Appendix — Thor-Dahl A/S v. Crescent Wharf & Warehouse Co.

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sens testified that. tebe he tested thie stopper he

deapegta it'visually without. opening the clamps and ob-

served nothing wrong) with it. He ‘further testified ‘that

the work: area, which was. only 18 inches wide, seemed

small ‘but; though: he: had frequently performed the

stopper test ‘before, he had never experienced a stopper .

. failure-and did not realize the significance of or report

this space inadequacy.” Since: the evidence amply sus- 7

-fainis’ the: iriference that the unseaworthy stopper con-

dition: caused:the accidgnt, and the ship owes to both

_“ geatnen and ‘longshoremen employed about the vessel an

‘absolute:!duty':to maintain for their: use appropriate

and seaworthy equipment: (Seas Shipping Co..v. Sie-

_ racki, 328 'U;5. 85),the' jury was justified in its im-

ing that even, if Flores were- in. some way

nt, his, conduct, did .not constitute .a proximate .

cause, of .the, accident. ‘As- appellant condedes, there. is

nothing. specific in the record,from: which it can be.de-

termined whether oF ‘not the jury; found Flores, con-

-. tributorily negligent, and -appellant : presumes merely

that since. provable damages were, substantially lower .

than’ the .verdict, the:,jury failed. to apply. thé court’s

en ee een ‘deem

- We find Hecclin; moreover, no: miscarriage ‘of justice

| | with tespect to the jury’s verdiet that Thor-Dahl is not’ ,

- entitled to “indemnity. .The, United’ Stated: Supreme — fe

Court, in a lonelier decisicih (Ryan Co. v. Prevent ee

Corp., 350 U.S. 24), imposed upon » e}

_ panies: generally an: implied warranty : worlanesiitey

service and ;the liability of "Crescent’ must’'be'de-

termined ‘in this contest. The jury was, nonethelss,’ jus-

tified’ in inferring ‘from the evidence either that no - i

breach thereof occurred or that, in any event; defective) .

performance ed Crescent did not peserpmes cause in

= accident.

Testimony disclosed that the custom and. sradtied Ege -

/ among San Diego longshoremen at the time of ‘the ac.

cident was to make a’ visual inspection of the ship’s gear

and proceed to use it if it appearéd:tg’ be. in’ good- coe:

, ‘dition. without first taking it apart or examining it for

', hidden, or latent defects. This accords with Flores’ testi-

mony. that he observed no gross ‘defects in the stopper

before its use. The law -would impose an untoward bur-

__ den_on the. stevedore company to. reqitire that its-em-

_ployees idismantle and. ‘inspect the ship’s Sete, ‘for

latent defects prior to use.

. Appellant refers to rule 9.52(b)(3). of: as due :

‘and Health: Regulations “for Longshoring (Code of —

Federal: Regulations, volume 29, part 9 to subtitle “A,

; effective March: 2i, 1960, and in force at the time of’ :

the accident) which provides that stopper: clamps, shall

Paipdussempaovves sme eb. tion

| Seasbankadbiedesh hak Corvdbiqeweatipntihiel its: .

| "| Seige tethiebslal aspecibeieg’ eeeedlincs nadir: to

. , Stitutesan absolute bar to indemnity, from the steve-

dore company. Decisions. subsequent ‘to: Ryan “... have —

‘made clear \that;the stevedore’s: obligation: to: wncdeitin:

se with: reasonable safety: extends not only to the stowage

_. and handling of cargo but also to the use of equipment

ingidental thereto, Weyerhaeuser S.S. co. v. Nacirema.

- Operating. Co:, 335-U.S. 563, .78'S.Ct. 438, including -

Ace defective equipment supplied by the shipowner, Cru-

~~ « mady ow. The J::Hy Fisset, supra, cf.: Waterman: S.S.

‘Corp. v. Dugan &- McNamara, Inc., 364 U,S.:421,.5

Led.2d; 169, 81, S :Ct 200, and that the. shipowner’s

negligence, is, not fatal to recovery, against the steve-

dore,”, (Jtalia, Societa v. Oreiie Stennlorieg Co., Inc.

376 U.S..315, 319-320,)... ;

i SNP hip deed? GANG where te tare :

Wee dore: company’ induces: the ‘accident'‘by bringing into

...) play the chazardous condition .(Crumady 0.’ “Jochim

- Hesdvick:: Fisser”, 358° U.S. 423; Weyerhaeuser S.S.

Co: ve. ‘Nacirema 'Co., 355: U.S. 563; Pettus: v. Grace

: Eine, dnej305 ¥.2d°151) The application of this prin-

ciple is, however, limited to circumstances where the

- stever f¢ company | knew’ and’ recognized the: existence

| of, the. defective. condition, and the use. of uriseaworthy:

se _ equipment; despite such knowledge constituted ‘the: fatal

| a wi tJochim ‘Hendrick’ Fisser”,

ra°¥ rminal Anes; Coldwell, 354. F.2d

”

v

; ha O- 7 oe

» the seandaisble ant /seoekionadiie: sina ee

services should have discovered this’ dangerous! latent ie

Condition prior to the operational test ‘of the’ stopper: ee

_ Appellant concedes that “tlfere is no other conceivable _.

- way (except by taking apaft the stopper) in which ‘the a

. Stevedore company could ..; . make certain the stopper

was free of paint and dirt which would prevent it

from being drawn tight, 4 but urges that a breach of .

workmanlike service may, be presumed from the mere

“fact that an accident restilted in the performance of the

customary test. Even if, we agreed, we would’ not. be’

prep acne tena 90 by 338

_ struction, clearly linaivedt in applicability. to the ¢ case eck

indemnity against the stevedore company : “You have

began’ instructed that the‘ stevedore company owes a duty

to'the shipowner to: conduct its operations, atacand

— of ordinary care, ina reasonably safe manner.

“However, the stevedore company does not have a

duty to the ‘ship-to discover and remedy a hidden or _ aoe

- latent defect of which it was not informed and which i is

riot obvious trpon cursory inspection.” Appellant strongly

objects to’ the adjective “cursory” as inadequate to de-

scribe the duty of inspection which the stevedore com- ee

patty bears under its contractual relationship with the

‘shipowner. ‘The selected’ language taken ‘out of context

| May imply a superficial inspection generally inappro-

«priate to circumstances so fraught with potential hazard a8

rairesamanger- albveon éclcsit ances ied ee

inte crud nthe i ‘hi rminolog: sy i Ss, the

. : Ag

pled: warranty of workmanlike performance by. a ste-—

vedore does not place, upon him a duty to discover, de-

fects in the apparatus or equipment furnished by the

vessel being loaded or. fnloaded which are not obvious

_ Upona: cursory inspection.” (Ignatyuk v. Tramp Char-

tering: Corp., 250 F.2d 198, 201; relied upon in Cia

_ Maritima Del: Nervion v. James J. Flanagan Ship.

Corp, 308 F 2d 120.)

~The accident resulted from a hazardous and- fatent

Oe uuniseaworthy ‘condition of the vessel, which it is the

shipowner’s responsibility to maintain. While the negli-

gence of the shipowner may riot bar its recovery from -

~ the ‘stevedore company (Jtaka. Societa a per Asioni de

Novigasione uv. Oregon Stevedoring Co., supra, 376.

U;S,; 315): still. the. stevedore. compariy should not be.

charged on its warranty by reason of failure to make a

cautious. ‘inspection. of thé ship’s- gear (Cia Maritima

Del. Nervion v. lames J. Flanagan Ship. Corp., supra,

308 F.2d 120). It is only those defects which have——_-

: -fac “observed by the stevedore company for .

which it may be. responsible . if it uses the equipment

be sabia oe the ‘condition has

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lh ee Egan ; &

“Certainly the shipowner would ot only object tat

wv seule cen omega C lece of ship's,

| ty the shevedoriniy mspeag $0 meses eae

- the ship’s. own .appurtenances were seaworthy.’ fo eieetante

Compania Naviera Continental, S.A., D.Md: 1962, 203s:

F. Supp. 206, 211.” (Cia Maritima Del Nervion v. _

James J. Flanagan Ship. Corp., supra, p. 128.)°0

The aes arse isaffirmed. e ee 2

~ WOOD, P.J. 2 pe as