# Petition for Writ of Certiorari — Campisi v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0606%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 925 ## Text ei: if ‘ : 1 P s& en my . 2 “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 a 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 — ga ef 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 , \ c 5 . ’ ; , \ “ . 2 “yg - . e 6 a ° « i var — , nsveneia . PP etiam tree et Sate aR et ° « . ‘ ; 3} Bae R si ; L . ‘. . : . . nr ie . . Ps zs - 2 . Vera heel "aie ES Gig Naat : : e ° . ° . . . . 2 +) a . . . s . . . . . . : ber al GL Ce e e . ‘ 7 ’ . e 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: o INDEX oh hee ae "5 : 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 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 " & i sa st 6S ‘e mth ‘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; o 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 / 8 "Wr . E 2 ° : — eS a ee ; e 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? : os . . 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 }. XN 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. ra “* * Information relative to the crew’s gear inspection and repair duties came from the testimony of the Shipowner’ s Mate and witness, Johnson. 2, 9 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 11 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- a 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 2 . a 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. _= 7. noe he 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— 4 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 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 i 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 ‘ ‘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 . ? a ° 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 t 8 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 eo 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. . c 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’ a 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 eS , 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 s 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 a 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 -~ 7 . = - 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) aoe : cee & yy 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 “- ha No. 27 —September Term, 1961s (Afgued Mareh 5 5, 1962. Decided July 3, , 1962.) a Docket No. 26231 & : 4 4 | ‘Frank Draco, ira a a Pate | _,Plaintiff-Appellee, — 3 v. x A/S -INGnr, oe Defendant and Third. Party’ Sonal ees 4 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. v Before: Lumsarp, Chief Judge, Kavurman and Marsuatu, Cireuit Judges. mas & os a ‘* ° : . id ner Sate r . 28a « © Opinion of United States Court of Appeals. 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. a a ‘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- — —- & v - 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 ar ‘ : . 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., 6+ ff f / te 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. Ae U NITED STATES DISTRICT cou BT, m Mie, For THE SECOND Cincuir. $4 +. ‘ : 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 ee ,’ 7 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... ry The. petition of the third-party defendant. appellant Daniels & Kennedy, Ine. is denied. 6 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.”,