Petition of Nacirema Operating Company, incfor a writ of Certiorari — Nacirema Operating Co. v. Calmar Steamship Corp.

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Ottice-Sunr cine

JUN 8.

JAMES R. ge:

Vourt, U.S.

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L)

}959

WNING, Clerk

In Tue .

~ Supreme Court of, the United States oon

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| Octoia TERM, 1959

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NM 99°

2°

_NACIREMA OPERATING COMPANY, INC,,

Petitioner. :

SE ea Lerner ; v

CALMAR STEAMSHIP CORPORATION,

ec

s

‘PETITION’ OF NACIREMA OPERATING ‘COMPANY,

INC. FOR A WRIT OF CERTIORARI TO THE UNITED ___.

_ STATES COURT OF # FOURTH |

Bao! _ CIRCUIT

Witt L. MARBURY,

JESSE SLINGLUFF, :

-Maruias J: DeVirTo,

Attorneys for Petitioner.

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e The Daily Record Co., Baltimore 3, Md.

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‘TABLE OF CONTENTS

Lipa aer une? ae Ser PAGE

EE Writ AND NATURE OF CASE... rr me Gi

ITATIONS TO Options BELOW eae eves: gps can ang aSaag

JURISDICTION _.............. Le See a

_ Quebrion PResenTeD See Oe Pan oils cave tae f° S,

CE iat, es fe Ss

". STATEMENT OF THE ise ccd seco magelescrnttancaneannt i Mi

"Reasons Fon GRANTING THE Wart Renn tae: sgflove oy a

_ I. The Importance of the Case - nce ¥. see se ae

II. The Opinion Below Misconstrues t Decisions co

\, oh this Court. Niet) SACs, aOR

TW. ‘The’ Decision Below Conflicts with the De.

.*“gisions in other. Circuits oS, eRe

ConcLusIoN ae tee ) ara ee 1 CAR SARC Ca Me f.

APPENDIX A? Spin of f thgEourt of Appeals. Sage 7 15 *

_ APPENDIX B ‘The Sudgmént | 20 $

‘ee oF CITATIONS

Pepe. : Casts ®

American M ’ Liability Ins. Co. v. Matthews, 182 F. x

_ 2d 322, 2 Cir.) SURE er PEATE, re ROR OE 13.

* “Amerocedn Steamship Co. v. Pe 245 F. 2d: 291 ic

me “ee ot i lt OOS ee le 13

Woven- Hose & Rubber Co. v. Kendall, 178°

_ Mass. 232, 59 N.E. 657 . 8

Crumady v. The J. H. -Fisser; 358 U.S. 423 6 7. 8,9, 10,14 —

Hagans v. Farrell Lines, 237 F. 2d 477 (3 Cir.) 11,13 _

“Halcyon Lines v. .Hagnn — — & er ;

Comp, 342. US. 282 .. 5

te 2 ae

. Su -

Bp - . . -

ii” Z | ae eo

; 3 PAGE

" Higev v. Damsiskisaktieselekabet: International, 170

| F: Supp. 601 (S.D. Cal.) eae ‘ OE

‘. Mowbray v. Merryweather | 1895), 2 QB. 640° eS

Pope & Talbot, Inc.'v. Hawn, 346 U.S. 406 in

Ryan Stevedoring Co. v. Pan- Atlantic S. - Corp., 350 i gees

PS so 2 6,7,8

Smith v. Pan-Atlantic ‘Steamship Corporation, * : aS

ae A ee A oe et R uf

Smith v. Pan-Atlantic Steamship erm, 254 F .

.-» 94600 @ Ge) Ee te ERE NLT EOS 13. :

Torres v. The ‘Kastor, 227 F. 2d 664 (2 Cin.) i ee

Trygstad v. States Marine Corporation, 150 F. ‘Supp.

ee a ee Pre i aeaat| ~ 13

Weyerhaeuser S.S\ Co. v. Nacirema Operating. aaa

355 US. Gok De come es eee a aes

S .

| Statutes = i.

I I

£

*

Other Atishorities. ‘

“Seicbaniuniie of f Contracts, Sections 274.279, 295, 315,

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ell

fates

‘In Tue :

__ Supreme Court of the Unite States

| Octoner Ten, 1959

~ No . ; i 7 : 49

@ ‘ecowcccce a ‘

NAGIREMA OPERATING COMPANY, INC,

, ae ae Petitioner,

z | te pees WER. : <

CALMAR — CORPORATION, ee

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~

PETITION OF NACIREMA OPERATING COMPANY,

- INC. FORA WRIT OF CERTIORARI TO THE UNITED

STATES. COURT OF APPEALS F - THE. FOURTH

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or -s “ . : \

° —_—

PRAYER FOR WRIT AND NATURE OF CASE

_ Petitioner prays that a writ of, certiorari issue to review :

_the judgment : Of the United ‘States Court of Appeals for;

> ° the Fourth Circuit értered in this case on April 8, 1959,

which reverses..a holding of the United States District

Court for the District of Maryland (THOMSEN, Cu. J.) that

respondent is ‘not entitled to indemnity- for damages al-.

" legedly resulting from petitioner's. breach of contract to

eS furnish. stevedoring services.

The case is governed by the terms ofa written contract

under which respondent agreed to furnish suitable equip-

ment for stevedoring work, and petitioner _agreed to use

__the —— in a proper _ efficient manner. ‘The trial .

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- court found th that eaapendli, negligently and in breach of

its contractual obligation to petitioner, failed to furnish

.safe equipment, and that this failure was a proximate ~~

“ * cause of injury to a longshoreman who recovered damages-

- from respondent. Because of this breach of contractual

_. duty respondent's clainy for indemnity.. against petitioner

was denied, although the trial court, also found that peti-

"toner whdligentt and in breach of its contractual duty to

“respondent failed to handle the sme in a nial and.

efficient manner. Bee ee ae

"CITATIONS TO OPINIONS BELOW:

The opiriion of the ‘District Court is reported in 164 ©

, F. Sapp.628, and is printed at pp. 80-89 of the Joiht Ap- [

pendix filed in the court below’ and filed with this court

. along with this petition: The opinion of the Court of |

Appeals is not yet officially reported, but is — as. |

Staal A, — p. 15 et si :

atten

J URISDICTION °

The. judgment of, the Court of Appeals sought to be re- .

‘ viewed was entered on April 8, 1959. No petition for re- .

shearing was filed. The rior of this. court is invoked

under 28 USC $1254( 1). . ne

. QUESTION F PRESENTED

Where two parties have entered into a stevedore ser-

vicirig contract, one. party ‘undertaking to fufrnish rea-

_ sonably safe equipment and the other to operate it in a

_, workmanlike manner, and each party to the contract negli-

gently fails to. perform his contractual obligation to the

other, with the result that a longshoreman is injured as a

direct result of .the failure of duty on the: part of -both -

‘parties, may either .party. recover indemnity from the,

other for losses resulting from such injury?

. se

*!

STATEMENT OF THE CASE +.

: December 1, 1955, respondent Calmar, owner and _

operajgr of “S.S. PORTMAR,” _entered irito a written con-

- tract with petitioner. Nacirema, a ‘stevedoring contractor,

under which Calmar engaged Nacirema to handle the

; loading and discharging of Calmar’s vessels .at Baltimore.

‘Tite contract. provided that Calmar would supply. “lights =

for night work” and: “all other cargo handling gear and

equipment, ag needed. for. efficient stevedoring .work”

~ (J. App. 77- 78)*, and-Nacirema in turn agreed te supply

all neces ssary stevedoring labor and‘“all stevedoring 4i-

‘rection and _ supervision requisite or necessary for the .. -

proper .and’ efficient conduct. and control of the work”

(J. App. 77). we sae rk. caer ort.

In connection’ ‘with the \oniding of “S:S. PORTMAR” on

December 6, 1955, Joseph, Oleszczuk, a longshoreman,, was

struck by a cargo. light. He hrought suit. againstCalmar,

claiming failure to supply. a seaworthy vessel and negli-:

gence. Calmar, impleaded Nacirema asa third- -party de-

fendant.” |

=}

At the trial of the case, there was ‘evidences froth which

the jury’ ‘might have found that in- connection* with the

. loading of the “PORTMAR,” ‘Calmar had supplied a cargo.

light which | was defective and unsafe in that ta) gertain

_ wires which secured the light were not properly attached, :

‘ (b), the light ‘was not “seized” (taped to the cable), “and: :

(c), the light was not equipped. with, a lanyard (J. App. 82).

- Calmar’s witnesses testified that an unseized light was not

unsafe. if the wiring. was ‘properly secured, and that. no.

lanyard was necessary, but admitted that no inspection had

ae Cnr “*

. References are to the pint Appendix filed in the court below

and filed in this court along®with this petition.

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been made of the light to determine whether the. wires ~

were securely: fastened (J. App. 41, 48, 51, 52). There was

‘testimeny that Nacirema’s seilioneds could have seen -

‘that ‘the light was not seized arid that it had no lanyard.

attached (J. Apps 35), but there was no evidence that they

could have*djscovered that the wires which, secured thé i

lights were not properly attached wean in disassembling

‘the light (J. App. 51, 52). :

There was likewise evidence from which the jury ‘might ig

~ have found that Nacifema’s employees hed roughly and

‘ improperly.. thrown the light over sans side of the hold

(J. App. 43, 49, 57). 7

_. At the close of the testimony, issues of rae were pro-

‘pounded by the court to the jury under appropriate in-

structions, andthe jury found:(J. App. 71-74): ©

1) That’ “SS. a 4 ' was eee inerrv in ‘re-

spect to the cargo li F says nas

2y That Calmar’ was is ds in: respect to the cargo ;

light; &

° 2 a :

(3) That the cargo light was lowered in a negligent J

manner. by Nacirema’ s employees; and —

(4) That the negligence of idler. the unseaworthi-

-ness of the ‘vessel and the manper in which the cargo light

_ was lowered by Nacirema’ s employees were all proximate

: causes of the accident. ®

The. jury further found that Nacirema’ Ss saliaiees were

‘negligent in using a cargo light that was not seized,, but

. they were not asked to make any finding as to whether

this. negligence was a° proximate - cause of the accidept

‘ae 3 74)..

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The District Court (THOMSEN, Cu. J.) thereupon, en-

- fered judgment against Calmar, and by agreement of the

parties reserved for further findings of fact Calmar’s claim

for indemnity against Nacirema (J. App. 75). After a

hearing at which the contract between Calmar and Naci-

rema was introduced ‘in evidence as the Court’s Exhibit

No.°1, JUDGE THOMSEN found as a fact that Calmar had

\bteached its contractual duty to. Nacirema to supply a

reasonably safe and. serviceable light ‘J. App. 82) adding |

that “if the responsible officers of thé ship did not cause”

rthe light. to be seized, they should have supplied a lanyard

or. should have seen, that the wires were “securely attached

..to the terminal ‘screws.” JUDGE THOMSEN concluded that

“because of this breach of contractual duty, Calmar could

-not.recoyer indemnity from Nacirema, ‘although he also

found that Nacirema had breached its contractual duty to

Calmar by the manner in which its employees had handled -

‘the light (J. App. 88-89). Since the jury found that both

of these breaches wer€ proximate causes of the accident,

JUDGE THOMSEN concluded that neither party to the con-

tract was in the position to hold the other liable for the -

breach thereof. / ei wa. . |

Oa appeal, the Court of Appeals- for the Fourth, Circuit |

_ reversed JUDGE THOMSEN, and directed that judgment for -

- indemnity be entered for Calmar against Nacirema. |

REASONS FOR GRANTING THE WRIT

- , ; .. ’ 3 ~ :

: ~ The Importance. of the Case ,

’ That the. general subject with which this case deals

- is one of importance is clearly showy by the fact that in

* a “series of cases this court has granted . petitions for

"certiorari in ‘order to ene questions raised by shipow ners

“as to their right to claim contribution or indemnity from

-stevedore contractors in cases where longshoremen have

recovered damages for mee suffered in loading or un-

loading vessels. ©

These cases have ‘ettebiished~

(1) That where the shipowner and: the stevedoring

contractor each contribute to.the injury, neither party may

have contribution or indemnity from the other except.

pursuant to a contract éxpress or implied in-fact obligating

the contracting patty to furnish such contribution or in+

démnity. Halcyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342. U.S. 282; Pope & Talbot, Inc. v. Hawn, 346 US..

406; Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350

U.S. 124; 128-132; Weyerhaeuser S.S. Co. v. » Sraarnaens Op-

erating Co., 355 U.S. 563, 569;

(2) That the undertaking of a stevedoring contractor

‘to furnish stevedoring services includes a contractual ob-

ligation to the shipowner to perform such services without

negligence and to indemnify the shipowner from any loss

resulting from, injury to a longshoreman as the result

of such ‘negligence.’ Ryan, supra; Weyerhaeuser, supra;

Crumady v. The J. H. Fisser, 358 U.S. 423;

(3) That a shipowner may recover on a breach of the

‘ stevedoring contractor’ S express or implied contract of in-

demnity, “absent conduct on its part sufficient to aimeaacante

recovery.” Weyerhaeuser, supra, at p. 567!

So far, the decisions of this court have settled the bier.

Left unsettled, however, is the important question —

what conduct on the part of the shipowner is sufficient to

preclude recovery on the stevedoring contractor’s con- |

tract of indemnity? That is the question presented by the’

present case, and as we shall see, it is a question on which »

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7

confusion has been created by the decision of the Court of

_* Appeals in ‘this case. -It is obviously important:that the

industry and the,lower courts be given an authoritative

guide to help them to define the limits of the doctrine

announced in the Ryan, Weyerhaeuser and Crumady cases.

; H.

The Opinien Below Misconstrues the

Decisions of this Court.

As this court was careful to point out in the Ryan,

Weyerhaeuser and Crumady cases, the obligation of the

stevedoring contractor to indemnify the shipowner is a

contractual one in the nature of. a manufacturer's war-

- ranty arising out of an undertaking to furnish workman-

like, service. In the. present case, the trial court found,

that there was such an obligation on the part of Nacirema,

and that Nacirema failed to perform that obligation. How-

ever, thé trial court also found that there was a similar con-

tractual obligation on the ‘part of Calmar to ‘furnish rea-

. sonably safe equipment to Nacirema, which Calmar.‘on °

its part had likewise failed to perform. | The jury has

found that -these breaches: of contractual obligation each ,

contributed to the injury to the longshoreman. On elemen-

-. tary contract principles it would seem that there could

be no recovery-in such a case. Restatement of Contracts,

Sections 274-279, 295; 315, 397. 9

_ Here the claim for indemnity comes from Calmar which

has itself been guilty of a breach of warranty. In Mowbray

v. Merryweather (1895), 2 Q.Be640, the Vessel. supplied a

chain to the stevedoring contractor which broke while be-

ing used in unloading and injured a longshoreman. Al-

. though the stevedoring contractor had been held eo

its employee because it‘ negligently failed to inspec

chain, it was nevertheless held entitled to recover indem-

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nity from the vessel on a breach of the vessel’s warranty

to supply‘a chain reasonably fit for the purposes for which

it was to be used: That case was cited with arproval by:

this court in Ryan Stevedoring Co..v. Pan-Atlantic S.S:

a Corp., 350 U.S. at pp. 130, 134. It was followed byethe

Supreme Judicial Court of Massachusetts in Boston Woven-

Hose é& Rubber Co. v. Kendall, -178' Mass. 232, 59 N.E,657

(1901) «vhere the opinion was written by HotMEs, C.J.* The

Kendall case was cited with. approval by this court in

Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. |

at p. 568.

Not only has Calmar been outing of a breach of warranty,

it has also been guilty. of negligence. Calmar was clearly —

under a duty to use reasonable éare to furnish safe equip- |

ment to Nacirema. See the careful opinion of JUDGE MATHES

in, Hugev v. Dampskisaktieselskabet International, 170 F.

Supp. 60] (S.D. Cal. 1959). The-jury’s-finding of negligence

on the part of Calmar conclusively establishes,a failure to

perform this duty. This.negligence,:as the jury found, was

a proximate cause of the injury to the longshoreman,

The court below felt that this’ case was controlled by |

Crumady v. The J. H. Fisser, 358 U.S. 423, decided just

one week before the present ‘case was -reached for argu-

ment in,the Court of Appeals. In the Crumady case, the

owners of the “J. H. FISSER” had chartered the vessel to

~ . Ovido Compania Naviera S.A. Panama. That company

- in turn entered into a service agreement with a steve-

doring contractor, under which it undertook to furnish

adequate winches and the stevedoring contractor under-

took “to faithfully furnish * * * stevedoring services.”

The shipowners delivered the vessel to the charterer with’

‘the winches and loading gear in good condition, but the

employees of the .ship failed to gmake proper adjust-

_ ment of a safety device which was designed to cut off

9

the current from the winch if it shouid be subjected ‘toa

dangerous strain.* The employees of the.stevedoring con-

~ tractor negligently placed an excessive load on the gear,

the current failed to cut off and the gear broke, injuring»

a longshoreman. This court held that the shipowners were

' liable to the longshoreman for failure to discharge a

non-delegable duty to supply-a seaworthy vessel. Al- .

4

though there was no contract between the shipowners and

the stevedoring: contractor, . the shipowners were held

entitled to reeover.indemnity as third-party beneficiaries

of the service contract between the charterer and the

stems J contractor. 4

In the Crumady case, there was no finding of any breach

of contract on the part of the shipowners — on the. con-

trary, it clearly appears from the record that the ship- ©

owners delivered the vessel to ‘the charterer in seaworthy

eondition and, ‘for all.that appears in “the report o of the

casé, this fully performed their contractual obligation.

Granted that the failure to make a proper adjustment of

the cut-off device may have been ‘a breach of warranty

on the part of the charterer, which might have precluded it

from claiming indemnity from the stevedoring contractor, |

there was no basis for charging the. shipowners -with the.

charterer’s contractual obligations. It was thus error to

say;as did the Court of Appeals (Appendix A, infra, p. 20);

that supplying a winch with an improperly adjusted safety

cut-off device (as in Crumady) was no‘ less 4 contractual ~ :

violation than the mpeying of the defective cargo _—

in the present case. :

Apart: from contract, the shipowner’s’ duty to the’

ae company was decciien 5 to use reasonable care,

* The report in this case refers to the mas emplovees of the sbi,

358 U.S! at p. 426. However, the ship was-then under charter. ( See

report of the case inthe District € ourt, 142 1 Supp. 389, at p. 401. )

The terms ot. the charter are not reported.

ie

_ since the non-delegable duty to furnish a seaworthy ves-

sel does not extend to the stevedoring contractor. Hugev

v. Dampskisaktieselskabet International, 170 F. Supp. 601

(S.D. Cal. 1959). In the Crumady case, this duty appears

~ to have been fully discharged, arid there is no suggestion

that the shipowners were negligent. Indeed, as the Court

of Appeals noted (Appendix A, infra, p. 19), “the claim

"was never raised by the plaintiff in Crumady that the ship-

‘owner was negligent in supplying an improperly set cut-

off device.” Since there was no finding of negligence on

the part of the shipowners, there could be no finding of

breach of a duty not to be. negligent.

. Tine the present case is wholly unlike tienen. iets

- we have a shipowner who has warranted to supply a steve-

doring contractor with reasonably safe equipment and has*

negligently failed.to do so. Because of this breach of duty, —

a longshoreman has been injured. Nevertheless, the ship-

owner seeks indemnity from the stevedoring contractor on

the. theory that the contractor -has warranted to gall

workmanlike stevedoring. service and has failed to do SO.

Both warranties arise out of. the’ same contract; both

breaches of warranty are proximate causes of the injury;

both parties have equally failed to use reasonable care.

We think it evident that the Court of Appeals. has at--

tributed/a_ significance to this court's opinion in Crumady

: which it does not deserve. That case dealt primarily with.

_ two questions — whether the vessel was unseaworthy, and

_ whether the shipowner could recover as_ third-party

' beneficiary under the contract between the charterer and

the stevedoring contractor. No attention whatsoever was.

‘ ‘given in the majority opinion to the point raised in the ——

present case. Moreover, as we read the opinion of Mr. »

Justice HARLAN, no.question of breach of warranty by the

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shipowner was considered by the dissenting justices. The

_views expressed by them related rather to the question

whether the stevedoring contractor should be held liable.

unless its negligence was the substantial cause of the

injuries to the longshoreman.

The truth of: the matter is that the Court of haat

- has jumped to conclusions’ which we venture to say will

be received with much surprise by this court. Neverthe.,

. less, ds*tong as this case remains unreviewed, it is bound to

* have a disturbing influence on other courts which will be

called upon to ifterpret the Crumady case, even though

:. they- will have more opportunity for reflection on the

Significance of that case than’ was afforded to the judges of

the court below. 3

Ps

° III,

The Decision Below Conflicts with the Decisions

in Other Circuits. :

: & Hagans v. Farrell Lines, 237 F. 2d 477 (3 Cir. 1956),

a longshoreman. had been struck by a load carried by a

defective winch. In answer to.specific interrogatories, a

jury found that the defective winch was the principal but

not the sole cause of the aécident, and that there was con-

- curring negligence on the part of employees of the steye-

doring’ contractor which contributed to the accident. The

court held that the shipowner was‘not entitled to indemnity

from the stevedoring contractor, pointing. out that under

the contract the shipowner had assumed an express obliga-

tion to the stevedoring contractor ‘to furnish adequate . .

winches in good order and to’ maintain and repair fhem.

The court reasoned that if the longshoreman had-brought.-

. suit against the stevedoring contractor-'and recovered

damages, the stevedoring contractor might have asserted .

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| a claim for indemnity against the shipowner and, under

the principles laid'down in. the case of Mowbray v. Merry-

weather ° (1895), 2 Q.B: 640, would have been entitled to:

recover indemnity. A fortiori the shipowner could not

be entitled ‘to indemnity from the stevedoring contractor

- where the Jongshoreman elected to sue the shipowner.

“In Smith v. Pan-Atiantic Steamship Corporation, 161° :

F. Supp. 422.(E. D. Pa. 1957), the ship boss (a supervisory

employee of the stevedoring contractor) after having re- -

ported. to the ship’s officersgthe defectivé condition ‘of. a

winch supplied by thé shipo ner and being aware that it.

chad not.been remedied, nevertheless permitted his men to

use it, with the result that one of them was injured. The

a court held that the shipowner which had been held liable

for the injury because of the defective condition of © the

wineh, was not entitled to recover indemnity from the

stevedoring contractor, saying (at p. 423):

_“* * * On this point the case is sei on all fours

with Hagans v. Farrell Lines, 3 Cir., 237 F. 2d 477.

In that case, the Court pointed out (at page 482) that

the shipowner based its claim, partly at least; ‘upon the

asserted neglect of Lavino (the stevedore) * * * in

using the winch knowing its' condition. to be defective.’

_ The Court refused to allow indemnity, saying, ‘Knowl- |

edge of and acquiescence in the existence of a de-

fective appliance. or condition - may prevent the

fruition of the right to indemnity. Restatement, Resti-

tution, Sections 93 and 95, and Reporters’ Notes. - But

it does not necessarily follow that ‘te burden of in- |

demnity is thereby created. * * * * Nothing inthe ——<—

record suggests intentional or reckless conduct on the |

part of Lavino which would. permit the conclusion -

that Lavino’s: violation of. duty toward Farrell super-

sedes Farrell’s violation of duty toward Lavino. See .

Restatement, Restitution, Section 97.’ . Here, Ryan’s

coriduct in allowing its men to continue to work with

13

the defective winch is not being reckless or intentional,

Ryan's negligestce in that respect. does not supersede

-Pan-Atlantie’s violation of its duty to furnish ae

with seaworthy. — r

On appeal, the Court of em te the Third Circuit

_ affirmed, per curiam, saying (Smith v. Pan-Atlantic Steam;

ship Corporation, 254 F. 2d 600, at p. 601):

_ “We find no essential. differerice between this case |

and our own Soci in Hagans v. Farrell Lines, Inc., 3

Cir., 1956, 237

. 2d 477, a a distinction has been

urged.” xs

~The. Hagans case was “followed in Trygstad v. States

- Marine Corporation, 150 F. Supp. 556 (D. Ore, 1957);

where the shipowner furnished a defective wire which the

/ stevedoring contractor’s employees ° handled: negligently

by placing an excessive strain et “ .

The Court of Appeals for the: Second Circuit Saas not

ruled on the precise point. However, in. the opinion of _

JupceE Swan in’ American Mut: Liability. Ins. Co. v.. ..

_ Matthews, 182 F. 2d 322 (1950), the question is dealt with -

-in language ‘cited. with approval in the Hagans case. Cf..

‘Torres v.. The Kastor, 227 F. 2d 664 (2 Cir. 1955).

=. Court of Appeals for the Ninth Circuit Has:cited and

follofed the Matthews case in Amerocean Steamship Co.

v. Copp, 245 FE. 2d 291 (9 Cir. 1957).

These decisions are e directly in conflict with the holding

of the court below-in the present case.

- ts,

CONCLUSION - :

Weyerhaeuser. made it clear that a shipowner might be .

precluded from recovering indemnity from a_ stevedoring

contractor -because of conduct — it inequitable t to

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14.

hold the contraetor liable on its warranty.. Crumady’ did

not purport to overrule or modify this doctrine. Yet, if the |

- Court of Appeals is correct, -Crumady really took the heart d

out’ of it; for if. the negligent failure g° furnish rea- -

sonably safe équipment in breach of shipowner’s War-.

ranty. as well as of its duty: to use reasonable. care is not °,

such conduct as would render it inequitable %. the ship-

owner-to. hold the stevedoring contractor liable on its war-

_ranty to furnish workmanlike service, then it is difficult ss

to imagine any conduct which could have: that effect. If

- the Court of Appeals is wrong, then it is certainly impera-*._

tive that its decision be reviewed and reversed. If. it,is »

right, then the’ ‘industry. and the lower courts need an

“ adthoritative statement from this Court as to just what

conduct on the part of a shipowner will preclude recovery. .

‘under the doctrine of Weyerhaeuser. : .

“This is an area of law. in which the dust had eben w

settle after years of confusion, and it is most unfortunate

that a new element of uncertainty has now been injected

into what has«heretofore been thought to be a clearly

established rule that where the shipowner and the ‘steve-

-doring contractor ‘are éach guilty of concurring atts of |

negligence in. violation of their mutual contractual eel

tions, or can recover indemnity from the other. ‘ |

It is for these reasons that we? marge that this petition’

-Should be erases og ee

ay Respectfully submitted, a

.@

pe ne a . Wituram L. Marsury, -

; e. a

' JESSE. SLINGLUFF,

Matuias J. DEVITO,

Attorneys: for 2 Petitiones

we

Séctzory, Chief Judge:

ry é. ‘ ‘ é . .

a

° oe

APPENDIX A®

_ OPINION OF COURT. , >

- UNITED STATES COURT OF ‘APPEALS

For THE FourTH €IRcuIT

No. an

®

-Calmaf Banas Canaiadian, a Delaware corporation, :

Defendant me Third- ai Plaintiff; - .

ae Appelient,

_ versus

Fe Nacirema Operating Company, Inc., a body corporate,

Third-Party Defendant,

i> APPEAL FROM THE UNITED STATES District CouRT FOR:

THE DISTRICT OF MARYLAND, AT BALTIMORE, .

-’ Rosze..C. THoMsen, District Judge.

Ps

(Argued March 13, 1959, -

Before SoBELOFF, Chief J udge, anc Sop# and HayNswortH,

Circuit — ae ee .

a] : eran

e °

: George W. P. Whip and iad, E. Chuabtan: -Jr., (Lord,

Whip & Coughlan on brief) for Appellant, and Jesse.

—— Jr., and Mathias J. DeVito for Appellee.

This. is an -appeal from the District Court’s judgment

7 denying a shipowner indemnity from a stevedoring con- —

4%

Appellee. 3

Decided April 8, 1959.)'

oe

a 16;

| a

_ . tractor for the amount recovered from the shipowner by —

‘ -. an injured longshoreman- employee of the stevedore.

The longshoreman, Joseph, Olészczuk, was struck and.

- injured by A cargo light which came loose from its cable’

when thrown into number 4 hold of the’ S.S. Portmar by

.a deckman who wat’ also an employee. of the stevedore.

Oleszcezuk brought suit against the Calmar Steamship Cor-

_poration; owner and operator of-the ship, charging that .

‘his injury: was due‘to the uhseqworthiness of the vessel

Pete el owner. Calmar -impleaded ~

— ema Operating Co..Inc.,the stevedore, as a’ .third-

¢: party defendant, claiming indemnity for any amount which,

. it might be obligated to pay Oleszczuk.° ~

4 The. evidence shows that the. light whieh struck ‘the .

_ plaintiff had a single bulb.screwed into a large bell- shaped

metal reflector, to which was joined a metal haridle. A cable

of electric wires passed through a small circular. opening

at the top of the reflector and the Wires were. supposed

to be securely attached to terniinal screws, 1 it is customary,

as an iextra precaution, for the ship’s. crew’ to tape or tie

- the cable to the handle on the réflector in-order to rélieve ©

* the strain on the terminal screws. When Xe) eae. the

lights are said to be “seized.” er °

In accordance with the contractcbetween the owner and

the stevedore, the ship supplied the cargo lights. Tht one

supplied for hold number 4, in which the plaintiff- was

working, had not been seized. The stevedore’ $ deckman not.

“only accepted and. used the unseized light, but threw it

over the.-side of the hold so roughly. that the light was

jerked-from the cable and fell into the hold, injuring Ge

plaintiff. * “

In ‘response to. written interrogatories, the jury found °

_ that the ship’s crew had beer negligent in regard to the Pay

light,. and that the light constituted an .unseaworthy ap-

pliance. Both the negligence and the unseaworthiness were

found to be-proximate causes of the accident. The stevedore

“was also found to be negligent, both in having used an-

- unseized light and in having lowered it in an: unsafe rnan-* :

F<

Z

-

Ae ak cS ee

ner. Yhe latter was declared by. the j jury.to _ also a proxi-

mate causq of the accident. dy

| A judgment for $35, 000 was wiabiens in favor ‘of Cheipesuk

’ against Calmar, and this recovery is nof in issue here: The

sole remaining question, whether Calmar is entitled to in-.

demnity from Nacirema, was! submitted to .the District.

Judge with the understanding that the j jury ’s 0 would

control “as far as they go.’ *

The court ruled first that any claim whit nee night

‘have against Nacirema must be based upon the contractual

--relationship bétygen them. Citing Ryan Stevedoring Co. .

v. Pan Atlantic amship Corp., 350 U.S. 124 41956), and ‘

Weyerhaeuser S.S..Co: v. Nacirema Operating Co., 355 ~°

U.S. 563 (1958), the court said’ that a ‘service: contract

such as the one ‘here involved. implies a«promise by the

expert stevédore to perform “with ‘reasonable safety” and

that this obligation relates not. only to the dling of’

cargo,‘as in Ryan, but to the use of equipment Incidental

thereto, as in Weyerhaeuser. Thé District Court pia held °

_ that: the ‘manner in ‘which “Nacirerna had used the cargo

— constituted a breach of this contractual duty.

“Next, the. court coaiaean the limitation on the ship-

owner's right ‘of indemnity, expressed’ by the Supreme —

- Court in Weyerhaeuser in the words, “absent. conduct on

its part sufficient to preclude recovery.’ While it was pointed

out that the:Supreme Court had not yet specified what

Bp et.on the part of the shipowner would bé sufficient -

o preclude recovery, the District Court reasoned that, to:

_ bar recovery, the shipowner’s: conduct would have to

amount to a kreach of a contractual duty owed ‘by it to

the stevedore. The court then decided that while the con-

“tract involved here provided..simply that Calmar would.

, Supply lights for night work, it was obligated to supply

_ lights which were reasonably safe, and that those supplied

_ failed to satisfy this obligation. -In these circumstances,

‘the court concluded that having ‘breached the contract,

Calmar's, conduct was “sufficient to preclude canine of

indemnity. “. &

‘

iY

° e

18

Since this decision by the District Court, however, the

Supreme Court has adjudicated Crumady v. Fisser,

US. — ; 27 Law Week 4158. While this also does not ..

undertake a definitive statement of the conduct on the

part of the shipowner which will bar indemnity, it indicates

that furnishing defective equipment will not ecard

hav at effect.

- Ther e ship supplied loading and sethiadiiaaali

which included a safety cut-off device for the winch, set

by. the ship's crew at twice the rated limit of the rigging.

This was said by the Supréffte Court 'to be no different in

principle from ldading and unloading cargo wéth cable or .

rope lacking. the test strength for the weight of ‘the ffeight ~~

- to be moved. The ‘winch was found to make the vessel .

pro tanto unseaworthy. ‘The Supreme Court said:

“For there is ample evidence to support ‘the finding

that these stevedores did no more than bring into play

the ee condition of the vessel” ( p. be

Nevertheless, the ship was allowed to recover over for t

stevedore’s negligence which was found to be a breath

of its warranty of ‘workmanlike service.

Dissenting, Justice Harlan declared that on the court's

premises, that the stevedore merely brought into play an -

unseaworthy condition created by the vessel itself and that

such unseaworthiness was the cause/of Crumady’s injuries,

he ‘did not think the decision or the undeflying principles*

in ‘Ryan justified an award of indemnity® to the owner of

‘the steamship “Fisser.” This view, however, did not pre--

vail*and, as.we are bound fe conform to the majority: view,

the argument urged upon‘us by the stev edore cannot pre-

vail here. —

The stevedore alanine to diatialuiah Crumady, arguing

that in that case the shipowner supplied’ adequate equip-

ment but, merely failed to make it safe-against the negli-

_gence of the ‘stevedore. A similar’ observation might be

made here, for thefe:is no way of Knowing whether the

cargo light would have~come ‘loose if the deckman had

not thrown it into the hold roughly. In any event,.we do —

i.

—

not think that Crewinds y can be read in that manner, for

the majority opinion clearly indicates that the: equipment

provided by the ship wag itself considered unsafe and in-

adequate for the purpose for which it was.supplied, and.

the case was decided on this view of the facts.

Nor do We thi the xases distinguishable on the ground

that’here thé airs act found that the’ supplying of ©

defective equipm nt consti unseaworthiness and negli-

gence, while in Crinitidy the trier of fact found simply that

thé defective equipment made the ship unseaworthy but |

made no specific finding as to negligence. The claim was

never raised by the plaintiff in Crumady that the ship-

owner was negligent in supplying an improperly set cut-

off device." The fact that such a finding was made in this.

case is not determinative of the right of the shipowner .

' to recover indemnity. The action over is in contract, and

whether the shipowner can recover turns upon whether his’

actions are such:as to bar the enforcement of the contract,

and not upon whether he has.or has not been found ial

gent in regard: to the longshoreman. .

Of’ little consequence also is it that the actions of the

stevedore wef® found by the District Court to be the

primary cause of the accident in Crumady, while the Dis-

trict Court in this case found the actions of the stevedore

only a contributing proximate cause.’ The Supreme Court

in Weyerhaeuser pointed out “that in the area.of con-

tractual indemnity an, application of the theories of ‘active’

or “passive’ as well. as ‘primary’ or ee negligence

is inappropriate” ( page 569).

In determining whether the actions of Calmar. were such

as to bar ROONEY we must necessarily compare them to

The claim was that the Ship was neghgent in supplying a worn oi

defective topping lift. The District Court's tinding was to: the contrary

on this issue. The Circuit Court pointed out that the istrict, Court's

sfinding of unseaworthiness uf regard to the ‘incorrectly set cut-off

device-4vas based ‘upon a theory which the libellant hi Wd nat pleaded

or attempted to establish in his proof. The appeHate court found on

‘the facts that the. setting of the cut-of device did not make the winch

unseaworthy, but the Supreme Court disagreed ‘and restored the .

District, Court's finding of unse aworthiness.

e

. ‘

rh

e?

——

20 ere

‘those of the owner in Crumady. Here, the ship did not / |

inspect the light and did not provide seizing. In Crumady |

the ship’s crew supplied a cut-off device which they had:

set at twice the rated limit of the rigging. Certainly supply-

ing the defective cut-off device was.no less a contractual

' violation there than the supplying of the unseized cargo

light here. If the former did not preclude recovery, then,

under the principle announced in, Crumady, ~ think the

latter should not. na

Senta with direction to

. enter judgment for Calmar —

Steamship Corporation.

‘

__ APPENDIX B :

THE JUDGMENT

‘UNITED STATES OF AMERICA, SS:

The President of the United States of America:

To the Honorable Judge of the United States District Court

for the District of ee.

Greeting: —____—___—_ PPC eee

WHEREAS, lately in the United States District. Court for

the District of Maryland, before you or some of you, ina

cause between Joseph Oleszczuk, Plaintiff, and Calmar

Steamship Corporation, Pefendant and Third Party Plain-

tiff,-and Nacizema Operating Company, Inc., Third Party’

_ Defendant; Civil Action No. 9179; wherein the judgment

of the said Distri ’ Court, entered in the said cause on the

8th day of.September, 1958, is in the words following:

‘A motion having been presented to the Court by

- the defendant and third party plaintiff, Calmar Steam-

-‘ship Corporation, for entry of judgment in favor of

the defendant and third party plaintiff against the

third party defendant, Nacirema Operating Company,

Inc., for indemnity on the third party cornplaint and

_a motion having been presented by the third party de-

21

fendant a Operating CiaBiny Inc. for entry .

-of judgment in favor of the third party defendant on

the third party complaint, and said motion having-

come on for a hearing. where counsel for both parties

' were heard, .

“IT-Is HEREBY Ointenn this 8th day of-September,

1958, that the motion of the defendant and third party

plaintiff for-entry of judgment for indemnity on the

- third party complaint against the third party defen-

dant be denied and the third party defendant's motion

for entry of judgment in gay or on the third party

complaint be granted and i¥ is further ORDERED: that

judgment on the third party complaint be entered in

’ favor of the Gare party defendant with costs.

~ Roszeu C. Tuomsen,

Chief Judge.

“The above Order and Judgment is consented ‘to as

to form. -

4 Lorp, WHIP AND COUGHLAN

- Lord, Whip and ee

as by the inspection of the record of the said District Court,

which was,brought into the United States Court of Appeals

for the Fourth Circuit, by virtue of the appeai of Calmar

Steamship Corporation, a Delaware corporation, agreeably

( to the act of Congress, in such case made and provided,

fully and at Jarge appears.

Anp WHEREAS, in the term of March, in the year of our -

Lord one thousand nine hundred and fifty-nine, the said

cause came on to be heard before the said United States

Court of Appeals for the Fourth Circuit, on the said “eee

and was argued by counsel.

On ConsIDERATION Wuenreor, It is now here ordered, ad-

judged and decreed by this Court that the judgment of

the said District Court appealed, from, in this cause, be,

and the same is hereby, reversed with costs; and that this

cause be, and the same is hereby, remanded to the United

«

22

States District Court for the District of Maryland, at Balti-

more, with direction to enter judgment for Calmar Steam-

ship Corporation, in accordance with the opinion of the

Court filed herein.

“April 8, 1959.

“4 Srmvon E. SosELorr,

4 Chief Judge, Fourth Circuit.

You, therefore, are: hereby. boenengaiitad that such further

‘proceedings be had in said cause, in accordance with the

opinion and the judgment of this Court, as according to

- right and* justice, and the laws of the United States, —

to be had, the said appeal notwithstanding. . | .

WITNESS the Honorable EArt WARREN, Chief Justice of

the United States, the 11th day of May, in the year of our-

Lord one thousand nine hundred and fifty-nine. ;

RICHARD M. F. WILLIAMS, JR,

. Clerk of the.U. S. Court of -

Appeals for the Fourth Circuit.

oy.

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