Petition for a Writ of Certiorari — Porrata y Veve v. Fajardo Sugar Co.

, Ottice Supreme Court, U.S.

Evie | FILED -.

tee . * oe PA a

} AUG 10 1562 *

Pp ree ani of " ss United ’ ates F. DAVIS, CLERK | ¢

OcToBER TERM, 1961 f.

“5 : % - - me

‘7 B20

-E. J. Lavino and Company, Petitioner

| ion i ; .

Vv.

*~ - F °

_ ° UNITED STATES LINES CoMPANY, Réspondent

/ ; A

——__, .

~~

see ee

PETITION FOR A WRIT OF -CERTIORARI TO THE |

UNITED STATES COURT OF.APPEALS FOR ‘THE THIRD

; CIRCUNT |

>

MICHAEL A. FOLEY, —

721 Western Saving Fund Bldg.

- Philadelphia, Pennsylvania

Counsel for Petitioner,

= . | E, J. Lavino and Company

Martin & Lyle, 1025 Bonkers Securities Bidg.: Phila. 7, Pa.

\ | °

i ere 3

nei 3 eens Page

Opinions Below A Se eee ‘.

- Jurisdiction Sey ae

| Questions Presented + bes

- Statement of the Case - -

Reasons for Granting the Writ | x : :

; Appendix | Sse eae ar

.*. CITATIONS,

- Cases: -

American Export Lines v. Revel, 266 F.2d 82 10, 12;

ee

Crumady v. The J. H. Fisser, 358 US. 423 10, 12, 13

Rogers v. United States Lines Co., 205: F.2d 57, 347

_——S-964— 3

Ryan Stevedoring Co. v. . Pan-Altlantie § Ss. Corp, 350°

U:S.124 ae oss a hy 1m, 18

- Waterman Company v. Dugan: & McNamara, 364 as

US, 421... - een eg

Weyerhaeuser S.S. Co, v. Nacirema Co., 355 U.S."

563 - 3 10 as A a

Statutes: Se 3

United States Code Title 28; Sec. 1254(1)- a

4

. P : 7

oat “ia 7?

+

aaae: INTHE

_ Supreme C Court of the United States.

——

-

OCTOBER TERM, 1961

co

me - | ey No. oC

EB. J. LAVINO ard COMPANY, Petitioner

KAY / '

fed

Unfep STATES LINES COMPANY, Respondent

oe :

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES | COwRT OF APPEALS FOR THE THIRD

CIRCUIT

——

——_—

| ‘Petitioners pray that a Writ of Certiorari i issue to review

the judgment of the United States Court of Appeals for

the Third Circuit entered i in the above case on May 15, 1962.

+ "+ OPINIONS aa

————

———

—$——— .

——_—————S

—_————~~The opinion of the United States District Court for the

; Eastern District of Pennsylvania is reported at 198 F,

has "Supp. -483. se

The opinion of the United States Court of Appeals ee

the. Third Circuit is teperted at 303 F.2d ——.

1 F -

an

e "

2 .

"JURISDICTION eS ns

The judgment - the United States Court of Appeals

for, the Third Circuit: was made and entered oh May 15,

1962, and a copy thereof is appended to'this petition in the

appendix at pp. 14 to 20. The jurisdiction of this Court is

invoked under 28 U. S.C. 1254" 1).

ia

‘QUESTIONS PRESENTED FOR REVIEW -

This is a maritime action for indemnity ex contracto

brought by a ship owner against the consignee of a-portion —

: of the ship’s cargo to recover damages, together with in-

.. terest, costs and attorneys’ fees, which it was compelled to

pay to a longshoreman who was injured while assisting in _

_ the discharge of the eargo involved. The injuries resulted

from the use of. inadequate equipment by the’ stevedoring

contractor. —

There was.an “integrated contract of carriage between

the parties (under an F.J. & O. Bil! of Lading) which re-

* . quired the cargo owner to pay the stevedore’s charges but

imposed" no other or duty en the pcomanee | in regard to the

unloading. |

The cargo owner contracted directly with an independent

stevedore for the removal of this, and: prior cargo, and this —

arrangement bétween the cargo owner and independent

stevedore was known beforehand and at the time of booking

of the cargo by’ plaintiff, the respondent herein. On this

-basis the District Court ruled that the consignee (peti-

tioner) was under: an implied contractual duty to arrange

A for the discharge of its own eargo and therefore on

a

-

tf

.

<a

? “oes 3

| warranted to the ship that the cargo would be unloaded in

a safe, proper and workmanlike manner. The Third Cireuit.

Court of Appeals affirmed. The decision in each court rested

on the authority of Ryan Stevedoring Company v. Pan- iS

Atlantic S.S. Corp. 8 US. 124.

The uestionis presented i met se ;

1. Where a‘cargo owner engages a specif petent’

independent stevedoring contractor to-uniogd its cargo with

the prior know ledge and.consent of the s ip, does the cargo

owner there rrant to the ship that the-cargo’ will ‘be

discharged i in a safe, proper and workmanlike manner?

£ Assuming that such a warranty may exist, does it |

arise by operation of law so 4s fo bind the parties notwith-

_ Standing the terms of their yritten contract?

pa Oe

nile OF THE CASE

This third rty action grew out of a suft in Trespass

- brought by e Famous Rogers, a Jongshoreman, against

“United Sj és Lines Company to recover damages fof in-

juries which he sustained on J anuary 10, 1949, while assist- —

ing in’the discharge of a cargo of iron ore from. the S.S.

Pioneer Tide, a steamship owned and operated by Respond-

ent (34a). Rogers was injured as a result of alleged inade-

aca quate equipment used by the stevedoring contractor, his

“employer.

‘ : _~

” a 4

- -

“

-

-

age a : . . Z

_-~ He commenced his action against the ship owner, United

a

States Lines Company, on July 25, 1950. On August &

1951, the U.S. Linés filed a third party Complaint against

the Stevedore seeking contribution-and/or indemnity, :-...

The casé was called for trial in February 5,.1952. The -

Stevedore moved for dismissal of the third party complaint

and the motion was gtanted. The jury returned a: verdict

-in favor of the defendant and on February 6, 1952, the — .

_. District Court entered judgment in favor of the defendant ae

and third partydefendant (1a). * = |

plaintiff appealed and the judgment was affirmed .

by Third Circuit Court of Appeals (205 F257). The — -

Supreme Court of the United States granted Certiorari on

July 9, 1954, and reversed the Third Cireuit {347 US 984).

No appeal was taken by the U.S. Lines Company as the .

third party plaintiff from the dismissal of its third party

action against the stevedore (1a). £$ aes

__ On August 20, 1954, Respondent U.S. Lines filed a second

Third Party complaint against the stevedore which was

dismissed on the t that the prior unappealed from

dismissal was clearlY res adjudicata.. © 2 == *

- On November 24, 1954, the ship owner comnienced the

. present third ‘party action against the petitioner-consignee

seeking’indemnity under the alleged provisions of a written

~, contract.

This third Farty action was severed and the plaintiff

p ded to trial against the ship. On January 13, 1955, _

the jury rendered a verdict in his favor; the parties stipu-

lated the ammount of damages to be $27,000.00 (3a).

The third party indemnity action was tried on March 23,

and 24, 1960, before. Honorable Francis L. Van Dusen

sitting without a jury. The Court found in favor of the

third party plaintiff and entered judgment for U.S. Lines.

Company on May 26, 1961 (116a) inthe amcunt of ;

7

parties” (4a-5a).

a | 2 oe : . 4 7, : . ’ abet

sare) SEEt Lekcatas Mae tiene ak

$27,000.00 representing the original verdict with interest

plus attorney's fees, a total of. approximately $46,500.00,

In the transactjon from which this suit arose, respond-

- ent’s ship carried a cargo of iron ore consigned to the |

Petitioner under the provisions of a bill of lading ( F.I .&0.)

which the ship drafted and issued to the consignee and which

the consignee accepted (23a, 67a, 68a, 90a, 92a, 99a +4 ¥

The bill of lading purported fo be the integration of the”

agreement between the parties and was’so treated by them:

i \ @- Je

“By- accepting this bill of lading the shipper, consignee,

pledgee, holder and endorsee of this bill of lading, re-

ceiver, owner of the bende’ ask each of them agree that _

‘all fréight engagements, dock receipts or other agree-

_ ments ‘whatsoever, in- respect of the shipment of the

goods -are superseded by this bill of lading and -agree

to be bound by all its terms whether written, printed

_ or stamped on the front or back thereof or incorporated

by reference therein, and local customs or privileges to

‘: the contrary not withstanding” (92a).

Oat ea. . Ae Nye

- The case, was tried on the ‘bill of ldding. Both parties

“recognized it as an integration of their agreement and tried

_ the case on the premise that their rights and duties were to

be determined and controlled by its provisions, express or.

‘implied. :

Third party plaintiff in paragraphs 3, 5 and‘8, of its

Complaint refers to and relies on “the contract between the

In answer to interrogatories ‘the third party plaintiff

states that “the contract referred to in the third party com-

plaint is believed’ to haye consisted ofa booking letter and

a bill of lading” (7a-8a; 88a-89a).

: : ; -— @

In the pre-trial’memorandum the ship owner states:

.. The carga was carried under. a bill of lading,

with’ E. J. Lavino Co., the named consignee. The basis

‘of the contract of carriage was “F.I.0.” which means -

“free in'and out”. Pursuant to this provision it was. the

obligation of the consigneé to discharge the cargo free

- of any risk and expense to the de sige Pursuant to

.. this contractual otigation

.

. And again in the same: Document :

“The: F.I. and O. provisionof the contract of carriage

_ embodied in the bill of ‘lading imposes thé ultimate

2. (Ba- 9a).

“In its Trial Menistended \ of Law, the third ‘party plain-

- tiff again refers to ed dill of —~ as the contract between

the parties, “* vane eat rete

AT

/

At the trial of the case, the taliohjing snipe 2

“MR. FOLEY: Now the only question that I would

like to have clarified is just the nature of—I KAow the

natdre te the leita “ce claim—the. taney on which it

is based .

MR. ALSPACH: It is based upon the bit of your

duty to us arising under the F.I. and O. arrangement.

It is a contractual arrangement. The basis.of your lia-

. bility to us stems, in our omeaars from the contract

. einem the on’ ae

THE COURT: if think it is pretty clear from the.Pre-

__ » trial Memorandum, Mr. Foley, that he is suing on the

- contract. This is a contractual claim, and is based on

~~

. ae contract of carriage which I take it has been re-- oe

ferred to here asa bill of lading, is that right.

’ MR, ALSPACH: Yes, sir.”

ne In its request for findings .of facts the ship owner again

relies on the ‘ ®contract of. carriage ephetial in ‘the bill of

lading” (95a) J.«

And, finally, i in its brief below the third party defendant

refers to thé bill of lading as the contract of carriage and

rests its case on the F.I. and O. provision:

Third party defendant with equal’ consistency took the

' position that “the contract betweert the pute consisted

solely of the bill of lading” (101la 45). !

In the bill of lading the freight rate was designated to |

be “F.4.0.”. It was the shipowner’s contention, that F.1.0.

-. Was a trade term which imposed on the consignee the per-’

sonal non-delegable duty to unload its own cargo and there-

fore coptained an implied warranty that the cargo’ would

be ‘discharged in a workmanlike manner.

- The evidence was conclusive’ that F.1.0. imposed. a

the consignee no greater duty than to pay the stev

charges and the trial court s¢ found ( 17a, - 304° 36a,

46a, 84a, 99a).

-’ There had. been prior shtijenents Seales the consignee

had engagéd as well as paid the same stevedorg and both -

parties understood that this practice would be followed as

_ .respécts the shipment in question and that the cargo would’

_ be unloaded .by Lavino Shipping Co.’ as an ores ean

contractor.

On this asis the trial court ruled that the contract was

based not only on the bill of lading, albeit the bill of lading :

by its terms purported to be a complete integration, but

‘glee upon an implied contract arising out of. their prior

“

>.

‘in dealings. The Court ruled that the sation followed betw een

the consignee and’ ship on previous occasions that consignee

K. would engage a specific indépendent. stevedore to ‘unload

\, the cargo imposed. an implied contractual duty to employ |

the steveddre in the present. shipment.

- The Court reasoned that this implied contractual duty :

was the equivalent. of the consignee agreeing to “arrange —

_ for the discharge of its own cargo”. The Court then equated

‘these words" with: an agreement by the consignee to “be

responsible for the discharge” of its own cargo and finally,

carrying semantics to absurdity, rephrased the implied duty

‘? into obligation to perform the discharge of the cargo.

_ The District Court then declared :

“Wherever an agreement has been made with an owner

or operator.of a.ship requiring a party to be responsible

for the unloading, that party is obligated to see that it

* is done i in a safe, workmanlike manner and to indem-

nify such owner or operator of the ship for failure to™.

‘comply with that undertaking. See Ryan Co. v. Pan-.

Atlantic Corp., 350 U.S. 124 (1956) ; Weyerhaeuser’

S.S. Co.'v. Nacirema Co., 355 U.S. 563 (1958) ; Cru-

mady v. The J. H. Fisser, 358 U.S. 423 (1959) ; Water-

man Co. v. Dugan & McNamara, 364 U.S. 421 (19607.

(107a).’ ee iN

The Court of appeals concurred i in this t reasoning, stating

in part:

° ren

“This is a matter of contractual indemnity which need.

not be in writing and may, as in this instance, be im-

plied. Weyerhaeuser SS Co. v. Nacirema Co., 355 U.S.

563 (1958); Ryan Stevedoring. Co. v. Pan-Atlantic

Corp., 350 Us S. 124 ( 1956). As we see it, appellant’s

Fy failure to make the stevedore employer a third party

defendant in no way delimits the application of the

_ above — to this appeal.

, “What remains is whethes indemnifi sation should be

defeated solely because appellant did not directly un-

load-its cargo but had that attended to by its stevedor-

- ing division. We are satisfied that it should not. There

is no longer any guess concerning the relationship ‘of :

the parties. Appellant, in accepting responsibility for -

the unloading of its cargo, eritered into “a contractual °

‘undertaking to perform ‘with reasonable safety’,”’.

'. Weyerhaeuser, supra. p..565. This suit comes’ well

within the qppreme Court’s description of the Ryan

claim.” : « “ ;

The opinion of the Court of Appests contains several

errors of which note should be taken: In the above quotation

from page 5 and at page 2-the Court mistakenly states that :

“the Stevedore, Lavino Shipping Co-..is a division of E. J.

Lavino Co., Petitioner; at P 2 the Court states that Wolcott

Heyl is a Vice President of Petitioner and quotes part of

his testimony. Heyl i is a Vice-President-of Lavino Shipping -

‘Company, the Stevedore, and his testimony was that the

stevedoring division of Lavino Shipping C ompany tLavino

. Shipping. Co., hag ateaipatdaad Div. ) discharged the cargo. See

' 25A. ,

“Fhe Court of Appeals also refegs to the stevedoring con-

tractor as 2 subsidiary of Petitioner. The Findings of Fact

"of the District Court. Nos, 8, 9 and 13 (99a’‘and 100a) are

to the direct contrary. eae from the word “Laviro” in

their corporate titles, there i= 1S~no_connection whatever be-

. tween these companies. There is no~identity of interests

| between them and they are.insured by different liability

insurance companies, The ev idence reveals — Sd ial

e-

=}

ee

‘Court found in fact that they are separate and distinct |

corporate entities 42, 100a.+3, 105a. Nor is there any

guestion in this case of agency or of a master-servant:

relationship; the stevedore was an independent contractor ;

(p. 994 =8, 100a +9 & 12; 105a) ; indeed, if jt were other-

. wise, the prior judgment in favor of the stevedore w ould

"be a bar to the present action. care

On page 3 the Court states that “E. J. Lavino, repre-

senting Lavino Shipping Company, actually directed the

manner and method of :the cargo’s discharge”. This is a

. Misstatement—the work was done by the stevedore. Peti-

tioner took no part whatever in these arrangements or dis-

charge; it is not a stevedore, nor is it equipped to do any

— work (99a, +8; 100a =9 & 13, 105a).

REASONS FOR pecs WRIT

The United States Court of aed for the Tuird Circuit °

has decided an important question of ‘admiralty i iaw which

the Supreme Court has not but should rule on, which is in

conflict with the opinions of the Supreme Court in Ryan .

Co. v. Pan Atlantic Corp., 350 U.S. 124 (1956) ; Weyer-

haeuser S.S.-Co.%, Nacirema Co., 355 U.S. .563 (1958);

_Crumady v. The.J. H. Fisser,.358 U.S. 423 (1959) Water.

may Co. v. Dugan & McNamara,. 364 U.S, 421: (1960), |

which tends to vitiate basic and traditional concepts of the”

law. of contracts in the area of maritimé indemnity, and ©

which conflicts with the opiriion-of the United States Court

gr the Fourth Circuit in American Export Lines ”

v. —_ el, 82. ey

ea The opinions below stand for the proposition that. a

cargo owner who contracts with an independent stevedore -

ok 11

for the removal of its cargo thereby agrees to indemnify

the ship against ~: loss caused by the stevedore’s negli-

gence..

In effect, they gave the ship the right, at its lection, to

recover from the cargo owner or’ the stevedore damage ~ paid

by the ship. toa third party injured by the stevedore’s °

‘ substandard performance.

The stevedore’s duty ‘to indemnify ~ been set sopshaa 2

clearly in the Ryan cases:

This Court has not éonsidered the question of the liability

a the cargo owner where the latter directly engages the

'stevedore. This is a question prebably of greater importange

and wider applicability-than that considered in the Ryan

cases. There are many reasons why a ship owner would.

prefer to look to the cargo owner rather than the stevedore |

if it has this clection: solvency, preference as to a forum,

amenability to service, preference as to a party defendant,

_and other reasons arising from relations between parties.

The question is of significance in the maritime industry and

. should be decided by this Court. »

2. The lower Courts while sion to base their deci-

sions on the authority of the Ryan cases are in direct con-

flict with the express language, the reasoning and the

underlyi ing principle of those cases.

Ryan expressly and emphatically rejects the theory of

quasi contract as the basis for granting indemnity. In those

cases the Supreme Courg reasoned that a skilled contractor

who undertook to render a service did, .by virtue of his

-expertness, impliedly warrant that he would perform his+

work in a professional manner and the Court held the. steve-

doring contractors liable for a breach of this w arranty.

In the instant case, the consignee is not a stevedore, it

did not undertake any service, it had no part at all in the

12

unloading of the ship; at most, it agreed prior to the con-

tract of carriagé to employ a specific independent stevedor-

ing contractor. If the consiznee is liable to the ship owner

in this case, its liability can rest only 0 on a duty imposed

by law.’ |

3, Indeed, the effect of the decision below is ta impose the

" duty to indemnify notwithstanding the written contract

of carriage. The bill of lading purported to be an inte-

grated contract was so recognized by the ia eaea g it

- was drafted by respondent:

Yet, the case was decided on the basis of an alleged con-

tractual obligation arising from prior dealings from which —

the quasi-contractual obligation to indemnify was implied.

The findings of fact do not support this conclusion.

The decisions in Ryan and Crumady_may represent a

step in the evolution of the law of con actual indemnity

but they are not authority for abandoning the fundamentals

of contract. law as the Seriaton 1 in this case suggests.

4. Revel is similar to this case in the following’ respects:

a ship owner paid a longshoreman who was injured while

unloading the cargo as a result of the stev vedore’ s negligence; _.

the cargo owner engaged the stevedore directly ; the ship

sued. the cargo owner for vce 4 and the District Court

_ found for the ship.

Revel is distinguishable in tie following cals: the

_ cargo owner expressly agreed in the charter party to “per-.

'It should be noted that although tort concepts played tio ‘part in

the Ryan, Weyerhaeuser, Crumady and Waterman decisions the re-

sult of each case was to require.a wrongdoer to bear the burden of

his wrong. In the ease at bar the. shipowner who. was at least pas-

sively negligent and who was in a position to prevent, the accident

chas been granted indemnity as against a party who was not negli-

gent in any sense or degree.

=¥ \ lo,

>

form” the unloading; the cargo owner, United States

’ MLS.T. s. was probably the world’s largest master stevedore;.

the case was decided by the District Court before Crumady.

and the cargo owner's liability was not directly decided by _

the Court of Appeals because the appeal of cargo owner was -

withdrawn.

However, in noting the question of the liability of the

cargo owner the appellate Court said: “It appears from

the District Court’s opinion that judgment w as entered for

‘Export against the United States and for it against White-

hall, simply because the Court was uncertain whether judg-

ment could be entered. directly for the owner against the .

stevedore, omitting the charterer. This uncertainty has been -

resolved by the Supreme Court in Crumady.” —

In the case at bar the lower Courts cite Revei as authority

for their decision. To the mind of Petitioner the quoted

language indicates that the Fourth Circuit would go the

other way were the question squarely raised. But if Reve!

- does support the opinion below it is a mere compelling

reason for the Supreme Court to decide this question than

would be a ‘conflict between circuits, as it would :

siderable authority-te-this perversion of the Ryan dation .:

which imposes liability without _ and without consent.

WHEREFORE, petitioner pray: s that aw rit of certibrari

_iskue.to review the judgment of t! ie United States Court of

Appeals for the Third Circuit in this cage.

MICHAEL. A. FOLEY

Counsel for Petitioner

14

Appendix eh

_ UNITED STATES COURT OF APPEALS

For THE THImp CIRCUIT

No: 13,666.

FAMOUS ROGERS

-* ;

wv. ‘

UNITED’ STATES LINES c OMPANY,

Defendant and Third-Party Plaintiff,

on

E. J. LAVINO & COMPANY, _

| Third-Party Defendant-A ppellant:

— -

ee

>

_ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

. Argued December 19, 1961

Before McLAUGHLIN, KALODNER and 7

cw ary Judges.

OPINION OF THE COURT

(Filed May 15, 1962)

a, MCLAUGHLIN, Cireuit Judge.

The base of the present action is a final Solace in

favor of Rogers, a longshoreman. for damages arising out

id Peat et, ood, IY

of personal injuries against United States Lines Company.

The latter is the owner of SS Pioneer Tide. Rogers was

helping to discharge the Pioneer Tide's cargo: ‘when he was -.”

hurt. E. J. Lavino & Company was the consigriee of the

cargo. The trial court, sitting without 4 jury, found that

_E. J. Lavino & Company had the duty and responsibi lity,

" {0 arrange and pay for jhe discharge of the cargo which it.

did through its subsidiary, Lavino Shipping Company, a

stevedore contractor by whom Rogers was employed.’ -The

court held as a matter of law that the ship’s liability to .

Rogers arvve from the fact that the discharge of the cargo

was not carried out. in a reasonably safe, proper and work

manlike manner: thet E.J. Lavine & Comeaniv was under

a duty not to expose Tri A tle Lies to damage or Joss

arising out of the ua of the cargo; that FE. J. Lavino © -

& Company failed to perform that dons through its agent;

tha: E. J. Lavino of erga impliediy warranted to

United states Lines the careful: proper and workmanlike .

performance of yHe discharge; that E: J. Lavino & Fom-

_ pany breached/that duty and that United States Lines -is

entitled to indemnity agair&t E. J. Lavino & Company for

the amount paid by the former to Rogers in satisfaction

of his claim. with interest and for reasonable counsel fees

and expenses incurred in defending against Rogers’ claim.

Appellant attempts to restrict the contract between the

parties solely to the hill of lading. However, the trial judge

‘found that, ‘in addition. to the bill of lading, “* * -* the

ptactice followed between plaintiff .( Umited States Lines)

_and defendant ‘ E. J..Lavino € Company) on previous ocea= - |

Sions that. defendant would arrange for the unloading’ by

‘the Lavino Shipping Company on its behalf became j an im-—

1 Wolcott M. Heyl, Vice President of E. J. Lavino & Company,

testified that Lavino Shipping Company “* * * is # s#parate division -

- of the company.for handling stevedoring.”

o

16

plied term of each contract of F. I. O. shipment of ore from .

the Philippines to Philadelphia and was a term of the con-

tract. covering this shipment, only part of such agreement

being integrated into the F. 1.0. bill of lading" * *. The

agreement that defendant would’ arrange for the discharge

‘of wih cargo became firm at the time the booking letter was

.” The record justifies the finding. Lavino, by point-

‘ing a references to the bill of Jading in the ship’s pretrial

memorandum and a comment by the judge, seems to be con-

tending that the case was tried on the bill of lading alone.

Actually, United’ States Lines pretrial memorandum as-

serted several grounds in support of its claim for indemnity

among them:

“4. In vieqgof the: relatiofiship of the parties, E. J.

- Layino & Company impliedly warranted to U. S. Lines’

_ ‘the careful, proper.and workmanlike performance of

the discharge by the persons or parties selected by

E. J. Lavino & Company ‘to do the work. E. J. Lavino

& Company breached this warranty. if ;

United States Lines, through its pier ea super-

intendent, presented evidence that F. I. O. on a bill of lad-

_ing, standing for the phrase “Free In and Out”, meant

that the carrier had nothing ‘to do with the loading or un-

loading of the specified cargo. With reference to Lavino

chrome ore shipments, the type here involved, the United

States Lines had nothing to do with arranging for the dis-.

; charge of Gargo. E. J. Laving & Company representing

_Lavino Shipping Company, actually directed the manner -

and method of the cargo’s discharge, even notified United |

States Lines where it wanted the vessel, arranged for its |

berth. and for railroad cars to receive the cargo. Said the

- witness “When .that vessel docked at the st they des- -

>

aa

ignated where they wanted their cargo, it was delivered as

far as we were concerned, according to this bill of lading.” -

~ Mr. Heyl’s testimony on cross-examination was of sub-.

stantial assistance to the ship’s above quoted theory ‘of

indemnity. He had said on direct examination that it was

the carrier's obligation under an F. I. O. bill of lading to

both carry and deliver the cargo. On cross-examination he

stated “In this’ particular instance the discharging was ar-

ranged ‘by Lavino Shipping.Company because of the fact -

that the expenses were not for account of the vessel. * * ‘*

In this specific case, due to the fact that we have our own

stevedoring setup, the ship says ‘Go ahead,’ and we can do

that, it is all right, take it off, and that’s it. * * * Well, we

just. might say this, that ingsmuch as there a number of

~ these parcels of ore being gularly carried, and it is all

_ done on the basis of what—-in each case the same, it was

‘known beforehand that it would be elected that the Lavino

Shipping Company arrahged to take it free of expense to

- the vessel.” .- | Set

After the completion of the trial evidence the court :

"_ acéepted a proposed conclusion of Jaw from the ship plain-

tiff reading: : aN . Fae

“Under the evidence and the applicable law,-the~~ —

relationship between the parties ‘was such that E. J. -

Lavino & Company impliedly.warranted to United

States Lines Company the careful, proper and work-

manlike performance of. the discharge. E. J. Lavino & *

Company breached that warranty.” :

_ Plainly, the question whether the parties had agreed

that the appellant discharge its cargo was properly before

the trial court for decision. - — - :

This brings us to the main point, whether under the

facts as found by the court, United States Lines was en-,

18

'- tithe to indemnity from its consignee. Certain funda-

mentals can be disposed of quickly. We are not dealing

here, as is suggested, with a claim for indemnity By atort- |

feasor on a theory of passive negligence.’This is a matter . ©

of contractual indemnity which need ne. be in writing and

may, as in this instance, be implied. Weyerhaeuser SS Co.

v. Nacirema Co., 335 U.S. 563 (1958) ; Ryan Stevedoring

Co. v: Pan-Atlantic Corp., 358 U.S. 124 (1956).2 As we see~

it, appellant’s failure to make the stevedore employer a _

third party defendant in no way @limits the — of

the above principles to this appeal.

What remains is whether indemnification should ‘ de-

feated solely because appellant did not directly unlload its

cargo but had that attended to by its stevedoring diivision.

We are satisfied that it should not. There is no longer any

guess concerning the relationship of the parties. Appellant,

in accepting responsibility for the unloading of its cargo, °

entered into “a contractual undertaking to [perform]

‘with reasonable safety’,”. Weyerhaeuser; supra, pp. 565.

This suit comes well within the Supreme Court's dlescrin-

tion of the Ryan claim. “It is a simple action to recover,

under a voluntary and self-sufficient contract, for a sum

measured by foreseeable damages occasioned to the ship- 9

owner by the injury or death of a longshoreman on its

ship.” Ryan Stevedoring Co., Inc. v. Pan-Atlartic Steam-

ship Corp., supra, p. 130. i

_ \A strikingly similar situation to the one beforé us was -

- passed upon by the Fourth Circuit Court of Appeals in

American Export Lines, Inc. v. Revel, 266 F. 2d 82 (1959) —

which affirmed an award of indemnity by the district court,

Revel v. American Expoft Lines, Inc., 162 F. Supp. 279

A rtrd There the ship had space-chartered a portion of ©

"2 See also Crumady v. The J. H. Fisser, 358 U.S. 423 (1959) ;

“Waterman Co. v. Dugan ard McNamara, 364 U.S. 421 ( 1960).

5 .

_19

* its: cargo space to the United States. The loading and Qn

charging of theparticular cargoavas the responsibility of-

* the Government. There was no specific provision for in-

demnity to the vessel. The Government- had an independ-

ent contractor perform the stevedoring services. He re-

eovered against the ship: The district court found that ‘the -

ship had the right to be indemnified by the United States.”

The court said pp. 286-287: | .

“While itis manifest that the United States is rot

responsible for the negligence. of*an independent con-

tractor such as Whitehall, there would seem to be an

implied contractual agreement between Export and the

United States wherein the United States agreed to

provide the stevedoring services’to such extent as they

would be\pérformed ‘with reasonable safety’. This is

the import of Weyerhaeuser which disclaims the neces-.

sity of an express indemnity clause.” —

Speaking of the shipowner’s claim for indemnity Judge

Sobeloff in his cireuit opinion said p. 87:

“His action is in eontract and recovery depends upon

whether his conduct kas been such as to bar enforce-

_ment of the contract, and nét whether hé has been

* found negligent in — to the longshoreman.”

Appellant has not éalled our’ attention. to any reported

opinions. which indicate that, recovery’ should be denied

- under the factual and legal circumstances, involved. The

agreement found to exist between Uffited States Lines and

a appellant in essence is no different from contracting Lo sup

| 3 Jt should "be noted that i in Revel ‘the United States had made the

stevedore contractor a third party defendant and was allowed re-

: ony over against it. | ¢

°

“

Oo.

=)

.

OR YE

*

4”

—

iar a ete ae

ee,

ply a suitable ship’s berth as upheld in .Ciffes Service-Go——_

- v. Gulf Refining Co., 79 F.2d 521 (2 Cir. 1935). See also

» ° Kirk v. Are Steamship Company, 21 F.R.D. 293 (S.D.N.Y.

» ,, 1958); DiMeglio v. The Black Condor, 1” F. Supp. 865

~_ (S.D.N.Y. 1954).

United States Lines was sictei <enblanaie fees and .

“ expenses. Appellant objects to these fog the same reasons

, it opposes indemnity. It cites our A Sony in Quinones v.

_ Township of Upper Moreland, 293 F.2d 237 (1961) as sus-

‘taining its position. That decision is nat applicable.

The amount of the fee allowance equals the cost to .

United States Lines for the defense of the primary litiga-

tion, and the experises total the same as those incurred by -

United States Lines in that first. suit. These allowances

were within the discretion of the trial court. They are not

unreasonable. Cf. Paliaga v. Luckenbach SS Co. v. Turner

_ and Blanchard, os 4 — F. ed — (2 Cir., Mareh 22, 196p).

‘The judgment of ve district court will be affirmed.

ix. ‘True Copy:

Teste:

Clerk of the United States Court of Appehis

for the Third Circuit.