Petition for Writ of Certiorari — Swam v. United States

Supreme Court brief1964

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ITALIA § SOCIETA PER AZIONI 1 pI

ee,

Petition,

nO ~!~ : t .

OREGON STEVEDORING COMPANY, INC., .

° ie. Oe ; : - :

_ TO THE UNITED STATES COURT OF APPEALS ee ¢

POR THE NINTH CIRCUIT

. : . y <

‘ o- Erskine Woop.

Erskine B. Woop, — -

= _Counsel for Petitioner,

1310 Yeon yr -asocng

OTEVENS-NESS LAW PUD. co., Sa ;

Bow 88, Go. Meier & Out Co, 262 P24

$10 (2d Cir. 1958) ee tans

“Ryan Stevedore Co. v. ec diame 0. Co, 350.

oo yk ee a I Bei 2,5,7

=e TOR Tt

” STATUTES:

. 8% USC. aS ee Bossa —

28 USC 1291. Senne 4

a“

ce ITALIA SOCIETA PER AZIONT DI

G judgment: of the United States Court of Appeals for the .

Ninth Circuit entered in’ the above ‘entitled cas¥ on

eevirsnmeaiond :

Lec petitiat,

: OREGON sreVEDORING COMPANY, INC, ;

; Remeetent. ee :

PETITION FOR WRIT OF CERTIORARI

‘TO THE UNITED STATES COURT OF APPEALS

_ FOR THE NINTH CIRCUIT

‘Petitioner prays for a writ of ceftiorari to review the. ;

October 25,. 1962,..as to which rehearing was denied :

s Demin 5, 1962.

_ OPINIONS OF courts | BELOW

"The opinion ‘of the United States District Court fo?

-- the District of Oregon is not. reported. It is set forth ‘at, : ;

ci 21-23 of the printed — of Record.

9 . A . s 5 -

Sie 4 ‘ i &

. Oo e 3

¢.-

PP. 54-63, is printed in the Appendix, infra pp. 25:37,”

| @ and reported in 310 F. 24-488-493,. wee ees

Pk - Appendix hereto, intra, pp. 11-25, and ia reported in 310°

eae

"October 25, 1962 (Tr. 64) (Appendix p..38). A

‘The jurisdiction of this Court is invoked under 2

Ee a see

)

free‘of latent defect? 5 ee ee

at witvan Stevedore Co.'y. Pan Atlantic $.S. Corp., 350 US. 124

. reasonably fit and suitable for the purpose intended, and po gees

421 at p. 424. _

e”

_—

“_

2, What is the extent of a contractitig stevedore’s

"obligation ‘to ‘ite shipowner: customer with: respect to .

the vénse!, and fetnine ‘in ‘its: exclusive possession end

Control, for use in performance of its stevedoring serv- ae

_ ices? Is it'a duty to provide seaworthy equipment suit-

, Able for-the use intended, o¢ merely to avoid negligence?

3. Does a shipowner, who has been subjected to lia-

bility for injury to ‘a”longshoreman employee. of the

; contracting stevedote; as ‘result of the stevedore fur- |

' mishing and using equipment unsuitable ‘because of -

latent defect, have a right to indemnity from the con-

pewoeen si . gS,

e STATEMENT OF THE CASE

- Respondent, Oregon | vetoes: Conant. per-

formed steyedoring services on petitioner's vessel, the |

MS ANTONIO PACINOTTI, in the harbor of Port-

land, Oregon on November 19, 1958. The. work. was.

done pursuant to a written stevedoring ‘contract which

_Fequired the stevedore to furnish all necessary labor ‘and oe

__-~supervisién and all ordinary gear for the perfofifiance

-of the -stevedoring services. (Tr. 93a). For use in’ the

stevedoring operations, the stevedore furnished and

brought aboard, the vessel a tent to protect cargo from

rain, with-attached tie ropes. The tent and attached tie

ropes were owned, supplied, rigged, and at all times ex-

vie apis controlled by the stevedore. +<-

ne. the work of ‘Heging the tent, done. by the.

ot * as : e oe Z A : e:

2 : 4 - Pe ’ Cd

: : a “3 ¢ re S 2 8 i es So xe : : te

ee i Baines pk coe oe ee oR Sir See f oe

- stevedoring company as a part of its st coat

_ , * American Stevedores v. Porello, 330 U.S. 446, 456. ‘

Ay oe a

dtpidita dats ad weenie & eos!

Meier ® Ocihat Co., 262' F. 24 310\(1958), that the.

‘ saat eich snesonta i Soon hat eee:

pina eB pce Ce

- : ‘6 %

& &-

+ Ampain t eeon, oe es

“Im @ setien Of recent cases this Court has ruled upon

"warning: esis et Sot

S like. service owed by the contracting stevedore to ‘the

Re See es Oe

‘services. Ryan Stevedore Co. y. Pan Atlantic SS. Corp., .

_ 350 US. 124 (1956); Weyer 'S.S. Co..v. Naci- °°

N° rema Co., 355 U.S. 563 (1958); ‘Crumady Vv. The J. H.-

‘Fisser, 358 US. 423 (1959); Waterman: SS. Corp. V. ;

Dugan #McNamara, 364 U.S. 421 (1960). But “the

- question involved in the present, case has not | heretofore,

_ been presented to this Court.

eee. Undar:nibdieen conditions in’ the iodustry, oh A

contractors bring aboard thie vessel a large amount of

‘their own: ets, such..as cargo hooks," shackles,

gs - cables, pallet boards, stowing winches,

ssmctibied: tint As to. all this ‘stevedore-supplied gear, -

used in loading dr discharging cargo, is Bio

"held to an absolute warraiity, of seaworthiness, and is

liable to longshoremen employees of. the stevedore who

"may be injured. through latent defect in the gear. Seas

_ Shipping Co. v. Sieracki, 328 US.. 86; Alaska sate Co.

oes ss weognamtalvis 396.- Pee ee qe

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Oe Thus, there’ exists an'¢ ot atime hae

", flict’ between“the Court’ of Appeals which establishes ”

the law for the Pacific Coast, and the Court of Appeals

which establishes the law for the largest maritime Cir-

1 cuit on the Atlaritic Coast, in the field of maritime law

ee ‘where there should be substantial uniformity. ee

Cay

3. "The Decision of the Court of Appeals Is

i ce : eo ey

5 _» Announced by this Court, |

5 eo thet the queen pet eo owt :

itmever, ‘this Court has repeatedly stated that the Nae.

stevedore’s warranty of workmanlike service. is “com- + ~~

parable to a manufacturer's warranty of the soundness ered |

Of. its manufactured product.” “Ryan Stevedore Co. ‘v:

, a ‘Pan Atlantic S.S. Co., supra at pp. 133-34; Crumedy .

v. The J. H. Fisser, supra at pp. 428-29;. Waterman S.S.

Corp. Vv. Dugan &McNamara, supra at p. .424. But the ‘ .

. Court of Appeals majority decision, after noting this . <

language (310 F. 2d at p. 483, App. p.. 14), apparently

"dismisses. it, and becomes -involved with semantics of :

the ‘word “workmanlike,” ‘which it equates to “non-

negligent.” (310 F. 2d at pp: 484-85; App. pp.. 17-18). ie

“Therefore, the majority apparently conclude that this ohne

7 _ Court did not really mean that the ‘stevedore’s warranty . rer

kN eee closely comparable fo the. manufacturer's warranty. eee

Beets “They also overlook the possibility there may be closely at

_. telated, but separate, wartanties,—i.., a warranty’ of ed

oy | skillful labor and supervision, and a warranty of sound: ee

+. nes of of materials and oo fasnished.

* > = ee i od

421, at pp. 424-25.

ie en add He a nig Mad Sa eer Oe vd é

the longshoreman employees of the stevedoring contrac-

"tor the duty to provide a seaworthy vessel.“Sieracki,

supra. This duty. is absolute and does not depend upon.

negligence, and extends to equipment brought aboard the

vessel by the stevedore, over which the shipowner has

. no control. Alaska S.S. Corp. Vv. Petterson, supra. But,

Since this is true, and since the shipowner relies upon

the expert stevedore, it would seem that the stevedore’s

: - warranty includes the absolute warranty | to furnish

equipment reasonably fit and suitable for the work at.

a 0S A ee eens Seated by Serniphing

equipment with a latent defect... beg e

4 The Public Policy 40 Avoid Risk of tury.

‘ The Court of Appeals decitinn ‘runs .ccunter-to the:

strong public policy to protect workmen from injury.

Stevedore work is hazardous. ‘Stevedore-furnished

cauipment may be ued to suspend heavy loads over.

: _ the heads of workmen: : :

Ge 3 $ 9 , |

i us seaceane Ve wh geste one teenies tee. oes

. to: its prior age‘ d use, or to make tests beyond the ©

ight\be taken by the stevedore. < |

_ ‘The shipowner, vis-a-vis the injured longshoreman, é

is subject to absolute liability, upon the warranty of: — et

’ mate burden should be placed upon the party best able -

"Fad at pp. 314-15. It was expressed. again by a differ-

- portunity to éliminate or avoid. Waterman S. S.

- Corp. v. Dugan & McNamara, Inc., supra, 364 US.

‘ 421, 424-425, 81 S. Ct. 200, 5 L. ed. 2d 169, Paliaga.

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“. jee.

va ® Cee ”” | No. 17,616

ns Oct. 25, 1962

Appeal from the United States District Court

for the District of Oregon. aa

Seemann

| Before: BARNES, HAMLIN and JERTBERG, Circuit

“stevedoring services on appellant's ship, the M.S. An-

. tonio Pacinotti. On or about November 19, 1958, during

‘the course of stevedoring operations a longshoreman .

_ named Griffith, an employee of the stevedoring company, '

e was injured due to:a latently defective rope which had

‘been brought onto the ship by the stevedoring. company.

”- Griffith recovered - “a judgment against appellant ship-

owner which it satisfied. Thereafter, in a separate action

" deallail Hina teil. Gil apni cep ee.

doring company claiming indemnity from appellee for

. ‘

Or RE ereet toning

eRe) “ann beter ten Rew pee" <ed) & eeoad ) ~

os eee

same. to the atiention of the Company at the time

occurrence. The Steamship Company shall be ; for in-

trict erent po any person or for damage to or loss of property

arising through the negligence of’ the § ship Company or any

oa catents @r employees, or by reason of the failure of ship's gee.

and/or equipment. ’

Not ee

tended that a failufe to supply seaworthy equipment is

_ @ breach of the implied warfanty of workmanlike serv-

ice which entitles the shipowner to indemnity for any

_* liability it incurs resulting from the faulty equipment _

regardless of whether the stevedoring company was negli-.

ee ee

an implied warranty which covers the facts of this case,

* _ the appellant shipowner argues that the mere presence

“of th express clause indemnifying for negligence does

> "not preclude a recovery on the implied warranty. ‘It will ©

, > be unnecessary to considér the last contention if we de-

termine that the warranty of workmanlike service does

not include elements of liability without fault, i.e., that

‘the. stevedoring. company absent negligence: on its part ~

does not ‘warrant suitability of the equipment which

it supplies pursuant to.its stevedoring contract. |

ae We address ourselves, then, to thé question winether

stevedoring.company breaches its implied warranty of —

workmanlike service,"which breach results in indemnity

to the shipowner, when it supplies unsedworthy equip-

We ment to @ ship on which it is to perform stevedoring serv-

ee ne ae mt bos

negligent in any way. me, :

Th Wahi cine oi linet Alay Soe beeach at

the implied warranty’ of .workmanlike. service. is Ryan

~ (Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124 _

\ea9s6). In that case a stevedoring comipany had agreed

to perform earns services ane one of its employees.

“traptnal reltionhip ‘beteoon’ the’ partie which ‘niptd

‘ warranty placed a duty upon the stevedoring company ae

. to supply proper and seaworthy equipment. . It is con-

Sik

™ .

: C2 ns OF Kae 3 a ° 4. : i =2 :

_ was injured uring the unloading jeip cacao

bhhipownnte fied ienpleatiod the styveddociag touspeng claim-

_ing that it was entitled to full indemnity because the ©

«.‘ptevedoring:company had negligently failed to stow the

cargo in a safe aii@’proper manner’ which negligence —

caused the shipowner to be liable to the longshoreman.

¢ The informal stevedoring contract made no’ reference'to

" an express indemnity agreement. After rejecting the cod &

‘of the stevedoring company that indemnity was ote

by the provision in. the Longshoremen‘s and

: Ze arcanscstentn cis

_ shoreman’s recovery of compensation his exclusive remedy

~ against his employer,’ the Court held that the shipowner ,

4_{ws entitled to indemnity based on the stevedoring com- 2

aa cncenebnies aa Haneste concen namnarae :

service.

_ Prior to Ryai the Court had recognized that a steve

indemnify ‘the shipowner fog,esty-liability to longibore~. |

men occasiones by the fault of the stevedoring company,

. - Ambrican Stevedores, Inc. v. Porello, 330 U.S. 446 (1947).

" Where the contract did not deal expressly with indemnity

/_ such liability arose from the stevedoring company’s obli-

gation to perform its. services in a workmanlike manner.

d The contractual obligation was described as a “warranty | |

‘of workmanlike service that is comparable té a mariu-

facturer’s warranty of the soundness of its manufactured

product.” The warranty “eat the enguce of - : [the]

—————

’ * Lanepllbccmen's ond} a Werke? Compensation Act §§

33 US.CA. § 905.

me S ,

yh?

. 15 re . “3 me

stevedoring contract”* In Ryan, the obligation was to .

stow the cargo “properly and safely” and a breach of .

service giving rise to a right in the shipowner,

of indemnity against the stevedoring company for-:money

whet the shipowner became liable to pay to a long-.

ek!

7 ° SF 3

vook to repair a ship brought sone unseaworthy qquip-

-- ment on board which caused injury td a workman and as

. =

a result thee shipowner was liable for unseaworthiness.

- Indemnity was sought from the conti ; but the district

court dismissed the third-party claim of the shipowner

been negligent in supplying -the equipment. On a

and the court stated that the question was whether the _

. eontractor could be diable for indemnity where it hed -

supplied defective equipment without fault. Recognizing

“that the question had not been decided before, the court,

nevertheless, did not believe that the leaditig. cases on

indemnity excluded “the existence of liability without

- fault ‘as an element of the warranty of workmanlike serv-

ice in appropriate caises.”* After its discussion the court

™

,3 350-U.S. af 133-134. | Hare

- 4@ 262,F.2d at 313. The court did not intimate what it meant by

“appropriate cases”,

— . . 0

. @ contractor who under-. .

from a stevedoring company. Any ‘@iatinction’ in kind

Hepes: ca oan 0 cera However; we find ourselves

in disagreement with the result reached in Booth that .

nonongfgnet chink con glee sien Sedeeeity Sebi

® 262 F.2d at 314-315, .

quire the supplier of equipinent to test and inspect the materials

‘ “the omission of which would not constitute negligence.” (262 F.2d

ahs eee what se thewvadions eric. booted ane haed

o » .

° .

i aed

cactypethail iiligebinitea'tiner Geb: Soili cian

_ able safety,” “propetly and safely?. and ‘in ‘a reason-

ably safe .manner”; ‘the liability of the stevedoring .com-

pany ‘arises from “improper” stowage and the “failure. "

' to stow . . fin a reasonably safe manner’ ”; “compe-

seney ‘anil adhe dt-atewage cate lamacapithte denabiste: cl :

the service undertaken” ; tife recovery of the shipownet .

.on his contract may turn upon the-“‘standard of the per-

- formance” of the stevedoring service; and the duty of

: Se yg amma

’ less from. “foreseeable damages.”

. In Weyerhaeuser ‘S.S. Co. v. tice dild cesaibineie.,

355° US. 563 (1958), the Court held that it was error tp

BP soon snake rcennrelonaesr ad :

where there was evidence tending to establish negligence

Ee ae eae noone

_. ghipowner had been held liable to longshoreman only

om the ‘basis of negligence and for unseaworthiness

of the: vessel.” In Weyerhaeuser much language from

_ Ryan (which is set out above) was utilized, .and the

‘Court mentioned “that ‘the contractual obligation is to

_ perform duties “with reasonable safety”; the stevedor-

ro ing company is liable if in usiig ship's gear it renders a

| “sub-standard performance.” — : e

‘Statements similar to:those in Ryari and. Weyerhaeu-

oor see tn the ites Ino rome eee the ese:

shipowner would preclude its recovery of indemnity

fae stevsoring company even though the wevedorng, smany

oe ———— 355 US. at 567-568.

_, aThe court recognized that at some point activity on the part e

fe )

a: ..p

laawe seis tell nietion o-sesiy thes ipaeiin-eall:

liability for indemnity. Atlantic & Gulf Stevedores, Inc.

v. ‘Ellerman Lines, Ltd., 369-U.S. 355 (1962); Waterman

_ §.S. Corp. v. Dugan & McNamara, Inc., 364 U.S. 421

- “* (1960); Crumady v. Th Joachin Hendrik Fisser, 358

U.S. 423. (1959). a

We are not unmindful thet epigence tity ‘and

‘warranty liability are not identical. egligence.is a lia- —

‘bility in tort while warranty. is geiierally’ associated: with

contract liability."° Nevertheless, as indicated by tlie

Supreme ‘Court in Ryan the recovery of the shipowner .

in warranty stiil may turn upon a standard of perform-

A ee

c son capuatt:deletsiey ‘iidlitihiy fer Senethy of soncenity tees been

"associated with contract more than anything else. See Harper &

Jones: Tiprte,§ 20.36: £3088) and eons, Fe Torts § 84 (2d ed. 1955).

But there is support for the proposition that warranty was origin-

ally a tart liability. Prosser, Torts 507 (2d ed. 1955). Increasingly,

- warranty is becoming a liability apart from tort perhaps because

much of it does not necessarily depend .on fault or the adherence

to a Standard of care; and warranty is drifting away from contract

gradually giving way to sweeping coverage of warranty. See Pros-

ser, The Assault Upon the Citadel (Strict Liability to the Con-

r), 69 Yale.L.J. 1099 (1960). While the precise natyre of war-

1 general be disputable, it is clear that the warranty

of service of a stevedoring company arises from

contract. sop primes smb ata tee cya bo grasa

tompany and shipowner (or ship in the case.of a libel

workmanlike

mara, Inc., 364 US..421 G . Cruineiy v. The Joachim Hen-

drik Fisser, 358 U.S. 423 (1959). In Waterman and Crumady the

shipowner"'was allowed to recover for breach of warranty even

"thoygh there was no direct contract relationship between jm and.

¥ the ‘stevedoring company. However, the contract idea. was adhered

to since the ship or shipowner were considered to be the third-party

at _ beneficiaries of the contract’ between the stevedioring cémpany and

“the one who contracted for its services. oaEes

odoin

ba ss

: 6 = °

20 .

"ance of the stevedoring service. We believe that in the

| stevedoring cases the standard of perfonmance is the —

zs same whether the ultimate liability be in tort (for negli-

_, Atehee) ar in contract (for breach of warranty). ° ie

| " Our belief is not altered by the mere fact that there <

an be no liability of ‘the’ stevedoring company in toft. -

“If these indemnity cases there is no liability in tort, not =

because the standard would be different from that of

warranty, but rather, because prior to Ryan the Su-_

_ © ppreme ‘Court had decided that there coud be no contri

and stevedoring company in respect of seamen’s injuriés

SE hi se RT SATS

ee bg

—— nl

|, Henn Ship. Ceiling ! . Refitting Corp., 342 US. 282 ce

. (1952). ‘The entire in tort (inchading liability 3

for unseaworthiness) would rest upon the ‘shipowner ;

_ since a Jongshoreman’s right to workmen's compensation -

under the Longshoremen’s’ and Harbor Workers’ Com-

pensation Act is his exclusive remedy against the wrong-

- doing of his employer, the. stevedoring company.” This

‘latter legislative reality when juxtaposed. on the rule of

“the Halcyon ‘case, supra, precluded any possibility of —

liability of. the stevedoring company in tort. If the ship-

shipowner the stevedosing company. A jury

determined that the had been 25% respongble for the

lengshoreman’s and: that the stevedoring7company had

been 75% The district court equally divided-the dam- |

of y

¥ ‘ ry

. 4 3

21 Le

- “guner wae to be releved'at all from the onerous burden |

| for itn wrongs would necewarly have to be predicated

"slaimict Bod -eqguanelth Gch tan sepia ik ne Cell

o. the stevedoring company for breach of the implied war-

ranty of workmanlike service. And when this back-

"ground i kat inci it ser renonabl to poi hat

. the warranty of workmanlike service wes intended’ only

to impose liability in contract. similar. to that which

would otherwise have been imposed in tort (for being

_ negligent ‘in the performance of stevedoring services)—

- on sf cal soa a

other: (tort) ‘but thet the standard of- performance in

*each case is the same.

in this tos aihgemeey So: ile onus a th hic

stevedoring company for action done without fault is h

attempt to impose upon the stevedoring company the

same degree of liability for unseaworthiness as that which

is imposed upon the shi . We see no reason in

“policy or otherwise why the s oring company should

be liable for unseaworthiness "insofar as that doctrine en-

compasses liability without fault:'* Liability of the ship-

13 See Gilmore & Black, Admiralty. 366-374 (1957). |

ie si Rollans 6 easlbeales ak ok toca ile Wadd Sian ition for

negligence. alone, for unseaworthiness alone or for both negligence. |

" and unseaworthiness is often an extremely difficult question. It has

become quite evident that there is a very minute area, if any, which

is megtignace but not at the seine time unsnewordiiner._ eorteesd

tinued existence of such an area is largely theoretical. T yong

Sey eeit baa ol tt sutioerel te seaigeat. Joa

erally Gilmore & Black, Admiralty § 6—34 -6—44 (1957) - a

Tetreault, Seamen, Seaworthiness and the Rights of Harbor’ Work-

- ers, 39 — aa 381 (1954).

"Po .

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. . 7 “¢

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seine: Sntaemesaiaiehandi aren wien Cee shiping :

‘a not Fessoosbly ft for the purptee for, Ghich it ie in-

tended. Mitchell v. Trawler Racer, Inc., 362 U.S. 539

3 (1960). The liability extends to longshoremen and other :

: workmen who are injured while performing duties tra-

: - ditionally done by. memikers of the ship's: crew. Seas |

Shipping Co. v.. ‘Sieracki, 328 U.S. 85 (1946); Pope &

* ‘Talbot, Inc: v. Hawn, 346 U.S. 406 (1953). And liability

_ j.imposed upon the shipowner even Where the equip-

ment which causes injury to 4 a longshoremari is brought 0

onto the ship by his employer, the stevedoring company.

~ ‘Alaska $.S. Co, v. Petterson, 347 U.S. 396 (1954). Just

as the longshoreman is entitled to the warranty of sea-—

worthiness while. performing duties traditionally done

by the ship's Gew, the liability imposed with respect to

equipment brought on hoard by the stevedoring com-’

: "pany or other contractor would seem to rest upon the =

_ similar proposition that the'gear was traditionally that

which belonged to’the ship. But the liability for unsea-,

worthiness is the shipowner’s not the stévedoring com-

pany’s. The liability is absolute and non-delegable. Mit- :

chell v. Trawher Racer, Inc., supra; Seas Shipping Co. v.

| Sieracki, supra; Mahnich v. Southern ar Co., 321 U.S...

.96 (1944). ; :

The Supreme Court. recognized that the reépee-

‘tive duties of the ‘company and the ship- -

owner to the longshoreman rest upon different principles

than do their liabilities with respect to each other." In

Te die Waeaonie ©. S. Co. v. Nacirema Operating Co., 355

U.S. 563, 568 (1958) and Ryan Stevedoring Co. v. Pan-Atlantic —

S.S. Corp., 350 U.S. 124, 134 i amid

> »

season why a shipowner could not be liable without the _

ioe at: de fcr Chive ceeni Stemnide ibn on natineeny. ce

stevedoring company always being liable at the same =

time to the shipowner. The shipowner is’ liable to the . a 3

the stevedoring company is liable to the longshoreman ‘

for workmen’s compensation, but this is not to say that,

"as between the two the stevedoring company is liable to as +

the ssimejextent and upon the same basis as the ship- geah ;

owner. The stevedoring company’s ljability arises only —§

from its contractual arrangement with the shipowner.’*’ meee |

: We believe the sfevedoring company’s warranty of work- —§

manlike service is only breached (giving rise to indem-’ ;

nity) where it has rendered a substandard, negligent per-

formance. Such negligence on the part of the stevedoring i

‘bility of the shipowner and in that situation there would.

- be indemnity."? But we believe indemnity liability can-

not arise from non-negligent actions done entirely with- :

out fault. The liability of the shipowner to the longshore- i. 5

man for unseaworthiness arises from a policy to protect. oa

the longshoreman at the expensé of the shipowner who : 2 J

" pfBsimebly is better able to shoulder the risk Of loss. No . t

; historical dogma that seamen are “the wards of the ©

admiralty court. But: the stevedoring company is’ not fae

liable for unseaworthiness, and we can see no policy >

uo a eens Warenth: Core. “

v. Dee * McNamara, Inw., 364 U.S. 421 (1960) and Crumady 7

v. The- Joachim Hendrik Fisser, 358 U.S. 423 (1959). (S

'7 E.g., Crumady v. The Joactfftn Hendrik Fisser, supra note 16.

‘

poet on De mrt arc heen?

: "comparable to that which gives tise to the shipowner’s

liability which would compel an indemnity in favor of

(ee er

yen negligent

{Ge do ict bitiove tie Suprenie Courts charwctertse-

tion of the warranty’ of workmanlike service as being

comparable to ‘a manufacturer’s warranty of the sound-

ness of its manufaétured product’™* precludes the re-

sult reached in this case. It must be recognized that the

do.” We think a fair interpretation: of all the language

‘used in the leading-cases (and the results reactied in the

- plethora of other cases) is that the stevedoring companies

‘are not liable for breach of the warranty of workmanlike

service in the absence of some negligence. <1

We ‘edlize that stevedoring companies and ship-

owners enjoy considerable freedom of contract with re

spect te liability for indemnity, and'we have no doubt .

“that agreements could be made to cover expressly the

action which we have said does not come within the-

implied ‘warréhty of workmanlike service. American

‘Stevedores, Inc. v. Porello, 330 U.S. 446 (1947).

Liability to the en 69 Yale LJ. 1099 a.

18 Ryan Stevedoring Co: v. Pan Atlantic 88. Corp. 350 US. ‘ Fes

: 124, 133-34 (1956). F

19 See generally Prosser, Phe Assault Upon the Citadel (Strict 28

‘To-viow pi sor deton thet tho warranty of win

service could not have been breached without :

some negligence on the part of the steverloring con:pany

(i.e., that there was- no implied warranty covering. lia-

‘bility without fault), we find it unnecessary to decide

whether the district court was correct in holding that | oS

: the presence of the express contract’ clause indemnifying.

er naigiaes predated say apie’ warranty :

Judgment affirmed. gine 8 Be at oe 7 :

| JERTBERG: Circuit Judge (dissenting)

® I respectfully dissent. I do so only because of my view 2

, that the opinion of my. brethren reaches a’wrong result’

in an important and unsettled area of Admiralty law and

one which will have far-reaching consequences.

‘The majority ffiembers of the panel conclude that the

warranty. of workmanlike service could not have been

breached .without some negligence on the part of the

"Stevedoring Company and found it unnecessary to de-

; cide whetlier the district court was correct in holding that

| the express contract clause indemnifying for negligence

precluded any implied warranty. >

: “Since I batieve thet the dletrict coyrt’s diemiseal of ap:

pellee’s libel should be set aside and the cause remanded ,

7 | upon in the majority opinion.

| The Seattle hat ie tint ck cahenely on:

pascmncgrtc oe

)

i es Oe

ose se ee 26

jos ls al palaces :

TH see "spliced to an eye in the tent. At the time of. the accident, S

-"\. Griffith and his work partner had passed the rope through

a deck fixture-and back up and through the splice by :

+ holding it and point where it ran through the splige.

The gecuring of the tent and the manner in which the

“tent and tent rope were being setured were entirely and

Gexchusively within the supervision and control of appellee.

_ When the rope broke‘it was being. used for the purpose

and in the manner for which it was supplied by appellee

for use by its eniployees. The rope was @ proper type of

et bate

Se eee artes Conbeny

any of its agents or employees, or by reason of the

failure of ship's gear and/or equipment.’ Moe

i shall first ‘consider appellee’s contention that egipel- *

lasit's right to indemnity must, be determined from the

appellant's Kbé1 must be affirmed: 3

The district cqurt found -that. tiene ie tho “avidin.

outside of the written contract itself, as.to the intent of

the parties wi to construction or interpretation.

of the stevedoring foritract, or -with ‘respect /to implied

— under said contract.” Laud there i is presented

sin pian inition shies bo So

bility of appellee’ is limited to negligence and tt hy: oe

"" negatives the existence of any obligation on’the’partof “>

Pc 5 mn nea aa Pe

B: Was appellee under an obligation to render work-

" manlike service to appellant under the terms of the con-

* tragt? It-is to be 1 tht appellee agreed-to act as

stevedore and to d and discharge all cargoes of ves-

sels owned, controlled, or managed by appellee at Colum-

- bia and Willamette River ports as directed. It is also

to be noted that the contract does not contain: an ex-

.: press press agreement of indemnity unless the last quoted pro-

vision of the contract, properly construed, limits the lia-

pre bility of appellee to its negligence and bars indemnity.

Since the decision. of the Supreme Court in Ryan.

X | Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., .

. «*

Ps Res

350 U.S. 124 (1956), absent an express agreement of iri-

. demanity, it has been settled law that an agreement be-

\\ tween a shipowner and a stevedore to perform loading:

steveddring cotnpany' was injured during the unloading. ;

_. A, jury ‘returned a verdict for the longshoreman. against

_ the shipowner. The shipowner had-impleaded the steve-

doring company claiming that it was entitied to full in-

. ? ¥ ;

29~—C ey

disney “heen ihe edaehie idan uacuatak’ :

gently failed to stow the cargo in a safe and proper man-

ner which negligence caused thé shipowner, to be liable

» to the loggshoreman. The Court held that the shipowner

was entitled to indemnity based on the stevedoring, tom- ve

-pany’s breach of its implied warranty of workmanlike

_ service.,In the.course of its opinion, the Court stated, at aby

“p 133: oe ers 2

oe ‘In Weyechaouser S.S. Co. v. | Naciréma Co., 355, US. :

* $63 (1958), the'Gupreme Court held that it was error to

take-a case from the jury on the question of indemnity

where there was evidence tending to establish negligence ey

on the part of the stevedoring company even though the Se

_ shipowner had been held liable to the longshoreman only :

on the basis of negligence and not for unseaworthiness

_ of the vessel. The stevedoring contract contained no ex-

press indemnity clause. The Supreme Court “held that

the stevedoring company’s mplied-in-fact contractual .

dbligation to perform. its duties: with reasonable safety - |

2 embraced not only the handling of éargo but the use by

the stevedore of ship’s gear. In the course of its opinion,

the Court stated, at p.567:

“We believe that respondenit’s {stevedoring com-.

pany | contractual obligation to perform its duties

with reasonable safety related not only to the han--

Bory

equipment

® shelter involved here.”

a ea Beek ; be shen

7 Re gst at

ee ‘ }} 30 _ ¥

‘dling 08 comge; wa 1c: Ryan, teat olen ta the ‘we of.

incidental

saa aes uli onan sbiention >

render service in, a workmanlike manner is not based —

een ne net ee Berens

"supra, at p, 133:

Mara obligation is. nit a qusel-contrectual obliga- -

in law or arising out of a noncontractual

ein sSecioaehigs thts of tos saseuuee of Gotiaionnl’s sheve-

Gomian crattech, tee yalttioners seaventy: 3h work-

manlike service that is comparable to a manufac-

: ice.”

ee eeaes's v. The J. H. Fiseer, 458 US. 423 (1959),

the Supreme Court stated; at pp. 428-429: ° .

- “A majority of the Court ruled in Ryan Co. ve

_ Pan-Atlantic Corp., 350 U.S. 124, that where a ship- :

pn . company entered into a serv-.

ee dinette Gaaemnds Weapil ak is wonransty

+ of workmanlike service. And see Weyerhaeuser S.S.

Co. v. Nacitema Co., 355 U.S. 563. The facts here are.

different from. those in the Ryan case, in that this :

vessel had been chartered by its owners to Ovido

Naviera S: A. Panama, which company

doring company. The contract, however, mentioned

. the name of: vessel on which the work was to be

' done and an agreement on the part of the

stevedoring company ‘to faithfully. furnish such

stevedoring services.’ . ze :

4 «

thereto, such as the winch

,manlike service that is comparable to a manufac-

“turer’s. warranty of the soundness of its manufac-

tured product.’ Id., at 133-134. See MacPherson v.

. Buick Motor Co., 217 N. Y. 382, 111 N. Ej 1050.”

See also Waterinan Co. v. Dugan ® McNamara, 364.U.S.

421 (1960), wherein it was held that a stevedoring com-

regardless of whether the injured” longshoreman

pe cpweday usta lpaneteenennany a

: - ing, since the stevedore’s warranty 0 workmanlike serv-.

ice aboard the ship was for the the ship and its

owner as well as the stevedore. )

"1 am of the view that thezgrovision of the stevedoring

Leck

| contract under which appellee “agrees to be responsible

“for i injury to or death of any person caused by its negli-

_ gence,” ’ which statement is simply an affirmation of an

existing duty on the part of appellee, does not exclude

- from the stevedoring contract-the implied-in-fact obliga- .

tion to perform stevedoring services in a workmanlike

. manner, nor do I find any other. provision of the contract

or-the contract as a whole to have any such effect. The

RO See Oe aN

ed CE , tenn BT

o -

shtapien'te nt ctatate Melee eigen

senha aie aga aiapened at: epee eurytrect-| Fhe: eon. :

‘The final question is whether the implied-in-fact con-

‘actual obligation Sf appelley to render its services in a

workmanlike manner embraces within its scope the duty.

-.to see that, the equipment or gear required to be and i

- furnished for the use of its own employees in the per-

- formante of its stévedoring services and exclusively used —

and controlled by them, must be seaworthy and fit for the —

‘fot only all necessary labo? and supervision but also —

‘ordinary gear for the performance of the services

ibed in this contract, including -winch’ drivers and

‘appliances used for stevedoring.” There is no con- .

Ser eaieccieea ac tandetekdh aad gate!

_. down fope wete not- ordinary gear. which appellee was -

obligated to furnish under the terms of the contract. :

I have found no Supreme’ Court-decision which has

es, occasion to pass upon the duty of a stevedoring company ;

(is 3

-yis-a-vis ‘the ‘shipowner in respect to gear or equipment...

required to be and furnished by it in the performance of

stevedoring services. I. recognize that liability has been

" imposed upon a shipowner for breachof the implied war-

_, ranty of seaworthiness in favor of a lorigshoreman whose ‘

"injuries were caused aboard ship by. defective gear or

equipment belonging to and brought on the ship by his

_ employer—the stevedoring company. Alaska Steamship

Co., Inc. v. Petterson, 347 U.S. 396 (1954). The right of

she shipewn 2o senover iene) from te severing

: °

°o

’ . ; Pe : | : 33 oe: ; e

! eceiciouninsetianiabeitctitiantetan I have found no

intimation in the many decisions of the Supreme Court

which I have reviewed that a shipowner would be denied

thé right to indemnity against. the stevedoring company

in instances where liability has been imposed. on the ship- a :

owner either for damages to person or property caused

solely by: defective equipment furnished by the stevedor-

ae ing company and exclusively used, controlled; and super-

oO &

vised by it. To impose liability on the shipowner ig favor —

"of @ longshoreman and to deny recovery ¥ against the .

stevedoring company under such. is in-

equitable. ‘Since the loss must be borne by either one or

the other, it is not unfair that such loss be ultimately

‘borne by the one best‘able to eliminate the hazard, to .

. wit: ‘the owner of the defective gear or equipment who ae

+ supplied it and whose use and control over ‘it was ex-'

i In my view, the Supremé Court decisions above ‘

™ cited do not exclude the existence of liability without

fault as an element of the warranty of workmanlike serv- mee

ice under the facts of this case.

~ In Ryan, supra, it is stated, at pp. 133-134: ;

“It is ‘petitioner's [stevedore’s] warranty ‘of work-

manlike service that is comparable to a manufac-

re cha ie age can arte ded eran

tured “product.” ee

This statement was reaffirmed by the Supreme Court in -

| Waterman, supra, and in Crumady, supra. Bes: :

The only case passing upon ®his point to which ‘at-

tention’ has been directed is Booth Steamship Co. v. Meier :

_ Poutet'te. 262 F.2d 310 (2nd Cir. 1956). The ma--

‘opinion states that Booth is indistinguishable ‘in

y significant way from the instant case but disagrees

with the result reached in the Booth case. In“ Booth,xa

contractor updertook to overhaul the engines on Booth’s

vessel. One of the first steps in the execution of the work

was, the extraction of tight fitting cylinder liners from

a the engine block, and this was undertaken by means of $3

equipment consisting essentially of a rigid bar,

‘or strongback, which was atyached to the liner, and a jack, . ‘

which was used 'to raise the liner by raising the strongback.

i Because the lifting arm of the jack was relatively short,

it was necessary periodically to suspend: the strongback

holding the liner from a wire strap while the jack itself

was lifted up. It was while the strongback was so sus- ;

pended that the strap parted,-allowing the stgongback to 4

‘fall and sever the: thumb of the plaintiff, who was'en-.

geged in ‘elevating the jack itself for further lifting 3

The shipowner was held’ liable to the injured work-

i man of the cofttractor for unseaworthiness. The ship-

- Gatrict court Sierclased the third-party claim of the viip-

owner since there had been no prooj that the contractor

had been riegligent in failing to discover the defect in the

stiap, which defect was latent and not discoverable on

visual inspection. a

| In the course of its ‘opinion, Reece staiek, 9,

314-315: ti “

3 “The implied warranty of suitability for Hs

Sei 2

use of the equipment. Relying on the supplier’s, con-

| trol of the work and with confidence in the supplier’s

expert knowledge and competence, he makes at’ most

only a routine inspection of the equipment employed.

plied warrenty of workmanlike service end rendered

: him. liable to iridemnify the owner for damages paid

resulting directly from the failure.” % a

I find no significant fact which distinguishes the Booth

“case from ‘the- instant: case. Much that ‘is said in Booth -

can be applied with equal force to this case. ‘I see no.

policy eohsiderations in Maritime law, and no injustice

- in requiring a stevedore to indemnify a shipowner from a : 7

liability visited.upon the shipowner solely through faliure

on the part of the stevedore to furnish, : in connection with

si sectcllisnn st a oredhsieg cere equipment

that is fit for the use intended. a .

— -teleintaseandh iat aise aceite thet

* of the hipowner vie-a-vie the stevedoring company. We

‘han seesivedl cofapenestion tor ‘hia ‘injaties, nor ‘policy

- considerations which have led to a tender solicitude on the

_- part of the Admiralty Court for injur-d seamen and long-

shoremen.. The’ contest here is between equals and no.

cimlacitcestecitidensomande.

"missing appellee's libel and would remand the cause to the

a ee Te en a eee

oe ace o°

(Endorsed) Opinion and Disenting Opinion Filed

Oct. 25, 1962,

-. Frank H. Schmid, Clerk

XIN ia 5

"THIS CAUSE came on tobe heard on the Trin-

“ati dt the Weanial teams: tee: Citi Souites Oedee

ooo ee

. ~

* .

: ON CONSIDERATION WHEREOF. ieee tees.

_ ordered and adjudged by this Court, that the judgment

of the sdid District Court in this Cause be, and héreby

Se ee See et Corer ot Ge eppalion and

against the appellant. : |

Se It ia further ordered and adjudged by this court

_ that the appellee recover against the appellant for its

costs lnerein expended, and have execution therefor.

: pele eal teal Cette 86, 1962:

xoow \ a . ; ¥ ° : ‘

\ : . ‘ oh . .

SG is, i ie CRHE Reciaitin Lip eos, dese ei Sere . 3 ss OF Merete tere? idepiapeesen

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