vessel got to its destination the employees of Lavino started to unload it, and during the unloading stopped work contrary to the provisions of the contract which their union had made with their employer. More needs to be said about that contract. The parties to it were the Philadelphia Marine Trade Association, of which Lavino Shipping Company was a member, "as collective bargaining agent for those of its members who employ longshoremen," and Local 1291 of the International Longshoremen's Association. The contract provided among other things that there was to be no work stoppage pending arbitration of disputes which might arise. Isbrandtsen, alleging that the delay in unloading the ship caused it damage, sued under Section 301(a) of the Labor Management Relations Act of 1947.*fn2 Alternatively it claimed, there being diversity of citizenship and the requisite jurisdictional amount, to be able to recover as a matter of common law.
Local 1291 has made the point that the provision of the Labor Management Relations Act gives no right to sue to anyone except employer and employee. The statute does not, however, so state. It says:
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 29 U.S.C.A. § 185(a).
All the statute talks about is a suit for violation of the contract; it does not say who may or who may not sue. The legislative history cited by the appellee is certainly inconclusive with regard to the rights of those not signatory to the contract, and a point of view contrary to appellee's argument seems to be indicated by the decision in Marranzano v. Riggs National Bank, 184 F.2d 349 (C.A.D.C., 1950).*fn3 We need not decide this point, however.
We may assume that Section 301(a) does not impose any limitations upon the persons who may sue. Our question then becomes, is Isbrandtsen to be included as one who may sue for damages suffered by breach of this contract?
It may aid in understanding the problem if it is kept in mind just how far away Isbrandtsen stands from the actual parties to the contract. Signatories were, as said above, Philadelphia Marine Trade Association and Local 1291. Lavino Shipping Company is a member of that Association. Scott made its contract for unloading the vessel with Lavino. Scott in turn chartered this vessel from Isbrandtsen.Isbrandtsen is, then, three setps away from the contracting party.
The question of determining what rights one who is not a party to a contract has in its performance is one which is not free from difficulty. As Professor Williston points out, the first recognition of such rights was in the cases now called the donee beneficiary type.*fn4 Here the courts protected the interest of the person for whose benefit the performance was intended to prevent a failure of justice. The party to the contract would have no action for its breach for nominal damages since he was not the one who suffered by the promisor's default. If the beneficiary could not sue there could be no adequate recovery even though the breach was established. The next extension was made, with hesitancy on the part of some courts, to the creditor beneficiary situation. "[Through] this travail," in Mr. Williston's words, "the common law has given birth to a distinct, new principle of law which takes its own place in the family of legal principles, and gives not only to a donee beneficiary, but also to a creditor beneficiary, the right to enforce directly the promise from which he derives his interest."*fn5
So we have the classification of donee beneficiary, creditor beneficiary and incidental beneficiary, a classification discussed in the works of both Williston and Corbin and used in the Restatement. As Mr. Corbin says, the description of the term "incidental beneficiary" to describe one "whose relation to the contracting parties is such that the courts will not recognize any legal right in him" is not particularly helpful "for the problem of the courts is to determine what kinds of claimants asserting themselves to be beneficiaries have rights and what kinds have not."*fn6
Corbin goes on to describe what constitutes a creditor beneficiary and what constitutes a donee beneficiary.*fn7 He says:
"If in buying the promise the promisee expresses an intent that some third party shall receive either the security of the executory promise or the benefit of performance as a gift, that party is a donee of either the contract right or of the promised performance or both. If, on the other hand, the promisee's expressed intent is that some third party shall receive the performance in satisfaction and discharge of some actual or supposed duty or liability of the promisee, the third party is a creditor beneficiary. All others who may in some way be benefited by performance have no rights and are called incidental beneficiaries."*fn8
We see no possibility that Isbrandtsen can be a creditor beneficiary of this labor union. The labor union was a complete stranger to Isbrandtsen so far as this transaction is concerned. Neither owed the other anything.And, therefore, there was no obligation on the part of either to do anything to or for the other.*fn9 Nor do we see any possibility of making out of this situation a donee beneficiary relationship. This is not like a contract where a father buys an insurance policy to build up an estate for his son.*fn10 It is a labor contract made between this association and a union.The contract recited that the association was acting on behalf of its members who employ longshoremen. Lavino is one of those members. But it does not appear that either Scott or Isbrandtsen was a member, and there is no allegation that either one employed longshoremen.
There is considerable language in the Restatement and in the cases and decisions about "intent" and "accompanying circumstances."*fn11 From that the argument is made to us that the court should not have dismissed under Rule 12 but should have heard the plaintiff upon an attempt to make a showing of the supposed ...