# Petition for Writ of Certiorari — Swam v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0020%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 852 ## Text x . oo LIBRARY. -— | Rete Court, 5 4 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 ° Ave, » . A. ‘ ‘ = ee i od 7 © Ricihinuins ee: met Peirce 5 421, 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 © y ight\be taken by the stevedore. . e ; : ; * : F F . Mf _ © 2 ° . _ ES . ° . . ° oe . 7 Pe Cait bs . . ° @ e . = > / . - . e . : od . . MW . wees : rd ° bad . a A Nad : . . ’ . @e ss a ee ’ ° ms . ey e : ; eet OF. ey yd = eo > . 5! ~ - - - e . ° + . iar ae os f ¢ z = * ‘ oe ‘ £ * . ee se ae ae * eo * - re " %, re . + ‘i : aS 4 ‘e . 2 : . te 4 a ~ « . . : . eo . Sie . - 2. . , « meats * ~ . : : : : 8, - . _* sas = . — ° is © * > . re . . 3 Mf S / oe seme s eT Te isha a 3 - —_ &, + ih pom Hea & ; A . *- be! 4 ‘ re i i Soy re “. jee. 0 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 ee : . . ‘ Or RE ereet toning eRe) “ann beter ten Rew pee" "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-. 0 ek! 7 ° SF 3 vook to repair a ship brought sone unseaworthy qquip- -- ment on board which caused injury td a workman and as . = 7 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, . © Fy Curt do Boosh sclt that it was not uaréescmable to re-- 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: s 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 4 ~ 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 ee bg —— nl ee |, 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- | . oy of y ee ' ¥ ‘ 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 . wisn) ox.. : YO RN ei : * Segre ring withe cohen § . ro Wien hn are Me SA Sree es . . 7 “¢ : ae 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 _ a 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. ‘ ae 3) poet on De mrt arc heen? C5 : "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. : “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-- f Bory a 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 - 9 32 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 — oe ‘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 i, -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 : - 34 _ 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. rb ° plied warrenty of workmanlike service end rendered : him. liable to iridemnify the owner for damages paid ST 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 / / . s 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. ee cimlacitcestecitidensomande. "missing appellee's libel and would remand the cause to the ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0020%3A02. Public record. Not legal advice.