Appendix — American Stevedores, Inc. v. Olaf Pedersen's Rederi A/S

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Judgment of Court of Appeals

: UNITED STATES COURT OF APPEALS

For tHe Seconp Crrcvir

At a stated Term of the United States Court

of Appeals for the Second Circuit, held at

the United States Courthouse in the City of

New York, on the ninth day of December

one thousand nine hundred and seventy-five.

Present:

® How. Leoxarp P. Moore

Hon. Witrrep FEINBERG

Hox. Exvtswortn A. Van GRAAFEILAND

er Te

Circuit Judges.

75-7170

JOSEPH RoprIcvez,

Plaintiff-Appe'lee,

o an am ¢

COLON LE SO OIE IE NAS

a 9

norecae

Oar Pepersen’s Reperi A/S,

Defendant-Third Party

Plaintiff-Appellee,

American Stevepores, Inc., and

A.M. KristopHer Co., Inc.,

a :

Third Party

Defendants-A ppellants.

Appeal from the United States District Court for the

Eastern District of New York.

Judgment of the Court of Appeals

This cause came on to be heard on the transcript of

record from the United States District Court for the East-

ern District of New York, and was argued by counsel.

Ox Cons:pERaTION WHEREOF, it is now hereby ordered, ad-

judged, and decreed that the judgment of said District

Court be and it hereby is affirmed in accordance with the

opinion of this court with costs to be taxed against the

appellant.

A. DayxreLt Fvsaro

Clerk

By /s/ Vincent A. Carin

Chief Deputy Clerk

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Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

<—cv?

No. 78—September Term, 1975.

(Argued October 23, 1975 Decided December 9, 1975.)

Docket No. 75-7170

_—cr

JOSEPH RopRIGuEz,

Plaintiff,

—against—

Otar Pepersen’s Reperr A/S,

Defendant and Third Party

Plamtiff-Appellee,

—against—

American STEVEDORES, INc.,

Third Party Defendant-Appellant,

—and—

A. M. KristopHer Co., Inc.,

Third Party Defendant.

Before:

Moorg, Frernperc and Van GRaaFEILAND,

Circuit Judges.

Opinion of the Court of Appeals

Appeal from summary judgment for shipowner on third-

party action for indemnity from stevedore in longshore-

man’s negligence action, entered in United States District

Court for the Eastern District of New York, Edward R.

Neaher, J.

Affirmed.

aii

Joseph ArtHUR CoHEN, New York, N.Y. (Alex-

ander, Ash, Schwartz & Cohen; Sidney A.

Schwartz, on the brief), for Third Party

Defendant-A ppellant.

Tomas F, Motanpny, New York, N.Y. (Haight,

Gardner, Poor & Havens; William P. Kain,

Jr., on the brief), for Defendant and Third

Party Plaintiff-Appellee.

FernBera, Circuit Judge:

In this case we again have the three-cornered lawsuit

involving an injured longshoreman, the shipowner and the

stevedore. The complexity of the issues before us is less-

ened somewhat because on appeal only the stevedore and

the shipowner remain in the litigation, the stevedore ap-

pealing from the grant of summary judgment for the

shipowner on the latter’s third-party complaint, by the

United States District Court for the Eastern District of

New York, Edward R. Neaher, J. We affirm.

Since the facts of the case are set out in detail in Judge

Neaher’s thorough opinion, 387 F. Supp. 754, we will dis-

cuss them only briefly. Joseph Rodriguez, a longshoreman

employed by appellant American Stevedores, Inc. (Steve-

dore) was injured in July 1967 when he fell through an

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Opinion of the Court of Appeals

open hatch square in the upper tween deck of hatch #2

of a vessel owner by appellee Olaf Pedersen’s Rederi A/S

(Shipowner). Earlier in the day, Rodriguez had worked

in that hatch, but the longshoremen had completed their

work there and moved on to other tasks in another hatch.

Telling his supervisor that he had left his hook and gloves

in the #2 hatch, Rodriguez made his way back along a

darkened corridor, with only a small penlight for illumi-

nation, ignoring a less direct but safer route. In the

meantime, at the order of the vessel’s chief officer, ship

cleaners had removed the covers from the #2 hatch

tween deck, which had been covered when the longshore-

men were working; the cleaners had also covered the

corresponding opening in the weather deck, so that the

#2 hatch was now dark. When Rodriguez arrived on the

tween deck of the darkened #2 hatch, he tripped and fell

through the uncovered opening into the lower hold.

At the resulting trial in 1971, a jury found the Ship-

owner negligent, but reduced Rodriguez’s damages from

$80,000 to $35,000 because of his contributory negligence.

The same jury denied the Shipowner’s claim that it was

entitled to indemnity from the Stevedore because the latter

had breached its warranty of workmanlike performance,

but the judge, the late George Rosling, set aside the verdict

-and ordered a new trial.' Before the new trial could begin,

however, Judge Rosling died, and the case was assigned

to Judge Neaher. Neither party had additional evidence

to submit, and the Shipowner, contending that on the record

of the prior trial it was entitled to indemnity as a matter

of law, moved for summary judgment, which was granted.

This appeal by the Stevedore followed.

1 The Stevedore argues that this was error. We need not discuss the

propriety of this ruling, however; since we conclude that the Shipowner

at that time was entitled to the judgment it then sought as a matter of

law, any error in granting a new trial was in the Stevedore's favor.

Opinion of the Court of Appeals

The Stevedore raises two principal issues, First, it argues

that the Shipowner is not entitled to indemnity because

the Stevedore did not, as a matter of law, breach its war-

ranty. As Judge Neaher correctly pointed out, a long line

of cases in this circuit holds that as a matter of law, a

stevedore’s warranty is breached when it supplies a negli-

gent employee, and that therefore a jury finding of con-

tributory negligence on the part of a longshoreman-plaintiff

requires that verdict be directed against his stevedore em-

ployer on this issue. King v. Deutsche Dampfs-Ges, Dkt.

Nos. 75-7127, 75-7151, slip op. 5479, 5484-85 (2d Cir. Aug. 8,

1975); Hartnett v. Reiss S.S. Co., 421 F.2d 1011, 1017-18

(2d Cir.), cert. denied sub nom. Grain Handling Co. v.

Hartnett, 400 U.S. 852 (1970); McLaughlin v. Trelleborgs

Angfartygs A/B, 408 F.2d 1334 (2d Cir.), cert. denied, sub

nom. Golten Marine Co. v. Trelleborgs Angfartygs A/B,

395 U.S. 946 (1969) ; Mortensen v. A/S Glittre, 348 F.2d 383

(2d Cir. 1965). The Stevedore’s reliance on Nye v. A/S

D/S Svendborg, 501 F.2d 376 (2d Cir. 1974), cert. denied

sub nom. The Svendborg v. Marine Engine Specialties

Corp., 420 U.S. 964 (1975), is misplaced, for that case ex-

plicitly distinguished cases involving the warranty. 501

F.2d at 380. Once the jury determined that Rodriguez, the

Stevedore’s employee, was contributorily negligent, no fur-

ther issue of fact was presented; as a matter of law, the

‘Stevedore breached its warranty.

2 Accord, Santiago Martinez v. Compagnie Generale Transatlantique, 517

F.2d 371 (1st Cir, 1975), petition for cert. pending, 44 U.S.L.W. 3243

(Oct, 21, 1975); United States Lines, Inc. v. Jarka Corp. of Baltimore,

444 F.2d 26 (4th Cir. 1971); Arista Cia. DeVapores, S.A. v. Howard

Terminal, 372 F.2d 152 (9th Cir. 1967). Contra, Julian v. Mitsui 0.S.K.

Lines, Ltd., 479 F.2d 432 (5th Cir.), cert. denied sub nom. Mitsui O.8.K.

Lines, Ltd. v. Strachan Shipping Co., 414 U.S. 1093 (1973); Shaw v.

Lauritzen, 428 F.2d 247 (3d Cir. 1970).

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Opinion of the Court of Appeals

III

The Stevedore’s second argument is that even if it did

breach its warranty, there remains an issue of fact as to

whether there was “conduct on [the Shipowner’s] part suf-

ficient to preclude recovery.” Weyerhaeuser S.S. Co, v.

Nacirema Operating Co., 355 U.S. 563, 567 (1958). Although

the Supreme Court in Weyerhaeuser did not make clear

what sort of conduct would be “sufficient to preclude recov-

ery,” we have held that in order to justify that result, the

shipowner’s fault

must at the least prevent or seriously handicap tlie

stevedore in his ability to do a workmanlike job. Merely

concurrent fault is not enough.

Albanese v. N.V. Nederl. Amerik Stoomv. Maats., 346 F.2d

481, 484 (2d Cir.), rev’d on other grounds, 382 U.S. 283

(1965). See also Albanese v. N.V. Nederl. Amerik Stoomv.

Maats., 392 F.2d 763, 765 (2d Cir.), rev’d on other grounds

sub nom. International Terminal Operating Co. v. N.V.

Nederl. Amerik Stoomv. Maats., 393 U.S. 74 (1968) ; Hart-

nett v. Reiss S.S. Co., supra, 421 F.2d at 1017; Mortensen

v, A/S Glittre, supra, 348 F.2d at 385. If this is to be the

standard, a directed verdict for the Shipowner was in order

here despite the Stevedore’s claim that a jury question was

presented, The Shipowner’s fault was the creation of a

potentially hazardous condition by uncovering the hatch

square on the tween deck in hatch #2 and blocking off the

light coming from above. Nothing about this negligence on

the Shipowner’s part prevented or hindered Rodriguez

from rendering a workmanlike performance, that is, from

using the safe route between hatches that was available,

or at least securing adequate illumination before venturing

down a dark corridor into a dark hatch.

Opinion of the Court of Appeals

The Stevedore argues, however, that a jury question was

presented under our recent decisions in Conceicao v. New

Jersey Export Marine Carpenters, Inc., 508 F.2d 437 (2d

Cir. 1974), cert. denied, sub nom. Cia de Nav. Mar. Netu-

mar v, Conceicao, 421 U.S. 949 (1975), and Hurdich v.

Eastmount Shipping Corp., 503 F.2d 397 (2d Cir. 1974).

In Conceicao, plaintiff longshoreman was injured by a roll-

ing steel pipe when wooden pipe cribs broke because they

were stowed with too many pipes by the stevedore em-

ployer. The plaintiff was not contributorily negligent. AJ-

though the jury found that the stevedore had breached

its warranty, the jury also found that the shipowner’s

conduct precluded recovery, and we affirmed. The conduct

held sufficient to preclude the shipowner’s indemnity con-

sisted essentially of its failure to give the stevedore proper

information regarding the overall amount of pipes to be

stowed and the location of available pipe beds and the

shipowner’s lack of supervision of the loading. This was

a direct hindrance of a stevedore attempting to do in a

workmanlike manner the very job for which he was en-

gaged. The conduct of the Shipowner’s personnel here,

while negligent, was far more remote from the Stevedore’s

actual work and did not hinder or prevent Rodriguez from

performing his job satisfactorily.

Similarly, our recent decision in Hurdich does not com-

pel the conclusion that Judge Neaher improperly applied

the “prevent or hinder” test. In that case, as will be seen

below, the court did not purport to apply the “prevent or

hinder” standard at all and did not refer to our decisions

in Albanese, Mortensen or Hartnett. In addition, as we

also explain below, Hurdich on its facts is distinguishable

from the present case.

The Stevedore also argues, however, that “prevent or

hinder” should not be the standard, relying on Conceicao

and Hurdich. According to the Stevedore, these decisions

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Opinion of the Court of Appeals

indicate that we have abandoned the “prevent or hinder”

rule in favor of a different test for indemnity-precluding

conduct, and under the new test the judgment against it

was improper.

While both Hurdich and Conceicao evidence this court’s

concern about the apparently harsh impact on stevedores

of the rules in this area, neither case compels the conclu-

sion that we have adopted a new definition of conduct

sufficient to preclude indemnity, at least in cases like the

one at bar. The jury verdict for the stevedore that we

affirmed in Conceicao was rendered after instructions that

indemnity for the shipowner was precluded if it “by some

action or inaction . . . prevented, hindered, or seriously

handicapped [the stevedore] in performing its workman-

like job.” 508 F.2d at 443. Although the court felt, in

words borrowed from the Supreme Court’s decision in

Italia Societa per Azioni di Navigazione v. Oregon Steve-

doring Co., 376 U.S. 315 (1964), that the shipowner was

“the party ... most able to minimize the particular risk

involved,” id., this language does not appear to have been

intended as the adoption of a new rule.

In Hurdich, there is some indication of an intention to

break new ground, since the opinion, quoting from Italia

Societa, supra, says that the test that “should have been

applied by the district court below but was not... is

that ‘liability should fall upon the party best situated to

adopt preventive measures and thereby to reduce the like-

lihood of injury.’” 503 F.2d at 401. As already indicated,

however, we do not believe that Hurdich is inconsistent

with the result we reach here. In that case, the shipowner

had engaged a contractor (stevedore) to replace an an-

tenna insulator. The work was done on two separate days.

On the first day, the old insulator was removed by an

employee of the stevedore and two of the ship’s crew.

This process created debris, which the three workers

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Opinion of the Court of Appeals

cleaned up. The stevedore’s employee returned alone three

days later to complete the work, creating no additional

debris and performing no further clean-up. Two weeks

later, the plaintiff, an employee of the shipowner, fell on

some of the insulation debris that was supposed to have

been cleaned up. The plaintiff was not contributorily

negligent. This court ruled that the shipowner’s conduct

precluded indemnity from the stevedore.

The case is fairly distinguishable. The plaintiff in Hur-

dich was a member of the ship’s crew, rather than, as in

this case, a contributorily negligent employee of the steve-

dore, and the stevedore’s breach of warranty was remote

from the accident to which it contributed. In fact, the ac-

cident occurred two weeks after the stevedore’s unwork-

manlike performance. During all of this period, the ship-

owner’s employees had exclusive control over the area

and the ship “alone was capable” of correcting the danger-

ous condition, which it negligently failed to do. 503 F.2d

at 402. In such a case, the shipowner did not “prevent or

hinder” workmanlike performance by the contractor, but

neither was its fault “merely concurrent.” Rather, it was

an intervening cause. See La Capria v. Compagnie Mari-

time Belge, 427 F.2d 244, 247 (2d Cir. 1970). When the

stevedore’s breach of warranty consists of the contribu-

tory negligence of its own employee, the plaintiff, such an

analysis is usually not fruitful. Here, for example, Rod-

riguez’s unworkmanlike performance was the immediate,

and, by the jury’s estimate holding him over 50 per cent

contributorily negligent, the more important cause of the

accident.

While the panel in Hurdich did disapprove of the test

used by the district judge there, which was the “prevent

or hinder” test,’ the opinion does not explicitly disavow

3 See Hurdich v. R.C.A. Corp., 359 F. Supp. 1222, 1224 (S.D.N.Y. 1973).

TES A OR aE SEAT ORS RNY crap Reo

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DRE tS RENO ELIE PRT Ge AIRE TR RN BRIN Mh

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Opinion of the Court of Appeals

the earlier line of cases already discussed. Nor was there

oceasion to. In Hurdich, where the shipowner’s negligent

conduct occurred well subsequent to the stevedore’s breach

of warranty, the “prevent or hinder” test, which was formu-

lated in cases where the shipowner’s conduct occurred prior

to or contemporaneous with the breach, was ill-adapted

for reaching an equitable result. Judge Neaher correctly

assumed that the “prevent or hinder” standard was con-

sistent with our decision in Hurdich, and that both are

consistent with the policy announced by the Supreme Court

in Italia Societa of placing responsibility on the party best

able to minimize the risk involved. Under the circum-

stances of this case, we believe that we must still apply

the “prevent or hinder” standard, as Judge Neaher did.‘

The Stevedore argues that the interplay of the rules dis-

cussed above leads to a result which is anomalous and un-

fair, in that the Shipowner, which negligently created a

dangerous condition and failed to warn business invitees,

is indemnified from the consequences of its negligence by

the Stevedore, which was not otherwise at fault, only be-

cause the Stevedore’s employee was contributorily negli-

gent in falling into the trap the Shipowner had created.

Thus, the plaintiff’s contributory negligence not only re-

duces the amount of the judgment against the Shipowner

4 Our conclusion that the Shipowner’s conduct did not preclude in-

demnity as a matter of law disposes of the Stevedore’s contention that

it was deprived of its right to have a jury determination of the issue.

Although the Stevedore is correct that this is ordinarily an issue of fact,

Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567

(1958) ; Hurdich v. Eastmount Shipping Corp., 503 F.2d 397, 401 n.3

(2d Cir. 1974), the court of course remains free to direct a verdict

where the evidence is insufficient to raise a jury question, and we have

approved the trial judge's decision to do so in appropriate cases. See,

e.g., Mortensen v. A/S Glittre, 348 F.2d 383 (2d Cir. 1965).

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Opinion of the Court of Appeals

but also entitles it to shift the remainder of the damages,

as well as the legal expenses it incurred in defending the

action, to the otherwise innocent Stevedore. The Shipowner

responds that the equities do not support the Stevedore

at all. Thus, the Shipowner stresses that whatever it

“should or should not have done, a workmanlike perfor-

mance [by Rodriguez] would have eliminated the risk of

injury.” * Moreover, as Judge Neaher noted:

Rodriguez did not enter hatch #2 in order to per-

form any assigned task. [The Shipowner] had no rea-

son to expect longshoremen to be in that hold, since

the stevedore’s work there had been completed. And

if the Italia test is to be applied, Rodriguez and his

gang boss were best situated to avoid the danger by

inspection of the area with an adequate light.

387 F. Supp. at 760.

We have long been troubled by this problem, which is

aggravated by the all-or-nothing character of the indemnity

doctrine. Cf. Hurdich, supra, where there was occasion to

use the tort concept of contribution rather than the con-

tract notion of indemnity. 503 F.2d at 403. As early as

McLaughlin, supra, we expressed our misgivings about the

“apparently irrational result” in these cases, but concluded

‘that the roots of the difficulty lay in decisions of the Su-

preme Court,® and that for this reason “inferior federal

courts will do better to abstain from further adventures

5 Brief of Defendant and Third-Party Plaintiff-Appellee, at 13.

6 Responsibility for longshoremen’s injuries has been differently allo-

cated at different times, with each successive solution causing new prob-

lems. For the history of the judicial and legislative attempts to deal

with the problem, see Stover, Longshoreman-Shipowner-Stevedore: The

Cirele of Liability, 61 Mich. L. Rev. 539 (1963). See also Fairmont

Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252 (2d

Cir.), cert. denied, 44 U.8.L.W. 3203 (U.S. Oct. 6, 1975).

sD PRE EY

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Opinion of the Court of Appeals

in this wonderland and leave doctrinal development to the

Supreme Court” and to Congress. 408 F.2d at 1338.

Congress has responded to the need. In 1972, it sub-

stantially revised the allocation of liability for accidents

of this sort. 33 U.S.C. § 905(b).” The new statutory scheme

deals with these problems in a comprehensive way that

would be impossible for a court. Since future cases will

be governed by the statute, the reexamination of the settled

law of this circuit which the Stevedore invites us to make

would have only the most limited practical effect. Under

these circumstances, we decline to depart from the prece-

dents which Judge Neaher correctly found controlling.

The judgment of the district court is affirmed.

7 33 U.S.C. §905(b) provides:

In the event of injury to a person covered under this chapter

caused by the negligence of a vessel, then such person, or anyone

otherwise entitled to recover damages by reason thereof, may bring

an action against such vessel as a third party in accordance with

the provisions of section 933 of this title and the employer shall

not be liable to the vessel for such damages directly or indirectly

and any agreements or warranties to the contrary shall be void. If

such person was employed by the vessel to provide stevedoring ser-

vices, no such action shall be permitted if the injury was caused by

the negligence of persons engaged in providing stevedoring services

to the vessel. If such person was employed by the vessel to provide

ship building or repair services, no such action shall be permitted

if the injury was caused by the negligence of persons engaged in

providing ship building or repair services to the vessel. The liability

of the vessel under this subsection shall not be based upon the

warranty of seaworthiness or a breach thereof at the time the in-

jury occurred. The remedy provided in this subsection shall be ex-

clusive of all other remedies against the vessel except remedies

available under this chapter.

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Opinion of Judge Neaher Reported at 387 F. Supp. 754

UNITED STATES DISTRICT COURT

Eastern District oF New York

68 C 409

JOSEPH Ropricvuez,

Plaintiff,

—against—

Ouar PepERSEN’s Reperr A/S,

Defendant and

Third Party Plaintiff,

—against—

American Stevepores, Inc. and

A. M. KristopHer Co., Inc.,

Third Party Defendants.

APPEARANCES:

Haicut, GarDNER, Poor & Havens, Esas.

Attorneys for Defendant and Third-Party Plaintiff

By W. P. Karn, Jr. and Tuomas F. Motanpuy, Esgs.

ALEXANDER, ASH, ScHwartz & CoHEN, Esas.

Attorneys for Third-Party Defendant

By Josepn ArTHUR CoHEN, Esq.

NEAHER, District Judge.

This action was originally instituted by a longshoreman

(Rodriguez) to recover damages from defendant shipowner

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Opinion of Judge Neaher Reported at 387 F. Supp. 754

(Pedersen) for injuries he sustained while aboard the

latter’s ship. Pedersen, in turn, impleaded Rodriguez’s

employer, American Stevedores, Inc. (American) seeking

indemnification for the monetary damages Pedersen was

required to pay to Rodriguez. The case is now hefore the

court solely on the indemnity claim; but in order to better

understand the questions presented, the prior proceedings

and present posture of the case will be briefly stated.

After a trial in 1971 before the late Judge Rosling of

this court, the jury returned a verdict in favor of Rodriguez

against Pedersen in the amount of $35,000. In answer to

special interrogatories, the jury found the ship unsea-

worthy and the shipowner negligent but also found Rodri-

guez contributorily negligent and reduced his damages

from $80,000 to the amount announced. Upon subsequent

submission of Pedersen’s claim for indemnity, the jury

returned a sevarate verdict in favor of American, denying

Pedersen a recovery over. Pedersen then moved for judg-

ment %.0.v. or a new trial on the indemnity claim. Judge

Rosling granted Pedersen the new trial.?

Pedersen has now moved for summary judgment on its

indemnity claim, asserting that there are no new facts to

be adduced at a new trial and that on the facts as brought

out on the first trial, it is entitled to judgment as a matter

of law. American opposes Pedersen’s motion and has cross-

moved under Rule 60(b), F.R.Civ.P., to act aside the order

granting Pedersen a new trial and for reinstatement of

the jury verdict denying indemnity. In so moving, Ameri-

ean also acknowledges “that no purpose would be served

by a new trial other than to have the record of the first

? Judgment was entered for plaintiff on the jury verdict and was

not appealed. Judge Rosling died before a new trial could be com-

menced and the case was subsequently reassigned to the writer.

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Opinion of Judge Neaher Reported at 387 F. Supp. 754

trial read to a different jury.”* In short, both sides agree

that all relevant facts are before the court.’

Before turning to the facts, the somewhat unusual pos-

ture of the case requires threshold consideration of the

propriety of entertaining a motion for summary judg-

ment at this juncture. The indemnity claim clearly remains

as a completely separate action, having been “severed and

deferred for later jury trial’ by Judge Rosling.* Although

such a trial was had, no judgment has ever been entered

determining the action. The jury’s verdict denying indem-

? Affidavit in Support of Third Party Defendant's Motion, dated

February 6, 1974, at 2.

3In its statement pursuant to General Rule 9(g) of this court,

Pedersen stipulated that:

“4, From the testimony and jury findings at the first trial, de-

fendant and third party plaintiff stipulates, for the pur-

poses of this motion, that it negligently created an unsea-

worthy condition which was a proximate cause of plain-

tiff’s accident in that: The vessel’s Chief Officer directed

the foreman of ship cleaners employed by third party de-

fendant .. . to cover the No. 2 hatch on the weather deck

and not replace such covers in the lower decks of that hatch

as had been removed during the course of cleaning opera-

tions; that such action left the No. 2 in total darkness and

that the doors of the No. 4 tween deck, which gave plaintiff

initial access back to the No. 2 hatch, were not locked, were

ajar, and there were no signs warning persons, such as

plaintiff, that the conditions described above, existed.”

American does not dispute any of the foregoing facts or claim

there are any additional facts. All that American says in its Rule

9(g) statement is that:

“Our position is that both the Shipowner and the Stevedore are

bound by the jury determinations of Shipowner’s negligence

and plaintiff's contributory negligence, and that those findings

evidence the existence of a factual issue on indemnity pre-

eluding conduct.” Affidavit of Joseph Arthur Cohen, Esq.

* See Decision and Order (“Decision”) filed September 28, 1971,

at 2.

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Opinion of Judge Neaher Reported at 387 F. Supp. 754

nity was set aside and a new trial ordered with a strong

suggestion that the existing evidence was insufficient to

support such a verdict.’ The parties say that additional

evidence does not exist. A judgment deciding the case one

way or the other would seem to be in order.

American, in opposing the use of summary judgment

procedure, suggests that the court merely “recall the order

granting a new trial” and direct entry of judgment on the

vacated jury verdict in its favor.’ It contends that Judge

Rosling having denied Pedersen’s motion for judgment not-

withstanding the verdict, the latter’s declared intention not

to offer additional proof is a waiver of its right to a new

trial. Consequently, American argues, it should be relieved

of the new trial order under Rule 60(b), the jury verdict

in its favor should be reinstated, and judgment should be

entered accordingly.’

Aside from the technical difficulties American’s Rule

60(b) contentions present,® the court sees only two routes

to an appealable judgment on the indemnity claim: (1) re-

submission of the same evidence to a new jury, which

neither party desires and which seems to make no sense

here, or (2) re-examination by the court of the facts not

in dispute, whether established by jury verdict or other-

wise, to determine if judgment on the merits can be ren-

dered as a matter of law. Pedersen’s motion for summary

5 Decision at 4-5.

§ Affidavit in Support of Third Party Defendant’s Motion, dated

February 6, 1974, at 3.

7Brief in Support of Third Party Defendant’s Motion under

Rule 60 at 2.

8’ Defendant and Third Party Plaintiff's Memorandum of Law,

ete. at 3-4.

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Opinion of Judge Neaher Reported at 387 F. Supp. 754

judgment urges route (2) and impresses the court as the

better course.

Although a judge should not ordinarily disturb previous

rulings of another judge in the same case, “the law of the

case” rule is not so inflexible as to permit of no exception.

Certainly it should not prevent the discharge of a judge’s

obligation to present an appellate court with the judgment

he believes ought to be rendered in the case. Dictograph

Products Co. v. Sonotone Corp., 230 F.2d 131 (2 Cir.),

appeal dism. 352 U.S. 883 (1956), cited by Pedersen, sup-

ports such a view. See also Petition of Kinsman Transit

Company, 368 F.2d 821 (2 Cir. 1968), fn. 9 at p. 825; Ross

Products, Inc. vy. New York Merchandise Co., 242 F. Supp.

878 (S.D.N.Y. 1965); Kaminsky v. Abrams, 281 F. Supp.

501 (S.D.N.Y. 1968); Rogers v. Valiente, 426 F.2d 1361 (2

Cir. 1970), fn. 2 at p. 1363.

Finding no sound reason for holding that the prior

rulings herein bar reconsideration of the merits of Peder-

sen’s claim, we now examine what the parties agree are

the facts which gave rise to that claim.

On July 3, 1967, Rodriguez and other members of his

gang were discharging cargo from Pedersen’s M/V “Sunny

Prince.” The gang was working on the upper ’tween deck

level of hatch #2, when Rodriguez was summoned from

that hatch at about 11:00 a.m. and directed to hatch #4

to do some unloading. When Rodriguez left hateh #2 he

left his gloves and hook there, anticipating that he would

return to work in that hatch. Shortly after arriving at

hatch #4, he realized he would not be returning to hatch

#2, and after having his lunch, he requested permission

from his superior to go back to hatch #2 to retrieve his

gloves and hook.

Meanwhile, unknown to Rodriguez, ship’s cleaners in the

employ of A. M. Kristopher Co., Inc., had gone into hatch

BELL ER RTL SRE a Fae ae at

BLEED THROUGH

19a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

#2 to clean out the debris remaining after the completion

of the unloading. In order to do so it was necessary for

them to remove the covers from the upper ’tween deck.

After they had completed the task, they asked the ship’s

chief officer whether they should replace the covers and

were told by him not to do so. He also instructed them to

close the main deck hatch opening. This, of course, left

the #2 upper ’tween deck level in total darkness with a

previously covered floor aperture now open.

As Rodriguez proceeded from hatch #4 to hatch #2, he

walked through a door which had been left ajar and which

gave access to a passageway connecting the two hatches

at the ’tween deck level. Concededly there were no signs

giving notice of the changed conditions in hatch #2. As

it was dark in the passageway, Rodriguez used a small

“penlight” for illumination. After arriving in the #2 hatch

’tween deck area, he tripped over the hatch coaming and

fell through the uncovered opening into the lower hold,

thereby sustaining his injuries.

Until Congress, in 1972, revised the statutory provision

relating to actions of this nature,’ the law in this circuit

was well established that a finding of contributory negli-

° 33 U.S.C. §905/a) and (b) now provide in pertinent part:

“(a) The liability of an employer prescribed in section 904

of this title shall be exclusive .. .

“(b) In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such person

. . may bring an action against such vessel as a third party

... and the employer shall not be liable to the vessel for such

damages directly or indirectly and any agreements or war-

ranties to the contrary shall be void... .”

The instant action involves injuries sustained prior to the effective

date of the statutory provision and is thus not governed thereby.

See Julian v. Mitsui O.S.K. Lines Ltd., 479 F.2d 433, 434 (5 Cir.

1973).

20a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

gence on the part of a plaintiff longshoreman caused his

employer, the stevedore company, to be held liable per se

to indemnify the defendant shipowner, Hartnett v. Reiss

Steamship Company, 421 F.2d 1011, 1018 (2 Cir.), cert.

denied, 400 U.S. 852 (1970); McLaughlin vy. Trellebarge

Arcfartyge A/B, 408 F.2d 1334, 1336 (2 Cir.), cert. de-

nied,’® 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed. 2d 464 (1969) ;

Mortensen vy. A/S Glittre, 348 F.2d 383 (2 Cir. 1965),”

absent a finding that the shipowner prevented the steve-

dore company from fulfilling its warranty of workmanlike

performance, Weyerhaeuser S.S. Company v. Nacirema

Operating Company, Inc., 355 U.S. 563, 567 (1958).

Here, it is undisputed that upon the liability trial, the

jury found plaintiff's contributory negligence to be in

excess of 55%. Without more, Pedersen would be entitled

to a judgment over against American. A jury on the

same evidence, however, denied the shipowner indemnity

when that issue was presented to it.

Endeavoring to resurrect that verdict, American stren-

uously argues that “the jury determinations of shipowner’s

negligence and [Rodriguez’s] contributory negligence .. .

evidence the existence of a factual issue on indemnity pre-

eluding conduct,” n. 4 supra.

While it is true that “the issue of whether the ship-

owner has precluded itself is an issue of fact,” Hurdich

v. Eastmount Shipping Corp., 503 F.2d 397, at 401, n.3 (2

Cir. 1974) this is not to be taken as barring judicial evalu-

ation of the sufficiency of the evidence relied on to support

1° Sub nom. Golten Marine Company v. Trelleborgs Angfartygs.

11 The theory behind this vicarious imposition of liability is that

the employer warrants “to furnish employees who . . . will not

negligently expose themselves to injury.” McLaughlin, supra, 402

F.2d at 1337.

PRI 74

21a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

a finding that the shipowner should be denied indemnity.

Indeed, it seems manifest that Judge Rosling set the jury’s

verdict aside and ordered a new trial because he viewed the

existing evidence as insufficient to warrant such a denial.’”

In effect, the stevedore—not the shipowner—was given a

second opportunity to develop facts to support its con-

tention that indemnity should be denied.

On this motion the parties are in agreement that there

is no additional evidence. The court must, therefore, de-

cide whether on the essentially conceded facts a jury

could reasonably infer that Pedersen’s part in Rodriguez’s

accident constituted “conduct on its part sufficient to pre-

clude recovery” of indemnity from American. Weyer-

haeuser, supra, 355 U.S. at 567.

Exactly what constitutes conduct sufficient to preclude

recovery was not explained in Weyerhaeuser. Cases in

this cireuit, while not striving for a precise definition,

have established a meaningful parameter. Thus, in Al-

banese v. N.V. Nederl. Amerik Steamr. Manta, 346 F.2d

481, 484 (2 Cir.), rev’d on other grounds, 382 U.S. 283

(1965), the Court of Appeals stated:

“Whatever fault of a shipowner may be said to re-

lieve the stevedore of his duty under the warranty,

it seems plain that it must at the least prevent or

seriously handicap the stevedore in his ability to do

a workmanlike job. Merely concurrent fault is not

enough... .”

The above-quoted language was later approved in

Mortensen v. A/S Glittre, supra, in which a jury found

for Mortansen, a painter, against the shipowner but re-

12 Decision at 4-5.

22a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

duced its verdict by approximately one-third because of

Mortensen’s contributory negligence. The trial court then

directed a verdict on an indemnity claim in favor of the

shipowner against Mortensen’s employer, a ship-painting

contractor, on the theory that the jury’s finding of con-

tributory negligence mandated a finding as a matter of

law that the employer had breached its warranty of work-

manlike performance.

On appeal, the employer argued that the question of

whether the shipowner’s conduct was a bar to recovery

should have been left to the jury. The Court of Appeals

rejected the contention in language apposite here:

“It is well established that the mere creation of the

unsafe condition is insufficient to preclude recovery

over when the contractor’s own negligence has brought

the unseaworthiness of the vessel into play. E.g.,

Crumady v. J. H. Fisser, 358 U.S. 423, 79 S. Ct. 445,

3 L.E.2d 413 (1959).

“Despite. every opportunity to do so during the

course of the trial, no effort was made to show and

no claim was made that Glittre’s conduct consisted of

anything more than the creation of the hazard which

underlay the unseaworthiness claim, let alone that

it amount to ‘active hindrance’ of the contractor in the

performance of its contractual duties, which as we

stated in Albanese, supra, .. . is required to defeat

the indemnification action.” 348 F.2d at 385.

Requiring an active hinderance by the shipowner of the

stevedore’s performance is, manifestly, an appropriate

standard in view of the fact that the stevedore’s warranty

is founded in contract, and not tort, law. ZJtalia Societa

per Azioni. di Navigazione v. Oregon Stevedoring Co.,

Ao, SNR MAREN PRE Ir Sgeeennagunmer ages

BLEED THROUGH

23a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

376 U.S. 315 (1964). We are thus concerned not with

weighing relative degrees of fault but with ascertaining

causation in fact, i.e., whether the shipowner’s conduct,

as imputed from its employees, actually interfered with

the proper performance of the stevedore’s job.

In deciding this question of causation, the trier of the

facts is charged by the Court in /talia, supra, to place

liability “upon the party best situated to adopt preven-

tive measures and thereby to reduce the likelihood of

injury” (376 U.S. at 324). See Hurdich v. Eastmount

Shipping Corp., supra, Slip Op. at 5416.

Here, a finding of fault on Pedersen’s part must neces-

sarily center around the creation by the ship’s own officer

of a potentially hazardous condition in hatch #2. This

trap for the unwary is reminiscent of the oil “slick” in

Mortensen, supra. In Mortensen it was the careless failure

of the plaintiff workman to obey a direction to clean up

any “slick” observed which brought about the chain of

events resulting in the uecident. Here, too, it was Ro-

driguez’s own careless action in walking into the darkened

hatch which brought about his injuries.

In this case there is a total absence of evidence war-

ranting an inference that the creation of the hazard consti-

tuted interference by the shipowner with the stevedore’s

fulfillment of his warranty of workmanlike performance.

Rodriguez did not enter hatch #2 in order to perform any

assigned task. Pedersen had no reason to expect longshore-

men to be in that hold, since the stevedores’ work there

had been completed. And if the Italia test is to be applied,

Rodriguez and his gang boss were best situated to avoid

the danger by inspection of the area with an adequate light.

In Bertino v. Polish Ocean Line, 402 F.2d 963, 866 (2 Cir.

1968), the court noted:

24a

Opinion of Judge Neaher Reported at 387 F. Supp. 754

“Even if the danger was created by the shipowner, in-

demnity over is permitted if the condition was ob-

vious and the stevedore continued to work on did

not correct it.”

That language is also apposite here. Even though the

darkened conditions in hatch #2 was created by Pedersen,

it presented an obviously dangerous situation to Rodriguez,

calling for the exercise of caution and the use of an ade-

quate light. He nevertheless entered the hatch aided only

by a “penlight.” Rodriguez’s own careless action having

brought the danger into play, the shipowner may not be

denied indemnity for having created the danger. See

United States Lines, Inc. v. Jarka Corp., 444 F.2d 26 (4

Cir. 1971); K&H Ship Service Co. v. Weyerhaeuser Line,

382 F.2d 711 (9 Cir. 1967).

Evaluating the facts of this case against the standards

of causation established by Hartnett-McLaughlin- Morten-

sen, supra, it seems clear that the concurrent fault of

Pedersen cannot be said to have prevented or handicapped

the stevedore in his ability to do a workmanlike job, and

that no jury verdict denying indemnity to the shipowner

would be legally sustainable.

Pedersen’s motion for summary judgment is accordingly

granted, the form of judgment to be settled by the parties

on notice.

So ordered.

/3/ Epvwarp R. NEAHER

U.S. D. J.

Dated: Brooklyn, N.Y.

December 27, 1974

? BLEED THROUGH

a at

| Hiro

SUR .

25a

Judgment of District Court

UNITED STATES DISTRICT COURT

Eastern District or New York

JosEPH RopricueEz,

Plaintiff,

—against—

Ouar PeperRsEN’s Repent A/S,

Defendant and Third Party

Plaintiff,

—against—

AMERICAN STEVEDORES, Inc. and A.M. KristopHer Co., Inc.,

Third Party Defendants.

Defendant and third party plaintiff, above named, by

its attorneys, Haight, Gardner, Poor & Havens, having

moved this Court by Notice of Motion dated November

27, 1973, for an order pursuant to Rule 56(a) of the

Federal Rules of Civil Procedure for summary judgment

on defendant and third party plaintiffs claim for indem-

nity against third party defendant, American Stevedores,

Ine., and the Court having read the affidavit of William

P. Kain, Jr., Esq., sworn to the 27th day of November,

1973 in support thereof and the affidavit of Joseph Ar-

thur Cohen, Esq., sworn to the 6th day of February,

1974 in opposition thereto and third party defendant,

American Stevedores, Ine., by its attorneys, Alexander,

Ash, Schwartz & Cohen, having moved this Court for

26a

Judgment of District Court

an order pursuant to Rule 60(b) of the Federal Rules

of Civil Procedure re-instating the jury verdict of March

1, 1971 in favor of American Stevedores, Inc. on the

indemnity claim of defendant and third party plaintiff

and the Court having read the affidavit of Joseph Arthur

Cohen, Esq., sworn to the 6th day of February, 1974 in

support thereof and the Court having further heard oral

argument of counsel in support of and in opposition to

both said motions and due deliberation having been had

thereon as well as on the authorities submitted by the

parties in their various memoranda of law, and the Court,

in its opinion dated December 27, 1974, having deter-

mined that the motion of defendant and third party plain-

tiff should be granted and that the motion of third party

defendant should be denied,

Now, on motion of Haight, Gardner, Poor & Havens,

attorneys for defendant and third party plaintiff it is,

ORDERED, ADJUDGED AND DECREED that

(1) Defendant and third party plaintiff's motion

for summary judgment against third party defen-

dant, American Stevedores, Inc., be and the same is

hereby granted;

(2) Defendant and third party plaintiff have judg-

ment against third party defendant, American Steve-

dores, Inc., in the amount of $37,094.60, the full amount

of plaintiff’s recovery including interest and costs

as taxed, plus interest at 6% per annum from Jan-

uary 27, 1972, the date said judgment was satisfied,

and, in addition thereto, reasonable counsel fees, costs

and disbursements incurred in the defense of plain-

tiffs claim:

Poe SENNA ING: AE RENEE EIN Tae PY LAPORTE RE RN Rr esq ater sesy

” ¢ 0 me TH a 2 at ee y ¢

BLEED THROUGH

27a

Judgment of District Court

(3) The respective amounts of recoverable counsel

fees and disbursements may be added to the foot

hereof in sums to be agreed upon or, failing such

agreement, in such sums as may be fixed by the Court;

(4) That the motion of third party defendant, Amer-

ican Stevedores, Inec., be and the same is hereby denied.

Dated: Brooklyn, New York

February 3, 1975

/s/ Evwarp R. NEAHER

U.S.D.J.

28a

Opinion of Judge Rosling

UNITED STATES DISTRICT COURT

Eastern District or New York

JosEPH RopricueEz,

Plaintiff,

—against—

Ouar PEpERSEN’s Repert A/S,

Defendant and Third Party Plaintiff,

—against—

AMERICAN Stevepores, Inc. and

A. M. Kristopuer Company, Inc.,

Third Party Defendants.

Appearances:

DiCostanzo, Kuonsxky & Curtrona, Esgs.

Attorneys for Plaintiff

Haicut, GarpNER, Poor & Havens, Esas.

Attorneys for Defendant and

Third Party Plaintiff

William P. Kain, Jr., Esq.

Of Counsel

ALEXANDER, AsH, Scuwartz & CoHEN, Esgs.

Attorneys for Third Party Defendant

Joseph Cohen, Esq.

Of Counsel

Decision and Order

OTE LIME LN UT SER ae lier tti te ORR en a

29a

Opinion of Judge Rosling

Rosine, J.

On February 26, 1971, the jury rendered a verdict in

favor of the plaintiff, Joseph Rodriguez, against Olaf

Pedersen Rederi, the defendant shipowner, in the sum of

$35,000. In addition to rendering such general verdict it

answered written interrogatories submitted to it by the

court pursuant to Fed. R. Civ. P. 49(b) in which it found

the longshoreman plaintiff contributorily negligent and re-

ported that it had by reason of such contributory negli-

gence reduced the award of damages plaintiff had sustained

to the sum announced as its verdict. On March 1st the

court submitted to the same jury which had been held over

to hear the third party claim by the shipowner against the

American Stevedores, Inc., third party defendant,’ for in-

demnity, a further interrogatory asking the jury to report

the amount of damages they had found before reduction

for contributory negligence. The jury answered that the

unreduced damages totalled $80,000.

The court thereupon severed and deferred for later jury

trial so much of the shipowner’s claim-over as sought in-

demnification for counsel fees and disbursements for de-

fending the primary suit and proceeding to try the issue

of the shipowner’s claim to indemnification as to the long-

shoreman’s recovery of damages for his injuries. Such

issue was submitted to the jury without the introduction

of further evidence by either party. Before the submission

both these parties moved for directed verdicts which the

court denied.

?The crossclaim of the stevedore against the third party co-

defendant A. M. Kristopher Co., Ine., and the counter cross-

complaint by the latter against the stevedore were discontinued

in the course of the trial.

30a

Opinion of Judge Rosling

The shipowner now moves under Fed. R. Civ. P. 50 for

the following relief:

(1) To renew its motion for a directed verdict on the

indemnity claim; and

(2) Judgment, notwithstanding the verdict; or

(3) A new trial of the issues raised by the indemnity

claim.

The jury by its finding of substantial contributory neg-

ligence on the part of the primary plaintiff imposes a vicar-

ious equal fault on the stevedore employer and forecloses

escape from the shipowner’s claim that the stevedore’s

performance was not of the requisite workmanlike quality.

Only by a showing that the shipowner by its own affirma-

tive act had thwarted such performance can the stevedore

be absolved of liability.2 The jury by its finding of con-

tributory negligence compels the conclusion that it must

have determined that Rodriguez’s entry into the dark in-

terior passageway with his inadequate flashlight and his

proceeding from the exit door of hatch #4 to the uncovered

2 Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S.

563, 567, 78 S. Ct. 438, 441 (1958); Hartnett v. Reiss Steamship

Co., 421 F.2d 1011 (2d Cir. 1970), cert. denied, 400 U.S. 849;

McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336

(2d Cir. 1969), cert. denied, 395 U.S. 946 (1969); Albanese v.

N. V. Nederl. Amerik Stoomv. Maats, 392 F.2d 763 (2d Cir. 1968),

rev. on other grounds, 393 U.S. 72 (1968); Mortensen v. A/S

Glittre, 348 F.2d 383 (2d Cir. 1965) ; Nicroli v. Den Norske Afrika-

Og Australielinie, 332 F.2d 651, 655 (2d Cir. 1964) ; Misurella v.

Isthmian Lines, Inec., 328 F.2d 40 (2d Cir. 1964); Shenker v.

United States, 322 F.2d 622 (2d Cir. 1963) ; Damanti v. A/S Inger,

et al., 314 F.2d 395, 399 (2d Cir. 1963); Drago v. A/S Inger, 305

F.2d 139 (2d Cir. 1962); H. & H. Ship Service Co. v. Weyer-

haeuser, 382 F.2d 711 (9th Cir. 1967); Calmar Steamship Corp.

v. Nacirema Operating Co., 266 F.2d 79, 81 (4th Cir. 1959).

BE, gS or CeO oe - a

ETRE, GEARS LL MPD ole RI Ee De ee a ee Ry aaa WM reenapaey Wkusees

BLEED THROUGH

3la

Opinion of Judge Rosling

’tween deck of hatch #2 where he fell constituted such

contributory negligence.

Whether the shipowner’s negligence and the unseaworthi-

ness of the ship lay in the failure of the ship to post an

appropriate warning on the exit door of hatch #4 or its

failure to provide lighting in the passageway to hatch #2

or, finally, in failing to keep the ’tween deck of hatch #2

covered even though the longshoremen’s unloading of hatch

#2 had been completed some hours before the accident is

unclear. The critical point, however, with respect to which

the ship might be held by its action or inaction to have

thwarted workmanlike performance by the shipowner, is

the unbarred ’tween deck exit door of hatch #4, for once

beyond this door the longshoreman’s contributory negli-

gence came into play as he aproached the uncovered hatch

in which he was hurt.

Whether the door should have been barred by the ship-

owner or stevedore against its use in the fashion described

and whether, in any event, a warning notice should have

been posted or an oral notice given to the longshoremen of

the dangers involved in their wandering off into holds

other than the one in which they were working is not the

decisive question upon which liability will turn. The steve-

dore for its part had a later opportunity than the ship to

bar the door or to give the warning or to do both. Was

it sufficiently on notice of the condition so that its failure

to act constituted an unworkmanlike performance of its

contractual obligation?

The question is a close one and should be presented to

a jury in the form of an interrogatory calling for a writ-

ten answer. Counsel should perhaps provide the jury with

factual enlightenment by evidence of the physical situa-

tion with focus directed to the door.

32a

Opinion of Judge Rosling

Motions for a directed verdit and for judgment notwith-

standing the jury verdict are denied. Motion for a new

trial on the issues raised by the indemnity claim is

granted.’ Case is set down for assignment for trial and

fixation of a trial date on October 8, 1971, at 2:15 P.M.

The foregoing decision constitutes the findings of fact,

conclusions of law and order of the court.

Georce Rosiine

U.S.D.J.

The issues of counsel fee to be awarded to the shipowner and

disbursements to be reimbursed were deferred by the court for

later trial by a second jury. In view of the long delay which has

already supervened since the trial of the claim-over for indemnifi-

cation and the necessity for the retrial of that issue, the court re-

calls its earlier direction for deferral and now directs that the

entire claim-over be tried or retried in a single jury trial to be

held on a date fixed in the order to be entered hereon.

EOE SEEN LEIP PAR IE BEI | IEE DIM

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.