# Petition for Writ of Certiorari — Marra Bros. v. Longo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0847%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 961 ## Text CIDIATY ies Ait { poi ILE D’ sy RISPREME COURT. U, & | x t | MAY 9 1969 | ee eee te . JOHN F. DAVIS, CLERK , = E. IN THE : - Marra Bros., Inc., Petitioner, —against— — Jack Lonco, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES ‘COURT OF APPEALS FOR THE SECOND CIRCUIT Sipney A. Scowartz Attorney for Petitioner 76 Beaver Street New York, New York 10005 (212) WH 4-2633 ee ee ee Oe rete eee ee ee eee ae ne ne ee eg ee + ee INDEX PAGE Citations to Opinions Below ........0..00.00000.... earee eescinguppone 2 FUPIRAICEION i cenen sees ccnnesnseee sallscidiasiiiaias ARSC O 2 The Questions Presented et osinlscniaidaase bie alate alias’ 2 Reasons for Granting the Writ— I. Where the plight of the stevedore respecting in- demnity is recognized by all courts and where fundamental principles of the common law and equitable considerations allow indemnity in favor of a master against his negligent employee, this Court should declare the maritime law on this sub- ject, especially where the U.S. Court of Appeals for the Second Circuit is the only Appellate Court which has treated with the subject -......00000..... 4 A. Marra Brothers, Inc., has been held liable solely _ and wholly because of the plaintiff’s negligence. On well established principles of indemnifica- tion dealing with the right of a master to re- cover from his employee who has cast him into . liability, Marra Brothers, Inc., is entitled to indemnity against the plaintiff on its counter- RN ieee Siendeitcat Cadi cate a 4 SOPIINIIIE. i ee eee eee ‘Restatement, Restitution 4 96 (1937) 5 Senate Report N. 973, 69th Congress, First Session, : ae Se RON a NN EE ET, EE TN 13 Stanford Law Review, Feb. 1968, Vol. 20, No. 3, “The Tar Baby”: Maritime Personal-Injury Indemnity Actions ............. nena, TEN Lae ROR eS 8, 12 In cen: | Supreme Court of the United States OcroBER Term, 1968 \ ~ Marra Bros., Ino., | ; = Petitioner, —against— . Jack Loneo, | Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT To the Honorable the Chief Justice and Associate | Justices of the Supreme Court of the United States: Petitioner, Marra Bros., Inc., hereinafter referred to as _ Marra, prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Second Circuit, entered on February 11, 1969, affirming the judgment of the United States District Court for the Southern District’of New York dismissing the eounter- claim of the petitioner for indemnity against the .respon- dent herein. The latter’s negligence had been imputed to the petitioner and by that imputation of negligence the petitioner has been held liable to the shipowner for a breach of the petitioner’s warranty to do its work in a workmanlike manner (WWP). eo Tee SAORI ee SPER Oa 2 Citations to Opinions Below - The memorandum decision of the District Court (Mur- phy, D. J.) is found in the Appendix (1a). The Per Curiam opinion of the United States Court of Appeals for the Seeond Circuit which has been filed by that Court is not yet reported but is printed in the Appen-’ dix hereto (3a). | ‘Jurisdiction The judgment of the United States Court of Appeals for the Second Circuit was entered on February 11, 1969 (Appendix 5a). and this petition for the issuanee of a writ -of certiorari is being filed within ninety (90) days after the entry of said judgment. Jurisdiction of this Court is invoked under 28 U.S.C. § 1254 (1). | The Questions Presented 1. Where a stevedore-employer has been held liable to indemnify a shipowner because of the former’s breach ’ of warranty of workmanlike performance which breach has been occasioned solely and wholly by the plaintiff- employee’s negligence, is not the stevedore-employer. on well established principles of indemnification entitled to be indemnified by the plaintiff-employee? _ 2. Where a stevedore-employer has been cast into liability — to indemnify a shipowner solely and wholly because of its employee’s negligence is it not entitled to indemnifi- cation in admiralty without the United States Long- shoremen’s and Harbor Workers’ Compensation Act or 3 any other policy considerations in any way precluding that right of indemnification? The action was initially instituted by Longo against Le- high Valley Railroad Co. to recover damages for personal injuries which he sustained on May 31, 1960 aboard the Lighter 357. Longo was the employee of Marra and in the usual course of this type of litigation Lehigh Valley Railroad Co., the owner of the Lighter, by third-party complaint ‘aeetouded William Spencer & Son Corporation and also Marra and sought indemnity from each of them. Spencer asserted a cross-complaint against Marra seeking indemnity on the basis of Marra’s breach of warranty of workmanlike service. . After a trial of this matter before a jury Longo recov- ered against Lehigh because of the unseaworthiness of’ the Lighter 357. The jury awarded him damages which were eventually reduced by virtue of Longo having been found to be 75% contributorily negligent. Judge Murphy awarded indemnity against a solely and wholly by reason of Longo’s negligence being imnutable to Marra and having accounted for 75% of Longo’s in- juries. The District Court dismissed Marra’s counterclaim against Longo (Appendix 16a). On appeal to the U. S. Court of Appeals for the Second Circuit, that Court affirmed the judgment dismissing the counterclaim on the basis of its decision of January 30, 1969 in McLaughlin v. Trelleborgs, which decision is printed in the Appendix hereto (Appendix 7a). A petition for a writ of. certiorari in McLaughlin has been filed in this Court on April 26, 1969 and bears docket number 1334. Mert oASt ag aNit = eT cowie oad _ Reasons for Granting the Writ I. Where the plight of the stevedore respecting indem-’ nity is recognized by all courts and where fundamental principles of the common law and equitable considera- tions allow indemnity in favor of a master against his negligent employee, this Court should declare the mari- time law on this subject, especially where the U.S. Court of Appeals for. the Second Circuit is the only Appellate Court which has treated with the subject. A. Marra Brothers, Inc., has been held liable solely and- wholly because of the plaintiffs negligence. On well es- tablished principles of indemnification dealing with the — right of a master to recover from his employee who has cast him into liability, Marra Brothers, Inc., is entitled to indemnity against the plaintiff on its counter-claim. The sole predicate of liability of Marra to Spencer was - Longo’s negligence. No other employee of Marra has been found to have in any way been responsible for Marra having ° breached its warranty of workmanlike service to Spencer. . It is a well-established and a familiar principle of law that where a master has been held liable to a third party because of the imputed negligence of a servant, the master can obtain indemnity from the negligent servant. Oceanic Steam Navigation Company v. Compania Transatlantica Espanola, 134 N.Y. 461, 467. Thus, in 42 Corpus Juris Secundum, pages 597-598, the principle is found as follows: “An agent or employee is liable to his principal or master for damages which the latter was compelled to pay to fhird persons solely because of the negligent or other wrongful act of the agent or employee; and \ 4) iti is no defense to the servant that other persons were also culpable.” To the same effect, see: Restatement, Restitution §96 (1937) ; Prosser on Torts, Second Edition (1955), page 250, $46; 3 Moore, Federal Practice §14.29 (1938) ; Mechem, Outlines of Agency §333 (Third Edi- tion, 1923) ; Woodward, Quasi Contracts §258 (1913) ; 2 Larson, Workmen’s Compensation Law §71. 19 (1952) } Harper & James; The Law of Torts 1363 (1956). On a cognate subject is this Court’s opinion of April 1, 1969 in Federal Marine Terminals, Inc. v. Burnside Ship- ping Co. Ltd., 89 S.Ct. 1144, 1153. The right of an employer to recover indemnity from his employee for any liability which the employer may _ have. to a third person has frequently been before the Courts and such right has been upheld. The Court from which this case emanates granted indemnity to a ship- owner from the assaulting seaman who cast the shipowner into liability—this, on the basis of the employee’s implied agreement te perform his duties in a proper and seaman- like manner. Horton v. Moore McCormack Lines, 326 F.2d 104. 2 In Thompson v. American Export Lines, 15 F. RB. D. 125 (S. D..N. Y. 1953), the motion of the defendant corporation ' to implead one of its employees was granted over the opposition of the plaintiff. The Court held that the defen- dant could look to its employee for indemnity to the extent e i a ail ot PE aT Oe FT 6 that the employee’s wrongful act imposed liability on the defendant to the a. 4 Again, in Codtington v. United States Lines Company, 168 F. Supp. 261 (S. D. N. Y. 1958), the defendant corpo- ration was permitted to implead one of its employees for indemnity notwithstanding the plaintiff’s opposition to such . motion. In Thomas vy. Malco Refineries, 214 F. 2d 884, 886, the Court stated: “In cases where the wrongful act or omission of a person 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 legel 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 wrongdcer for _ the entire amount paid to discharge such liability. The principle applies where an employer under the doctrine of respondeat superior is compelled to pay damages to a third person solely because of the negligence or other wrongful act of his employee.” (Italics added.) In Denver-Chicago Trucking Co. v. Lindeman, 73 F.Supp. 925, the Court stated as follows (page 933) + “It is the general rule that a servant is liable to his master for damages which the master has been com- pélled to pay to third persons because of the negligence of the servant where the master himself is not at fault.” _ In Schneiberg v. Hutz, 8 Mise. 2d 535, the servant who had been ‘mpleaded sought to dismiss the third-party com- plaint which had been served upon him by his employer. 7 The Court denied such motion and held that a master has the right to recover over against a negligent servant for liability impesed derivatively upon the master by rea- . son of the servant’s negligence. In Lowry v. R. H. Macy & Co., 119 N. Y. 8. 2d 5, the defendant, R. H. Macy & Co., was adjudged liable to the plaintiff. by reason of the negli- gence of its employee, one Doherty. R. H. Macy & Co. -. was then granted judgment over against. said employee Doherty since it as the employer of Doherty had been ad- judged liable to the plaintiff by reason of Doherty’s fault. As the decisions above set forth indicate, there can be ‘no question about the right of an employer to recover in- demnity from its employee where the employer has been cast into liability to a third person by reason of the negli- gence of its employes. In his dissenting opinion in Shénker v. United States, 322 F. 2d 622, 629-630, Circuit Judge Friendly said: “The pushing of a ‘principle or precedent * * * to the limit of its logic’ may take it to a point where it collides with another of greater pertinency and ap- plicability. Cardozo, The Nature of the J udicial Proc- ess, 40, and id. at 43. That, in my view, is the result of holding that a shore-based record keeper, covered by the Longshoremen’s and Harbor Workers’ Compen- sation Act, 33 U. S. C. §§$901- 950, who stubbed his toe against a plainly visible board, four feet long, a foot wide and an inch thick, can recover $25,000 (reduced to half that sum because of his contributory negligence) for unseaworthiness of the ship against the United States—which then receives indemnity from the steve- doring company for sending on board a clerk who took such poor care of himself,” : PON isa i ARO RE PAA, i ‘¢ ASO BY ANA eis Diy Si aA NR nt 0 Sats AG ORIEN ese IPD Mins OS 8 8 ‘In footnote.1, Circuit Judge Friendly further stated: “Perhaps the circle will be completed by the steve- doring company’s recovering from Shenker for breach _ of his undertaking to. keep his eyes open, implicit in his contract of employment. Compare Malfitano v. King Line, Ltd., 198 F. Supp. 399, 401 (S. D. N. Y. 1961), with Cavelleri v. Isthmian Lines,*Inc., 189 F. Supp. 525 (S. D. N. Y. 1960), (reargument denied 190 F. Supp. 801 (S. D. N. Y. 1961), and Johnson v. Partrederiet Brovigtank, 202 F. Supp. 859 (S. D. N. Y. 1962).” See also Michigan Law Review, Vol. 61, No. 3, Long- shoreman-Shipowner-Stevedore: The Circle of Liability. The plight of the stevedore is well appreciated and graphically described in Strachan Shipping Company v. Melvin, 327 F. 2d 83 (dissenting opinion of Brown, CJ.) and McClendon v. Charante Steamship Company, 348 F, 2d 298. See also, Stanford Law Review, Feb. 1968, Vol. 20, Number 3, “ ‘The Tar — Maritime Personal-Injury ae Actions.” eat e “The fact that the employee whose dercliction is the cause of Marra being held liable to Spencer happens to be the _ plaintiff in this action should not change the substantive rule of law which has been referred to hereinbefore. Not only does ‘Longo have the rights of a seaman but he has the correlative duty to perform his work in a workmanlike manner. Holmes v. Mississippi Shipping Company, 301 _F. 2d 474, 481. The right to assert a counter-claim against a plaintiff is foreseen by Rule 14 of the Federal Rules of Civil Procedure for that rule provides that the third-party defendant may also assert any claim against the plaintiff which arises out of the transaction which is the subject mat- _ter of the plaintiff's claim against the third-party plaintiff. 9 Hoary principles of substantive law entitle Marra to recover indemnity from Longo because it is his negligence and his negligence alone which has cast Marra into liability - to Spencer for a breach of Marra’s duty to perform its work in a workmanlike manner. _ Under the common law in those states where the plain- tiff’s negligence precludes his recovery of damages from the defendant-third-party plaintiff this question would never arise. However, und>r the maritime law or in those juris- dictions where comparative negligence of the plaintiff does not preclude recovery against the defendant-third-party _ plaintiff, the plaintiff can recover damages and the question which is posed in this case is thereby projeeted. The U.S. Court of Appeals for the Second Circuit. sum- marily disposed of the question in this case by relying on its own decision in McLaughlin, decided Jan. 30, 1969 (Appendix 7a). The McLaughlin case disposed of this issue by merely referring to its opinion in Niecrolt v. Den Norske, 332 F. 2d 656. That Court did not ated decide the question . which is here presented in its holding in Nicroli v. Den Norske Afrika, 332 F. 2d 651. Whatever that Couri said with respect to the counter-claim is dictum in that on that _ subject that Court said (Page 656) : “And in any event, the remedying of the dangerous con- dition was not the plaintiff’s task.” (Italics supplied) © By this language that Court in line with the District Court’s opinion (210 F. Supp. 93) was adverting to the fact . - that International Terminal Operating Co., Inc.,: the steve- dore-employer in the cited case, had been held liable be-- cause of the negligence of employees other than the -plain- tiff. The District Court (McGohey, D.J.) had held the 10 stevedore liable for the failure of supervisory employees, not the plaintiff, to do their work in a workmanlike manner. The Court said (210 F. Supp: 93, 97) : “The Stevedore’s counterclaim seeking indemnifica-— tion from the plaintiff is based on the contention that it is only by reason of the latter’s negligence or failure to do his job properly, that the Stevedore can be held liable. Whether in a case where the facts support such a contention indemnification is recoverable by the Stevedore employer from an employee injured in the course of his employment has never, been decided on a full trial record, as far as I. know.* li cannot be decided here either, for the facts found here do not support the . contention. As the findings-show, the Stevedore’s lia- “Y « bility here results from the fatlure of its supervisory employees to hold up work on the morning of the 14th until the dangerous condition was corrected. Accord- ingly, the Stevedore’s counterclaim against Nicroli must be dismissed.” (Italics supplied) 7 Compare Johnson v. Partrederiet Brovigtank, 202 F. Supp. 859 (S.D.N.Y. 1962) (Feinberg, J.), and Cavelleri v. Isthmian Lines, Inc., 189 F. Supp. 525 (S.D.N.Y. 1960), reargument denied, 190 F. Supp. 801 (1961) (I. Kaufman, J.), with Mal- fitano v. King Line, Ltd., 198 F. Supp. 399 (S.D.N.Y. 1961) (Moore, C.J.), Judge Feinberg and Circuit Judge Kaufman, then a District Judge, denied motions to amend the pleadings to assert the counterclaim. Circuit Judge Moore, sitting by designation in the District Court, denied the plaintiff’s motion to strike the counterclaim asserted in the original pleadings. The Malfitana case has not yet come to trial. in the instant case, a motion to amend the pleadings to assert the counter- claim was granted by Judge Metzner. It will therefore be seen that that Court’s opinien in the Nicroli case, based upon the record in that cited case and the decision of Judge McGohey, did not determine the right of the stevedore-employer to recover indemnity on his 11 counter-claim against the plaintiff-employee where the lat- ter had‘ been the sole employee whose negligence. had cast | . the employer into liability. No brief on this matter would be complete without refer- ence to Johnson v. Partrederiet Brovigtank, 202 F. Supp. 859, and Cavelleri v. Isthmian Lines, 189 F. Supp. 525 and 190 F. Supp. 801, which arose on motions under Rule 15 for leave to plead a counter-claim against a plaintiff. The Johnson case was subsequent in time to Cavelleri and found Cavelleri to be “a persuasive precedent” for denying the motion, see page 864.of 202 F. Supp. Adverting to Judge | Kaufiaan’s opinion in. Cavelleri, we see that the same was based upon the mistaken forecast that a stevedore-employer could: never be held liable for the negligence of the plaintiff-longshoreman, and hence a counter-claim could never lie. Judge Kaufman was of the view that once the plaintiff's recovery is reduced by the extent of his contributory negli- gence, such contributory. negligence is excised from the case. However, the law has not developed i in that fashion as the case at bar discloses. Here, Longo’s contributory negligence has ‘not been ex- cised from the case, but has been used ‘as the foundation and fulerum for a directed verdict in favor of the ship- owner against Marra and that is the prineiple which the Second Circuit follows. Mortensen v. A/S Glittre, 348 F. 2d 382, McLaughlin ve Trelleborgs (Appendix 7a). Mani- festly, had the law developed along.the lines envisioned by Judge Kaufman there would have been no need for nor could there validly be any counter-claim asserted by Marra against Longo. Cavelleri and its progeny, Johnson, there- fore, came to an erroneous conclusion because the law sub- sequently developed in a fashion. other than had been ine . 12 - contemplated. Direction of a verdict in this very case against Marra discloses only tco well that the diminution of plaintiff’s damages because of his contributory negli- gence does not “excise” his contributory negligence from the case. Not only has the shipowner been given the benefit of pbtaining a diminution of damages, but he is then per- mitted to use that very same contributory negligence as a springboard to obtain indemnity against the stevedore via a motion for a directed verdict. A much more accurate forecast of the manner in which the law would develop was taken by Circuit Judge Moore in Malfitano v. King Line Ltd., 198 F. Supp. 399 (1961), which came up on on plaintiff’s motion to strike the third- ' party defendant’s counter-claim. How prophetic is the fol- lowing language by J udge Moore, (p. 401 of 198 F. Supp.) : “Adverting briefly to the four hypotheses assumed in Cavelleri, in the many cases represented as pending in which such counterclaims are asserted, there are likely to be factual situations which are not within these hypotheses. Furthermore, taking the court’s . hypothesis (3) there may be real doubt that a reduction of a plaintiff’s damages on a comparative negligence theory (50% is aisumed) would completely remove the ’ plaintiff’s negligence from the case.” (Italics added) Althoigh Judge Tenney in Cusumano v. Wilhelmsen, 267 F. Supp. 164, followed the prevailing law on this.subject, he did indicate that the stevedore’s plight and complaints with regard to this and other areas of the law were justified. Further, indemnification of the stevedore by the plaintiff - has been indicated in a well written article to be “at least superficially just”. Stanford Law Review, February 1968 Volume 20, p. 440: The Tar Baby: Maritime Personal- Injury Indemnity Actions. The author, an attorney repre- 13. _senting shipowners, also comments upon the inconsistency in (a) allowing the plaintiff to regover against the ship- owner despite his comparative negligence (b) the shipowner - then being entitled to inderfinity from the stevedore-em- ployer by reason of that employee’s negligence and (c) the lattér being denied indemnity from the plaintiff despite the fact that it has beet held liable solely because of the plain- tiff’s negligence which, tas not been excised from the case. Indeed, the author also points up the incorrectness of the three predicates of the holding of the Court in the Johnson — case, supra, which is most often referred to, as the leading case on this subject. The Court in the Johnson case was activated in greatest part by policy considerations. How- ever, it must be appreciated that said policy considerations ° are gleaned by the Court from the U. S. Longshoremen’s & Harbor Workers Compensation Act, 33 U.S.C.A. § 901 et seq. However, completely lost sight of is that the pur- pose of the bill which became said Act was simply to pro- vide compensation. Senate Report No. 973, 69th Congress, First Session, 16. As Congressman LaGfardia said in con- nection with this Act (6th Cong. Ree. 5414): “This law simply gives the longshoremen the benefit of up to date legislation to cover injuries sustained in the course of their ——— That i is all there is to it.”’ fo , To the : same effect. is this Court’s decision of April 1, 1969 in Federal Marine Terminals, Inc. v. Burnside Ship- ping Co., 89 S.Ct. 1144. These very same policy considerations were argued to the U. S. Court of Appeals for. the, Second Circuit by . plaintiffs counsel in the Nicroli case, supra, and although -. that Court does not refer to the same in haec verba in its ae 14 decision which disposed of this.***~2 (p. 656.-of 332 F.2d) its reasoning is permeated with the same. Courts are called upon to determine cases, not causes. Paluch v. Erie. Lackawanna, 387 F.2d 996, 1003; dissenting opinion of Moore, C. J. in Crosson v. N.V. Stoomvart, No. 422, decided April 16, 1969,-Docket No. 31372, pp. 1911 to 1919 of Slip Sheets. On the record in this case and any osnabiecalion of social policies this Court should accept this question, never ' before presented to,.and decided by, this Court and seem- ingly only presented to the Second Circuit, as an Appellate Court, and should declare and clarify the Maritime Law on this subject. The law does not thrive on anomalous, ihequitable or - captious interpretations. The issue, here presented, is one of the issues presented in the petition which has been filed in the McLaughlin case, October Term, 1968, No. 1334. CONCLUSION This petition commends itself to being granted so that a writ of certiorari issue to the Court below to which ends this brief is ' a | ‘Respectfully submitted, Swyey A. Scuwartz Attorney for Petitioner - 76 Beaver Street New York, New York 10005 (212) WH 4-2633 eA to ten a al eA it Memorandum Decision by Murphy, D.J: UNITED STATES DISTRICT COURT SoutHern District oF New York 60 Civ. 2510 [SAME - TITLE | Murpnuy, D.J. On April 6, 1965, a jury returned a verdict for plaintiff in the sum of $800 and answered the written interroga- tories upon issues of fact, one of which was their finding -that plaintiff was 75% contributorily negligent. We re- served decision on plaintiff’s motion to set the verdict aside on the ground of “insufficiency” (i.e., that = ne was inadequate). We deny the motion. We are satisfied that on ‘the conflicting medical evidence and on the jury’s prerogative not to accept in toto the plaintiff's testimony with regard to the extent and nature of his injuries and the fact that they did not‘ accept the plaintiff's testimony with regard to his statement that the barge captain told, him to use his longshoreman’s hook, that the sum of $800 awarded by them was not “in&ade- quate.” This aniount does not shock our conscience and “we see no reason why the jury’s 3% hours of deliberation in a simple case should be disturbed. In denying this motion we have treated the verdict as #800 althoug’ because of the jury’s finding of plaintiff's contributory negligence at 75% we will have to direct the la bia ae at a aii ie eg aa sas ig SOREN EME DARD. BNE ‘ a. Sha a a 1 Mos i ea NEM A i -3 PERE ANS RABBI Cheb nic ee Memorandum Decision by Murphy, D.J. entry of judgment in the sum of $200. That is not con- trolling on the issue of inadequacy. The jury was specifi- cally asked in one of the written interrogatories to state . the amount of plaintiff’s damages without -regard to his contributory negligence, if any. The fact that they attrib- uted 75% negligence to the plaintiff is just another factor to be considered when appraising how.the jury reacted to plaints testimony. ‘ Accordingly, the clerk is ; directed to enter a failed of $200 in favor of plaintiff against defendant Lehigh Valley Railroad Co. with a judgment over by Lehigh Valley Railroad against William Spencer & Son Corpora- tion for $200 plus costs and $500 for counsel fees pursuant to the indemnity agreement between such parties, and a judgment over in favor of William Spencer & Son Cor-. poration in the same amount against the other’ third-party defendant Marra Brothers Ince. . These judgments over are pursuant to defendant Lehigh Valley Railroad’s motions for a directed verdict upon ‘which decision had been reserved and, accordingly, they are now granted. Spencer is liable under its written contract of indemnity even though it had no employees working the barge be- cause instead of doing the work itself it engaged Marra Brothers and Marra Brothers was in effect its alter ego or employee. Marra Brothers in turn is liable to Spencer for its failure to perform the stevedoring in a workman- like fashion since it was their employee (plaintiff Longo) whose negligence accounted for 75% of his injuries. These are orders. No settlements are necessary. THomas F. Murpuy © U.S.D.I. Dated, New York, N. Y., April 9, 1965. 3a ' Opinion of the Court of Appeals _— STATES COURT OF APPEALS For THE SECOND Circuit } No. 285—September Term, 1968. (Submitted February 11,1969 Decided February 11, 1969.) - Docket No. 30043 | Jack Loneo, Plaintiff-Appellee, Vv. LEHIGH VALLEY RatnRoap Co., Defendant and Third-Party Plaintiff, —V.— ~ Wituiam Spencer & Son Corporation, Third-Party Defendant, | Vv Marra BrotuHers, INc., . ' Third-Party Defendant-A ppellant. Before: ANDERSON, FErnserG, Circuit Judges, and ‘ MansFIE.Lp, District Judge.* Appeal from judgment of the United States District Court for the Southern District of New York, Thomas F. * Of the Southern District of New York, sitting by designation. 4a Opinion of the Court of Appeals Murphy, Judge, dismissing counter-claim of repairman, — - Marra Brothers, Inc., third-party’ defendant-appellant, against plaintiff-appellee Longo, its employee. Affirmed. Morris C1zner, Esq. (Zimmerman & Zimmer- man, New York, N. Y. on the brief), for Plawntiff-A ppellee. Siprey A. Scuwartz, Esq. (Alexander, Ash & Schwartz, New York, N. Y. on the brief), for Third-Party Defendant-A ppellant. Per Curmam: The sole issue in this case is the right of Marra Brothers, _Ine., who had, through its stevedoring subcontract with Wm. Spencer & Son Corp., stevedore, become liable for a recovery by Longo for personal injuries against Lehigh Valley Railroad Ca., shipowner, which had in turn been indemnified. by the Spencer Corp., to counter-claim against its employee Longo, who was found to have been 75% con-: tributorily negligent.* The trial court held that Marra Brothers could not, and dismissed its counter-claim. Marra Brothers has appealed. Meanwhile, this court has heard and decided the same issue in another case and reached - the same conclusion as to the applicable law. McLaughli:: v. [relleborgs Angfartygs 4/B, Docket No. 30827, decided - January 30, 1969, slip opinion pages 1197-1205. The judg- ment of the district court is, therefore, affirmed. _. ‘UNITED STATES COURT OF APPEALS - For tHE Sseconp Crrcuit 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 eleventh day of February one thousand nine hundred and sixty-nine. Ai Present: Hon. Rosert P. ANDERSON, Hon. Witrrep FEINBERG, Circuit Judges, Hon. Water R. MansFIeE,p, District Judge. Jack Lonco, Platntiff-A ppellee, —v.— : LenicH VALLEY RarLroap Co., Defendant and Third-Party Plaintiff, - Wiuu1am Spencer & Son Corporation, Third-Party Defendant ? Marra’ Broruers Inc., ¥ , Third-Party Defendant-A ppellant. — ee ee et : Schust Fen aaah SO ERs 6 DAA CLR ee ws andi saaat a " - 6a Judgment of the Court of Appeals Appeal from the United States District Court for the Southern District of New York. This cause came on to be heard on the transcript of \ record from the United States District Court for the Southern District of New York, and was argued by counsel. ON CONSIDERATION .WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed with costs to be taxed against the appellant, Marra Brothers Ine. ‘ Dante, Fusaro Clerk 7a _ Opinion of the Court of: Appeals UNITED STATES COURT OF. APPEALS For THE SEconp Crecurr No. 51—SeptemBtr Term, 1968 Argued December 2,1968 ~° Decided J anuary 30, 1969 | Docket No. 30837 - | Cuartes McLavucauin, Plaintiff-A ppellee, TRELLEBORGS Ancrartycs A/B, -. . . 7 ee Defendant and Third-Party - Plaintiff-Appellee, silt sade ‘ ; ‘ GoLTEN Martine Company, Ino., Third-Party sienna ppellant. Before Louse, Chief Judge, Frrewp ty, Circuit Judge, . - and- Ryan; District J udge.* Appeal by a ship repairman from judgments of the District Court for the Eastern 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 & . steht : Schwartz, New York, N.Y.; Sidney A. Schwartz, of Counsel), for. Third-Party Defendant-Appellant. * Of the Southern District of New York, sitting by designation. | 4 : a’ casita OAS ts Ae 6 50 el DE EOD FAD Stee he as alae ne Ae ho te tee anal sacle alias capil. 4 png een lacridTesiny ater 8a Opinion of the Court of Appeals Robert Klonsky (DiConstanzo & Klonsky, Brook-_ lyn, .N.Y.), for Plaintiff-Appellee. William P. Kain, Jr. (Haight, Gardner, Poor &. Havens, New York, N.Y.; Joseph V. Fleming, of Counsel), for Defendant. and Third-Party Plaintiff-Appellee. FRiEnbxy, 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 Trelleborgs 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 (WWP) and required a recovery in the absence of evidence that Trelleborgs had prevented Golten from fulfilling its obligation. Accordingly he directed a verdict in favor 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 goin. 9a 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 shal] say no more concerning the portion of Golten’s appeal that relates to it. Trelleborgs had engaged Golten to iis 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 ship to a truck Golten’s machine shop. ° The bearings, which were oily and greasy, were lying on the floor plates of the engine room jnear a hoist that ran up to a platform giving access to 4n upper passageway and,. we assume, an exit from the ship. Erickson, Golten’s foreman, instructed the men to us the hoist. Kewn placed the bearings in it and went to the platform to raise it; he was joined. there by McLaughlin’ They found tlfat the hoist could not be elevated beyond. 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 at would haul them to 10a Opinion of the Court of Appeals of the hoist. This came out of its slots and McLaughlin fell to the engine room floor. Bory 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 score, 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 ein- 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. 3 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 S.S. Co., 279 F.2d 475 (2-Cir. 1960) and Orlando v. Prudential SS. 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 Me- Laughlin not to enter it, this distinction of Mortensen ‘In neither case was it found that the employee was guilty of contributory negligence. a a lla 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 setinaiaee. 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 ore is simply a dis- * The finding in Damanti had been on a trial of the inderanity claim rather than of the personal-injury claim, which the ship had settled. ere a ie ec cithe ak Gina hhc ic iieie tele aha 12a Opinion 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 eontribu- 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. ican Stevedoring Co., 376 U.S. 315 (1964), the WWP is not so limited. The eone 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.Svat 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 equipnient,” 376 U.S. at 321, and annotated this with a citation of our Caldeérola 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 13a Opinion of the Court of Appeais footnote reference to Calderola and Orlando, 376 U.S. at 321 n. 8, in support of a statement concerning equipment would not have been pertinent unless the Court considered that personnel should be treated on the same basis as rope. Putting the Italia 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 I talia, 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 “where, as here, injury-producing 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 impractical 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 wiil be made upon a weighing of all relevant costs. See. Proudfoot, “The Tar Baby”: Maritime Personal- Injury 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. Stoomwv. Maats., USS. (1968), 37 L.W. 3150-51,- see also — U.S. ——, 37 L.W. 3219, of our decision in that case, 392 F.2d 763. We do not think so. The issue in Interna- tional Terminal was whether the stevedore had breached HUES HE LE POTN SLR RARE ALY RUSS RP LIER EEL I PEI SE GLI E ESE EE! EY LIM SIE GILES . ede a eT cs Haale FITTING E LO ELINA IN ne Opinion ie 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 Jaw; 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 found that Me- - Laughlin acted chtieimetie. - 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 - lda 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. Hebért, 365 F.2d 341, 350-51 & n. 18 (1966) (John R. Brown, J.). What impresses 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 being cut in a more drastic fashion. Soe eT Affirmed. — PENI 16a Extract of Minutes s At a Stated Term of the United States District Court for the Southern District of New York, held in the United States Court House in the Borough of Manhattan, City of New York on the 5th day of April in the year of our ‘Lord, One Thousand Nine Hundred and Sixty Five. | Present: HonorasieE THomas F’. Murpuy, ‘ United States District Judge. [SAME TITLE] Now comes the Plaintiff by Zimmerman & Zimmerman by; Morris Cizner, of counsel. Deft. and 3rd pty Plft.— Conboy, Hewitt, O’Brien & Boardman, by; Thomas V.— McMahon, of counsel.—For. 38rd pty deft.—Perrell, Nielsen & Stephen (Spencer)—by; Tidal B. Henry, of counsel and - moves the trial of this cause. Likewise comes the 3rd Pty. deft. (Marra) by Alexander, Ash & Schwartz bys William N. Mairs, Jr., of counsel. April 5, 1965—J ury empaneled, trial boas, April 6, 1965—Trial cont’d. All parties rest. The Court dismisses deft. Marra counter-claim against the plaintiff. _ All defts. motions to dismiss the complaint—Decision Re- ' served. Summation of counsel concluded. The Court charges jury. 3:14 P.M. Charge concluded. 3:29 P.M. Marshals duly sworn to attend jurors. 6:55 P.M—Jury - 17a Extract of Minutes Verdict returned on interrogatories which were submitted to the jurors by the Court. See attached Interrogatories ' and the jurors answers to those Questions. All defts. and 3rd. Party defts. motions to dismiss the Complaint, ete. Reserved ‘by the Court. Plaintiffs motion to set aside Verdict as being insufficient—Reserved. 1.—Is your verdict for the plaintiff or the defendant rail- road? | 7 Plaintiff : - If your verdict is for the plaintiff please answer the i following questions: ; 2.—Was the defendant Lehigh Valley Railroad negligent? Answer Yes or No. : No - 3 3.—Was the defendant Lehigh Valley Railroad barge or : lighter #357 unseaworthy? Answer Yes or No. t Yes | 4.—Was the defendant Lehigh Valley Railroad’s negligence ; the proximate cause of plaintiff’s injuries? Answer [ Yes or No. £ No. 5.—Was the defendant Lehigh Valley Railroad’s barge or lighter #357’s unseaworthiness the proximate cause of plaintiff's injuries. Answer Yes or No. Yes ici ho "3 6.—Was the ‘plaintiff himself contributorily negligent. Answer Yes or No. | - Yes LN ead ~ - - 18a Extract of Minutes 7.—If the plaintiff himself was contributorily negligent what percentage of his negligence was the proximate cause of his injuries? 75% —Did the barge captain tell the plaintiff to use his long- Answer.Yes or No. shoreman’s hook? so . —If your verdict is for the plaintiff what is the amount of his damages without giving any consideration to the question of his own contributory negligence, if any? sis Eight hundred dollars --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0847%3A1. Public record. Not legal advice.