Petition for Writ of Certiorari — Campisi v. United States

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“oa a Otfice-Supreme Court,"U.S. |

UBRaRY | sical FILED : a

one es TE, COURT, uy, : SEP 27 1962

JOHN . Das CLERK

Ss.

. Iw” THE. - | : oe ‘

- Suprrne Court uf ‘the Bnite States he

OCTOB I R TE RM 1962

DANIELS & KE NNEDY., INC; pees

a - Petitionér,

‘against 7

A/S INGER and. iL Lh. INOIS. A TLANTIC CORP.

Responden nts. -

PETITION FOR A. WRIT OF CERTIORARI TO THE *.

UNITED STATES COURT OF APPEALS ~

FOR THE SECOND CIRCUIT —

Jospen M. SoviERO,

"Attorney for Petitioner,

Church Street,

w York, New York.

RayMonD C, GREEN,

HArrY SCHECTER,

Haro_p KLEIN,

on the Petition.

QP 249 Press of Fremont Payrie, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153

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Opinions Below « SS es bees abate ihaeewece nen 4 ee eek

Jurisdiction * ETT eas (heen ween vaca vad ere te 2 ©

- Quettions Presented for Revi AE ene ee lias 2 .

Statement of the Case a eo rr rpa RCT: > Pa

° : . cae ie ae ov:

_ Reasons for’ Grafting the Writ... pty Het tte

Conclusion kOe NS AS RWI SURhasae ve boaieee s Re As Sy aed

“APPENDIX TO Pniieian: :" =

Opinion of the United States District Court for oe

the Eastern District of New York ...... vessa iy

Opinion of the United States scrasa ‘of oe Saw

forthe Second Cirenit 3.6.82... i eee 27a

. Decision of the. United States Court-of Appeals ‘saa

for the Second Circuit: on Petitions for Re- °

hearing” Pan eee ashe aes aces Oekds Sone Kokua set

Decision of. the United States Circuit Court of

ee Appeals for the Second Circuit on ene

for Rehearing in bane OT re cre ee e...3 37a

Se | oe Cire. ee

Galea AMAR eee

American Export Lines v. Revel, 266 F.2d 82...... 26 ace

esr~y Mutual Liability Ins. Co. v: Matthews, 182

F. 2d 322 SL PRAR ET SAWS AA wee exes eee Ca ey -

t , * ‘

° 2)

A AT et _* oe — SE TR ee sagen: Sl - ~~ — a ceo, li ee

il pants : TYDEX

" “American President Lines, Ltd. Vv. morine Terminals y

‘ Corp., 234 F. 2d 753, cert. den, 252 U.S. 926. 23

Amerocean Steamship Company v. Coppy 245 F. 2a

Ene aoa a a en re ee eer ee rer

American Stevedores, Ine. v. Porello, 330 U.S. 446, 67

S. Ct. 847, ese MED cate ccc nhs Wsehiek esis 32

Albina Engine & Machine ‘Works, Ine. v. American

| Mail Limes; Ltd., 263 F. 2d $11... ..........05.. 15.

_ . Atlantic & Gulf, Stevedores, Inc. v.‘ Ellerman Lines, :

a — Ltd., 369- Uv. S. 355, 82. Ct. 780, 7 L. Ed:. 2d .

ore ae 798 Senger eka wwes (aac on 22, 23 .

», Berti v.. Compagnie de Navigation Cyprien Fabre, |

(213 F. > ee Hip esas ae pandas

\310 LNRUS CARER SRD ON EN EE EONEE LA CEE RD vreeetyere OE,

- Calmar “Steamship Corp. v: —“Wecirenia ‘Operating

Continental Ore Co. v. Union Carbide & Carbon Corp.,

370 U.S. 690, 82 S. ee rere yy 15

-Crumady v: The J. H. Fisser, 358 °U. S. 423, 79 S. Ct.

TTS Ae PS) Se RN T's. ae

D’Agosta v. Royal Netherlands Steamship Co., 301 F fe

a . > Sage PRL UARES RUE ws seb saw adwance 31

Dery Vv. Wyer; 265 P. 2d oe ae Se te da eG ace cae

Hodgson v. Lloyd Brasileiro Patrimonio National, |

294 F. 2d 32, cert. den. 369-U. 8. 848, 82 8. Ct.

ee) Se ee eee eee iecak sc scaehnees 24, 26

-Hugev v. Dampskisaktieselskabet International, 170

_ EF. Supp.- 601, affd. 274 F. 2d 875, cert. den. 363) |

a 2 meee Sccee de ae 60s 6480006600 68666606 ee.

PAGE

—€orp., 266 F. 2d 79, cert, den. 361 'U. S. 816 renee 22:

INDEX oh hee ae

: PAGE

Lobos» v. United States, 1 18SF. » 5 ee Ne = l@

Mowbray v. Merryweather [1895], 29. B. G40 . 15, 17, 19,

oy ae ae a ae 27, 30

New-York Central R. Co. ¥. Witte, 243 U.S. 188, |

37S. Ct'247, 61 L. Bd 666-2... . ee, 29°.

I” ennsy Ivania Railroad ’ Co; v. MeAllister Lighterage 7

Line, Inc.; 240 I’, 2d 423 affg. 137 F. — 788 . 15

Pettus v. Grace Line, Iné: 4 2 Cir., —— F.

Ryan Stevedoring Co. -v. Pan-Atlantic S.S. Corp., 2p0

_U, S. 124, 76 8. ct 232, 100 L.Ed. 133-48, “47,19, 21,

25 5, 30 ;

a | ees _ : 2, 31, 32

a Sciarrillo v. Stéaniship S/s Fred Christensen ‘ cooks 19; 23

Standard Qil Co. VY: Robins Dry Docks Repair Co.,, Li

82 F.2d 182 ....... Ss hak buaeane t Senedee ches in

3 Teamsters Local v. ‘Luca Flo our < 369 U. Ss. 9%, 82 ea

VE aac bap kwane sab bad DV eKauweonas a kis > 3

The No. 34 (Petition. of. L. Boy er Rees Co.); 25 F..

2d 602 ....... EM KER ATE Re ha cae kes - 15, 29

’ rs

. Torres Cruz v. Hudson Steamship Company . .24, 26, 27 4%

. 1

eS United States ‘y. Arrow Stevedoring Co., 1% F.2d. .

329, cert. den.338 U. S. 904 .......4.. Peery wat. /22 |

, United States v. Harrison, 245 F. 2d Pt eee A B

United States v. The Manzanillo, 190 F. Supp. 209. . 1"

- Wanser v. Long Island’ R.: ‘R. Co., 238 F. ad 467, cert.

i. ST Rs oak cs ia iin le ee ss $2.

Waterman S.'S. Corp. v. Dugan & Me itso: 364 .

U.S. 421, 81 S. Ct. 200, 5 L. Ed. 2d 169 ........ 14, 30)

Weyerhaeusér S. s: Co. v. Wiitiens ee Co.,

355 U. S. 563, 78-S. Ct. 438, 2 Ed. 24 491.... 14, on

\ 7.

iv. ee aoe : INDEX Ss :

Sar PG er CPA ed : Be ele, 0

ao GP SNA | fae as

oy sey . (STATUTES AND Rues——~ Pits

: * 98 USC. 1254(1) ; Wess s ie a Was arta ‘2:

Rule 14 PRGA... Se phe ee as OS

er ee s and Harbor. Workers’ Compensation ,

— Act (33 U.S.C. 901 et 29.) GE Mt Bh, J ay, 2

OTHER Miscettaszous AvrHorrTies . ie ) |

: Shinai of Contracts, § 330 Pe sehgteees ae 4. 9 |

_ Restatement of. Contracts,. § 334, Illustration .; . 15,19

‘Two Years Before The Mast, Richard. H. ‘Dana, Jr. | 25

3 ai

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‘of ‘certiorari issue to review the decision and ju

In ‘THE |

Supreme Court uf the Wnited States

OCTOBER TERM 1962,

o :

_Daniets & Kennepy, Inc., oe

le ee Petitioner,

¢ . . ; ot‘s v. 4

“A/S INGER and ILLaxors ATLANTIC Corp;

Respondents.

+ tow

= ¢e -

. PETITION. FOR.A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

” Petitioner, Daniels &. icansiady, Inc., pfaysS\that a writ .

the United States Court of Appeals for the Second Gi

filed July 3, 1962 and amended August 17, 1962,-and the

‘denial of said petitjoner’s: petitions for reh ring and for |...

rehearing in banc, without opinion, filed on August 17, 1962,

insofar as said decisions and judgment affirmed that part of

a final judgment entered in the United States District

Court for the Eastern District of New York on June 12,

1961 which, in a longshoreman’s personal injury case,

_ granted indemnity to respondent AAS Inger against peti-

- tioner, and dismissed petitioner’s cross-complaint against

responcent Illinois Atlantic Corp.

g - : . -

Sea

"Wr . E

2 °

: —

eS a ee

; e

<: Opinions: Below.”

"i The District Court's ‘opinion (appendix, pp. la- 2a), ve

is reported at 194 F, Supp. 398. es

The opinion of the Court, of iit ‘(ppadli;. pp.

_27a-34a) has not yet been ‘reported, and its decisions on

the petitions: for rehearing ‘and for rehearing im banp .

| (appendix, Pp. 35a- a) are’ also* unreported.

a . :

cee Jurisdiction

» ee

judgment was catered in ‘thie United States Court of

Appeals for the Second Circuit on July 3, 1962. .

The jurisdiction of this Court is invoked under 28°U.S. C.

en 1254(1).

" — % Pas

- Questions Presented for. Review

W here the Shipowner® was fdund. riegligent i in supplying

equipment for the Longshoreman’s use which lacked a.

safety device and further negligent in not remedyi ing the de-

ficiency after having constructive notice of its existente.

from at'sleast the inception , anf stevedoring operations

aboard the vessel and its negligence i in failing to provide

‘the safety device in conjunction with the Longskoreman’s

negligent manner of using the equipment brought about:

the injury was the Shipowner propérly awarded full in-

deninity from the Employer as a matter of law fer both the ~

amount recovered by Plaintiff against it,. as mitigated by

his re re tel cc the omaha of its defense

-* Tn the isamies of clarity the parties Will hrebnestiies be called by .

. descriptive designations. Petitioner will be called either the Stevedore

or Employer, respondent Inger the Shipowner, . resbedent Illinois

tr Charterer and the plaintiff either Plaintiff or the Angaanean.

\@.

a se ee ad 29

Mo . 3

expenses despite its manifold negligence. and breaches of

Nits | contractuaHy undertaken obligations to maintain and

_: keep the vessel 's equipment ‘ina thoroughly efficient ‘state

for and during its service and to maintain the gear of the

vessel as fitted which. led directly to its own initia liabijity

upon the premise that firstly, the Employer’s presence

aboard the vessel:for more than 4 hours constituted .a:;

breach of its undertaking. to ‘unload the vessel in a prompt

and efficient manner. because that time factor gave it-

~. constructive notice of the deficiency and. ther-fore made it

. negligent vis-a-vis plaintiff, and, secondly that the: Ship-

owner’s. breaches must: oy only be exe used but must Be_

attributed. to the employer? .. re

Stated otherwise: W ‘here a Shipow ner } by negligently, ( 1 )

supplying defective equipment and (2) failing to remedy

the defects after notice, breaches, the promises it made- to.

supply and.maintain ship’s equipment -in proper order

with the result that a Longshoreman is injured. ‘while using / / ;

the equipment, are. the Shipowner’s. contractual’ breac hes.

excused and rendered immaterial and is it entitled to in-

demnity as a matter of law from the Employer who has | |

neither contracted to repair . ‘ship’s equipment, nor has -

~ been negligent in aggravating or heightening the. ‘danger

. set in motion by Shipowner’s foundational breaches, nor

had any actual or :real knowledge of the: deficiency 2.

_ Encompassed within these questions are following spe-

cifie questions of law which the District. Court’ s faetual -

findings pape: rot oa cs a oat eyeass

A Was’ the Riswalnee- Kinginjee’s mere working pres- |

ence aboard the vessel for a period of time a breaeh of

its warranty of workmanlike services as a matter of law?

ze Did the Stevedore as a matter of law. by canbeaeeind

implication obligate itself to Shipowner to inspect for, de- t .

tect and correct deficiencies. in ease eatin furnished by th

capes ner? :

. .

eek

3. Did the Courts below confuse and thereby make

+ 3ynonymous the Stevedore’s: duties to the Longshoremen

Ww ith Its comtrnet ees obligations to Shipowner? .

; 5,

ars oF. Did the fact that the Stevedore became negligént to.

; the: Longshoreman when the Shipowner. supplied deficient

\ catipment convert that negligence into a breach of Steve-

’ dore’s’ warranty of the workmanlike services as a matter °

of law?

| . yt 4 :

5. Did the Shipowner’s multiple misconduct when: re- — -

lated to the nature of the\breach of contract ascribed to

the Stevedore constitute conduct on the part of Shipowner

sufficient to papiute indemnity ? . oo

6. Did the Shipowner’ s “warranty. ‘of the linens of the

appHances it supplied for Stevedore’ s employees’ use dis- ’

‘9 ' sipate as a-matter of law shortly after stevedoring opera-

tions commenced even though the Shipowner did not in-

form the Stevédore of the deficiency, the Stevedore did

not have actual know ledge of its existénee and the steve-

doring contract did not require the Stevedore to: ‘ingpect

or. oper ship’s. equipment. ¥ ~

”

2 WwW hen the Shipowner undertook to supply sciliaialt a

for use ‘by the Stevedore’ s employees, did it not owe to the

Stevedore. the same. -egntractual. obligations with respect

to the equipment it supplied which. any vee eqipment

supplier woul?

“8. Since while basic indemnity bi principles the Ship-.

owner’s contractual breaches were of such nature as to

have ordinarily entitled. Stevedore to. indemnity from. =

—Shipowner if Stevedore tind heen-sued-and-held-tiable to

Plaintiff, despite Stevedore’s constructive notice, is not®.

Shipowner’ s indesanity ‘claim therefore precludett?

9: If the Shipowner’ s “eontractual sein may only

- be used offensiv ely, but .not defensively, is the Stevedore

‘5

on’ its fr Ss complaint entitled to ‘indeuiaity from the

Charterer \becauige of the breach by Charterer of its con-

tractual warranties referrable to ‘ship’s equipment, and

«could not then the Charterer in turn recover indemnity

from Shipowner: because of Shipownér’s: breach of war-

ranty? ae

. 10. If enamine sities breached its: “warranty as

-a-matter of law because of constructive notice and failure «

to correct, were not the Shipowner’s identical notice and

failure. tocorrect, plys its primary foundational wrong in

negligently’ supplying the deficient appliance, material

breaches of its warranties which-as a matter of law con-

stituted conduct on its part sufficient to preclude indemnity ?

11. Since it was found that the conjoined negligence of

. Shipowner and Plaintiff brought about Plaintiff's: injury,

was it not improper to ‘conclude that the contractual breach

attributed to Stevedore led to. = ner’s liability ?

12.° Although the question was avoided by both Courts

below, though briefed té them, it may be that upon grant-

ing review this Court -would, also desire to decide the

question of whether Plaintiff’s status as Stevedore’s eni-

ployee permitted a conversion of his negligence i in bringing. ©

the deficient: condition iftto play into Stevedore’s contrac-

tual breach despite the fact that the Shipow ner has. already

_ obtained full reimbursement for that portion of thé dam-

‘ages. attribufable to Plaintiff’s ‘contributory negligence by:

means of mitigation of his cones award? a

13. In the. final analysis, the questign’ js whether the

‘mere passage of some period of. time between the inc eption

of stevedoring operations and an accident toa longshore-

man sets at naught a shipowner’s contractual obligations

to a stévedore and what should be the shipow mner’s liability

to the stevedore for their breach, and, moreover, transform

* theth instead into the stevedore’ s contractual obligations

quent implied obligation to indemnify?

shaft. ° a a .

| 3

to a shipowner and the stevedore’s liability to the ship-

owner for such breach? a

14. Put more bluntly, has ‘the Supreme Court in for-

mulating the maritime law created a pecking order in

longshoremen’s personal injury cases with longshoremen’s

employers ay the chicken of lowest order upon whom must

fall ultimgfe liability for the full amount of the injured

Jongshoremen’ s recoveries against shipowners and counsel

fees and expenses incurred. by shipowners in their own

defense? ; | .

> ; TI

Where a stevedoring contract specifically covers the

subject of indemnity by an express indemnity and hold

harmless provision, may a shipowner disavow the, exist-

.ence of such provision a claim indemnity under the

self-same contract’ upon -the basis of an alleged breach of

an implied warranty of workmanlike service and a conse-

Statement of the Case - | ‘

Plaintiff, who as the Stevedore’s employee, was the

-operator of the No. 2 starboard winch of the Shipowner’s

vessel the Elin Hope during its unloading injured his right '

foot when it ‘was caught in winch’s - or piston .

_ Suit against Shipowner on claims of negligence and un-

caworthines§ ensued. Invoking Rule 14 F.R.C.P. Ship-

owner claiming indetinity’ impleaded both Stevedore and

Charterer as third-party defendants. They, im turn, cross-

complained for indemnity against one another. Shipowner

sought indemnity from Stevedore upon. the basis of a claim

that Stevedore created an unseaworthy condition which

caused the ‘accident and it thereby breached its implied

“warranty of: workmanlike services; and, upon the express

-| in

indemnity provisions in ‘the contract between Stevedore

and the cargo consignee, ‘News Syndicate Co., Inc., whieh

provided that Stevedore indemnify the News, its subsidi- |

aries and aftiliates, and any other persons and companies

‘for which the News may be handling paper.* Stevedore -

claimed indemnity:from Charterer because it through the

Shipowner {furnished — the accident-producing deficient .

equipment and ‘consequently both breached its contractual

promises and was actively negligent as contrasted to

Stevedore’s passive negligence. =~ : |

The facts in brief are: ThesNews purchases pewsprint’ |

from the Quebee North Shore Paper Company, of Baie

Comeau, Canada. Shipments to New York are via Ship-

‘owner’s vessel, the Elin Hope, which exclusively engages

in shuttling between Baie Comeau and: New York while the

St. Lawrence waterways are navigable. Her sailing time

‘between. ports is. approximately 5 days, and her ‘eombined

_ total loading and unloading time is contractually fixed at

nae - § days. a ; os . | 7"

When she arrives in New York, Stevedore unloads her

‘pursuant .to its: contract with the News which provides,

inter alia, that Stevedore ‘‘ provide all nécessary labor ‘and

services to discharge, unload and handle paper from ships

| ° + * * * in a prompt and efficient manners’ * * with all rea-

a5 sonable speed”’, and that stevedoring charges ‘cover. any «

: and all costs of unloading from ships with ship’s gear.”’

_ There is nothing in the contract which requires Stevedore

to inspect or repair ship’s gear. ,

For this service, thé vessel ofserates. under a written ~ =

_ time charter which obligates Shipowner to ‘‘keep the.vessel

WPREMRNDIE TIC. 8k. sea was-offered-to-support.the allegation_of Stevedore’s ___

creation of the condition. After the verdict in the main action Ship-

owner’s contention was that Plaintiff's negligence be imputed to

Stevedore as a-basis for the indemnity claim (Pet. appendix below,

585a). The Shipowner also’ unilaterally withdrew its second claim

-*based upon the express indemnity provision without consent or ac-

quiescence by the Stevedore ( Pet. appendix below, 66a-70a }.

are

ina : theceaaibe ‘efficient state in hull, walaliiasoies and equip-"

ment for and during tue service,’ to ‘maintain the gear of

the ship as fitted’’, and to give Charterers use of any gear -

on board.

re The unde takings Shipowner assumed in the. Charter

were the same as those Charterer had previously assumed |

toward Shipper and Coissiagen i in the contract of Affreight-

ment between Shipper and Charterer, which additionally

stated that unloading was to commence when the Cope

reported the vessel ready.

Ev idencing by actions ioaliinn louder than words to

confirm ‘and défine its plain contractual undertakings, the:

Shipowner’s crew, in anticipation of necessary use in the

unloading operation, inspects the vessel's unloading gear

_and machinery before supplyi ing it for‘the New York long-- |

slioremen’s use. “Given good weather, such inspections are

. made, at sea during thé voyage. If the weather is bag, he

they are made after docking but before longshoremen

come aboard. . . -

W inches are inspected or should be inspected, by the -

ship” s engineer for the purpose of ascertaining among

other things, whether each has a safety pin for its handle. .

The engineer is responsible for making any sieoessary—v. ae

winch. repairs. |

‘There was oii ities during the. entire voyage from.

. Baie Comeau to New York. The winch inspection was

“made en route.*

Once unloading operations begin, ‘the ship’s iil tour

the deck and observe its gear ’s mechanical: functionings +

and the ship’s carpenter makes-half-hourly rounds greas-

= ing and oiling the wincltes. ae i.

“* * Information relative to the crew’s gear inspection and repair

duties came from the testimony of the Shipowner’ s Mate and witness,

Johnson. 2,

On this occasion, the Elin Hope tied up to\the News’ pier .

at 7:20 a.m. on January 4, 1956. At S:00 a. nix gangs, of

longshoremen ‘came anenre to unload the’ vessel's SIX

~ hatches.

Plaintiff, a winchman with 24: 25 years experience as

such, who had worked the Elin Hope*s winches on Approx

mately 50 prior dockings, was the starboard, or burton

P winchman of Eddie Lanzeri’s gang which “worked the

#2 hatch. ©

Once aboard, plaintiff immediately proceeded to his

regular assignment, and at that time noticed that his

winch lacked a safety pin—a . pin hung from a chain at-

tached to. the winch and inserted into a hole on the winch

handle’s hub when the: winch is unattended thereby lock-

ing the winch handle in neutral and_ preventing wine h

movenient in the’ event of accidental contact . with the

handle, The pin plays no er in 1 the operational use of

the winch. .

Plaintiff at no time reported the absence of the pin to |

anyone connected with either the eT or the maint

nes

owne r..

——}"

‘dent 1

~12:00 noon. when he sminstivated the winch a closing dow ne

its steam valve and went to lunch. - een

Returning at 1:00. p. m.: he opened the valve. Shortly

thereafter he was advised that work would. hé suspended

at hatch #2 because continued operation there would.

endanger men working at See. #1 — which had.

. fallen behind.

Sa advised, Plaintiff went to close the steam valve. In-

stead of reaching over ‘to the valve from the winch’s

starboard side, he sought to reach it from the port side .

by- stepping on the piston shaft. In so doing, he ‘lost his

balance, fell over the winch handle, thereby activated ‘the

winch.. Its piston movement injured ‘his toe... ¢

Ae | seams Cate

Johnson, the ship’ s officer who testified, was not 1 more

than.3 feet away from Plaintiff when the accident hap-

pened, Contradicting Plaintiff, he said that after the acci-

dent he saw the pin in its appropriate place property

affixed to a “chain and at that time: inserted it into the hole ,

in the winch handle.

Only the main action was tried to a jury, it ving been

stipulated that the issues on an amended third-party com- -

_ plaint and. the respective cross: complaints be determined

* by the — .

The jury’ ’s verdict was in Plaintiff’s favor and against

the Shipowner for 14 of the total damages.: - It specially

found the vessel not unseaw orthy but the Shipowner negli-

gent and Plaintiff 75% econtributorily negligent. |

In. its findings in the third- party action, the District .

Courte properly determined that implicit in the jury’s ver-

dict was a finding that Shipowner was negligent in-net~ -

_ providing. a safety pin which, id- provided; and used wouid

have. avoided the accident. -

Additionally, it found: that Plaintiff? s contributory neg-

ligence lay in his stepping. on the’ piston rod and leaning

_ over the winch operating, handle in order to reach the —

“steam-valve whereas proper procedure and.due care called

tor him to walk around: the’ winch and turn it off from

the starboard side. It is significant that,. though Plaintiff

was the winch's operator, the Court neither found him |

negligent in continuing use of the pin-lacking winch nor.

in failing to inform either Shipow ner or Stevedore of its ©

absence.

the District Court found tat ‘*it was the Plaintitt’s %-,

~ Shipow ner in n failing to one 72 a safety | pin ‘that brought

about. the injury. nets

It added. that Johnson, and therefore the Shipowner, |

did not affirmatively know of the pin’s absence before the ;

accident, but the Shipowner Was additionally neglige nt

in, not correcting the dangerous ¢ondition—i.e, the miss-

ing: pin—that it reasonably should have discove red.*

Turning to the Stevedore,; the District Court reasoned

that because the Stevedore’s. operations were going on

from 8:00-a. m, to 1 :15 p. m. (less one hour for lunch),

it, too, had constructive notice of the -pin’s absence, It

congluded that such constructive notice amounted. to Steve-

dore’s negligent failure. to correct the ‘condition or have

it Corrected, and, from this it further concluded that sueh’

negligence equalled’a breach of. the Stevedore’s «warranty,

of workmanlike service for,-under its view.of the daw Jone e

a Stevedore is said to be negligent, without regard toward

whom and upon wliat basis the negligence charge is Jeyelled,

that ipso facto constitutes a breach of a Stevedore’s war-

-‘ranty and entitles a Shipowner to- indemnity. “It opines

that without exception it has been held iva Stevedore

negligence constitutes a breach of its: warranty

_ Av to the Shipowner’s. manifold misconduct in supply:

ing a_deficient winch and failing to rectify the deficiency

after notice at least on a par with that of Stevedore, the —

District Court concludes that, first, a lack of symmetry in

the law and, second, its inability to find a cas which denied

_‘a Shipowner indemnity because of its own conduct’ as. a

matter. of law mandated that it excuse the Shipowner’s

breaches and characterize its wrongdoings & as name Within

* Although specifically called ‘to the attention of the Courts below

neither took gee of Johnson's testimony relative to the ship’s

engineer’s winch inspection and repair. duties. Such testimony dem-

onstrated that the engineer was either negligent in’ not discovering.

the defect during his inspection or negligent in failing to repair the

condition which: his inspection if properly made would have disclosed:

This testimony at the very least made it plain that winch inspection

and repair. responsibilities belonged to the Shipow ner due not to the

Stevedore.

’

een

we ae; range of the périnissible Gr. privileged, leaving | its

laim to indemnity unaffected.”

In the Court of Appeals. the Stevedore did not ithe

the Distriet Court’s factual findings. «Its protests were

to the legal conclusions drawn therefrom.

The Court of Appeals’ opinion of affirmatice had: to, and

said that it did, accept the factual findings for-they were

not clearly erroneous. It also acknowledged that the Ship-

owner: was ; guilty of breaching at least one contractual

; _ obligation, is Le, its undertaking to ‘supply proper winches. '

However, it too winked at. the: 'Shipowrier’ s breaches.

instead, it focused solely.upon the negligence .stigms —

Stevedore vicariously derived from the Shipowner’s

foundational derelictions. Using paterit hyperbole, it dis-

torted the Stevedore's presence aboard the vessel fog,

hours into.a charge that the Stevedore after notice of the

deficiency permitted continued use of the winch and that

its unworkmanlike. services was responsible for bringing —

the defect into play and causing the injury. By a shuffle

_of words, it obscured the fact that.it.was the Shipowner’s

breaches -whiclf loosed the hazard, caused the accident and

directly led. to its initial liability, and that such breaches |

were the basis for. charging Stevedore with negligence to

plaintiff in the first-instance. It turned the parties’ con-

tractual undertakings completely around. It transferred

‘to the Stevedore the very. obligations which the Shipowner

contracted to perform and charged the Stevedore with a -

breach of contract and indemnity liability. because thé |

Shipowner’s substandard performance taused the accident.

What emerges is that by use of. verbal barrages, the

- opinigns below have so completely altered the ‘facts initially

found that Stevedore finds, itself being saddled with the

_ len

* It seems that: if all lower courts were to assume the attitude

adopted here until the Supreme Court gives a’lead there never will

be a case where indemnity is denied because of shipowner misconduct.

Swe

very obligations the ‘Shipow ner promised to per time They

have written into the Stevedore’s contract to unload, an

- undertaking to the Shipowner to discoyer ‘and correct defi-

ciencies in the. vessel’s equipment, and written. out of the —

’ Shipowner’s agreement its undertaking to provide--and-

keep the vessel's equipment fit’ The Stevedore has thus

heen: placed in a position of warranting to the Shipowner

the propriety of the shgp’s p hee equipment; The real mean-

ing of the opinions: below is that stevedores are ship-

‘owner’s insurers and as such are required to indemnify

shipowners for shipowner’s own negligent violations of

their ‘contractual promises treferrghl le to ship’s equipment,

The erroneous conclusions | below. stem primarily from

the false premise that a Stevedore’s negligence equals a

‘breach of. warranty to a Shipowner. The unsoundness of

the premise emanates from a confusion of the duty which

the Stevedore owed to Pi as its employee with the

obligations it Owed to the Shipowner despite thé clear ad-

monition in Ryan Stevedoring Co..v. Pan-Atlantic SS.

Corp., 350 U. S. 124, 76 S. Ct. 932, 238, 106 L. Ed: 133, that |

duties owed to the injured worksnan aré not to be used~

as the guides far. evaluating indemnity rights between

shipowners and stevedores. .

‘The Courts below compounded this ianihiiten to ‘justify “

turning their backs on the clear fact that the Shipowner’s

breach of its contractual obligations to supply and main-

tain the-winch in proper order, unamplified by any Steve-

dore misconduct, led directly to ithe occurrence: and to Ship-

owner’ Ss lability. .

Reasons for Granting the Writ

J 4

(A) Ever ‘since the Ryan case, supra, granted indem-

nity to a shipowner_ as a. matter of law, longshoremen’s | |

“personal injury. suits against shipowners have, with but -

rare exception, sprouted indemnity claims by shipowners

ae Ee

against the longshoremen’s stevedore-employers. nes

inasmuch ‘as the succeeding Weyerhacuser S.S. Co. v.

‘Nacirema Operating Co., 355 Us S. 563, 78 S. Ct. 438, 3

L. Ed. 2d 491, Crumady v. The J. H. Fisser, 358 U. S. 423,

S.:Ct. 445, 3 L. Ed. 2d 413, and Waterman SS. che :

», Dugan &--McNamara, 364 U. S. 421, 8LS. Ct. 200,

» Ed. 2d 169, cases were favorable: to. shipowners-vis-d- is “

i edores: on the narrow/ issues decided therein, it seems

that lewer courts have/taken this to mean that:the Su-

’ prenie> Court: has mandated that indemnity be given to

shipowners as a i“ .er of law in all éases regardless of

the. facts, and that/every. effort -be bent: toward finding a

~ means of passing Shipowner’s liabilities over to stevedores

- even if the pringiples enunciated by these very cases must .

he br ushed aside or distorted.*

ete sich/s not the case, that notion must be quickly -

| . - dispelled. , ‘While lower Courts labor under such belief, as

_ the case/at bar evidences, they will tend to abandon the

requisite, though difficult, independent analytical approach

to concrete factual situations and instead apply the words,

‘but not the ideas, of the Supreme Court cases and auto-

‘matically and indiscriminately stamp stereotyped conclu-

’ sions granting indemnity. onto all cases even though the -

facts call for the.opposite result. Another though like

danger is that lower Courts, in order to justify, conclusions

‘which they think mandated by the Supreme Court cases,

~ will mold: their factual findings hy emphasizing, de-em-

phasizing or overlooking facts so as to enable an “éasier

fit to a prejudged conclusion which would be incongruous

if tacked onto the full factual picture. ee

Here, indemnity was awarded as a matter of law upon —

clear and undisputed facts. By granting the. petition and

* Atlantic &. Gulf Stévedares, Tuc v. Ellerman ine, td., 369

S. 355, 82 S. Ct. 780, 7 L. Ed.\2d 798, ‘was. decided fter the

uaa below was argued but before decision.

’ ** Witness for example the separate reasons advanced by the Dis-

trict Court and. the Court of Appeals for excusing the Shipowner’ s

breaches and for charging Stevedore with a breach.

a Teen

decisions. -

considering viadbis the Courts below have truly accepted

the concepts embodied in its prior decisions ‘ar whether.

they were ignored in principle but bewed to by ritualistic,

- albeit empty, use of their words, this Court can mark. out

bounda: ies which. yvill serve as guides in future cases and

thus prevent future. miSconee}-tion of the meaning of its.

The rationale of- the opinions below distilled: to their

ure essence is: Sinee the: Shipowner’s breaches ‘of con-

tract made thé Stevedore negligent to Plaintiff it alsé made

it gujlty of breaching its wat ranty to the Shipow ner and, .

- therefore, the Shipowner’s breaches did not merely evap-

drate, they became the Stevedore’s breach and: required it

— indemnify Shipowner. cole

True application - of the principles of this Court's prior

opinions to the facts as found required a dismissal of the

indemnity claim as.a matter of > ‘law for if the Stevedore

was the: one sued and held liable to its Employee it would

have been entitled to indemnity. from the Shipowner, de-

spite Stevedore’s so-called constructive ‘notice. (See, Mow-

bray v. Merryweather [1895], 2 Q.B. 640; The No, 34, 25 FB:

os 602; Restatement ofeContracts, § 334, illustration’ 5.)*

* Below, the questions of Shipow ner.’s negligence and con-

tractual breach, Stevedore .negligence and Sains

breach, and Shipowner conduct precluding indemnity were

improperly considered in sterile: isolation from .one an-

other and without relation to the: factual panorama in

order to attain the desired result (Cf. Continental Ore Co.

_v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-699,

82 Ct. 1404, 1410. Their method placed the’ — of

* And for cases which wentdel indemnity to Shipow ners’ W here

their employees are injured because of de ficiencies in equipment fur-

nished by others. See Standard Oil Co. v. Robins Dry Dock. & Re-

pair Co., 34 F. 2d 182; U.. Sy. The Manzanillo, 190 F. Supp. 22°.

See also, Albina Engine &. Machine Works v. American Mail Lines,

Ltd., 263 F. 2d 311; Pennsylvania Railroad Co. v, McAllister cal

erage. Line, Inc.; 240 F. 2d 423, afig. 137 F. ‘Supp. _=

noe

eee

Stevedore conduct in the foreground and kept ‘it ‘there

magnifying it out of true relational prapertion to the facts —

anti the.other questions. Thus,. they micrified the Ship- ;

the Stevedore’s negligence to Plaintiff derived through

Shipow net’s breach into a Stevedore breach.

In treating of the meaning of the Stevedore’s “negligence

they confused the Stevedore’s duties to its Employee with °°.

regard to the equipment the Shipowner supplied and was

_ owner’s breaches into mereé-inconsequential trivialities and—

supposed to maintain, with a contractial obligation owed —

* by Stevedore to: Shipowner. By thus equating Stevedore’s

duty to Plaintiff with Stevedore’s duty to Shipowner, they

transformed the Shipowner’s breach to the Stevedore wand

the Stevedore’s breach to ‘Shipowner. :

-A logical and chronological approach by starting with

~~ the Shipowner’s two-fold contractual -breaches--the neg-”

ligent. breach in supplying defective equipment and the

negligent” breach in. ‘failing to correct after at least ¢con-.

structive notice of the-defett, the first of which the Court

-. of Appeals admits and the second of which is an equally -

clear breach: of ‘the undertaking to maintain. the equip-

ment—places the case in more proper perspective:

When:a defective or deficient vessel or its equipment,

or for that matter any unreasonably unsafe place or ap-

‘* pliance is furhished, for the use of a ‘stevedore’s employees

bya shipowner, or some other third person, and some time

factor is involved, the stevedore becomes liable to its em-

ployee who is injured thereby, regardless af the ‘fact that

the third person had agreed with the employer to: supply ‘

_and maintain the equipment. : This is so because, as between

employer and employee, the employer owes to the employee

a special duty—a non-delegable duty—to provide the: em-_

ploy ee with a safe place and saf¢ equipment: And if in-

jury results to the employee from impropriety of place

or appliance, the employer becomes liable to him despite

the fact that the true causal fault is that of the third-per-

. ei : . \ des [ ie :

A eye <

son who had undertaken to carry out “supply and repair wi

functiéns, and has breached his undertakings to. the ¢m- ¥

ployer in that'regard. (Cf. Shenker v. Baltimore and Ohi. 0

Railroad Company, 303 FF. 2d 596.) But in such instance,

‘ while the employer becomes negligent to his employee and

‘therefore liable a the employ er has. a right to indem-

_ nity from the third person ‘whose: contractual breach “has

led to the employer’s liability, and the employer’s const fae-

tive notjce, i.e. its failure té discover and correct, cannot

under Ryan and Mowbray be used to defeat. the emplover’s

indemnity "Sal eae oy 7 : :

~~.

5 ; a

| Such js the plain ease here, but the Courts below, disre- $:

+ garding. the fact that the ‘Stevedore’s. negligence to the

Plaintiff © emanated .from: the Shipowner’s breac +h,“ has

equated that type of Stevedore negligence withsa breaci .

of its contractual warranties. By, this error of ‘under- - °

standing, .the Sup lier has been awarded indemnity from:

~ the. Employer: rather than the reverse in violation of the =. |

clear, warningscontained in,the Ryan case. Actually irdem-_ |

nity has been awarded for no other reason than that tht:

Stevedore is Plaintiff’ s employer.

_ Ryan makes it very clear that the Courts Delow hav ef

avoided its lessén when it said: Peas. :

(350 U. S. 130) ‘A’ like result (indemaity) occurs

where a shipowner sues, for breach of warranty, @

supplier of defective ship’s gear that has caused in-

| jury or death to a longshoreman using it in the course

_* of his.employment on shipboard.’ i in canna

theses supplied. eo

be e ‘e Satan

(350 U. S. 134) ‘<Petitioner: suggests that, because

the shipowner, had an obligation to supervise the stows | *.

age andshad a right -to reject unsafe stow- * :

age of the cargo and did not do so, it now sRould be

barred from recovery from the stevedoring contractor

of any damage caused by that contractor’s uncorrected

failure to stow the rolls ‘in.a reasonably sa e man-

ner.’ » Accepting the fact# and obligations’ as \above

stated, th@ shipowner’s present claim against the con-

‘tractor should not thereby. be defeated. W hatever

may have been the respective obligations of the steye-

, doring contractor and of the shipowner -to the injured

longshoreman for proper stowage of the cargo, it is. -

clear that, as between themselves, the contractor, -as

the warrantor of its’ewn services, cannot use the ship

owner's f aihare. to, discover and.correct the contractor’s

own breach of w arranty as a defense, Respondent’ S

failure to, discover and correet petitioner’s own breach

of centract,cannot here excuse that breach. és

‘The stevedoring contract itself demonstrates tliat the

term. Stevedore : negligence: must be confined within the

houndaries* of the employee-employer relationship.* It is

barren of even intimation that Stevedore assumed an, ob-

ligation tothe Shipowner to eithr inspect Shipowner’ Ss

8 -

equipment or to remedy: defect aes

To the contrary; the ship’s crew’s inspection: and repair

activities demonstrate that such obligations by practice and

tradition belong to vessel operators: The charter agree-

ment by restating them in writinigeexpresses the traditional

understanding and settles the obligation of performance:

between Shipow ner and Charterer.

Indeed, any steps by Stevedore in that direction would

_ be an unauthorized duplication ‘of Shipowner’s contrac-

| tually “required activities and, therefore, would be neither

a prompt nor an, efficient discharge of Stevedore’s under-

takings to unload the vessel with all reasonable speed.

- ~ . ie

* ActMially the term “constructive notice” is also ‘mistised when

~ applied | to. the Stey edore-Shipowner relationship since it presupposes ~

a non-existent, obligation running from Stevedore to Shipowner to’

~ discover and ‘correct: deficiencies in the vessel and its appliances. Of

-course, the tersp’s usage.is proper within the ambit’of the Stevedore- -

J ongshoremhi an relationship because once that relationship exists the

duties owing by an eo er to its employees4ome into being.

e -

“The eases on this subject clearly and uniformly confirm

that a stevedore’s .work does not entail ins weting and

repairing ship’s equipment and Ahat a spite owes 10

duty toa shipowner: to discover and correct defects in

ship equipment, albeit it owes such duty: to cits own em

ployees (Mowbray v. Merryweather, supra; Berti v: Com-

pagnie de Navigation Cyprien Fabre; N13 TF. 2a Vi

American Mutual Liab, Ins. Co. v. : thews, 182° F. 2d

- 322: Se iarrillo v. Steamship S/S°F rddC hristense n, 206 F.

Supp. 182).

Mow bray, which Ryan ve as a foundation stone, con- .

tains facts identical with those at: bar. There a ‘stevedore

initially held liable to its own employee injured hy patently

defective equipment supplied by a shipowner, Was, despite

Pie

having constructive. notice, awarded indenmity against the —

shipowner because of the shipowner’ s breach of warranty

in supplying defective’ equipnient led to. the stevedore’s:,

liability to its employee.

The Restatement of Contracts (§ 334) aioe — ,

‘bray’s precepts, stating in Illustration 5: :

“A contracts to supply B with apparatus for un-

_loading cargo, -A-chain so furnished by A is defective,

and by reason of its breaking C is injured. C gets

judgment: for. damages against B, his employer. B

can get judgment against A for the amount so paid.’’

. ::

Here, the Courts below have not merely denied indemnity

to a Stevedore in Mowbray’s position vis-d- vis a Ship-

owner, they hav e aw arded indemnity against it.

In American Mutual an identical fact: victnre: is again |

_presented.. A guy rope furnished by shipowner with a

_ patent defeet broke while being used by a ste ve edore's

employees. There: it was said: : ,

"(182 F. 2d 324) “Ip both of those eases (Ww éstchester

Lighting Co.. Vv. Westchester: E states, 278 N. Y. 15 , 15: ~

od 567, and Rich v. United States, 177 F. 2d 688),

i ‘wines cause of injury to the employee was.

_ breach of a contractual duty owed to the promisee to

do the work properly. In the case at bar no promise .

. by the employer can be implied that he will not use

equipment furnished, him by ‘the shipowner to be used

for the very purpose to which it was put. Nor can a

promise be implied that he will use care to detect any.

defect in the equipment which patently existed wlien

the equipment was delivered for use by the employ er.

To imply such a promise would mean ‘that the employer

agreed to protect the shipowner against liability aris-

ing ‘out of the shipowner’ s own negligence. In the

absence of an express promise; such an implication

would be utterly unreasonable, ° Hencé we can find no

-contractual basis for indemnity or contribution.’* * (Mat- |

ter in parentheses and emphasis nuppliod. ) ;

i -

(182 F. 2d 325) “In the case at ba t the stevedoring

7 firm never owed the shipowner a duty to: discover

_ defects in equipment. which: the shipowner furnished

for its use in loading the ship. Its duty to discover

patent defects in such equipment was owed ae to

its employees and that duty the Longshoremen’s Act

abolished, substituting therefor: an absolute hats to

. pay ¢ompensation.”’

Berti said: »

(213 F. 2d 401) “ American (the ee ‘had no

duty to inspect, but it was fully aware of the condition |

of ship's equipment.”’ (Matter in parentheses ‘Bup-

plied. :. nat |

.-Here there can he no factual basis for-a stAtement that

this Stevédore was ‘‘fully aware of the condition’: The

factual finding is directly to the contrary on this point. .

r .

é @ e * .

, it: . \

~~ . ~

Ryan deeapnabrates that under the facts this Shipowner |

as the one who set in motion the danger which led to the

accident is more properly fitted to the indemnitor , role ,

tlian that of indémnitee for the breach of its warranty

as SUPE: lier of defective ship’s gear has caused the Plain--

tiff’s injury (350 U.S. 130): When it negligently supplied.

the gear knew ‘that it supplied it for oe S

fuse. .When a Longshoreman’ was injured as a result,

-own breach will have foreseeingly led directly to its. Bae ‘

‘ liability, and it cannot. utilize the Stevedore’s failure to . .

_ discover and correct ‘the condition as a basis for defgating

Stevedore’s indemnity claim, let alone as a basis.for impos-

.. ing an indemnity liability upon a Ste vedore (Restatement

of Contracts, § 330).

Phar Shipowner ‘may no more be permitted to offensively

use this Stevedore’s failure to discover and correct this

hipowner’s breach than could the stevedore defensively.

ee the shipowner’s failure to discover and correct in the

stevedgre’s s.breach in Ryan (350 U. 8. 134).

In the same vein Weyerhaeuser taught that if_a ship- —

owner’s liability to a‘Longshoreman rested upon its 5 days |

_ worth of constructive notice of a’ defect in equipment by

nature and service belonging to.a stev edore, the mporeet

would be entitled to indemnity. But, if shipowner'’s: lia-.

bility were premised on its negligence in furnishing the

~equipment without correcting the defect or warning of it,

indemnity would not lie. ;

Weyerhaerser has its: counterpart in | Atlantic f Gulf

Stevedores which indicated that: shipowner’s initial lia--

bility predicated upon’ a determination \that- the unsea- °

. worthy and/or negligent cause of the Vaceident was a

deficiency in metal bands binding cargo, absent negligent —

- stevedore eargo handling methods and ‘p ocedures, man-

dates that indemnity be denied. In this ¢ase, it is to be

remembered that ‘the jury’s verdict was based: upon a de-

termination that the Shipowner’s negligence in supplying:

—deféctive equipment was the cause of the aceident, and

that the onhy negligence *in method of. use was that ‘of

Plaintiff hiznself, which had alréady been taken into ac-

count by mitigating his damages. ~e

It was said in Atlantic & Gulf Stev edores:

(369 U. S: 306%) “So faras we ‘eno ‘he, jury may have

found. respondents liable not on either of those twe

grounds but solely on.a third, namely because of de-

pre hands—a matter which was covered by ‘the

-harge to the jury on the -issue of unseaworthiness,.

“a properly so. Weyerhaeuser 8. S. Co.‘v. Nacirema

ee Co., 355 U. S. 563, 567, 78S. Ct. 438, 440,

2.L. Ed. 2d 491. If that was the jury’s view of the

facts, then petitioner plainly would not be liable under ;

its warranty. = a

Crumady presented a more complex, factial situation.

Although the vessel’s initial liability. rested upon a deter-

mination that an. improperly set cut-off device on a boom

rendered the vessel unseaworthy, the stevedore in grossly

negligent disregard of the vessel’s instructions against al-

tering the boom’s position malpositioned it and thereby

subjected it to extraordinary stress and. the stevedore Ww as

additionally operationally negligent in raising the draft.

The stevedore’s actions caused’ the otherwise harmless

and quiescent unseaworthy condition to become a ingen

in the accident which’ would not have oceurred absent 4

gross misconduct. Since the direct cause of the nixtdont

was stevedore’s contractual breach in the grossly faulty

_method and manner of both using and misusing the equip-

‘ment, indemnity followed. (See also, Calmar oe

Corp. v. Nactrema Operating Corp., 266 F. 2d 79, cert. den.

361 U.S. 816.) In a real sense in Crumady the unsedw orthy

or hazardous condition which brought liability to the door-

_ step of the shipowner was created by the stevedore’s

: improper methods of operation. (See also, United States

Bee ks as

v. Arrow Stevedoring Co., 175 F. od 320; almerican Presi-

dent Lines, Ltd. v. Marine Terminals Corp., 234 F. 24.753,

cert. den. 252 U. S. 926; Cf. Amerocean Steamship Com-

-pany y. Copp, 045 Fr. 2d 291; United States v. Harrison,

245 F. 2d 911.) ) a Pot nae "

Plainly Crumady does- not warrant inde mnity here

‘where no Stevedore abuse or. improper use-of the deficient

equipment heightened its inherent hazard. For that mat-

ter, the Stevedore did not even actually know of its exist-

ence, and nothing occurred, to exe ite its suspicion’ of

Ganger (Sciarrillo vy. Steamship S/S Fred Christensen,

_ supra), Analogy te “Crumady may be drawn only by at at-—

tributing Plaintiff's ‘operational negligence to Stev edore.*

Furthermore Crumady demonstrates that the construe-

tive notice indemnity theory is not proper for there the.

Stevedore could:be said to have had such motice of the

unseaworthy condition constituted by the cut-off device’s

setting by virtue of the.continuous w orking of the winch

for-1 hour before the occurrence. But, there is not the.

slightest sug&estion in Crumady that indemnity could rest

solely upon that basis.

If the Crumadi y boom had collapsed because of its con-

dition alone, without the grossly improper usage to which -

the stevedore subjécted it, indemnity would have been

denied as a matter of law. (Cf. Atlantic & Gulf Steve-

dores, Inc. v. Ellerman Lines, Lid.; supra.) ‘Such is the

factual situation here.

Moreover, even if it could be said that the Stevedore .

breached its contract on the hasis of the constructive notice

theory of the opinions belew, it is. factually apparent that

“it was not such breach, which foreseeingly led to the Ship-

owner’s liability. Such liability Bowed ina straight line ©

*The Courts below did not take-any stand on the question of

whether an injured workman’s negligence in bringing a defect, into

play can be imputed to his employer for the purpose of ‘imposing an

indemnity ‘liability upon the employer. Therefore, although it was

briefed below, it is not briefed here. ~

o%,

from the Shipowner’sown breach of contract in f urnishing

sub-standard ‘equipment ‘and its super-added breach in not

correcting the condition after. itself having constructive

notice and it was not heightened-in any manner by the

breach charged to the Stevedore. Indeed, the factual de-

termination that the conjoined negligence of: Plaintiff and

Shipowner brought ‘about the injury ‘negates _ any theory... -.--

that the Stevedore’» breach’ led to the Shipow ner’s liability.

_Furthermors if’ the Stevedore is’ to. be charged with.

materially ‘breaching its contract by failing to do some-

thing about having the equipment repaired after construc-

‘tive natice, must it not follow that the Shipowner, who

had the‘contractual duty ‘to repair, by-its failure to repair *

- after having at least equivalent notice, and its additional —

and initial negligence in. supplying defective equipment

materially breached its contract? (See, Hodgson v. Lloyd

- Brasiliero Patrimonio Natjonal,, 294 F. 2d 32; cert. den.

369.U. S. 848, 82S. Ct. 931; Torres Cruz v. Hudson rene

ship Company, 206 F. Supp. 216).

Additionally, any suggestion that a constructively knowl-

OK edgeable stevedore has. an obligation to acquaint an at.

least equally. knowledgeable’ shipownér with the steve-—

_dore’s non-existent knowledge of the deficiency so that the

. Shipowner may repair; sets up an artificial, nonsensical

“and unrealistic set of manners for the conduct of shipboard -

activities. It suggests to stevedoresthat: they go_around

and around in senseless circles talking te shipowners about

things stevedores know nothing about:

‘In addition to erroneously equating ‘Stevedore’s negli-

. gence to Plaintiff with a breach of contract to Shipowner, ;

the errors in holding that ‘the Shipowner’s conduct was

not sufficient to preclude ‘indemnity recovery were more —

significant. While in the former instance the opinions mis-

interpreted the law in ‘failing to appreciate the separate .

natures of the obligations Stevedore owed to Plaintiff and

to Shipowner, i in the latter instance their fajling was of a

kind fundamentally destructive to the decisional process

itself and it cannot be bypassed or condoned lest it become —

accepted practice. -They disregarded the facts of. the case

_ before them and. instead substituted the facts from other

cases SO as to. enable thei to tise the conclusions the other

cases reached.

The District, Court’ adopted to factual, picture wile ‘h

a ee

the dicta in n Huger Vo Danipshivaktienelskabet Inte rnational

“10 F. Supp. 601, affd. 274° F. 2d 875, cert. den. 363 U2 So

803, conjures up, and the Court of Appeals substituted the |

facts from its own opinion in | Pettus v. Grace pane. Tne.

‘“—— F, 2d r wee ! — :

Huger’ s imagery which invokes visions of an obviously

ian ‘and weather battered vessel limping into port, with.

conditions which the crew was powerless to reetify is cer-

tainly not in accord with the fac ts here. This vessel docked

after 5 fine weather sailing days during which its engineer

had ample opportunity to inspect the winches and make

any necessary repairs, and there was certainly no Ship-

owner’s warning of danger to the Stevedore and Steve-

dore's undertaking to correct as there was in Huger. The |

District Court should have governed itself by the conerete

record facts instead of allowing the “facts” cof another

case to serve as the premise for its conclusion.*

Reliance upon Pettus is also glaringly inappropriate. It

too is factually grossly dissimilar. There the winch defect

for which the shipowner. was held liable, probably on unsea-

worthiness grounds, first manifested itself during opera.

tions; the stevedore’s hatch boss actually’ knew of the de-

fect and the fact that it made the movement of each draft

imminently dangerous. but, he nevertheless took no can-

tionary action and instead continued operations; and the

jury in its verdict against the stevedore could haye found

that the defect developed after stevedoring ope rations had»

, commenced and that the vessel’s personnel were not. in-

-:*

° {nverestingly, Hugev's suppositions are proved totally incorrect .

at pages 360-362:of Two Years Before the Mast, by Richard .H.

Dana, Jr. (Harvard Classics, Shelf of ‘non-fiction, Vol. 23) which

was reproduced in petitioner’s brief below.

ma)

Nee

forined of the de fect before the accident by the ‘fully and

actually knowledgeable stevedore. Thus it could be said

that the ‘stevedore’s continued use under these facts was

an inipreper nethod of operation which brought the unsea

Worthy condition inte. play, and that relatively shlgwwnint

was not guilty of fault of such character as to preclude

recovery, (See also, American Export Lines v. Revel, 266.

K, 2d 82; Cf. Hodgson vy. Lloyd Brasiliero Patrimonio -

National, supra; Torres Cruz v. H sdson Stoamenip Com-

pany, supra. ) : ne

Here the only. Stevedore related person ‘actually know- °

ing of the deficieney and continuing to use the winch was °

Plaintiff, its operator. The jury either found him negligent

in that regard and'translated such negligence into a reduc-

‘tion in his. verdict, or it did not find him negligent: in

“fecontinuing to use the wineh. If the former, Shipowner

has already been indemnified by Plaintiff for the damages

attributable to his own negligence, If the latter, is it not

nonsense to charge the otherwise unknowing Stevedore

with negligence in the continuing use of the winch? }

While it does not say so in specific language, the Court

of. Appeals’ opinion makes it «self-evident that it has

adopted a ‘policy of awarding indemnity to shipowners

against employ: ers in all shoreside workers ' personal i injury.

suits. '

‘Using. verbal alchemy, it has transmuted. Shigiwwner’ s

breach of contract into Stevedore’s breach of contract so

that in a factual situation which would ordinarily entitle °

Stevedore to indemnity from. Shipowner, it has done just

“the opposite. By mere ritualistic incantation of the magie

- fords: *tunworkmanlike service of the Stevedoring com-

pany was responsible for bringing the defect into play and

causing the injury’’, it has mechanically concluded that

indeminit¥ against the Stevedore must be granted as a

matter of law.

_ In cavalierly exeusing as a matter of @aw the Ship--

owner's contractual breaches in negligently supplying defi- ”

a iy: m . -

cient “equipment. and in failing to repair it afte having at’

the very least just as miue ‘th knowledge of it as the Steve-

dore, the Court also brushes aside its own opinion in Booth

S.S. Co. v. Meier & Oelhaf, 262 F. 2d 310, by the pe rfune-

tory statement that the Shipowner is not a professional

equipment supplier, and, therefore, “even though .it has

acted as an equipment supplier and has breached an equip-

nent supplier's warranties, it may not he held to. account

for such breae hes.*

In this regard it must be-said that ‘What thé Court said.

.tibout Boothcantiot” ‘possibly be reconciled with, What it

said in Booth. While Booth is totaliy relevant here, the .-

following brick excerpt conmhenting upon the Mowbray

‘ease in which a Stevedore was awarded indemnity: from a

Shipowner (262 F. 2d 314) demonstrates the Court’s in-

consistency, and makes evident its: treatment of shipowners

as some favored class apart. . .

; “Tn the Mowbrap 4 Case -it was stipulated - that the

“plaintiff's ‘otiveudase’ ’s) failure to detect the defect

was negligent, ah in the .others the fact that the

defect was not hidden is equally clear: The point: of

concern in each case appears to have been whether

the party suing for indemnity could recover despite

his own possibly negligent failure to detect the flaw;

and in all it was held that he could so recover.’’ ( Mat-

ter in papeetinaes supplied. )

“What really has been said i is that no patter Ww hat + seni.

‘tion a ship’s equipment may be in, and no matter what

opportunity the shipowner has to remedy it, once a. steve-

dore sets foot aboard. to perforin labor its inhalation of

a few breaths of shipboard air inv ests a stevedore’ S person —

‘

* One can only wonder who other than hiooe ners professionally

supply a yessel’s winches for longshoremen’s use in- unloading. the

vessel. In fact, this shipowner also acted,as-an expert inspector and

repairer of the intrumentality as is evident by its engineer's activities.

(See also, Torres Cruz v. Hudson Steamship Company, supra.

¢ 28 *

. a eo? a

with an obligation to indemnify. the shipow: ner for any and.

all shipow ner derelictions and breaches of warranty.

In effect, ‘the Stevedore is made to warrant to the Ship-

owner the adequacy and propriety of the Shipowner’ s own”

equipment, and Shipowner’ s obligations in regard to its :

own equipment are. nullified. Where the Shipowner has

committed a wrong, the Stevedore is being held to in-

-demnify it for that very fault.

‘Apparently, the Court of “Appeals has adopted ship-

owners as another group of wards of the Court, and it has

secured to them, i in keeping with their high position, whip-

ping boyg,in the form of stevedores “who must bear at

shipowners’ own hands those ‘consequences for shipowner

derelictions which would ordinarily ‘fall upon shipowners

if they were\ like other ordinary persons.’ Additionally,

stevedares ar also’ made to suffer the expenses ineurred

- by shipowners in defending against the a s

claims which the shipowners’ own faults precipitated. _

The foisting of liability upon this Stevedore not only

contravenes the concepts inherent in the Supreme Court’s .

opinions on the subject of indemnity, it also sets back the

cause of accident prevention, an often ignored public policy.

factor in. negligence law. 1f shipowners can so-easily pass

over all liability to stevedores, they will haye no- incentive

to expend money: or effort to repair or replace defective

conditions in the vessels and equipment they bring ‘to our

ports. Why should one bother to reduce éasily correetible

- hazards of foreseeable injurious consequence when ‘some-

one else will not only be liable for ‘the damages suffered by -

the injured workman by either paying the shipowner total. ° —

indemnity or by paying benefits under the Longshoremen’s

Act, but also for shipowners’ glefense expenses?

F urthermore, if public riolie required ‘that all liabilities

for shipboard accidents. be saddled upon the injured work-—

_ men’s employ ers, and that shipowners be -relieved of

Tiability, Congress would have accomplished such: result

2 .

‘

‘within the framework and under the philosophy of the

Longshoremen's and Harbor Workers’ Compensation Act

(33 U.S.C. 901 et seq.) Which keeps xtevedore loss costs’

* at the minimam amount consistent with seeing to it that the

bulk of such cost goes directly toward adequately and

speedily benefiting and rehabilitating the injured person:

(See e.g. New York Central R. Co. v. Whité, 248 U.S. 188,

37 S. Ct. 247,61 L. Ed. 666.) Here, under the Court of

Appeals ‘ordering. of things, the Plaintiff gets the least

portion of the charge upon the Stevedore which in turn

pays a great deal more than if ‘it were directly liable at.

. law to Plaintiff. ‘Insight into’ the realities makes it ap-

parent that only a small portion of the over $9,000 the

~ Stevedore is being ealled upon to pay will find its way into

Plaintiff’s pocket. Infact, that portion may be ‘soesmall

that the Stevedore will have to pay Plaintiff additional

_ compensation benefits to bring his personal net recovery

“up to the amount he would have_received under the Long.

shoremen’s’ Act (33 USC 933) -had he’ not* sued the

‘Shipowner. In exahAe. pom ests multiply but injured

workmen obtain no benefit thereby.

In the Ryan case a stevedore was not permitted to use

-the Longshoreman’ s Act as a shield against the indemnity |

claim of a faultless shipowner held liable because the

- stevedore’s, wrongful conduct created the condition which —

_ Subjested. the shipowner to liability to the one injured. It

is not an attack upon Ryan’s concepts to say the dissent —

sin ‘Ryan would be well taken here, for this Stevedere* has

been left with less than it had before the Longshoremen’ 8

Act (33 U.S.C, 901 et seq.) was enacted.

Under that Act this Stlevedore became absolute ly liable

to Plaintiff regardless. of the fact. that Shipowner's and

- Plaintiff’s negligence. caused the injury. In return, Steve-

dore was supposed to be immunized from suit by Plaintiff.

This immunity turns out to be detrimental rather than

beneficial, for if sued and held liable to Plaintiff, Stevedare

‘could have recovered indemnity in full from, ‘Shipowner.

aS a,

oooe “ \v 3)

; fi ae

(Mowbray v. Merrineather, “supra; The No. | supra):

Unider the view of. the law below, the: Act’s : lias taken

“an anomalous and strange turn. By preventing Plaintiff's

suit against Stevedore, it cuts off Stevedore’s indemnity

right against Shipowner.. In exchange, Stevedore is “nade

‘to indemnify Shipowner for the Shipowner’s wrongs de-

spite its innocence vis-a-vis ShipOwner.

Thus, from the Stevedore’s point of view, the Act

has not stabilized its liability, it has not given it the pro-

‘tection promised and it has.not even allowed it to retain

the. rights against: third parties which it had before i it was

given immunity.

Shipowne rs, While. casirlibelaise nothing under it have e be-

come the real beneficiaries of the Act.” . om a

(B) If Stevedore in onder to protect its indemnity rights

was required to assert a cross-complaint (see, .Petius’ v._

Grace Line, supra), it did cross-complain ‘against Charterer,

on the basis of the charter agreement on- the ground that

‘ Charterer, acting through Shipowner, breached its -under-

takings to supply and maintain the instrumentality in good

order. Of course Charterer could then turn atound and

obtain indemnity from Shipowner, It therefore seems that

needless circuity would be eliminated by denying Ship-

“owner’s indemnity claim. The parties would thus remain

_+in their required positions and waste, effort. and expenses |

would be eliminated (Cf. Waterman S. 8. Corp. v. Dugan

& McNamara, supra)” aa

: =| |

- Inasmuch as the comprehensive written stevedoring con- 7

. tract expressly provided for indemnity rights in the event

of per sonal: injury damage claims ¢ or suits, , Tesort to other

* It is apparent that the reason there are not a multitude of cases.

awarding indemnity to Stevedores against Shipowners upon M/ow-

Bray's principles is that the enactment of the Longshoremen’s Act

and other Workmen’s Compensation statutes. did away with.the need .

for the development of the indemnity principle in that direction.

. to and did settle all indemnity” rights arising out

‘ 2s a

31 :

‘parts of the centred to. imply a ‘right, of indemnification

to ead shoul not be permitted. - a an

In this regard it is no Miore material to consider hotties

or not Shipowner would be entitled fo indemnity under the

express indemnity provision than it would be to. consider.

whether the indemnity provided for therein would be more

allowed. The point is that the express agreement sdught

or less faverable to the Shipowner than Ryan mat et

work to be performed. Since it specifically took into. con-

sideration the subject matter of indemnity. under clemen-

tary principles of contract law (Teamsters Local v. Lucas

. Flour Co., 369 U.S. 95, 105, 82S. Ct: 571), implied inde m-

nity rights may not be written into the contract.

“Any other result would in effect. make express con-

tractual undertakings to indemnify illusory and meaning-

less for, if under Ryan a shipowner could obtain, greater

benefits than given’in the expres$ agreement he would

claim away from the agreement, but, if Riyan gave him

less he would claim under the agreement. This would also -

apply. to a stevedore’s actions.. If an express agreeinent

- made a. stevedore a shipowner’s insurer, or in some way

_fastened liability upon. it beyond that which Ryan would

allow, the stevedore would disavow ‘the indemnity, provi-

sion; but, if it indemnified the shipowner at some point

short of what Ryan would allow, the stevedore would insist

that it controlled.

“The rule of- law thus . fashioned would he that either

party could unilaterally declare an express bargained

for.and agreed upon indemnftty under standing to be a

- nullity and by this simple means rewrite the contract with-

out the other parties accord to the revision. ete ene

It would seem that the Court of Appeals in D’Agosta w

Royal Netherlands Steamship Co., > Cir: 301 4°. 2d d05

(1962), had previously: agréed with Stevedore’ 8 position®

- here whem it said: :

(301 F.-2d 107) “Maude sini here, as it did.

below, that the existence of’ this express: indemnity

c*? :

a oe

* agreement precludes an action for indemnity on an

epi warranty. - E |

: te . ;

‘“‘We agree with appellant that-an action- on, an.

implied warranty cannot. be maintained in this case

because of the existence of the express indemnity | pro-

~ vision. Dery v. a 2d Cir. 1959, 265 F. 2d 804;

Foster. Pennsylvama R. Co., 3d Cir. 1953, 201 F. 2d

24 ‘ < ‘

~Has the Court of Appeals now said that it has sista

another double standard in stevedore-shipowner relations

_ which gives express indemnity provisions meaning =

when they favor Shipowners ? :

; ;

The Ryan case specifically equates a stevedore’s ob-

ligation to save a shipowner hafmless: because of the

stevedore’s substandard work performance with ‘‘either .-

* * * 4 bond of indemnity,. or the contractor’s own agree-

ment -to save the shipowner~harmless’’ “(350° U. S. 130), -

when the stevedoring egntract does not contain an express °

agreement to indemnify or hold harmless, but it does not

allow for the substitution of implied indemnity where ex- _

press indemnity has been incorporated into the agreement.

And, American Steugdoring, Inc. v.: Porello, 330 U. S.

_ 446; 67 S.Ct. 847, 91 L. Edt 1011,-and Lobue v. United

- States, 188 F. 2d 800, hold the parties solely to their in-.

demnity agreethent regardless of what rights may ae

. otherwise prevailed i in its absence. on

In Dery v. Wyer, 2d Cir. 1959,, 265. F. Od 804 and -Wanser

v. Long Island R.R., 2d Cir., 238.F. 2d°467, the agreement ~

‘between. the parties called for contrihution.. Therefore,

claims -for full indemnity weré denied because allowing

them would have given to the third-party plaintiffs greater

rights than that which the contract called. for.

The, only difference between this case aa the sited.

eases is that the ‘‘who’’ is to: obtain indemnity has re-

_ placed the ‘how’? it is tote accorded,

The priniplen heretofore stiited ‘do not sinceiaje and may

not be avoided by saying that the Shipow ner is not within ,

the class mentioned in the express indemnity provision.

If it is not included, it becomes apparent that: the parties

to the contract did not intend to grant Shipowner indemnity

rights, be they -express or implied, under the contract,

for they omprehensively listed cither’by name or descrip-

tion all those whom Stevedore was to indemnify. On the °

- other hand, if the Shipowner is one: within the clags for

‘which the News was handling+paper and is therefore to be

"indemnified by the Stevedore, the Shipowner is prohibited

-. from seeking indemnity by implication under soine- other.

part of the agreement.

The Shipowner, eleiming: to be a third- party sbene fic’ iary

of this very stevedoring contract, cannot at one and the

same time both seek indemnity under it and av oid or dis-

regard its specific express dominion over that subject. The

Shipowner must take the contract as it finds-it. It cannot

rewrite it to its own satisfaction, or to merely suit its own

whims. Since any. indemnity rights under the contract

exist only under the clause expressly: providing t therefor

or they do not exist at all, the Shipowner may not obtain ‘ an

indemnity recovery here.:.. Having chosen to expressly . re-

- ject pany -rights under the express indemnity provisions

without the consent or acquiescence of the Stevedore in,

such rejection, the Shipowner’s indemnity award was im-

properly predicated upon other assumed contractual pro-

visions. :

— 34

ae . CONCLUSION

To set right the miscarriage of justice below result-

ing from an erroneous view or disregard of the con-

cepts embodied in the Supreme Court’s prior opinions

-on the subject of maritime law indemnity claims by

Shipowners against Employers that will adversely af-

_ fect a large percentage of the cases pending before

_ Courts in vessel port of call districts and circuits, peti-

tiorier prays that a writ of certiorari be granted and/or —

that this Honorable Court summarily reverse the Court

below. ‘

‘Dated: New York, New York, September , 1962.

Respectfully submitted,.

JosePH M. SoviEro,

Attorney for Petitioner.

Raymonp C.-Green,

Harry ScHECHTER, |

_ Harotp K1xe1N,.

On the Petition.

. APPEARANCES:

/ APPENDIX TO PETITION |

Opinion of. Zavatt, D. J.

NITE Ds STATES DISTRICT COUR T,

MASTERN Districr or New Yor.

Se | oe eee

FRANK Draco, .

; Plaintiff,

against.

: i Y

A/S INGER, et ; )

+2. Defendasél

A/S INGer,. . :

y Third-Party. Plaintiff, -

_Daninus & Kenyepy, [nxc., and -

Iu. INOIS ATLANTIC Corp.,

Third-Party Defendimnts.

. +.

¢ ———

May “ 1961

Pynz, Situ. & Witson, Esgs.,

Attorneys for Defendant and

Third- Party Plaintiff A/S INcer,

Witwiam A. Witson, Esa., | 3 a

ALBERT Robin, Esq., ;

Of Counsel.

Haicut, Garpner, “Poor & Havens, Eses. -

«, Attorneys for Third-Party Defendant,

Illinois Atlantic Corp.,

Opinion of Zavatt, a

Daviv-P. H. Warson, Ese., |

Of Counsel.

Cuartes G.Trerney, Ese, * a :

Attorney: for Third-Party Defendant,

Daniels & Kennedy, Inc.,

RayMmonp C, GREEN, Ese.,

Of Counsel.

“avatt, DJ.

Te plaintiff, Frank Drago, is a longshorerman employed

by the. third-party defendant, Daniels & Kennedy, Inc., a

stevedoring ‘company. On January 4, 1956 he was aboard |

the S.S..ELIN HOPE (owned by the defendant and third-

party plaintiff A/S Inger) which was tied up to a pier at

the foot of Dikeman Street, Brooklyn, New York. He was

working «aboard this vessel-as a.winchman and, in that. —

capacity, “had, been operating the starboard ‘steam winch

ut hatch No. 2.. Immediately before the plaintiff left the

' vessel to go to lunch, he turned off the winch steam. Upon

his return from lunch he started up the steam again and

thereafter left it unattended.and walked over to hatch No.

1 where he was directed by his hatch boss, another em- .

ployee of the stevedoring company, to cut off the winch

until ‘‘the Number 1 hatch caught up.’’ In the process of |

cutting off the steam to this winch his foot was crushed

. by the moving -piston., On the trial to the court and a jury.

the plaintiff and his witnesses testified that there was

srease and oil on the deck in the vincinity. of this winch; .

that it had spilled on the deck wken an employee of .the

vessel greased the winch and applied oil to its moving

parts at various times that morning and that oil had also

' spurted on the deck from the winch while it was operating.

The plaintiff claimed that he slipped on this grease and:

oil as he was approaching the winch for the purpose of

cutting off the steam and that, when he slipped, his foot . —

Opinion of Zavatt, Dod.

came to rest in the area over which the piston moved; his

_ body struck the operating lever of the winch; thereby

activating the. piston which crushed his foot. He claimed

further, that a.safety device, a pin, designed to: keep the

lever in neutral, was missing from the wineh; that he had

placed a piece of wood under the lever to hold it in neutral

position while he left the winch to walk over to No. 1 hatch

and, that.as his body struck the lever the piece of w ood was

dislodged, the lever went down and thereby activiated the.

piston.- He sought to recover against the defendant on the

theories of unseaworthiness and negligence. The. defend-

ant, owner of the vessel, impleaded the stevedoring ‘com- ,

pany, Daniels & Kennedy, and the time charterer, Illinois

Aulantie Corp. Only the claims of the plaintiff against

the defendant were tried to the. court and jury, the parties

having stipulated that the claim over against the im-

_ pleaded defendants would await the outcome of the jury’s

verdict and any issues-that remained would be determined

by the court. The court submitted to the jury, pursuant to

Rule 49(b) of the Rules of Civil- Procedure, written in-

terrogatories which Were answ éred by the jury as follows:

I. Do you find for the plaintiff on the ground that

the ship was unseaworthy? NO.

2. Do you find. for the plaintiff on the pee that

the defendant was negligent? YES. :

3. Did. you reduce the plaintiff’ s damages because

of his contributory negligence? YES.

if so, by what percentage? 19%.

The jury returned a verdict for the plaintiff against the

defendant in the sum .of $4500." Thereafter, the third-

party claim of Inger against Daniéls & Kennedy: and

Illinois, Atlantic Was tried to the court Without a Jury:

bes)

+»

- &

3 da

° . ie. . > ‘om

Opinion of Zavatt, DJ. a

The vessel had completed a voyage from Canada where

it had taken on large quantities of paper purchased by The

News Syndicate, Inc. (not a party to this action.) The

News engaged Dame Is-& Kennedy to unload the cargo in

‘keeping with their blanket stevedoring agreement dated

April 3,.1952. The time charter between Inger and Illinois

Atlantic, dated January’ 30,1950, was in full force and

effect on the date of the accident: It is in the form of’ a

New York Produce Exchange Government: Time Charter

and provides, inter alia: **Charterers are to load, stow,

and trim the cargo at their expense under the supervision 7

‘of the Captain.’> “At the trial, Illinois “Atlantic conceded

that this provision contemplated not only loading but also

di wharging cargo, so that under .that agreement, Llinois.

Atlanti¢: had the obligation to unload.” Nevertheless,

Mlinois Atlantic did not diseharge the eargo itself nor did

it directly engage anyone: to do so in its behalf. Rather,

The News as consignee engaged Daniels & Kennedy to

discharge the cargo.

The paper which was transported . f rom Canada’ to

Brooklyn aboard the vessel, under a bill of. lading signed

by the’master, had been purchased .by The News from

Quebec North Shore Paper Co. North Shore had entered

into a ‘‘contract of affreightment’’. with Hiinois Atlantic,

the time charterer, dated January 5, 1950 and in full force

and effect on the date of the accident. Under that agree-

ment the shipper, North. Shore, was required to load and-

stow the cargo aboard the vessel in Canada. ‘The agree-

ment contemplated that the consignee, The News, although

not.a party to that agreement, would discharge the cargo

at its own expense. Presumably, under the purchase and

sale agreement between North Shore and The News,- the.

seller’s obligations so far as delivery was concerned ended

wher the carga was loaded aboard the vessel thus casting ~

‘on the purchaser, The News, the burden of unloadifig its ©

own cargo. : x .

Opinion of Zavgtt, D. J

Tut Jury's Verpicr

The jury's verdict, though. Supple mented by its answers

tothe interrogatories, ix somewhat qunbiguous. For

ample, the exact manner in Whieh the shipowner and va

longshoreman Were negligent is not specified. While these

specifications are not necessary for the verdict in the suit

-by the longshoreman against the shipowner, they may be

inaterial to-the shipowner’s chiim for indemnity asserted

against both the time charterer and the stevedore, See

| Weye ‘rhacuser SS. Co, Vw Vactrema Ope rating Co., 78 &.

Ct. 488 (1958). Therefore, intorder to resolve the third.

party aspects being tried to the court alone, the court must-

make additional findings of fact which must not be incon

sistent. with the findings expressed. in the: jury's answers

to the interrogatories. or necessarily implied in the jury's

verdict in the primary suit. See Weyerhacuser SS. Cov

Nucirema Operating Co., supra.

The plaintiff's legal theories of negligence and unsea-

worthiness were premised on common factual ‘allegations :

that the deck was covered with grease and oil and that the

safety pin for the vperating handle of. the winch was miss-

ing. While the jury's verdict is ambiguous, it seems clear -

to me in light of their finding that the plaintiff was con-

tributorily negligent to the degree of seventy -tive per cent,

that. the jury rejected plaintiff's evidence and ‘argume nt

that there was grease and oil on the deck; that he slipped

thereon; that‘his foot came to rest as he elaimed; that he >

fell over the lever as he claimed.- Rather, the answers to’

the interrogatories and: the: general verdict returned indi-

cate that the jury accepted the.defendant’s theory of: the

accident, i. ¢., that (1) when the plaintiff was told to close

off his steam he stood up on the piston rod and leaned

over-the operating handle inorder to reach the steam valve

_ on the opposite side of the winch; (2) that proper preeedure

and due care calléd for the plaintiff to walk around his

~ 6a

Opinion of Zavatt, D. J.

winch, in;order to reach the shut-off valve; (3) that in

_leaning over the winch plaintiff lost his balance, slipped,

depressed the operating. handle with. his body. as he fell,

and thereby activated the piston which erushed his toes

hecause he had placed his foot an the piston rod in the

first place... (4) Implicit in the jury's finding of negligence

on the part of the ship owner is a finding. that the ship-

owner did not provide a safety pin w hieh, if provided and

used, would have av meidted the accident. .

T am eonvineed that this .is: what the jury dvicenatand.

in any event, such findings are not inconsistent with their ~

answers-arnd-their verdict. As I must’ make additional find-

ings, those are the findings that I make: - One further .

refinement may be necessary: did the shipowner, through

its employees, know that the safety pin was missing; or

was the shipowner negligent in that it should have known?

The plaintiff testified that he told no one about the missing

pin. Some further evidence on this point was provided by

the second mate, Sverre Johnsen, who testified that at ali

‘times the pin was hanging from a metal chain on the winch. ©

_ The jury evidently dishelieved Johnsen, but it is a big -

. ‘jump from disbelief of the presence of the pin to a finding.

that Johnsen, and therefore the shipowner, affirmatively -

knew that the pin was missing and. chose to do nothing

about it. (1) I find that the pin was missing; that it is more

‘reasonable that Johnsen did not know of the missing pin

and that the shipowner’ s negligence lay in not correcting a

dangerous condition that it reasonably -should have dis-

covered. - pes :

LEGAL Tupontss OF THE PARTIES ©

‘The shipowner has sued over against the time Seitinns

and the stevedore. The shipowner’s theory, against the

‘charterer is that under the charter party the charterer as-

stfmed the obligation to unload the vessel:and that implied -

_in that undertaking is the promise that the unloading would

Pa)

Opinion,of Zavatt, see J.

be done safely and that for the breach oi “that proniise the

charterer would indemnify. the shipowne r for any losses

suffered by the latter.

The shipow ner’s theory against‘ the stevedore i is ‘that the

ste¥edore warranted that. it would accomplish its expert,

'* professional services in a workmanlike manner and indeni-

nify for any loss occasioned by thé breach of that w arranty.

This warranty is implied in the’ following covenant:

— he C ontractor will provide all necessary labor and

services to discharge .. . Papen from ships se BA

a — and efficient manner.’

Although the shovedone Was hired by the consignee of the |

cargo rather, than by the. ‘shipowner and, therefore, there

was not the contractual. privity between shipowner and

*. stevedore that there is between shipowner and charterer,

the shipowner argues’ that it is the third-party beneficiary

of that warranty and its attendant indemnity. provision,

The third-party defendants, the charterer and the steve:

dore,“have of course cfoss-claimed against each other seek-

ing indemnity should the shipowner be suteessful in its

suit. The charterer’s basis for recovery is_an indeninity

provision in the stevedoring agreement entered into be-

tween the consignee of the cargo and the stevedore: By the

terms of that agreement, the stevedore promised to indem-

nify the consignee and its ‘subsidiary and affiliated com-

panies.’’ The charterer asserts that it is such a company.

For its part the stevedore makes general - allegations

that, if it is required to indemnify the shipowner, it will

be because of the. primary negligence of the charterer and

- therefére under the .common law theory of primary-sec-_

ondary wrongdoing it would be entitled to be indemnified

by" the charterer.

Having set forth the. claims and contentions of the, par- ,

ties, it is possible to simplify their analysis. It will Wa

a ° aa

' Opinion of Zavatt, D. Z

. seen that the shipow ner ’s basic griev ance is with the steve-

dére as the party. actively engaged in unloading the vessel,

Under the shipowner’s theory the liability of the charterer

is derivative in the sense that the charterer’s . lability: de-

pends on a finding that the independent contractor, engaged

to discharge the obligation of the charterer under the

charter party, did not do its.job in conformity with its

undertaking. It seems preferable therefore to diseuss the

claim of. the shipowner against the stevedore first and °

leave for later consideration the 7 of the charterer. .

SHIPew NEB V. STE VEDORE

Under the principles announced by the Supreme Court

in —_ Stevedoring Co. v. Pan-Atlantic S.S. Corp., 76'S.

Ct. 232 (1956), and subsequently explained and expanded

by +the Court, a stevedore warrants to a shipowner that it

~- will'do its job in a workmanlike manner and with reasona-:

ble safety and-that any loss resulting from breach of this

warranty will be borne by the ‘stevedore.. In Ryan, the _

- shipowner hired the stevedore but the parties did not

execute a formal contract. What agreement they did

-have was to be found fn letters which contained neither an

express undertaking by the stevedore to-do the work safely

nor a promise to indemnify for a failure to do so. Never-

theless, the Court found the intent of the parties to en-

- compass such an ‘undertaking, characterizing this implied-

‘in-fact warranty as the ‘‘essence’ ? of. the agreement and |

comparéd it to the warranty of a manufacturer that its -

product is sound. In Crwmady v. The Joachim.Hendrik

Fisser,; 79 S. Ct. 445 (1959), there was a formal contract

- between the charterer and the*stevedore in which the

stevedore promised ‘“‘to faithfully funrish such steve-_

_ doring services.’? The Court. said that the shipowner was

the third-party beneficiary of the warranty of workmanlike. -

‘serVice . contained in that covenant and the right to in-

ee te

ox | 9a

Seo \ Opinion of Zavatt, D. J.

demnif? as ‘an insident of the warranty. —Most recently in

Waterman 8.8. Co orp. v. Dugan & McNamara, 81S. Ct. 200

(1960); the steyedore had been hired by the consignee.

The terms of the contract are not specified? i in. the Court's

opinion which treais thd case as controlled by Ryan and

Crumady and designates Ne shipowner as the third- party

beneficiary of the contract hetween the consignee and the

stevedore. > \

Has. the stevedore breac he d its warranty? >.

Although the stevedore’s s obligations are ibis the

determination of whether the stevedore has breached its

warranty. is generally made by reference to the law of

torts? Negligence on the part ‘of the stevedore has been

held. without ‘exception to constitute a breach of its war-

ranty. Therefore, the question can be conyeniently put. in

terms of: whether the stevedore was negligent, although a

negative answer would not necessarily be determinative

because breach of warranty is a broader term than neg-

ligence.’ . ya oe \

The earlier cases ‘gave some support to the contention

‘that the warranty extended only to the handling of eurgo.

But in Waterman the Court surveyed its prior opinions ‘and

said: . ee \

‘ ; \

. This warranty of workmanlike service extends to the

handling of cargo, as in Ryan, as well as to the use

: The: specific | terms of the contract were - relied upon by thf

shipowner in the proceedings below, See 272/F. 2d 823 at 825 n

(3d Cir. 1959). t

2 Cf. Ryan at 237:. “The. shipow ner’ ’s detion ts not changed from

one for a breach of contract to one for a tort simply because recovery

may turn upon the standard of tthe performance of petitioner's s steve-

doring service.”

* See. Booth S. S. Co. v. Meier & O¢ ‘thof Co., 262 T°. 2d 310 (2

‘Cir. 1958). This seems to be.the only case ‘in, w hich a shipowner Was

allowed indemnity in the teeth of a finding that the contractor was °

not negligent. The contractor in that case Was a ship's mechanic and

nat a stevedore.

| 10a L

Opinion of Zavatt, D. J.

of equipment incidental to cargo handling as in

Weyerhaeuser. ... . This‘warranty may be breached

when the stevedore’s negligence does not more than

call into play the vessel’s unseawerthiness. “Crum-

7 ead ;

. &

81 Ss. Ct. a. 201. In Crumady the ship provided an insafe

winch-boom system, but it’ was the negligent manner in

which the rig was actually used by the stevedore that trig-

gered the accident. : In this respect it is hard to distinguish

our case from. Crumady. However in Crwmady, as in the

generality of cases, the stev edore was found negligent via

_. respondeat superior when longshoreman A negligently in-

., jured longshoreman B—both ‘longshoremen being. em- °

_ployeés of the sfevedore. Under such circumstances, the

@ipowner is generally liable to B either because A’s neg-

) ligence brought about the unseaworthy condition or brought

\: into play unseaworthiness already existing. Often the .

shipowner is liable in negligence i in addition to any liability

for unseaworthiness.

‘In the instant case, it was the plaintiff? s own negli- «

gence in conjunction with the negligence of the shipowner

. \in failing to provide a safety pin that brought about tlie.

plaintiff’s injury:" In such a case, is the plaintiff’s neg-

ligence in the manner in which he performed his job

attributable to the.stevedore ’so that that negligence oper-

ates to breach the stevedore’s warranty. The stevedore

-has argued that the shipowner is not entitled to impute -

that negligence to the stevedore because the shipowner has

already received a benefit from the finding of the plain-

tiff’s negligence in that the plaintiff’s recovery’ was :re-

duced by seventy-five per cent. The stevedore also bene-

fits because the plaintiff’s recovery is the-measure of a

shipowner’s loss and therefore the outer boundary ‘of the

_ stevedore’s potential liability. The few cases that have

* e — a ae

‘ ; aes

Mi -

nad

Zi Se

Opinion of Zavatt, D. J.

presented the opportunity to consider this point tend to

_ support the stevedore’s position. In Trenkle v. Compagnie —

Generale Transatlantique, 179. F. Supp. 795 (S. D. Calif.

1960), a longshoréman fell into a hatch when he lost his" ° -

balance on a. narrow passageway, The ship was unsea-

worthy in that there were no guard rails along the pas-

sageway. The shipowner contended’ that the longshore-

man was not a suitable worker because’ as a former prize’

fighter he was punch drunk, or, in any event, that lie

negligently tripped over his own feet. The court thought ~

that it would be a breach of the stevedore’s warranty if

‘it provided unsuitable. longshoremen but found that this

Jongshoreman was experienced and competent. It went

on to hold that, even if the longshoreman were negligent

in a manner that caused his injury, that would not be

enough to fasten liability on the stevedore. In.Calderola’

v. Cunard S.S. Co., 279 F. 2d 475 (2d Cir. 1960), a long’

shoreman was injured when he slipped on grease on a

ladder he was descending. He had discovered the grease

-a ‘moment or two’? before on his frip up the ladder

The _jary had ‘found for the longshoreman against the ship-

owner on the theory that the grease rendered the ship un- Be

seaworthy. . The trial court, sitting without a jury, then

granted the shipowner indemnity from the stevedore. This

latter judgment wag reversed on appeal. -The Court of

Appeals held that the stevedore’s warranty to perform its

work with reasonable safety was not breaclted under the

facts because the grease on the ladder was only a recent

condition and ‘‘this knowledge acquired: by the plaintiff

so short a time before he slipped was insufficient to put. —

the stevedore on notice of thé condition and give it. an

opportunity to remove the grease or to have-the ship’ s

crew. do so before the aceident.’’: 279 F. 2d at 478. It

did not. consider whether the longshoreman was contriba-

- torily negligent in coming down a ladder he -knew was

soeoleet . “e

Diialen of zavatt, D. J.-

greasy, or in the manner in w hich he descended, and if

he was, whether that negligence would be suffictent to con-

‘stitute a breach of the stev edore’s warranty to do its Ww ork

‘with reasonable wafety. |

Having raised the problem of w hether the injured long- .

shoreman’s .own negl* pence is sufficient to constitute a

breach of the stevedore’s warranty, it is possible to finesse

the problem via the dictum suggested by Calderola, i.e.

‘that the stevedore has a duty to remedy, or have the

ship's crew remedy, a dangerous condition that exists. for’,

a period sufficient for the stevedore to have ‘constructive

notice thereof.$ ? he missing pin ‘Was a condition which —

‘existed, not for a few minutes, but from ‘the time the long-

shoremen came aboard at about $:00 A.M. to about, ¥:15

P.M. wlien the plaintiff was injured, Thus, the stevgore

‘had’ constructive notice of - the dangerous condition and

its failure. to correct it ‘or have it corrected was negli-

gence and a breach. of its. warranty of workmanlike serv-

ice in that liability. of the shipowner was‘a ‘reasonably:

foreseéable consequence. See Smith vy. Jugosalvenska

_Linijska Plividea, 278 F. 24.176 (4th Cir. 1960); Berti v.

Compagnie de Navigation Cyprien Fabre, 213 F. 2d 397

~ (2d Cir. 1954); United States v. Arrow Stevedoring Go. “A

175° Tr 2d 329 (9th Cir. 1949).

* Does the. shipowner’s own neaenne joveclene tt pat

~ indemnity? :

4 See Saniomarcov. United States, 277 F, 2d 255 (2d Cir. 1960).

. This duty finds some support in the cqntract itself which con-

— ates “lost-time” due to temporary Suspensions or interruptions

not due to the failure of the stevedoré’s own equipment. A comple-

mentary promise on the part of the shipow ner to co-operate with the

~ stevedore in keeping interruptions to a minimum has al$o been sug-

gested. See Hugev v. Dampskisaktieselskabet Int'l, 170 F. Supp. 601,

O11 (S. D. a 1959), aff'd per curiam sub nom. Metropolitan

Stevedore Co. V.. Dampskisaktieselskabet Int'l, 274 F. 2d 875 (9th

‘Cir.), cert, denied, 363 Y. S. we (1960). *

—_—_——_—_

13a

Opinion of Zavatt, D. J.

T he shipowner’s right i indesanity flows from a breach

of the stevedore’s contractual duty. ‘As such, negligence.

on the: part of the shipowner cannot have the usual effect

that contributory negligence has in a suit based on ‘the

breach of a non-consensual duty. As the Supreme Court

Said in Ryan: : on ver

Whatever may have been the respective obligations

of the stevedoring.contractor and of the shipowner to

the injured longshoreman . . « it is clear that, as be-

tween themselves, the contractor, as the warrantor, of

its own seryices, cannot use the shipowner’s failure. t6. ;

discover and correct the = s own breach of.

iv arranty as a def ense.’

76 S.Ct. at 938, Nor are a» concepts of active- passive negli--

gence of primary-secondary fault helpful. See Weyer-

haeuser, 78.8. Ct. at 442.. However, The Supreme Court

‘indicated that certain activity on the part of the ship-

owner may be such as. to excuse performance on the part

of the stevedore. It remains to examine the decisions to

determine where the line has been drawn in order to. see

whether the shipowner’s conduct here, in failing to: pro-.

-vide a pin, will exeuse the stevedore —_ its promise to

indemnify. the shipowner. :

No case has. been found where the silos ner has heen

denied indemnity because its own condvct was so gross as

to excuse performance bythe stevedore. Indemnity has of

coursé been denied because the stevedore has not breached

its warranty. ‘The facts in the following cases suggest.

that the negligence of the shipowner in the instany’case is

well within permissible conduct .so fa as s the n&ht to. in-

demnity is’ concerned. °

In Ryan a longshoreman was — Ww hen a roll of pulp-

hoard he was helping to unload broke Loose because it had

been SneeenCR Hy secured when stowed. The, trial court

l4a

Opinion of Zavatt, D. J.

found both the shipowner and the stevedore negligent in

the manner in which the:-cargo was loaded and secured.

‘The trial judge found that the ship’s officer present at

the stowage ‘did not properly perform his admitted duty

to supervise the safe and careful loading of the ‘vessel,’

although he had ‘authority to remedy the condition of halt

the work’.’’ 76 S. Ct. at-240 (dissenting opinion of Black,

J., quoting from 111 F. Supp. 505, 507).

In ‘Weyerhaeuser a‘ longshoreman was injured when. a

board from a temporary winch shelter fell on him. The

shelter had been erected by an employee of the stevedore |

in New’ York but not dismantled before thé ship sailed to

. Boston where the injury occurred. The jury’s verdict

for the plaintiff established the shipowner’s negligence but

the general verdict was necessarily ambiguous dnd _ the

specification of negligence was in doubt. In sending the

case back for a more specific finding the Court said:,

- While: the jury found [shipowner] ‘‘guilty of» iia’

act of negligence’’, that ultimate finding might -have

been predicated, inter alia, on the failure of [{ship-

owner] to remove the shelter when. the ship left New

York, or a failure to correct or warn [stevedore) of a

latent dangerous condition known to {[shipowner] |

- when’ [stevedore] began the Boston unloading. Like-

wise, the finding might have been predicated on a_

failure of [shipowner] during the five days in Boston

to inspect the shelter, detect and correct the. unsafe °

eondition. Although any of these possibilities could

\. provide the [longshoreman] a basis of recovery, at

‘least the latter would not; under Ryan, prevent re-

covery by [shipowner] in the third party action.

78S. Ct at 441.

In Crumady a longshoreman was injured when a top-

ping-lift parted, causing the boom it supported to fal]. The

Lda.

Onin of Zavatt, D. J. )

. Si ed

wire rope that conitituted the .topping-lift was rated at

threé tons, which was also the safe working. load of the

boom. The wineh around which the ropé was wound had

a cut-off device or circuit breaker set to: shut off eurrent

when the stress on the wire rope was six tons—twice the

safe working load of the hoisting device Which the winch

served. The circuit breaker had been ‘‘adjusted by those

acting for’ the vessel owner.’ ‘The trial court concluded

that the setting of the winch cut-off device at twice the safe-

load rating rendered the vessel unseaworthy. But the court

also found that the unskillful handling of the winch and

the boom by the stevedore’s.employees—conduct which wes

-both negligence and a breach, of the stevedore’s warvanty

of workmanlike service—created the stress in exeess of six

tons and thereby ‘‘brought into pla¥’’ the unseaw orthiness

of the vessel. The trial court.awarded the shipowner in-

_demnity from the stévedore on the theory that the ship.

owner.was the third-party beneficiary of the stevedore's

warranty. This decision was subsequently affirmed hy

The Supreme Court. . ~

In Revel v. American Export Lines, Inc., 266 F. 2d 82

(4th Cir. 19! 99), a longshoreman was injured when a drum

that was being loaded aboard theé ship fel A defective

winch being operated by other longshoremen was the cause

of the injury. The-wineh was ship's equipment, In fact it

_ had been rigged by the ship’s crew... The shipowner was

negligent in-failing to inspect the wineh. The stevedore

_ knew of the defect but continued to Joad the ship-—conduet

g #79 S. Ct. at 48. The quoted language implies ‘that the. device

was set by the ship’s crew and at least one court in discussing the

facts of Crumady so states. See 266 F. 2d at 80, The trial court in

_Crumady in a long opinion in which ve r¥ close attention is paid to

facts nowhere says that the device had been set by the crew. Indeed,

it is possible to infer that the device was set by the original mann-

' facturer-when it was installed i in June; 1952, ‘and thatthe crew made

no change in.the setting of the device between that date and January

2, 1954, the date of the accident, although a ship's surveyor had in-

spected the gear in the interim.

loa

Opinion of Zavatt, D. J.

which breached: its warranty. The shipowner was allowed

indemnity.

In Calmar S. 8S. Corp. v. Nacire ma Operating Co., 266 F.

2d 79 (4th Cir.), cert. denied, 80S. Ct. 56 (1959), a long-

shoreman was injured w hile working in the hold when one

of his fellow.employees threw a cargo light into the hold.

lhe light had not been properly ‘‘seized’’, from which the -

jury concluded that the: ship .was unseaworthy and the

‘shipowner negligent. The jury also found fhe stevedore

negligent in using the light. in its defective condition. and

in the manner in which the light was thrown into the hold.

" By eontract*the shipowner. was obligated to supply cargo

. lights which the trial court interpreted to mean reasonably

sate lights and on-the finding ef the jury concluded that

the shipowner had breached its contract with the stevedore

and therefore the court denied: indemnity to the shipowner —

- although the stevedore was found to have also breached

its warranty of workmanlike service. The Court ‘of Ap-

peals. reversed and entered judgment for the ‘shipowner.

In summation that court'said:

In determining whether the action of Calmar were’

such as to bar recovery, we must necessarily compare

_them to those of the owner in Crumady. . Here, the

is ship did not inspect the light and did not provide

seizing. In Crumady the ship’s crew supplied:a tut-

off device which they had set at twice the rated limit

of the rigging.. Certainly supplying the defective

eut-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, . we think the |

latter should not. . | a a Ok

266 F. 2d at 81. | Aa vif ye

ee — bith a source of concetn 1 that the cbligations of,

the shipowner and the stevedore are not mutually identical.

ATa .

Opinion of Zavatt, D. J.

This lack of symmetry has been often commented on, but

I think no one: has put the sey in better perspective

than Judge Mathes in Hugev Dampskisdktieselskabet

Int’l, 170 F. Supp. GOL (S. D. Cali: 1959). Jud ge Mathes

said: : ;

‘In almost every instance, When a steeds con-

_tractor. commences the work -of loading or unloading

a seagoing vessel, the ship has arrived in port only a

few heurs before. She inay ‘have ‘been at sea for

weeks or months. Almost always, she has ridden some. |

heavy seas. Often she may liave rolled and pitched

through mountainous seas for days, taken thousands

of tons of .water over her decks, miiled through f.eez-

ing and tropical weather, and been beaten by LOO mile

an hour gales. Almost surely she will haye heen

- serviced by stevedores of varying degrees of coml-

petency in other parts throughout the w orld. |

Being a_mass of -plates, pipes, wires, beains and

various mechanisms, each to some degree vulnerable

to the elements, it would be much: too much to expect

‘a eargo vessel to arrive in port: with alk equipment,

appliances and facilities in a fully seaworthy condi-

tion. Especially is this trie with: respect to the

hatches, booms and,winches, w ‘hich are relatively more.

likely to: be in disorder-because of the elements, and

the abuse and misuse of men as well, It is reasonable ;

to expect, then, that many things may be wrong with

‘a freighter and her equipment when she artives in-

- port: that she may well-be a place of danger even as

she docks. And.all of these lurking dangers: may: be.

- due entirely to‘the hazards of the ship’s service.

The stevedoring™ contractor knows that the ship has

been at*sea; that she may be in many respects. -

dangerous to the life and lim) of an unskilled person;

that if.a condition is found whie h is unsafe ‘for the

professional longshoreman, as. a rile the contractor

18a

°. - Opinion of Zavatt, D. J.

can remedy it at the expenSe of the shipowner; that

if the stevedoring operations are thereby delayed, the .

@hipowner normally must pay for standby time.

Stev edori ing contractors hold themselves out as being

_ trained and equipped to cope with these conditions and

,» these dangers, “To this end, the stevedoring contractor.

‘is usually given full use and charge of the ship’s load-

ing and unloading equipment and appliances ‘and the

cargo hatches and holds. So it is that the stevedor-

ing contractor cannot reasonably expect, and does not

expect, to board a vessel which in all. respects, as to

ey ipment and appliances as: well as hull, is: in. a sea-

‘orthy. condition, er even in a reasonably safe con-

dition.

170 F.-Supp. at 609-10.

Do the express provisions of the stevedoring contract

negative these implred warranties? .

What has been said up to now assumed that the provi-

‘ sions of the stevedoring contract were silent on the subject

of indemnity. But that. is not the ease-here. Therefore,

the conclusion reached that the shipowner would be en-

titled: to indemnity upon ‘theories of implied-in-fact in-

demnity must be tested by the particular provisions of the

applicable. agreement. The stevedore was hired by the

consignee of the cargo. The contract between the stevedore |

.and the consignee contained not only the general language

from which courts have implied the warranty of workman-

like service—‘ The Contractor will provide all necessary

labor and services to discharge . . paper from ships .

in a’prompt and efficient manner’ *_but also. a specific in-

demnity provision:

The Contractor agrees to ‘tolinielts and-hold harm-

_less The. News and its subsidiary and affiliated com-

panies as well as any other persons and companies for

I Ya

° ‘ / :

Opinion of Zavatt, D. J. J.

which The News may be hice: paper, against any

and all personal injury , or property’ damage claims

or suits, and any loss, cost or damage. in/connection.

therewith which may be asserted or maintained by any

person . . . which is not a party to this agreement -.

and which may arise‘in connection with or result from:

the operations to be carried on by the Contractor

under this agreement.

Under the reasoning of Crime and W" ateruian, ‘the ii.

owner is the third- -party beneficiary: of an implied warranty

of workmanlike service and any promise to indemnify that

accompanied that warranty. But the shipowner here, after

_ Setting up.a claim in its original third- -party complaint

that it is a third-party beneficiary of the express promise

to indemnify just quoted, now chooses to rely entirely on

-an implied promise to indemnify flowing from the under.

taking of the stevedore to do work ‘in a prompt and

efficient manner.’? The stevedore argues that the entire

-- intention of the parties*is contained in the express in-

_demnity provision and, expressio unius est exclusio alterius,

no other indemnity provision may be. implied:

- Assuming that the shipowner is the third-party bene-

ficiary of that express promise to indemnify as it. would

be of any. implied promise, it is clear that. the shipowner

has raised ¢ertain theoretical problems by its refusal to

rely on that express right. Therefore, before, going too

far afield it. will do well to examine the assuinption just.

made, 2%2., that the shipowner is a third-party beneficiary

of the express promise. While the shipowner is not spe-—

cified as a-beneficiary of the stevedore’s promise to indem-

nify, two other classes are: (1) affiliates and subsidiaries

of the consignec-promisee; (2). persons for who the eon-

signee is handling the cargo of paper. Tt would seem,

therefore expressio unius est exclusio alterius—that the -

‘parties to the contract did not intend to make the’ ship- ”

‘ee

- 2 ‘“ “ ; 0a

Opinion of Zavatt, D. J.

owner a s beneficiary of this speeifie dhdesanity clause. The *

_ shipowner arguably was not meant to be the beneficiary

_of this clause of the contract because it was already the

‘beneficiary of the implied-in-fact promise of the stev sedore.

to indemnify for breach of its implied-in-fact warranty to —

do its work “in a prompt and efficient manner.’’ oCf. Roiyal

Mail Lines, Ltd. v. ‘Peck; 269 F. 2d 857 (9th Cir. 1959).

In Oleszuk v. Calmar'S. S. Corp., 164 F. Supp. 628 (D. Md.

1958), rev’d on other grounds sub nom. Calmar S:S. Corp.

v. Nacirema Operating Co., 266 F. 2d 79 (4th Cir. 1959),

the contract between the shipowner and the stevedore pro-

vided: ‘*The [stevedore]. will be responsible for loss or

damage to the ship, its equipment and the cargo through -

- or as a result of negligence.”” 164 F. Supp. at 632. A

-longshoreman had been injured because of the combined

negligence of the shipowner and the stevedore. On the

shipowper’s claim for indemnity the_stevédore made an

‘*expressio unius’’ argument, 7:e., having agreed to indem-

nify the shipowner for certain losses, no further agree-

ment. to indemnify the shipowner eould be implied. -The

_ trial court rejected the argument concluding ‘‘from the ex-

~ amination of the entire contract . . . that the quoted clause

was not, intended to eliminate the implied obligation of the

contractor to indemnify the operator against ‘foreseeable

. damages resulting to the shipowner . ... from. thé eontrac-

tor’s improper performance’.’’ ° Jd. at 633. This issue

‘was not discussed by the Court of Appeals.

The stevedore argues heie that to look anywhere aes

than the express indemnity provisien for a promise to

indemnify would alter the intention of the parties and cast

a burden different in-seope upon the stevedore than that

hargained for. The theory of the Ryan case is that the

liability of the stevedore is a consensual act—a contract

-implied-in-fact—rather than ah obligation imposed by law:

Tt would follow that this pale eould be altered by

Pla

. Opinion of Zavatt, D. J.

é ?

agreement. Ryan, of course, involved’ a situation where .

the stevedore- was hired by the shipowner and therefore.’

there was privity between them. In our case th®stevedore

is removed froin the shipowner by a time charterer and a

consignee. It is therefore not certain how the contract

between the consignee*and the stevedore could limit the

rights that the shipowner has under the Ryan case as in- -

terpreted in Crumady and Waterman.

But that. difficulty is not presented here because the

contract does not seck to limit those rights. The steve-

Gore expressly covenanted with the consignee to do its w ork

‘in.a prompt and efficient manner.’’ - The shipowner is a

third- -party beneficiary of that promise. The stevedore alsé

promised to indemnify the consignee and two other named

classes ‘‘against any and all personal injury. or property “

‘damage claims or suits, and any loss, cost or damage .

which-may arise in connection with . . + the operations to

be carried on by the Contractor.”’ Although this express:

promise to indemnify does, not: expressly cover a loss

caused in part by the negligenc e of the consignee of the

promise to do so has been implied where the only liability

of the promisee (the consignee) in the first instance could

i, based on negligence. See Rice v. Pennsylvania R.R., 202

: 2d 861 (2d Cir. 1953); A/S J. Ludwig Mowinckels

rb ad v. Com’l Stevedoring Co., 256-Pe-24-227 (2d Cir.

1958) ;.Porello v.. United Statés, 94 F. Supp. 9 52 (S.D.N.Y

1950). This i is true even though as a general rule inilems-

‘nity provisions will not be construed to cover the negli-

gence of the indemnitee. See American Stevedores, Ine. v.

Porello, 67 S. Ct. 847 (1947); Rice v. Pennsylvania’ R.R.,

supra. We have already seen that the shipowner’s negli-

gence does not defeat its right to indemnity under an

implied contract.. Thus it, would seem that there is no

inconsistency between the right to indemnity that is an

adjunct of the ‘implied warranty, of w orkmanlike service

a *

Opinion of Zavatt, D. J.

and the express warranty contained-in the contract in this .

tase. Therefore no inference can be drawn that the steve-

dore* bargained for a limitation of its liability.

- Does indemnity include attorneys’ fees?

As part of its claim the shipowner seeks a reimb: cse--

ment for the fees expended in the defense of the long-

shoreman's action, The, parties have stipulated that the

- reasonable val e. of these services is $3,000 for attorneys

and an additional $1,500 for expenses and, disbursements.

he authoritles. now recognize that the, indemnitee has a

Mcht to these fees. \See ~~ J. Ludwig Mowinckels Reders

v. Com’l Stevedoring Co., 256 F. 2d 227, 232 (2d Cir, 1958) ;

- Shannon vy. United States, 235 F. 2d 457, 459 (2d Cir. 1956) +

Gonzales v. Pennsylvania R.R., 183 F.. Supp. 779, 781

(S.D.N.Y. 1960) ; Holley v. The Manfred Stansfield, 186 F.

Supp. 805, 809 (E. D. Va. 1960) ; Lilleberg v. Pacific Far

‘East Line, Inc,, 167 F. Supp. 3,5 (N. Do Calif. 1958). In.

Holley the court said: ‘It is now fairly well settled that

. an indemnitee may recover attorney’s fees and-expenses |

from an indemnitor under either ‘an express or implied

contract of indemnity.’’ 186 F. Supp. at.811..

SHIPOWNER v. CmanTener:

Having determined that the disown is entitled _to

indemnity from the stevedor» we return to the question put

to one side earlier: ‘ts the shipowner entitled to indemnity

from thé charterer? The shipowner claims that the char-

terer’s obligation under the, charter party to load and

unload the vessel included the warranty that it would. the -

‘job safely.and indemnify the shipowner for any loss o¢ca-

sioned by the breach. The charterer denies that any such

warranty is to be implied., Rather, it asserts, that under

the charter the shipowner: warranted to’it that the ship

was fit and undertook to maintain the.ship and its equip-

23a

Opinion of Zdvatt, D. J. 3

ment in an efficient state. ' In effect, the charterer argues

that the failure of the shipowner to provide a safety pin

for the winch was a breach of the shipowner’s covenant. -

to maintain and that thy siipowner is under a*duty to

indemnify the charterer should it suffer: any loss due to

the shipowner’s breacli. aa, fe

The shipowners Viet support for its position is Revel

v. American Export Lines, Inc., 162 F. Supp. 279 (Ek. D.-

Va. 1958), aff'd, 265 FO3@ 82 (4th Cir. 1959). In that

case the shipowner Was ‘allowed indeninity from the. char-

terer under a provision wherém the cliarterer agreed to

arrange for loading and discharge ‘Ofeargo and covenanted

that ‘‘the caygo shall. be efficiently: loaded on the vessel,”

That is broader than the charter covenant in the instant

case, which is only that the charterer will bear the expense

of. loading and unloading, not that it will do the job ‘efti-

ciently.’’ Furthermore, the authority of that case is under- - -

mined in two important respects. First, the charterer in |

that case conceded that it had a duty to reimburse the _

shipowner for loss oceasioned by inexpert Stevedoring

service. And second; Revel was decided before Crumady

establised that the shipowner is the third-party bene-

ficiary of the stevedore’s warranties té the charterer.

The shipowner seeks to apply to a ‘shipowner-charterer

relationship the.reasoning of Ryan and its progeny, which

‘have found a warranty of workmanlike ‘service in the

_\ relationship of. shipowner-stevedore. The stevedore’s war-

ranty arises because it holds itself out to do a job: that it

is ‘proficient in its work which, being done aboard a ship,

is iaialiae fraught with danger and therefore requires

a degree of expertise. The charterer, on the other hand,

makes no representation that jt is either an expert seamaif

or an expert stevedore. Workmanlike service and reason-

able safety on the part of the charterer are not the ‘‘es-

t -~

. =

- 4a *

oV, a

' .

3 “~e i

Opinion of Zavatt, Dod. '

cs sence?’ of the charter as they are e of a ' stevedoring contract.

A similar conclusion was reached in Matson Navigation

Co. v. United States, 173 F. Supp. 562 (N. Dy Calif. 1959)< :

There the shipowner, sought indemnity from the owner of |

‘the-cargo.” In that respect the cases are distinguishable

because here the shipowner seeks to hold the time char-

" terer., ‘But the court’s analysis is pertinent: *s

‘*Ryan does not warrant a. holding here that there fas

a contractual obligation on the part of the, United ;

States to indemnify Matson for any loss to “Matson

resulting from the improper handling «hy the United

States of<its own cargo. , In Ryan, the Supreme Court *

.estated that. the stevedorng ° ‘company’s obligation to

handle ‘cargo properly and .safely was a warranty of

ar es workmanlike service comparable to a manufacturer’s

’ warranty of,the soundness of its product. In the pres-—

ent case, the United States did not. offer its services

to Matson as a professional stevedore. It mérely con-

tracted to assume the’ responsibility for the removal

ofits own cargo from Matson’s vessel. This is too : :

flimsy a predicate for a warranty of professional com-

petenee from which could be. implied a contractual.

obligation to ne Matson for any damages it

might be requi pay another as a result of im-

proper handling by the Tnited States of its cargo.’”

173 F. Supp. at 564, a

Of ¢ course, a charters may agree to assume ‘the duty to. .

: indemnify and no doubt, under appropriate circumstances,

that. obligation may be implied as a fact. The intent of the

’ parties.is, of course, controlling and perhaps the conces-

sion of the charterer in Revel meant nothing note than

that:. But. 1 find nothing; | in, this ease to support the con-

F . . . ‘ P

* ? *. * ae i aoe: >

aoe : cee

20a

ie Ants eee Opinion of Zavatt, D. J. = oe

‘ _ clusion that the parties here intended ‘such a result.’ . Nor

‘do [ find any. policy of the law that would require such an.

agreement to be. implied against the intention of the char-

terer.” Furthermore, the. jury has@jpund the shipowner

negligent and the general rule is that no indeinnity provi-

sion will be implfed to cover one’s own negligence. See

American Stevedores, Inc. v. Porello, supra.

aie 5 Paina.

SFEVEDORE y. CHARTERER

”

. This lawsitit contemplated three possible dank. ‘The

. fixst stage, longshoreman y. shipowner, ended with a ver--

dict for the longshorerftan. This opinion disposes of the

. second stage: shipowner v. charterer and stevedore. There

remains the third stage: stevedore v. charterer. .The cross-

claim of the charterer against the.stevedore has become

.. . academic in.view of the fact that I have held ‘that the,

charterer is not. liable to the shipowner., And the steve-

| a: s theory of indemnity ftom the ,charterer—the eom-

. mon law ‘duty owed the- secondary or passive - ‘tortfeasor

by the primary or active tortfeasor— dloes not seem to ac-

commodate the facts as found by the jun and the’court.

In keeping with the sequence: agreed upon, however, I

will label this last conclusion. “tentative” and schedule a

e. *, ;

- ‘7 The charterer’s contention that it is merely a‘lessee of space

aboard -the vessel is-borne out in ‘the following, provisions of the

charter wherein the owner coven: uits : “hyll,¢machinery and equip-

ment in a thoroughly efficient state” ; “vessel on her delivery to be

. in every way. fitted for the service”; “to. maintain. her class, and

‘keep the vessel in a thoroughly efficient state ‘in hull, machinery and

equipment for ad during -the Service’ ; “ownefs shall maintain the.

gear of the ship as fitted.” Finally, “Nothing herein stated is to be -

construed as a’ démise of the vessel to the Time Charterers. The

‘ " owners to remain responsible for the navigation, insurance, crew,

I and all other matters, same as when tratling on her 5 ringtone

See also Gilmore & Black, Admiralty, 170 (1957) ; Poor, ‘Charter

Parties § 7 (4th ed. 1954)... ‘ ete aes

4 ,

. . rv

26a |

ee : . Ses Opinion of Zavatt, D. J.

upon this. cross- claim still - outstanding may be — and

argument’ had. Fs

This opinion constitutes the findings of fact a conelu-

sions of law with reference to the claim of the third-party

‘plaintiff against the third-party defendants. As to the

cross-claim of Daniels and Kennedy against [llinois Atlan-

— date for a final hearing at which time any evidence bearing -

tic: these- parties will confer with the court to seta date

“4 for ahearing. Settle an order, consistent with = opinion,

on or before ten days from the date hereof.

- 9" Josep C. Zavarry

) US DS.

e ; F

; Sie Ta. <

Opinion ‘of United pre) ae of Appeals

- UNITED STATES GOURT OF AP ¥ BALS Saaretd

: haat For THE Seconn Circuit “-

No. 27 —September Term, 1961s

(Afgued Mareh 5 5, 1962. Decided July 3, , 1962.) a

Docket No. 26231

& :

4 | ‘Frank Draco, ira

a a Pate | _,Plaintiff-Appellee, —

3 v.

x A/S -INGnr, oe

Defendant and Third. Party’

Sonal ees

2 y-

yo. : 7

Daxiets & Kexyeny, Ixc, et ,

Third- Party Defendant.

_ Appellant, -

and -

- Tutors Xtoa NTIC Corp. th

ie Third- Party Defendant _—

: ee en

ep.

Before: Lumsarp, Chief Judge,

Kavurman and Marsuatu, Cireuit Judges.

mas &

a ‘* ° : .

id ner Sate r .

28a

ional. from the United States ‘District Court for the

Yastern District, of New York, Joseph C. Zavatt, J., con-

testing a verdict and’ judgment of damages for personal

injuries in favor of Frank Drago against A/S Inger, and

a judgment of indemnity in favor of. A/S inger- against:

appellant. -

- Both judgments affirmed.

‘Waar oA. Wison, New York, N. vy. ( (Warner Pyne

G and Pyne,’ ‘Smith & -Wilson, on the: brief), for

- defendant and third- “party. plaintiff- appellee. °

rien _-Rawsonn Cc. GREEN, New York, N. Y. (Charles G.

| Tierney, Harry Scheehter and Harold Klein, on °

the brief), for third- party defendant-appellant.

Davip ye * Ww ATSON, New ¥ork, N. Y. (J. Ward O'Neill.

and -Haight, Gardner, Poor & Havens;—en the

brief Ys for third- — —-

LuMBakD, Chief pa

- - This is an appeal from a judgment ot indemnity daiutd

the third-party plaintiff shipowner, which had’ been found

liable to the plaintiff longshoreman for’ his personal in-

juries, against the stevedoring company which employed

the plaintiff in its unloading operations on the third-party.

plaintiff’s ship. The stevedoring company contends on thjs

appeal-that the trial judge, i in deciding on the third-party

complaint without the jury pursuant to stipulation, erred

in holding it liable because of .its use of the defective. winch

which injured the plaintiff, and further contends that any

‘implied duty of indemnity to the shipowner was precluded

‘by inconsistent express language’ in the stevedoring con-

tract. and by the shipowner’s negligence in supplying the —

29a :

Opmion of United States Court of Appes als. z

“+e

winch in defectiv e condition. We find these contentions to

be without merit, and in addition reject, without further

- discussion, certain insubstantial attacks which the steve-

-doring company niakes on the basic judgment in nave or of.

' the ‘longshoreman against the shipowner. /

On January 4, 1956, the S.S. Elin Hope arrived at a pier:

at. the foot of Dikeman Street in Brooklyn, N: Y. earrying

a.cargo of newsprint from Quebec consigned to News Syn- |

dicate, Ine. The ship was owned by A/S Inger, and oper- ~ .

ated by‘it under a. timé -charter agreement with Iilinois

Atlantic: Corp.- At 8 a.m,, shortly, after the ship docked,

gangs of longshoremen employed by Daniels & Kennedy, |

Inc., came aboard to unload the cargo... The plaintiff, F rarik

_ Drago, was the starboard winchman on the gang working

at.#2 hatch, Apparently the unloading proceeded without

incident anitil 12 noon, when Drago shut off the: steam at

his winch and-went to lunch. When he returned from luneh

at 1:00 p.m., Drago again opened his steam valve, but

shortly thereafter was totd to shut down lis winch until

the gang. working at “#T hateh r caught up ‘with—his yr

_W hile Drago was attempting to close the steam valve, hei in

“some way fell on the. operating handle, with the result that

his left foot was crushed by the moving piston.

This diversity action was }j mught by Draco against the

shipowner, A/S Inger, based. fon theories. of unseaw orthi- :

ness and negligence. The shipowner impledded the. steve-

doring company, Daniels ‘& Kennedy, Iné. and the time

_ charterer, Illinois. Atlantic Corp., claiming indemnity from

each, and each of the third-party. defendants also cross-

claimed against the other. The jury entered a verdict of

$4,500 for the plaintiff against the shipowner, and. in an-

swer to special interrogatories stated that the ship: had ‘not

been unseaworthy but the shipowner had been negligent,

_ and that their award had been reduced by 75. per cent be-

eause of contributory negligence. The court then. eon-

é . ‘ d é . y

30a ;

‘Opinion a United States Court of Appeals.

sidered the indemnity. claim and the cross-claims, diamine.

ing the cross-claims and the— indemnity claim against the.

timecharterer and granting the indemnity claim of the —

shipowner against the stevedoring company. Although

various notices of appeal were filed, ‘the only appeals pur-—

sued heré{ire those by the stevedoring company from the

; judgment against the defendant and the third- party, judg-—

ment against itself. Since ‘the appeal from the judgment

against the defendant presents, as we have. noted, no sub- ¢

stantial issues, we are here concerned only with. the steve-

-doring company’s attacks on the court’s award of indem-

‘nity to.the shipowner. * . - says

In making the findings of fact’ necersary for the deter-

mination of the third-party claim, the trial judge properly

_ interpreted the jury’s verdict: and: answers to the spec ial:

_. interrogatories sd as to prevent inconsistency between the’

verdict and his disposition of the indemnity claim. On re-

view of the reedrd, we see no reason to regard his findings

as — erroneous.’’ The judge found that—————

ar [T]he jury accepted the defendant’s theory of the

accident, i.e. that when the plaintiff was told to close

off his steam he stood up on the piston rod and leaned

over the operating handle in order to reach the steam

valve on the opposite side of the winch; that proper

procedure and due care called for the plaintiff o walk

around his winch, in order of reach the shut-o et

as he fell, pa thereby activated the piston which

crushed his toes because he had placed his foot on. the

piston’ rod in the first place. Implicit: in, the jury’s

findings of negligence on the part of tlie shipowner is.

a finding-that the shipowner did ‘not provide. -a safety

pin which, if provided and used, would have avoided

the accident. sp a .

Bla:

; | “a od ty

- Opinion of United States Court of Appeals. °°

The judge found that the missing pin would, if inserted

in the proper place, have locked the operating lever in a

‘neutral position, and thus-have “prevented the activation ‘

of the piston. - He concluded that ‘‘the’ shipowner’s negli-

gence lay in not correcting a dangerous con ition that it

‘reasonably should have discovered.’’ | :

On the third-party claim, the ini ‘decided that the

stevedorifg. company must indeninify the shipowner be-

cause of its continued use of the winch without having the

‘pin replaced. He held this to be a yreach-o of its contractual

‘‘duty to remedy, or have the ship’s crew remedy, dang-

erous condition that exists for a period sufficient for the

stevedore to have constructive notice thereof.’? He went

‘on to make the findings of fact underlying this conclusion:

‘‘The missing pin, was a condition which existed, not. °

for a few minutes, but from ‘the time the longshoremen

came aboard at about 8:00,A. M. to about 1:15 P.M.

when the plaintiff. was injured. Thus the: stevedore had

constructive notice of the _ dangeraus condition and its

~ failure to correct it or have it corrected was negligence’

and a breach of its warranty of workmanlike service

in that liability: of the shipowner, was a‘ reasonably -

foreseeable consequence.’ :

In attacking ‘the judgment against it, the appellant ar-

gues that the trial judge erred in deciding that under the —-

contractual situation_existing-in this case a warranty of

workmanlike service ran from it to the shipowner. The

contract under which the stevedores worked was made not’ «

with the shipowner but with the consignee of the cargo,

News Syndicate,. Inc. Although: the shipowner was thus --

~not:a—party to the contract, the trial judge held: that it

enjoyed the normal warranty of workmanlike service as

third-party beneficiary under the clause stating that ‘‘the

Contractor will provide all necessary labor and services to

(32a

‘Opinion of United States Court of Appeals.

dischapee, unload and handle paper Pri ships or - barges

in a prompt and e cient manner.” [ Emphasis added. We

- agree that such a clause creates such a warranty, ag rs

hacuser S. S. Co. v. Nacirema Operating Co., 355 U.

— 563, 565 (1958), and that ‘the warranty runs to the so

owner as third-party beneficiary, Waterman S. 8S. Corp. v.~

~ Dugan & McNamara, Inc., 364 U. S., 421 (1960); ef.

Crumady Vv. The J. H. Fisser, 358 U.S. 423, 428-29 (1959).

Nor can there be any question, under the law laid down | ~

by the Supreme Court, that the warranty extends to the. .

proper .use of such equipment as winches. ——: v. The’

‘I. H. Fisser, supra.

The appellants argue, however, that any sic h implied.

_in-fact warranty as- would normally run in. favor of the

shipowner as third-party beneficiary is excluded by the .

presence in the contract qf-an express indemnity clause -

——whitlr does not mention the shipowner, but rather’ benefits

only ‘‘The News and its subsidiary and affiliated companies

as well-as any other persons and companies for which The -_

~ News. may be handling paper.’’ We do not‘agree. No fur-

ther discussion is needed‘than the citation of our treatment .-

of the same problem in .our recent decision in. Pettus v. _

(2 Cir. 1962), where

we held that in the absence of some express disavowal the

’ Grace Line, Inc., F. 2d —~,

‘ normal implication of warranty from the terms of the con-

tract is not contradicted. _ |

_ As we have noted, we see no reason to reject the’ trial

court’s findings as to. the underlying evidentiary facts rele-

vant to the indemnity claim. We also accept his conclusion

that the conduct of the stevedoring company in permitting . -

the defective winch to be used for more than four working.

hours without making any effort to have it repaired fell

short of that ‘‘workmantlikts service ”’ that it warranted to-

the shipowner. Since we aécept the detérmination that the

company was on notice of the absénce of the pin, and: had a

Opinion of United States Court of Appeals.

duty to have-it replaced, we may’ avoid, as did’ the trial

‘judge, considering whether the pl&intiff ’s own negligence

fnight be imputed to his employer as a basis for indemnity.

It, still remains, however, to consider the contention of tle

Appellant that indemnity is barred by the fact that the defi-

the negligence of the shipowner i in not properly repairing

the ship’s equipment. ‘

————

» made, we reject the appellant’s contractual

_ ciency which caused the injury was itself the produet of |

The mere fact thatthe ‘Shipow ne was-at taney is-ob--

viously not in itself a bar to indemnity} the-ammw orkinanlike

‘service of the stevedoring-cémpany was. responsible for.

bringing the-defect into play and enue the injury, and _

this is normally sufficient basis for recovery over. Crumady -

v. The J. H: Fisser, 358 U. S. 423 (1959); American Export

Lines, Inc. v: Revel, 266 F. 24-82, 87 (4 (fy. 1959)... Appel-

lant argues, however,that the. shi pownereviolated a con-

‘tractual duty ‘to the stevedores to Sagoly them-with proper

winches. We need not complicate matters by inve stigating.

the consequences of the fact that there’was no direct on-

-.tractual relationship between the shipowner ‘and the steve-

~ ‘doring company here; rather we. shall as suine that the 4%

stevedoring company was a- ‘third- party beneficiary. of the”

~ shipowner’s undertaking in the time charter to **kgep thie

vessel in a thoroughly efficient state in hill, machinery/and

, equipment’? and can take advantage of the contractual de--

” tenses normally available to a stevedore who has cont racted

- directly with the shipowner. ‘Even if this assim i

defenses. As

we have recently held in Pettus v. Grace Lyte, Inc., supra,

a shipowner’s breach of contract in failing to siipply ade-

quate equipment to its stevedores is not sufficiently mate.

rial to excuse the. stevedores from the contractual duty to

‘

: .

give proper serviee on which the indemnity ‘claitn is here:

_ based.. The cases cited to us by the appellant dealing with

_ the warranties of: professional suppliers of eyuipment, e:g.,

A . . J . s ' o ‘ .

ms % re * i ‘S4a . ; = -

~ . ig P<

Opinion dt United. States Court of. Appedils.

Booth S. S. Co. v. Meier \é Oe af Co; 262 F.2d, 310 @ |

Cir. 1958), are wholly i relevant to the question of the pbli- Gon

gations of. wners making equipment available to steve-

_ dores. We find in the record before us no additionat city.

_——~ cumstances which “could possibly constitute ‘‘eonduct on

[the ‘shipowner’s] -* * .* part sufficient te preclude Te-

covery,”’ Weyerhaeieser S. 8. Co. v. Nacirema Operating

' Co., 355 U. 8. 563, 567 i aa the — pap. eve:

gested none.’

“Affirmed.

* ©

Decision of the United. States Court of pits for the

» ‘Second Circuit on Petitions’ for Rehearing.

U NITED STATES DISTRICT cou BT, m

Mie, For THE SECOND Cincuir.

‘ : j i, anna

: Eero ie. 2 ‘Frank Draco,

Potries wv.

Pa Ua es a WB INGER,

Defendant and Third- Party

‘Plaintiff-A ppellee,

v a

. ;

sae Ss - ‘Dantes & Kennepy, INc.,

: Thir®! Party Defendant-A _ ellen;

er. : at : e " : “ P and — a :

ILLINots ATLANTIC Corp.,

Third- Party Defendant- Appellee

,’

HAaIGcut,. GARDNER, Poor & Havens, New York,. N. Y.; for

'- third-party defendant- appilles, Illinois Atlantic Corp. -.

JOSEPH M. SovIERO, ‘New York, ‘N. YY, for third: party de-

fendant- appellant, Daniels & ‘Kennedy, Inc...

The. petition of the third-party defendant. appellant

Daniels & Kennedy, Ine. is denied.

Plaintiff-Appellee,

. ‘

‘s. Petitions hie Rehearing.

The. petition of thre third- party defendant-appelloe us

Illinois Atlantic Corp. is, granted and the opinion of. the

court is amended so as to insert at page 2378 of the slip °

opinion the following paragraph following line 15: “There:

is no-:substance in the appeal by Daniels € Kennedy, Inc.

from the dismissal of its, cross-claim. against Illinois. At:

lantic Corp.”,

<e8 * sat ; 5 ore, aoe S| = ,

: _ I. R. K

: : '

ie T. XM:

; U.S.C. J

" August 17, 1962: oot i %

oe eee

wee €

‘ .

ae Decision of the United States Circuit Court of Aeipeals

: _ for the Second Circuit on Petition for. eacwenrs,

in Banc.

vu NITED STATES DISTRICT ( COURT, hehe

For THE Srconp Circvurt;

an eee

Frank Draco, | ee

ae Plaintiff-Appellee, __

5 _w. : : aa

, -

~ A/S Incer, \ft

' | a . | « Defends nt and Third-Party

_ “Plaintiff-Appellee, se RO

v. ree ns ‘

Bis . iELS & Ken Nepy, ‘Inc. |

Third. Party Defendant. Appellant,

and, ‘eats. a

ILLINols ATLANTIC Corp, : ¢

Third. ett Defendant: Appellee

. - -_. ‘ . 4

, e= :

Detain M. dennis, New: York, NVY, for third. party de-

- fendsint-appellant Daniels & Kennedy, Inc. -

No active circuit judge havi ing requested. that the case

be reheard i in bane, the Pais is —

: Epwarp. LuMBaRD,

a ; : ~ Chief Jude va

_August 17, 1962.

oy : +:

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