# Petition for Writ of Certiorari — Golten Marine Co. v. Trelleborgs Angfartygs A/B > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0821%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 946 ## Text urnee- -SHereme Ny Court, U c LIGRARY FILED SUPREME COURT. U. & APR 26 1969 | : é i JOHN F. BAVIS, CLERK OG IN THE Supreme Gout of the United States OcroserR Term, aR 1963 GoLTEN Marine Company, Inc., Petitioner, —against— TRELLEBORGS ANGpaRTYcs A/B, and Cuartes McLaucuiiy, Respondents. PETITION FOR A WRIT OF'CERTIORAR! TO THE UNITED STATES COURT OF APPEALS | FOR THE SECOND CIRCUIT © Smwney A. Scowartz Attorney for Petitioner 76 Beaver Street _ New York, New York 10005 (212) WH 4-2633 JOSEPH ARTHUR COHEN Of Counsel . 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Review of this case should\be had to halt a growing conflict between decisions of the Court below and those of this Court, and to prevent denial to petitioner of its constitutional right ee ieirccha ec eacccicchacadaebetin dec 7 (a) With Regard to the Shipowner’s Claim for II citation oe 7 (b) With Regard to Golten’s Counterclaim - ¥ Against the Shipowner ..... report before the accident of anything wrong with the hoist: He further testified that McLaughlin should have reported _ his difficulty with the hoist to him so that he could have repaired the hoist, and, most importantly, that it was not safe for McLaughlin to have descended into the hoist when it failed to come up to platform level. Pursuant to the ruling of the Trial Judge, a verdict was to be obtained first on the principal case of McLaughlin against Shipowner. In summation, counsel for Shipowner argued the contributory negligence of McLaughlin in de- scending into the hoist and standing upon the greasy bear- ings. The jury was then charged that if in doing those things McLaughlin did not act as a reasonably prudent rigger he might be found contributorily negligent. Ina special verdict (Appendix p. 11a-12a), the jury found (a) that Shipowner was negligent, (b) that Shipowner. breached its warranty of seaworthiness, (c) that said negli- gence and breach of warranty proximately caused Me- Laughlin’s ipjuries, (d) that McLaughlin’s damages were 4 FRAT Se cota * nina ne cove ts tonto i WO oe aa . q Rie Rag A 6 $12,000.00, (e) that’ McLaughlin was contributorily negli- gent in the amount of $2,000.00, and (f) Was thus entitled to recover only $10,000.00 from Shipowner. : The finding of contributory negligence on the part of McLaughlin was considered by the Trial J udge to conclu- sively establish Shipowner’s right to recover fall indemnity from Golten as a matter of law. Accordingly, he directed a verdict in favor of Shipowner against Golten for $10,000.00 plus the taxed costs and for $3,500.00, the agreed amount cf Shipowner’s attorneys fees and disbursements - in defending against McLaughlin’s claim. Although Golten was thus heing held liable as a matter of law to Shipowner for the imputed negligence of Mc- Laughlin (in-a situation whereby McLaughlin’s negligence was only 1674% of the whole and Shipowner’s negligence was 8344%), the award against Golten was not reduced to reflect an offset for Shipowner’s own fault, as ‘sought by Golten in its counterclaim against Shipowner; and Golten’s other counterclaim against McLaughlin, whose negligence, imputed to Golten, rendered it liable to Ship- owner, was dismissed. : The determinations that as matters of law (a) Golten was obligated to indemnify Shipowner and (b) was en- titled to no relief on either its counterclaim ,against Ship- owner or its counterclaim against McLaughlin, were each affirmed by the Court of Appeals in its opinion of J anuary 30, 1969 (Appendix p. 1a-9a). | Thus, in its present posture, this case presents the pic- ture of three parties who, as a matter of law, have been subjected to damages in an inverse proportion to their fault.. The major fault herein lies with Shipowner which was found by the jury to have been responsible for $10,000.00 of the $12,000.00 damages sustained by Mce- | 7 Laughlin, or 83144% negligent. McLaughlin was found by the jury to have been at fault fer only $2,000.00, or 1674%. Golten’s fault could only be equal in quantity to McLaugh- . lin’s, and was of a lesser quality since it was only a de- rivative or vicarious fault. However, as a result of what both the Trial J udge and the Court of Appeals considered to be governing rules of law,. Golten,; the party least at fault herein, has had damages imposed upon it in the amount of $13,500.00. McLaughlin, who was only at fault for $2,000.00, or 1674%, loses only that precise amount from‘ his damages. But Shipowner, the major tortfeasor herein, responsible for * $10,000.00, or 8314% of the total damages, has not only been granted full indemnity but has been awarded an additional $3,500.00 for defending against a claim caused in major part by its own fault. = _ REASONS FOR GRANTING THE WRIT e 4 \ I eo Review of this case should be had to halt a- growing ‘conflict between decisions of the Court below and those of this Court, and to prevent denial to petitioner of its constitutional right to trial by’ j jury. ‘ (a) With Regard to the Shipowner’s Claim for Indemnity: The matter of indemnity in maritime personal injury cases embraces two separate and distinct issues. It must initially be determined whether the putative indemnitor breached the warranty of workmanlike . performance (WWP); and, if so, was the conduct of the indemnitee such as to preclude indemnity. This Court has held such issues to be for jury consideration. Thus, in Weyerhaeuser S.S. Co. i eta ET baad Sen Pre tbe ese bg * i oie, We ee 8 v. _—— Operating Co., 355 US. 563, 567, 78 S. Ct. 438, 441 (1958), it was declared. that “The evidence bearing on these issues * * * was for jury consideration under appropriate instructions.” That a Shipowner’s claim. for indemnity was for jury determination was once again the holding of this Court in Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S. Ct. 780 (1962). The principle was re- - cently rciterated and a contrary judgment of the United States Court of Appeals Second Circuit: was summarily reversed in International Terminal Operating Co., Inc, v. N. V. Nederl. Amerik Stoomv. Maats, 393 U.S/74, 89 S. Ct. 53 (1968). . Yet, notwithstanding the clear mandate of this Court, the District Court took these issues from the jury and re- solved them as questions of law. This procedure was af-. firmed by the Court of Appeals. By such action, petitioner was deprived of its constitutional right to trial by jury.- on iscues declared by this Court to be for jury considera- tion. It will undoubtedly be argued that since McLaughlin’s contributory negligence of 16374% had been fixed by the jury, the indemnity issue was in reality jury resolved. But any such argument (which has other flaws) completely overlooks the fact that the jury was never given an oppor- . tunity to consider whether the Shipowner’s negligence amounting to 8314% was such as to preclude indemnity. Evaluation of a shipowner’s conduct by the fact finder - involves a “weighing process”, Waterman Steamship Cor- poration v. David, 353 F. 2d 660 (5 Cir.). Your Petitioner _ ‘was entitled to have the jury weigh the imputed 1624% of McLaughlin’s negligence with the Shipowner’s 8314% 9 ee and determine whether under these circumstances indem- nity was warranted. (b) With Regard to Golten’s Counterclaim Against the Shipowner: mas : at In its counterclaim against Ghinsnne” Golten pleaded, inter alia, that any liability on its part would be caused, in whole or in part, by Shipowner’s active and affirmative . negligence and fault and its breach of the warranty of seaworthiness ; and Golten thereby sought judgment against Shipowner : ; «* * * for an amount equal .to the extent that any liability on the part of the third-party defendant. (Golten) was caused, brought about or cuntributed to by said third-party plaintiff (Shipowner) * *. *.” In both Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 568, 78 S. Ct. 438 (1958), and in Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 410 (1959), reference was made to the duty ‘owed by a shipowner to a contractor invited aboard the vessel. Only recently in Federal. Marine Terminals, Inc. v. Burnside Shipping Co., Ltd., —— US. , 37 L.W. 4271 - _ (4/1/69) did this Corrt re-iterate (4275) :. “We hold only that federal maritime law does impose on the shipowner a duty to the stevedoring contractor of due care under the circumstances, and does -recog- nize a direct action in tort against the shipowner * * *.” \ This Court in the cited, case then went on to recognize that the counterclaim against the shipowner was predicated upon its independent wrong to the contractor. The ship-- owner’s argument that its tortious conduct may be used only as a shield to preclude indemnity but not as a sword ‘ a. 1 eed AIRS “ACL AINAY, 4 ’ ‘ ; ° 10 . compelling payment of damages for that tortious conduct , was expressly rejected by this Court. - Farther, this Court in Burnside, supra, also held that the fact that the contractor has a direct action in tort against the shipowner does not preclude additional direct actions against the shipowner by the contractor under other theories. It made clear that the proscription, set forth in ~ Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S.. 124, 76 St. Ct. 232 (1956), against the use of the theories of “active” or “passive” as well as “primary” or “sécond- ary” negligence was appropriate only to the. shipgwner’s claim for indemnity against the contractor, but was in no wise applicable to the contractor’s action against the ship- owner. ~~ In view of the fact that the jury in the instant case found the shipowner 8314% at fault, there was at the very least - a prima- -facie case established on Golten’s counterclaim against the Shipowner. By holding Golten liable to indem- nify the Shipowner for all of McLaughlin’s recovery plus - $3,500.00 in counsel fees, all as a matter of law, the Courts below completely deprived Golten of its right to have a jury pass upon its counterclaim for damages against the Shipowner which Shipowner had already been found by that jury to have been 8314,% at fault in the accident. Such counterclaim could have provided Golten with an offset ‘of at least 8314% of the judgment entered against it, and possibly even more in view of the fact that its liability was wholly vicarious. The marvelous inconsistency. in what the Trial Judge did, and of what the Court of Appeals affirmed, is that they determined as a matter of law that the jury finding of 16%4% contributory negligence on the part of McLaughlin made Golten liable to the Shipowner on@the Shipowner’s =. ~Y \ ”~ ‘ Fos , ¥ Di hana tecitisictrterscniintcteaensssecitceiett thence SNES hen abi ed wh na MR ceOR IE tree Lr s . . . 5 . 5 ™ 12 Il. There is both an inter and intra circuit couflict and . inconsistency on various issues presented in this case. (a) Regarding Imputation of the Plaintiff’s Contributory Negligence to the Impleaded Employer: As evidenced by the instant decision and that in Morten- sen v. A/S Glittre, 348 F. 2d 382 (2 Cir. 1965), the United States Court of Appeals for the Second Circuit is of the _ view that a plaintiffs contributory negligence benefits a shipowner not only by a proportionate reduction of, the - plaintiffs recovery, but by also providing the shipowner with a springboard for automatic indemnity from the impleaded employer: (It should be noted that in Cavelleri v. Isthmian Lines, 189 F.:Supp. 525 and 190 F. Supp. 801, the ther District Judge Kaufman was of the view ‘that — such contributory negligence would be completely “excised” from the case upon the diminution of the plaintiff's recov- ery and could not thereafter begome the basis for the em- ployer’s indemnity liability to the shipowner. It is that view which seems to have been excised by subsequent decisions.) 3 However, the United States Court of Appeals for the Fifth Circuit is of the view that the contributory negli- _ gence of a plaintiff may not be imputed to the employer so as to render that employer liable to indemnify a third party. See Drewery v. Daspit Bros. Marine Divers, Inc., 317 F. 2d 425 (5 Cir. 1963), and Loffland Bros. Co. v. Rob- erts, 386 F. 2d 540 (5 Cir. 1967). See, too, Maples’ Case, 1966 A.M.C. 2032, 2035 (S.D. Tex. 1966). (b) With Regard to the Counterclaim Against the Plaintiff: Notwithstanding that Golten was held liable to the Ship- owner only because McLaughlin’s contributory negligence ™~e. .. of 1624% was imputed to it, the Court below affirmed the - dismissal of Golten’s counterclaim against McLaughlin on the basis of Nicroli v. Den Norske, et al, 332 F. 2d 656 (2 — Cir. 1964). However, the same Second Circuit held in Horton v. Moore-McCormack Lines, Inc., 326 F. 2nd 104 (2 Cir. 1964), that a maritime employer was entitled to recover full indemnity from its employee whose breach of his “implied agreement to perform his duties in a proper and workmanlike manner” cast the employer into liability to a third party. See, too, Footnote 1 of the dissenting opinion in Schenker v. U. S., 322 F. 2d 622, 630 (2 Cir. 1963). : An’ mens obligation to his employer to perform his job in a workmanlike manner exists in the 5th Circuit, see Holmes v. Mississippi Shipping Company, 301 F. 2d 474, 481 (5 Cir. 1962). ~ The 10th Circuit recognizes the ventana s obligation to indemnify an employer held liable to a ae person solely because of such employee’s negligence and, in Thomas v. Malco Refineries, 214 F. 2d 884, 886 (10 Cir. 1954), has: stated the rule as follows: “In cases where the wrongful act or omission of a per- son causes injuries to another, and a second person, guilty only of imputed or constructive wrong, because of his legal relationship to the primary wrongdoer or his positive legal: duty to the person injured, is also liable to the latter for the-damages suffered, and such second person has discharged such liability, he is en- titled to indemnity from the primary wrongdoer for the entire amount paid to discharge such liability. The © principle applies where: an employer under the doc- trine of respondeat superior is compelled to pay dam- _ages to a third person solely because of the negligence or other wrongful.act of his. employee.” (Italics added) _ : i i _ Shipping Co., Ltd., —— U.S. 14 Indeed, the duty of an employee to reimburse his em- ployer for damages sustained by the employer due to the employee’s negligence has become hornbook law. See 42 Corpus Juris Secundum, pages 597-598; Harper and James, The Law of Torts, 1363 (1956); Prosser on Torts, Second _ Edition (1955), page 250, § 46; and Restatement of Resti- tution, § 96. There is nothing contained in the Longshoremen’s and - Harbor Workers’ Compensation Act, 33 U.S. Ct., $901 et seq., ‘which in any way deprives the employer of a right © to recover indemnity from an employe whose negligence has cast the employer into liability to a third party. The rights and obligations granted to parties under the Act did not exclude all other rights and obligations between the parties, see Federal Marine Terminals, Inc. v. Burnside , 387 L.W. 4271 (4/1/69). Golten’s liability to the Shipowner in the instant case “came about solely, and as a matter of law, because Mc- Laughlin’s contributory: negligence was imputed to it. To - dismiss Golten’s counterclaim for indemnity against Mc- Laughlin is, under these circumstances, a clear conflict with the law of other Circuits, with hornbook law, and with the maritime law of the Second Cireuit itself, as pee 3 in H orton, supra. - 15 Ill. The instant case presents the ideal vehicle for this Court to render the clarification sought by courts, coun- sel and litigants in the presently chaotic state of the maritime personal injury indemnity law. Termed a “wonderland” by the Court below, a “Donny- brook Fair” in D/S Ove Skou v. Hebert, 365 F. 2d 341, 344 (5 Cir. 1966), and a “Tar Baby” by Proudfoot in_ 20 Stan. L.Rev. 423 (1968), there can be little doubt of the need for review by this Court of the issues involved in the field of maritime personal injury -indemnity actions. ~ Presenting, as it does, virtually all of those issues, the : instant case is the ideal vehicle for the clarification so - desperately required. The anomaly of inferior Courts fashioning law so as to impose damages in inverse ratio to fault has perhaps reached its zenith in the instant case. The shipowner, who was most at fault in view of a jury verdict finding it negligent to the extent of 8314%, has benefited the most from this litigaiton by having been awarded not only full indemnity for McLaughlin’s judgment but by also having been awarded its counsel f2es and expenses of defense. McLaughlin, less at fault than the. Shipowner in view of a jury finding of only 16°4% contributory negligence, has his damages mitigated by the extent of his negligence (whereas the Shipowner did not) and must also pay his own attorney’s fees. Golten, only vicariously liable because of. the imputation to it of McLaughlin’s contributory neg- ligence, ends up by paying all of McLaughlin’s recovery and by also having to pay the Shipowner’s attorney’s fees as well as its own. It is to this ridiculous extent that various inferior Courts have propelled this:Court’s state- 16 ment in Italia Societa v. Oregon Stevedoring Company, 376 U.S. 315 (1964), that “liability should fall upon the party best constituted to adopt preventive measures and _ thereby to reduce the likelihood of injury.” The extreme, illogical and inequitable result, reached in the instant case by Courts purportedly attempting to carry out that philosophy, is, upon analysis, contrary to ‘its purpose. In the instant case, there is nothing Golten could have done to:have prevented McLaughlin from mak- ing his own judgment and descending into the hoist to pass the bearings out to Kewn. But, there is considerable that the Shipowner could have done to have made the hoist safe for use so that it would have come up to the level of the platform and so that its safety bars would function better. The fact that the Shipowner gets off seot-free and is even. reimbursed its attorney’s fees and expenses for defending against an accident, caused by its _ negligence of 83144%, is certainly no inducement to it to more carefully maintain its equipment and is certainly no incentive for it to adopt preventive measures to reduce the likelihood of further accidents. As indicated earlier in this petition, the Court below ascribes -this “wonderland” .to this Court’s decision in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., - 342 U.S. 282 (1952), which your petitioner believes it mis- interprets with the result that it precludes recovery by petitioner on its counterclaim against the Shipowner. The error, committed by the Court of Appeals in its affirmance, is, we submit, demonstrated clearly by the decision of this Court in Federal Marine Terminals, Inc. v. Burnside ' Shipping Co., Ltd., — —U.S. , 37 L.W. 427 (4/1/69). If, however, petitioner be wrong in its view of the non- effect of Halcyon upon the situation at hand, then it is submitted that Halcyon should be reviewed by this Court Pe ee eee aS eT anit ee at RUS TO 17 for a policy declaration as to whether its principles are intended to apply to the recently developed’ maritime personal injury indemnity field. In the law of Admiralty which recognizes comparative negligence and divided damages, the Halcyon rule prohib- | - iting a division of damages between shipowner and con- tractor in proportion to fault-is an anomaly. Indeed, its vitality in the area of maritime personal injury indemnity actions, developing since Ryan Stevedoring Co. v. Pan- Atlantic Steamship Gorp., 350 U.S. 124, has been ‘seriously questioned in Gilmore & Black, The Law of Admiralty, p. 371 as follows: - “Despite Justice Burton’s disclaimer, it is obvious that . Ryan by its approval of the indemnity cases, strips Halcyon of any surviving vitality. In the framework of harbor-worker litigation, there are simply no cases left for the Halcyon rule to apply to unless it be imagined that the harbor-worker’s employer was a trespasser on the ship; in all other cases the existence. of the contract between employer and shipowner leads automatically to the implied promise by employer to indemnify shipowner.” (Italics added) Additional: authority té the effect that Halcyon is of doubtful authority today, if not indeed stripped of all vitality, is to be found in Grace Lines, Inc. v. Port Ever- glades Terminal Co., 324 F. 2d 699 (5 Cir. 1963). See, too, Weyerhaeuser Steamship Company v. U.S., 373 U.S. 597, 83 S. Ct. 926, anc TreadwelleConstruction Co. v. U.S., 372 US. 772, 83 S. Ct. 1102. It should be obvious that incentive to prevent injury can best be promoted by making partiés respond in dam- ages to the extent that their fault caused the injury Such practical businessman’s deterrent from negligence will best ep MAES OS A Bae eit 18 serve the interests of society and would require apportion- ment of damages between shipowner and the inipleaded ‘ contractor in accordance with their respective degree of fault as has been done in Chevis v. Luckenbach Overseas Corp., 228 F. Supp. 642, and Jones v. S.S. Jesse Laghes, 253 F. Supp. 368. Indeed, in D/S Ove Shon v. Hebert, 365 F. 2d 341 (4 Cir. 1966), a learned and experienced maritime Judge stated that the Court was not undertaking to rule that “there: may never be an acceptable, equitable basis for distribut- ing the burden of a loss resulting from the operational cooperation of breaches or wrongs of several parties”. Circuit Judge John R. Brown then stated in a most perti- nent footnote as follows (365 F. 2d 351): “18. Assuming, as some knowledgeable persons doubt, Gilmore & Black, Admiralty, p. 371 (1957) ; Grace Lines, Ine. v. Port Everglades Term.’ Co., 5 Cir., 1963, 324 F. 2d 699, 701, that in a practical. way there is any practical vitality in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1982, 342 U.S. 282, 72:S. Ct. 277, 96.L.Ed. 318, we do not think this outlaws for all time judicial im- provisation in the accommodation of this dynamic ‘Sieracki-Ryan-Yaka-Italia concept. Difficult as it conceptually is to read out handy, everyday no- tions of prudence, due care on the ground that tort principles. as such are not pertinent, Italia Societa v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S. Ct. 748,°11 L.Ed: 2d 732,.the process is inevitably a comparative one (see Pettus v. Grace Line, Inc., 2 Cir., 1962, 305 F. 2d 151, supra) per- haps justifying comparative techniques some- , times.” J Gece” 19 ? In Proudfoot, “The Tar Baby”: Maritime-Personal In- jury Indemnity Actions, 20 Stan. L.Rev. 423 (1968), there is an excellent academic discussion of the problems actually - presented by the instant case. These problems, involving a contractor’s counterclaim against a shipowner, an employ-: er’s counterclaim against a negligent employee, the right to jury trial of what this Court has declared factual i issues, and the vitality and applicability of Halcyon to the subse- quently developed field of maritime personal injury in- demnity actions require policy determinations and clarifi- cation by this Court. It is respectfully submitted that this petition for certi- orari should be granted so that the anomaly and inequity now prevailing through misunder standing can be clarified by appropriate policy declarations by this Court. CONCLUSION By reason of the foregoing, it is respectfully submitted ° that the petition herein should be granted and'a writ of certiorari should be issued to the United States Court of ° Appeals for _ Second Circuit. — _ Respectfully submitted, - Sipney A. Scuwarrtz Attorney for Petitioner 76 Beaver Street New York, New York 10005 (212) WH 4-2633 Joserx Arraur -Conex Of Counsel “ we peemead SP Lg etey Ree DBR? Se BEATE INL Ra al EA Pay Ua Sella Serica etait aia Ds Sia Raab Opinion of the Court of Appeals ‘UNITED STATES COURT OF APPEALS - For tue Seconp Circuit No. 51—September Term, 1968 Argued December 2, 1968 Decided January 30, 1969 7 Docket No. 30837 F CHARLES McLavcuun, . Plaintif’-A. ppellee, TRELLEBORGS ANGFARTYGS A/B, Defendant and Third-Party Plaintiff-A ppellee, GoLTEN Wisin Company, Inc., Third-Party Defondant- Hoattonns ‘ s Before Lumparp, Chief Judge, Frienpty, Circuit Judge, and Ryan, Distrigt Judge.* : Appeal by a ship repairman from aleenatitn of the District Court for the Kastern District of New York, ‘Jacob Mishler, Judge, granting indemnity to a shipowner’ in respect of a personal-injury recovery against it: by the repairman’s employee and dismissing the repairman’s coun- terclaim against the employee. Affirmed. Joseph Arthur. Cohen (Alexander, Ash & Schwartz, New York, N.Y.; Sidney A. Schwartz, of Counsel), lie” Third-Party Defendant- Appellant. * Of the Southern District of New York. sitting by designation. a. 2a ~ Opinion. of the Court of Appeals Robert Klonsky (DiConstanzo & Klonsky, Brook- lyn, N.Y.), for Plaintiff-Appellee. & Havens, New York, N.Y.; Joseph V. Fleming, of Counsel), for Defendant and Third-Party Plaintiff-Appellee. FRIENDLY, Circuit Judge: This action in the District.Court for the Eastern District of New York, in which federal jurisdiction was predicated on diverse citizenship, 28 U:S.C. § 1332, was brought by McLaughlin, a rigger employed by Golten Marine Com- .pany, against Trelleborgs Angfartygs A/B, owner of the freighter Lake Ontario, to recover for injuries caused by unseaworthiness of the vessel and Trelleborgs’ negligence. Trelleborgs impleaded Golten. A jury brought in a special verdict. that the ship was unseaworthy. and Trelleburgs was negligent; that McLaughlin’s damages were $12,000; that he had been contributorily negligent; that his damages should accordingly be reduced by $2,000; and that he should recover $10,000 against Trelleborgs. Question then arose as to Trelleborgs’ claim for indemnity.. Judge Mishler, relying on Mortensen v. A/S Glittre, 348 F.2d 382 (2 Cir. 1965), considered that the finding of contributory negli- gence on the part of McLaughlin was conclusive of Golten’s breach of its’ warranty of workmanlike performance P) and required a recovery in the absence of evidence that Trelleborgs had prevented Golten from fulfilling its ,obligation: Accordingly he directed a verdict in fayor of Trelleborgs on its third-party claim for $10,000. plus the taxed costs and $3,500, the agreed amount of Trelleborgs’ © ‘attorneys’ fees and- disbursements in defending against William P. Kain, Jr. (Haight, Gardner, Poor BBE ART ise RATT AE ae We ae, Rha ne int le 3a _ Opinion of the Court of Appeals McLaughlin’s claim; he did not reduce this recovery to reflect. comparative fault as ‘requested in a counterclaim Golten had pleaded against Trelleborgs. He also dis- missed another counterclaim wherein Golten had sought . indemnity from McLaughlin for any liability it ‘might incur by reason of his negligence. This last ruling was demanded by: Nicroli v. Den Norske Afrika-OG Aus- tralielinie, 332 F.2d 656 (2 Cir. 1964), and we shall say no more concerning the portion of Golten’s appeal that relates to it. Trelleborgs had engagéd Golten to perform repair and overhaul work in the engine room of the Lake Ontario while she lay at dock in Jersey City, N.J. Needing ,addi- tional help, Golten employed two riggers, McLaughlin and Kewn, at a union hiring hall. They reported to the vessel around 1 P.M.; their job was to move some engine bear- _ ings from the ‘hip to a truck that vould haul them to Golten’s machine shop. cp The bearings, which were oily and greasy, were lying on the floor plates of the engine room near a hoist that ran up to a platform giving access to an upper passageway and, we assume, an exit from the ship. Erickson, Golten’s _ foreman, instructed the men to use the hoist. .Kewn placed the bearings in it and went to the platform to raise . it; he. was joined there by McLaughlin. They found that ‘the hoist could not be elevated beyond a level some 214’ below the platform. They did not report this to the ship’s officers or to Erickson or explore other methods of re- moving the bearings, such as lowering the hoist’ to the floor and moving the bearings to another one. Instead, McLaughlin decided to climb into the hoist and hand the bearings out to Kewn. While attempting to do this, he slipped on the bearings and fell against the safety bar io a SRA en { Be SDRC Ran 4a Opinion of the Court of Appeals — of the hoist. This came out of its slots and si asi fell to the engine room floor. In Mortensen, supra, 348 F.2d 383, this court sustained the direction of a verdict on a ship’s third-party claim against the employer of an injured plaintiff whom the jury had found guilty, of contributory negligence. Golten attempts to distinguish Mortensen on the facts. In the alternative, it argues that if we should disagree on: that _ seore, the result here—where, as Golten puts it, the ship, -- which was found to have five-sixths of the responsibility for the* accident, has succeeded in placing the entire liability plus its expenses on an otherwise guiltless em- ployer of the man who was found to be only one-sixth responsible—is so manifestly unjust that something in the picture must be wrong. . The asserted distinction is that the: employee in Mor- tensen had noticed the oil slick that caused the accident ‘almost ‘two hours earlier, and the employer, with this knowledge imputed to him, thus breached its WWP in failing to remedy the dangerous condition. See Drago v.. A/S Inger, 305 F.2d 139, 142 (2 Cir. 1962); Nicroli v. Den Norske Afrika-OG Australielinie, supra, 332 F.2d at 656. In contrast -we held in Calderola v. Cunard 8.8. Co., 279 F.2d 475 (2 Cir. 1960) and Orlando v. Prudential S.S. Corp., 313 F.2d 822, 824 (2 Cir. 1963),’ that a stevedore could not be cast in liability for failure to correct a dan- gerous condition when the employee had become aware of the danger only momentarily before the accident. ° If ~Golten could be held liable to the ship solely for failure to have the hoist put in proper order or to direct Mc- Laughlin not to enter it, this distinction of Mortensen ~ - ; . 1TIn neither case was it found that the employee was guilty of contributory negligence. - oa _ Opinion of the Court of Appeals might well have merit. However, while a stevedore or other third-party defendant can undoubtedly be held for failure to correct a‘ hazardous condition or prevent its employees from exposing themselves to danger of which it has knowledge, actual or imputed, that is neither the theory of Mortensen nor the full measure of the liability the Supreme Court has established. The rationale of Mortensen was rather that the jury’s finding of contributory negligence by the third-party de- fendant’s employee was conclusive of breach of the defen- dant’s WWP. This followed logically from an earlier hold- ing of ours that a finding that an injured longshoreman had negligently exposed himself to danger required entry of a judgment for indemnity, even though the employer had no real opportunity for control. Damanti v. A/S Inger, 314 F.2d 395 (2 Cir. 1963).2 See also Shenker v. United States, 322 F.2d 622, 628-29 (2 Cir. 1963) [express war- ranty]; Nicroli v. Den Norske Afrika-OG Australielinie, supra, 332 F.2d at 656. | ‘ The Damanti and Mortensen holdings, apparently rested on an imputation of the employee’s contributory negligence to his employer, which was thought to. render the employer negligent as a matter of law. If there had been no other developments in the law of this subject, we might indeed wonder whether it might not be useful to have that position reexamined by the court in banc. The similarity in name between negligence and contributory negligence masks an essential difference in concept. Whereas negligence is a breach of a duty to others and gives rise to a right in the person injured, contributory negligence is simply a dis- * The finding in Damanti had been on a trial of the indemnity claim rather than of the personal-injury claim, which the ship had settled. 6a Opimon of the Court of Appeals ability preventing a plaintiff from recovering. See Re- statement of Torts 2d § 463 (1965); 2 Harper & James, Torts § 22.10 (1956); Prosser, Torts § 64 (2d ed. 1964). A rule whereby the employee’s disability automatically cre- ates a right in the shipowner to be indemnified by the employer:’can thus be sound only if the employer is deemed to have undertaken not simply to use reasonable care to select, train and supervise employees so that they will protect themselves, but to furnish employees who in fact will not negligently expose themselves to injury. If the warranty were only of the more limited sort, the contribu- _ tory negligence of an employee, although some evidence of - breach, would not alone support a verdict in favor of the indemnitee, let alone the direction of one. We think, however, that, under Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315 (1964), the WWP is not so limited. The issue there was whether the warranty of workmanlike service “is breached where the stevedore has - non-negligently supplied defective equipment which injures — one of its employees during the course of stevedoring oper- * ations.” 376 U.S. at 315-16. The Court held it was. True Mr. Justice White stated that “the implied warranty to supply reasonably safe equipment may be satisfied with less than absolutely perfect equipment,” 376.U.S. at 321, and annotated this with a citation of our Calderola .and Orlando decisions, see fn. 1. However, the Court went on to say that the standard was “whether the equipment was -in fact safe and fit for its intended use” and that it did not . “believe a rope designed to withstand three to five times the pressure exerted on it when it gave way satisfies the standard of reasonable safety.” 376 U.S. at 322. We see no reason to suppose that the /talia doctrine applies only to material and not to human resources; indeed, the Court’s Ta Opinion of the Court of Aypote footnote sebebiviée to Calderola and Chine, 376 U.S. at 321 n. 8, in support of a statement concerning equipment would not have been pertinerit unless the Court. considered that personnel should be treated on the same basis as rope. Putting the /talia criteria in human terms, while Golten did not warrant a perfect rigger, it did warrant one who would not in fact be negligent. Again, paraphrasing Italia, we do not consider that a rigger who stepped onto a set of oily and greasy bearings on a hoist suspended in mid- air was “safe and fit” to work on the ship or “satisfies the standard of reasonable safety.’ When we go behind the Court’s statements to the reason given for them, namely, that Ww here, as here, injury-produeing and defective equip- ment is. under the supervision and control of the steve- dore, the shipowner is powerless to minimize the risk; the stevedore is not,” 376 U.S. at 324, we see no basis for a different rule regarding personnel. Golten hired McLaugh- lin and put him to work; the ship was not consulted. While it might have been tnipteotionl for Golten to take measures that: would have prevented McLaughlin’s negligence, the law in this area charges the employer with the results of employee carelessness so that the decision on what precau- tions to take will be made upon a w eighing of all relevant- costs. See Proudfoot, “The Tar Baby”: Maritime Personal- Ifijury Indemnity Actions, 20’ Stan. L.Rev. 423, 433-34 (1968). We have considered whether a different view is required by the Supreme Court’s recent summary reversal, Inter- — national Terminal Operating Co. v. N.V. Nederl. Stoomv. Maats., — (1968), 37 L.W. _3150- “51, see also: 392 F. 2d 763. We di - ‘think SO. The issue in Interna- tional Terminal was whether the stevedore had breached oN i ai MLL EI PILE PNG IS LR IIE LI PROPER ATE oie ek ah Ue 8 LEMP EE TEL IT A a Ma ll 8a . Opimon of the Court of Appeals its WWP when its hatch boss allowed work to continue temporarily in an ill-ventilated hold on the faith of a prom- ise by a ship’s officer to activate a concededly adequate ventilating system. The jury, in response to a special in- _terrogatory, had found that the hatch boss acted reason- _ ably. The Supreme Court reversed a ruling by a divided panel of this court that the.hatch boss acted unreasonably as a matter of law; it held that the issue of the propriety of his conduct was one of fact on which the jury’s deter- mination should not have been disturbed. We are reversing no jury determination here; the jury has wae that Me- ‘Laughlin acted unreasonably. Golten’s remaining point is that even if all this is SO, we ought to be sufficiently resourceful to find some way to avoid the apparently irrational result whereby a ship- owner who supplied a defective hoist emerges scot-free and a repairman who did nothing more than innocently recruit a careless workman from a hiring hall pays the full bill for the workman’s injury and the ship’s defense against his claim. It is true that a desire to find some solution for the problem stemming from Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952), has led mem- bers of this court to indulge in occasional murmuring about a counterclaim by the stevedore against the ship, based presumably on the ship’s breach of an implied warranty to the stevedore to supply a ship where the stevedore’s employees could work in reasonable safety. See Pettus v. Grace Line, Inc., 305 F.2d 151, 156 (2 Cir. 1962) (Clark, J., dissenting) ; Williams v. Pennsylvania RR., 313 F.2d 203, 213 (2 Cir. 1963) (Friendly, J.). More recently, the Fifth Circuit, speaking through a judge with long experience in admiralty, said it was not “undertaking to rule for all time . that in the adjustment of these complex warranties and 9a . Opinion of the Court of Appeals counter warranties or. promises, there may never be an acceptable, equitable basis for distributing the burden of a loss resulting from the operational cooperation of - breaches or wrongs of several parties. . .” D/S Ove Skou v. Hebert, 365 F.2d 341, 350-51 & n. 18 (1966) (John R Brown, J.). What sapenbion us is that despite such expres- sions of desire, no-court of appeals has undertaken to make them real. See Proudfoot, supra, 20.Stan. L.Rev. at 442-45. Probably that is.as it should be. So long as Halycon v. Haenn, supra, 342 U.S. 282, remains on the books, inferior federal courts will do better to abstain from further adven- tures in this wonderland and leave doctrinal development to the Supreme Court, unless current congressional inter- est in the complex problems arising from the creation of . a new class of land-based seamen by the Sieracki decision, 328 U.S. 85 (1946), should result in the knot “aw cut in a more drastic fashion. Affirmed. eee OSS OF 5 i ne ar ahh Dad 10a Judgment of the Court of Appeals UNITED STATES COURT OF APPEALS For THE SEcOND CIRCUIT . At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse in the City of New York, on the thirtieth day _ of January, one thousand nine hundred and |. sixty-nine. Present: | 7 Hon. J. Epwarp Lumsarp, ‘Chef Judge, Hon. Henry J. FRIENDLY, | | Circuit Judge, Hon. Sytvester J. Ryan, ie | District Judge. [SAME TITLE] | Appeal from the United States District Court for the Eastern District of New York. This cause came on to be heard on the transcript of record from the United States District Court for the Kast-. ern District of New York, and was argued by counsel. On ‘coNSIDERATION WHEREOF, it is now hereby ordered, ° ‘adjudged, and decreed that the judgments of said District . Court be and they hereby are affirmed — costs to be taxed against the appellant. A. Davin Fusaro Clerk lla Special Verdict UNITED STATES, DISTRICT COURT HasTERN District or New York No. 62-C-1131 ° FILED in Clerk’s Office U. S. District Court, E.D. ‘N.Y. JuNE 10, 1966 Cuartes McLaveuuin, . Plaantif’, —against— 'TRELLEBORGS ANGFARTYGS A/B, Defendant and Third-Party Plaintiff, —against— 5 GoLTEN Marine Company, INc., + Third-Party Defendant. xz SPECIAL VERDICT l(a) Was defendant negligent? pi ae ¢ [Answer with X mark] i I re ‘12a Special Verdict If the answer tq both questions is “NO”—do not answer any of the following questions: 2. Did the negligence or breach of the warranty of sea- worthiness eee cause the claimed injuries? Yes X [ Answer with X mark] If the answer to the above question i is “NO”—do not answer - the following questions: 3. The amount of plaintiff’s damages is $12, 000.00. 4. Was plaintiff contributorily naittacankt | Yes X BO site [ Answer with X mark] Do not answer the following question if the answer is “NO”: Plaintiff was contributorily negligent in the, sum of $2,000.00. Tue Jury Finns For THE PLAINTIFF AND AGAINST THE DEFENDANT IN THE Sum oF $10;000.00.* Dated: June 10, 1965 GEORGE J. ANDERSON Foreman *In fixing this mnie deduct the amount found in 5) from the amount found in 3. ° : 13a - Judgment of the District Court UNITED STATES DISTRICT COURT For tHe Eastern District or NEw York Civil Action File No. 62-C-1131 FILED June 10, 1966 Cuartes McLaucHuin, . —against— - TRELLBoRGS ANGFORTYGS A/B. JUDGMENT This action came on for trial before the Court and a jury, Honorable Jacob Mishler, United States District Judge, presiding, and the issues having becu duly tried and the jury having duly rendered its verdict, in favor of the Pitf. Charles McLaughlin. It is Ordered and Adjudgéd that Plaintiff, Charles Mc- Laughlin, recover of the Defendant TrelJborgs Angfortygs A/B the sum of $10,000.00 together witifconts when taxed. Dated at Brooklyn, New York. this 10th day of June, 1966. ‘ Lewis OrGEL Clerk of Court by MicHaEL J. Gexarpt Deputy Clerk — i4a Judgment of the District Court UNITED STATES DISTRICT COURT - For _ Eastern District or NEw York Civil Action File No: 62-C-1131 FILED June 13, 1966_ TreLitsporcs Ancrortyes A/S, 3rd Party Pltf., —against— , GoLtTEN Marine Company, Inc., 3rd Party Deft. JUDGMENT This action came on for trial before the Court and a jury, Honorable Jacob Mishler, United States District Judge, presiding, and the issues having ben duly tried and the Court having duly rendered its verdict, in. favor, of the 3rd Party Pitf. Trellsborgs Angfortygs A/S. It is Ordered and Adjudged that. the 3rd Party Plt. Trellsborgs Angfortygs A/S recover of the 3rd Party Deft. Golten Marine Company, Inc. the sum of $10,000.00 with costs when taxed. Also $3,500:00 for legal fees and dis- bursements. Making a total of $13,500.00 Dated at Brooklyn, New York, this 13th day of June, 1966. y ¥ | Lewis OrGEL Clerk of Court by MicuaeL J. GELARDI --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0821%3A1. Public record. Not legal advice.