Petition for Writ of Certiorari — Metropolitan Stevedore Co. v. Dampskisaktieselskabet International

Ee csOP’ t

In the Supreme Conct

OF THE

United States

¥ (i | ar HOR Tuna, 159

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No. +”

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PY PSRISVKTIESERS ABET EXTERN VEION VE,

a Corporation,

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PETITION FOR WRIT OF CERTIORARI.

to the United States Court of Appeals

for the Ninth Circuit.

; Ginorar A. Phra.

‘

eon Ahi itor Pi faliovune con

STH DON Gi, Cooren, -— —— e

Pteont Kl Mo. Rayer.

Coorin, Wate & Coorin.

Werke? St

; OF Caonnsele : . * ”

; Page

-Opimions below ......... 0... esc eee eee eee ee eee des edneaante 2

Jurisdiction ........ Ne aadiddaticsevstes Sesiac ane ee

~ Question presented 2.2.0.0. e ee ede ees ¢ ep 2

Statement .,....... LD AA oe ee Ts oe oe ::

Reasons for granting the writ ..-..... AE jeune wcue Sea

Table of Authorities Cited Se

. Cases | Pages --

’ American. President Lines, Inc, vy. Marine Terminals Corp.

Seth MU: SEs BE WO occa nes varisnccccerseccess 6

Calmar SS. Corp. v. Nacirema Operating Co. (C.A. 4,:1959),

266 F. 2d SSE TR DRE i Oe re Pee ay 8

Crumady v. Joachim flendrik Piser (1959): 358 US . 423,s—

3.L, Ed. 2d 413 eT eee eee 6% 11

Halyeon Lines v. Haenn - Ship ete. Corp. (1952), 342 US.

a Ee ee ree i |

Pope & Talbot, Ine. v. Hawn (1953), 346 U.S. 406 .....5,10, 11

‘Ryan Stevedoring Co., Ine. v. ‘Pan-Atlantic SS.. Corp.

(1956), 350 U.S. 124 .2.......e ee. aS gle aS eee ee

Seas Shipping Co.,v. Sieracki gece 328 os § Serer S10

bia pds canggyenned Steamship Co. —Operating Co. .

(1958), CEI a ae 6,7

OD as Statutes,

, Harbor Workers’ Act, (33 USC. Seetion 901 et seq.) ....... 3

| 28 USC Céde: > :

; Section 1254 1. rie dk ad Chpkbesidiewcns ee - 2,

Section V3BB(1) eee cece cence eee een e ees a RON 2

CE «: Picea sstehesegesves ede seen eee 3

: we | Texts ;

Gilmore & Black, The Law of Admiralty; . eererreer re - 9

Tetrault, Seamen, ete., 39 Cornell Teg EARS bse oom

Iu the Supreme Court,

OFTHE 1

+ Ruited States —

. |

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° ° ee .

3 . :

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e : ‘ a A e

a = P

OcToBER TERM, 1959. —

° : 1 . e

Merrorourras SSTEVEDORE COMPANY, » ‘ ie

*'-a Corporation, “st

ed «+ Petitioner,) |

wey oO ig A . . ‘ : ‘“

| 2 VS. ; 4

Da M PSKISAKTIESELSK ABET “INTERN AT ION AL,

aC orporation,

Respondent: J

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit.

~ Petitioner respectfully prays that a. writ of cer-

-tiorari issue to review the judgment df the United

“States Court of Appeals for the Ninth Circuit affirm-

ing a judgment for damages against Petitioner.

. nae ma ai

al

- « OPINIONS BELOW.

The opinion of the U nited States District Court for

tlie’ Southern District of California appears in 170

FP. Supp, 603. The opinion of the United States Court

of Appeals is not ut ace Sie

| * JURISDICTION. oa

The judgment of the Court of Appeals v was rendered

and entered January Afr, 1960. 28 U.S. Code §1254

confers jurisdiction on this Court.

os _ QUESTION PRESENTED. .

‘In an action for indemnity against a stevedore .

employer is‘a ship entitled to reeover damages paid

ato longshoreman for his pé ‘rsonal injuries resulting

from a de fective condition for which the ship was

solely responsible when prior to the injury the steve-

-dore employer suspended operations heeanse- of the

defective condition and only resumed operations after

' instructions from the ship,

D

‘STATEMENT. .-

- Roy Hugev, a longshoreman employed by Petitioner

was injured while aboard the M.S. CASTE EVILLE

then in navigable waters. He comntenced action for

personal injuries in the Superior Court in and fer

the State of California under “saving to suitors”’

elause (28 USC §1333(1))- Dampskisaktieselskabet

4

3 .

International, a corporation (hereafter**Dampsk”’), a

_ Norwegian corporation, owner of tlie vessel, removed -

to the United States District Court because of diver-

a “sity (28 USC §1442). Dampsk then filed a third

party complamt against Petitioner seeking indemnity, -

alleging that Petitioner failed to notify third party

plaintiff of such unsedworthitiess . . . or to suspend.

stevedoring operations until such conditions . . . could

. be remedied and corrected’? (R. 5). Petitioner gener-

ape ally. denied these charging allegations asserting that

_there’was no obligation to indemnify ; its sole liability

was. under: the Longshoremen’ s & Harbor Workers’

-Act (33 USC §901 et seq.) (R: (11-16): ;

: Previous to trial Dampsk stipulated that -the-—

CASTLEVILLE was unseaworthy and it: was liable |

to Hugev for $2,000.00 damages ¢R. 28). (The evi- . -

dence is uncontradicted that Petitioner, did not cause

.the unseaworthy condition; that Petitioner stopped.

work to permit correction. of the defective condition.)

. Dampsk requested judgment based on this stipulation

-(R. 25-26), which request was granted, Thereafter,

the third party action was tried without a jury,

- Dampsk calling. Hugev as its sole witness. *

Prior ‘to: injury Hugev, in company with the other

longshoremen ‘in his gang, was directed ‘to discharge

baled rubber ( loaded in the Far East) from the for i.

ward part of the square of the hatch .at. the “tween

- deck level ‘of the No. 1 hold of the CASTL eyt. LE

(RB. 33). mn |

Baled rubber: was on this forward section where

* Hugev ‘was working and’ the next section aft and in

" avere. found: to be ‘rock

tilted like-a seesaw (R. 36-37) ; when the* ey came *

ctown, they missed the lip. When. this eondition was —

discovered; Petitioner's ship: for eman, Short, ordered —

4

.

the wings about these -sections (R. 68) ; rattan furni--

-. ture was ‘in the wings aft of the second section and.

_ Was - being: worked. concurrently by another gang

(QR. 76) with tlle after lifting gear. a

In order to discharge the rubber it was first neées-

‘ /

‘sary to clear the forward section rt the/square of the

hatch (R. 54). Hugev’s gang started on- this forward

“section. When the. Jongshoremen ’ worked down to the

hottom of the piles of rubber and had. cleared about

or “wobbly” ; the boards

two-thirds’ of this —, (R. 44) the hateh boards.

work stopped and complained ti the second mate (R.

60-61). The mate -and Short went into the hold be- -

low; the mate discov ered the wrong queen beara Was’

in place; the mate ‘said to Shert (R. 62):

“Te told mnie to clear the rubber in the forward

* square, take the hateh boards off and change that

beam. He said that was’ the toy deck beam. Tt

‘was the main deck beam. He said, ‘Change it and

- put-the béam that is supposed to go in there.” He

9 9°

says, ‘It’s been mixed up.in the Far East.

Short then (R. 62):

. told the hold men what the mate had said, -

that we would have to clear that forward seetion

and change that beam, get that beam ‘eut and

take the hatch boards off and get that beam out

‘and put the. proper beam in its place, and then

continue working. But we had to clear the rub-

_ ber, élear. that section.. And I told them .to watch *

ne,

> . 24 ; @ P

themeclves; whatever they ‘did, tu watch them.

selves and be careful.”’

In onder to remove. the rubber preparatory to cor-

reeting the defective condition, the bales had. to be

loaded onto a pallet, or lift board which lift board °

had to be positioned on the square of the hateh (R.

47, 66) so as to be under the boom for: the lift; in.

order to do the work, the longshoremeni had to walk on

the rocky hatch boards (R..70, 77, 78).

Despite Hugev’s. use of” precautions after. Short’s

warning. (R. 45), Hugev fell.. Hugev had hooked on

the load. preparatory to its being lifted out and-was ~

~ walking clear when a.board, gave way (R. 33).

“Metropolitan was performing stev edore ‘services |

pursuant to a-written contéct whielr contained ‘no |

express provision for indemnity.

Judgment of indemnity was ordered in favor of,

‘Dampsk and against Petitioner. for the reasons men-

tioned. in the. District Court Opinion.

The Court of Appeals affirmed.

‘

REASONS FOR GRANTING THE WRIT.

‘There is-no need to refer to thie revolution effected ‘3

by this Court in the legal ‘principles ‘applicable to in-

- juries.to maritime workers (see Seas Shipping Co.

"a, Sieracki (1946), 328 U.S. 85; fo & Talbot, Ine.

. Hawn (1953), 346 U S. 406). By now the duties,

pee. ship to. maritime worker are substantially

erystalliged. However, the equally. important correla;

“ a]

~~

+

¢.

b~ oe

i ;

Se

tive problenr whether ship’ « S stevedore employer Py

lic loss remains con-

fused and unresolved. (see Haleyon Lines v. TTaenn

Ship ete. Corp. (1952), 342 U.S. 282; Ryan Steve--

doring-Co., Tne. ve Pan-AUantie SS. Corp, (1956),

300", US. 124; Crumady v. Joachim Hendrik Fisser

_ (4959), 358 Uys. 423, 3 L. Ed. 2d 413). |

should bear the: ultimate ecom

At is time ti end this confusion. This case in its |

oe factual setting provides an ideal judicial vehicle for

resolving once and for all (i) whether the employing

stevedore is always to.insulate the errant shtpowner

from liability or (il) whether the ship under certain

circumstances must bear the. loss_even though there

may he «some. fault on the stevedére's part or (iii)

whether there should be an apportionment ‘be tween

\

the two. ' : Ne,

Resolution of the aa of whose pockethook

shall bear the impaet of a longshoreman’ s injury has |

pursued. a contre adictory eourse. In, Haleyon Lives v.

*Haenn (supra) it w as held that the errant ship eould

not recoup. ‘The ship therefore hore the logs. By pur-

suing a different legal. theory (i.e, indemnity for*

_ breach of .contraet}—the ship thrust liability’ on the

~ stevedore in Ryan, However, the rationale of Ryan

was not clear and the lower courts continued to eval- ‘*

uate fault of slp and stevedore based’ on concepts

of igeTigence (c.f. American Pre, dent Lines, Ine. vv.

‘Marine ‘Terminals Corp. (CA. 9) 1956), 234 F.. 2d

753). As a result this Court folt obliged to speak

again in W cycrhamuser Steamship CoSre Nacirema

Operating Co. (19 58), 355 U.S, 563, pointing. out that

r

2

“active” versus “passive” or ‘‘primary’’-versus ‘‘sec-

ondary*’ concepts of negligencé were ‘‘inappropri-

ate.”’ At the samé time it was stated that avhere the

stevedore’s conduct led to the: ship's liability: the latter

‘‘was entitled to indemnity absent conduct on its part

sufficient to’ preclude recovery’ (p. 567) (emphasis

added). citing portions of Corbin, Contracts relating

te prevention of contractual performance. |

Nacire ma certainly said (but by no means spelled

out * the detail) that there would be circumstances

where the fault of the ship would bar it from indem-

nity. Subsequent decisions (including Crumady) have’ —~

paid attention to the admonition of Naeirema concern-

ing the inappropriateness of concepts of negligence

but have-wholly ignored the-other principle announced

that fault of the ship may bar indemnity. As a result,

the legal signifiearice of. the quoted language from,

Nacirema is as eryptie to the maritime industry as a _

revelation from the Delphic oracle, ae

The principle enunciated in Nacirema, namely,

that the ship’s fault will bar indemnity when. ~eMoupt-

ing to substantial | interference’ with per rfor mance,

is an expression of commorf@sense. ‘Tf this rule is to

be more than an empty abstraction, it must not only

he founded on but also. must be applied with gommon

sense. This principle, whieh should prevent yeeovery

in many indemnity actions, has heen completely emas-

| culated Hecause of judicial uncertainty as to the quan-

“tum of -fault that will bar recovery. This Court has

provided ino guides as to how the principle of Naei-

-rema is to be applied. As a consequence, a purely me-

8

chanical “test of time sequence has been developed -

(c.f. Calhar SS. Corp. v. Nacirema Op@ating Co. —

(C.A. 4, 1959), 266 F. 2d 79, 81). Under this test:

the last actor becomes tlie legal miscreant and auto-

matically responsible for the damages paid the in-

jured. longshoreman. ‘From the nature of things the —

stevedore’ is generally the last actor.- Although the

stevedore may be muéh less ‘at fault, the ship's mis-

conduet is disregarded and the stevedore pays the bill. ms

If it is the rule that the stevedore is to be liable in

‘

every cease where his default is subsequent to that. of

the ship, this Court should so state.’ If it is not to.

he the rule and the ship is to have some responsibility,

the maritime industry urgently needs to he told what

the rule shall’ be... ‘ .

;

£

RY

With respect to this area of the respective duties

of ship and stevedore, there is seant precedent defin-

ing the extent of the duty of the shipowner te provide

a vessel reasonably suitable for the work to be per, >

formed by the stevedore. Teretofore, the focus ‘of.

the eases has been on the duties owing the ship. There

is immediate need to e amine the reverse of the coin.

Certainly. common, Serse tells us ‘that the stevedore

cannot he expected to do work on-a ship at his peril;

the ship must have some obligations: inxregard to the

condition of the vessel.’ Tf the fundamental problem

'The District Court .™ (170 F. Supp. 601, 609, 610) _appar-

ently felt the contrary is true. The implication of court's reason-

ine being that onee the stevedore ‘eomes aboard. defects in the °

vessel are hazards that the stevedore is pail to encounter and for

which the ship has no responsibility. In this regard it is important

to. note that-the defeet of the CASTLEVILLE did not -result

from the elements buf someone's default in placing a strongback.

oO

Bre Beene me

9

‘

is to be clarified, this basic duty of the ship should be

. earefully considered, here—not only in the light that

the stevedore is ari expert but also in the light | that

no one has more intimate expertise — concerning a.

particular vessel than its owner. Further, it should

be recognized that the shipowner is not 2 helpless pa-

tient in the hands of the stevedore.” From the very

nature of things the shipowner exerts enormous’ eco-

nomie power over the stevedore who can only offer

his services ‘in a sharply competitive industry. The’

realities of economic life are that the stevedore is in

"many situations forced to accept defective conditions

and to proceed with w ‘ork under such conditions under

the covert threat. of economic sanction by. the ship-

owner.

This case should be reviewed, for an entirely dif-

ferent reason. Thé whole principle of saddling. the

entire financial burden of a Jangshoreman’s injuries

‘on either the ship or the stevedore when both are at

fault is unjust; it is inconsistent with deepreoted

principles of admiralty tradition of comparative fault

(c.f. Tetrault,-Seamen, ete., 39 Cornell 1..Q.:381; Gil-

more & ‘Black, The Law of. Admiralty, 374). Appar-

ently the rule of Haleyon .diedchecause it was felt

unfair to load the ship with liability. Tt is no more

fair. to threw all the liability on the stevedore, as is

now the prevailing rule. -

Tn urging review here it.is reali%ed that this Court

said in Haleyon that it did not wish to fashion new

The defect must have been Dampsk's responsibility and. it should

* not be able to pass off the loss when the very hazard which caused

the. Petitioner to quit work resulted in Hugev’s’ injury.

10

judicial rules of contribution based on comparative

fault, awaiting. Congressionakaetion. Over eight years

have passed since then. Congress has not acted and _

if past practice is-a criterion of the future, it will,

be-a long time (if ever) before this subject ‘receives

‘ongressional. consideration,

‘This Court has said that it: would feel free to

fashion new rules ‘tif w holly « convinced that it would

hest serve the ends of. justice” (Halcyon, p. 285).

“This Court has taken to itself the fashioning of new

rules. to accomplish justice for the maritime. harbor

worker (ef. Steracki; Pope & Talbot, Ine. vr. Hawn

supra). Unfortunately the underlying problem of .

ftir allocation of economic burden between ship and-

stevedore employer has not been faced; it has merely

been swept under the rug where it remains an untidy

lump. Time: has come to’ reappraise whether it is

cither desirable « or just toinsulate the shipowner from

all financial loss where his fault ‘is’ a contributing

factor in causing a Jongshoreman’s injury. For the

sake of justice, a rule of comparative fault’ should

be established in maritime indemnity eases.

Even if the objective of accomplishing & just legal

‘result were not sufficient ta require a yeconsideration

of the rejection of the admiralty rule of comparative

Sault, pure and simple tiniformity, in judicial poliey

requires a reevaluation of the common law philosophy

which presently dominates the judicial approach. to

litigation between ship and stevedore for indemnity.

There now exists a sharp inconaisteney between the

egal rules applicable to a shipowner ptaintiff in in-’

\ ‘ —

= u

demnity actions and a maritime worker plaintiff who . :

sues for personal injuries. The latter is not barred.

‘by contributory negligence, thanks to’ the rule fash- —

ioned in Pope & Talbot, Inc. v. Hawn (supta) ; such

negligence only mitigates damages. On the other hand,

in indemnity actions the shipowner“ds. permitted. to

recover his entire loss from the stevedore without

regard to the plaintiff shipowner’s fault (ed. Cru-

mady, supra). No reason can be advanced why the

shipowner should enjoy a legal position tore favor-

able than an injured maritime worker. Uniform

legal principles. should apply in analogous’ situations.

No dramatic revolution in legal rules is required to

‘ accomplish this; all that is called for is a logical ap-

plication, of principles: of comparative fault already

an integral Lanes of admiralty law: Such should_be___——

..done_here. a nan is

- Dated, San Francisco, California,

- April 6, 1960.

Respectfully submitted,

-Georor. A. HELMER,

A ttorney for Petitioner.

SHERDON G. COOPER,

Rosert M. RaYMEr,

Coorer, Wurrr & Cooper,

‘ Of Counsel..

(Appendices A and B Follow.) -

“4

hey

Appendix A | :

United States Distriet Court

for the Southern District of (alifornia™

Central Division

Civ. No 20340-WM

Roy Hugevy, | ire }

Plaintiff,

Vs.

4 9g ,

Dampskisaktieselskabet International,

a Corporation,

Defendant. |

Dampskisaktieselskabet International,

a Corporation, pes

a\° _ Third-Party Plaintiff,

ae sf .

Metropolitan Stevedore Company, ’

| > Third-Party Defendant.

a

“MEMORANDUM OF DECISION

Mathes, District Judge:

Plaintiff commenced this action in the State court under the

“saving to suitors” clausé [28 U.S.C. §1333(1)] to recover dam-

ages for personal injuries alleged to have been sustained on April -

9, 1955, as a proximate consequence of unseaworthiness and

negligence, while plaintiff was working.as 4 longshoreman engaged ©

in discharging cargo from defendant's M S Castleville doeked in

navigable waters at the Port of Los Angeles. 4 Pope & Talbot

v. Hawn, 346 U.S. £06, 409, 411, 419 (1953); Williams v. Tide-

‘water Associated Oil Co.,°227 F.2d%791 (9th Cir. 1955), cert. °

denied, 350 U.S. 960 (1956) >)

\

\ .

\

g

Defendant gipowner, a Norwegian corporation, filed a timely

petition for ‘removal” of the ease, upon’ the ground of diversity of

papi to the law. side of this eourt. [28 U.S.C. $1442; Hill

. United Fruit Company, 149 F Supp. (470, 472 (S.D.Cal, 1957).]

- Following removal, the shipowner filed a third- -party complaint

against Metropolitan Stevedoring ‘Company, a California corpo.

ration, as third-party. defendant, alleging inter alia: (1) that at

the time and place of any injufy to plaintiff, third-party defend-

aunt was engaged in discharging eargo from the M S Castleville '

pursuant to a written contraet with defendant shipowner; (2)

that plaintiff was then and there employed by third-party defend-

ant and working as a longshoreman in discharging the\eargo pur-

suant to the contrdet; and (3) that if at the-time of any injury

to plaintiff, the ship was in anywise unseaworthy or if the’ place

where plaintiff was working Was in an “unsafe and dangerous

condition”, such was caused or permitted to continue to exist

“solely by reasoh of the acts of omission or commission of said

~ | third-party defendant, its agents, servants and employees.”

Wherefore defendant shipowner as third-party plaintiff de-

manded judgment against third-party defendant stevedoring con-

tractor “for all sums that may be adjudged in the first instanee

‘against defendant and in. favor ot plaintiff.” | Fed. R.Civ.P., 14

* (a).]

The .stetedoring contractor-emplayer answered joining issue on

the third-party complaint, and at trial conference the parties

stipulated that: plaintiff is a ¢itizen of California; defendant and

third-party. plaintiff is a Norwegian corporation and the owner of

MS Castleville; third-party defendant is a California corporation,

and on April 19, 1955 was condueting stevedoripg operations on

board the MS Castleville for the shipownér ‘pursuant to a written

contract: while employed as a longshéreman by the stevedoring

contractor agnd while working aboard the M S Castleville “moored

_in the-navigable waters of the U nited States of America”, plaintiff

was injured. on -April 19, 1955; the stevedoring centractor-

—employer-paid—to plaintiff. pursuant—to the Longshoremen’s—and-

Harbor, Workers’ {Compensation Aet [33 U.S.C. §§901-950], but

not “under an award in a compensation order” [id. §933(b)], the

sum of $175 as* compensation [id. §914(a)], and the sam of.

£506.65 for medical services and supplies, in aceordance with the

Act. (Id. $907.) Tt) was conceded also that plaintiff had duly

' . °

elected, under §33(a) of the Act (33 U.S.C.) §933(a)], to sue

—- shipowner. {See Ryan Stevedoring Co, ¢. Pan-Atlantic.

- SS. Corp.,; 350 U.S. 124, 127, 128, 144 (1956).}

At the trial plaintift prese nted a stipulation signed by defendant

shipowner, as’ follows: “That on April 19, 1955, the M S Castle-

ville was unseaworthy due to insecure hatehboards at ‘No. 1. hateh,

_ and that as a result of said condition plaintiff did fall and sustain

personal injuries” ef. Crumady ‘ec. The Joachim Hendrik Fisser,

~ 249 F.2d S18 (3d Cir, 1957), cert. granted, 357 U.S. 903 (1958) ;

"27 U.S. L: Week 3197 (1/6/59) | ; and “That plainnift has been

ed

damaged in the sum of: $2,000 exclusive of the benefits received by -

him under the... Act and provided to him by, [the stevedoring

contractor-emiployer] Metropolitan Stevedore Compaiy.”

|

a», With this stipulation, both plaintiff and defendant rested.

Pissedpes defendant shipowner,~as third-party plaintiff, pre-

sented fhe testimony of plaintiff lOngshoreman and rested, and

third-party defendant stevedore contractor presented, testimony

-from its employee, the ship foreman or “boss” at the time ‘of the

accident, and rested.

From the faets as stipulated and the evidence thus biieek:

appears that at the, time the cargo Was loaded at a foreign port an

“queen beam" belonging in the No, 1 main deck hateh ‘was erro-

neously placed under the hateh hoards ‘on the forward spetion of

. No. 4 ‘tween deck hateh. Sinee the’ slots did not fit, this error.

caused the hateh boards on the forward section of No, 4° ‘tween

deck hateh to wobble or’ seesaw and to be insecure, and to give

way when plaintiff walked thereon in the performance of his

duties. As a result plaintiff fell through the ‘tween deck hateh

into the hold below, sustaining injuries to his right hand and ‘arm,

Prior to the ace ident, the contracting stevedore, through its ship

foreman, became awire of the misplaced “queen beim” and the

inseeure hatch boards covering the forward section of No. 1

‘tween deck hateh. ordered the stevedoring work halted, and com-«

plained af the condition to the ship's mate in charge. The mate

made at inspection, told the-stevedore’s foreman that the wrong). —

-“queen beam” had been put in place at another port, and. in-

structed the ship boss to clear the cargo of bales of sponge. rubber

from the hateh ‘boards covering the forward section of No.1 ‘tween -

deck hateh, then remove the hateh boards; substitute the. proper —

“queen beam”, and replace the hatch boards securely. Following ©.

+7)

”

lV ‘

\

' ¢ | Dears ‘

- this ingpéction and authorization by the mgte, the stevedore’s fore-

_ man ordered the longshoremen to proceed cordingly.

The contract between the shipowner iand the stevedoring com-

pany,” as independent contractor, was ‘received in evidence, and

provides for “all loading and dischafging of all cargo.in vessels

owned or opegted by” the shipowner, the “handling of dunnage”,

- and the “initial and final handling of hatch beams, hatcheovers

©... ", at agreed “Commodity Rates” covering all time, including

“Host or standby time nt by the stevedore company “in doing

the work, with compen for’ “extra labor when authorized by

ship's officers. he

As was the case with all th’ stevedoring company 's work under

the contract with the shipowner, the mode and: manner and method | . °

to be adopted’ Pons the baled rubber cargo from the hatch

boards were m@trors exclusively within the diseretion of third-

party. défendant. [Seé McGeeney vu. Horan Towing Core 9 F.

2d 791, 793 (2d Cir. 1945). J: :

Unnecessarily, as the work wens ‘the stevedoring con-

tractor’s foreman required or permitted the longshoremen, includ-

ing plaintiff, to walk .apon and across the wobbly hateh boards .

covering the forward section of No. 1. ‘tween deck -hatech. As a “

result, while plaintiff was engaged in helping with the work of

clearing the hatch boards of cargo, one of tye insecuré hatch .

boards upon which he. stepped gave way, permitting -him to fall

into the hold below, thereby sustaining permanent deforming: in-

juries to.one of the fingers of his right hand.

&

In electing an unsafe method of clearing the cargo from the

hatch boards, third-party defendant ‘stevedoring. contractor was

negligent, and such negligence. as well ag the conceded unsea-

worthiness of the No. I ‘tween deck hatch, was a proximate cause .

of. plaintiff's injuries. The. evidence: does not establish any negli-

zence on:the part of defendant shipowner, ‘or ‘any contributory

_ negligence on the part of plaintiff longshoreman, "

Defendant shipow ner now advances two contentions: first, as to

plaintiff's complaint, that the stevedore employer is not entitled to

reimbursement for—hence plaintiff -is not entitled to reeover—the

$481.65 paid to plaintiff as compensation and medical expense

under thie Longshoremen’s ' and Harbor Workers’ Compensation *

‘Act ; and, second, as to, the third: “party complaint, that the ship-

.

ee

iL é tention is that, since the stevedoring contm

~

\

\. © : e ‘

el eo :

\ : «

*

.

a .

owner is entitled to.a ‘judgment against the stevedoring contractor

. for the amount of any judgment awarded plaintiff.

The gist of the argument in support of efendant's first con-

iba -employer’s negli-

gence was one of the proximate causes of pYauitiff’s damage, the

negligent employer shoukl net be entitled tu-reimbursement. at the

shipowner’s expense out of ae s reBvery trom the ship:

owner. : ‘ ¢

That Ce eee was adviineeed: by the shipowner, and

considered by the Court, in Pope & Talbot, Inc. v Hawn, supra,

346 U.S. at 411-412. The Court there said: “. . . {The shipowner] -

Pope & Talbot says that if [the injured longshoreman}] Hawn

keeps the money [paid under the Act] he will have a double

recovery and that to allow him-to repay [his employer] ‘Haenn’

would give an unconse ‘ionable reward -to an employ er whose negli-

» gence contributed to-the injury. A weakness in this ingenious

argument is that $33 of the Act has speeifie provisions to permit

an employer to recoup his compensation payments out of. any

recovery -from a third person negligently causing. such injuries. .

Pope & Talbot's contention if aecepted would, frustrate this pur-

pose to protect employers who are subjected t i absolute liability

‘ “by ‘the Act. Moreover, reduction of Popé & Talbot's liability at

the éxpense of Haenn would be the substantial equivalent’ of eon-

tribution whieh we declined to require in, the "oy yon case (Hal.

cyon Lines ¢. Hacnn Ship Corp,, 342 US 22 (1952) }." ' (346

US. at 412.)

Af as hetween ‘the negligent shipowner [346 U.S. at 4094 5and

the’ negligent employer, there could be no ground for denying the

latter reimbursement at the expense of the former | Pope & Tal:

bot, In®. vu. Hawn, supra, 346 U.S. at 412), by parity of ‘reasoning

the same result should obtain w here,“as-in the ease at bar, the

° gee as to. who is principal and who is. surety arises between

negligent employer liable to’ the longshoreman under the Act

irrespective of faulf and a non-negligent shipowner also liuble

irtespective of fault because of a breach of the implied warranty,

-of we hr BBall S.C. §§914ia), 933(a); ef. Chapman v.

Hoage,. 296 U. 5529 (1936); see Ryan Stevedoring Co. 1

Pan- Atlantic op Corp, supra, 350 U.S. at 127, 128, 140. |

Although the opinions | of the trial and appellate courts do not

“disclose it, an examination of the reeord | in Asie: d& Talbot, Inc.

9

. » .

@, : .

o :

” . e

v1 : oO

ev. Hawn, supra, 346 U.S. at 406, reveals that there, as here,’ the

‘injured longshoreman was paid compensation and furnished med- ,

ical service by the eyployer without any formal award being made

under the Act. [See: 99 F.Supp. 226 (E.D.Pa, 1951); 100, F.

Supp. 338 (E.D.Pa. 1951) ; 198 F.2d 800 (3d Cir. 1952). ).

It follows then that the employer at bar, having paid benefits

under the Act without “an award in a compensation order” [id.

$933(b) 3 cf. id. §914(a) |, is entitled to reimbursement out of the

employee's recovery, ang to that end is to be subrogated pro tanto

to the rights of the employee against the “third person” to the

extent.of. payments so made. [7'he Etna, 138 F.2d 37 (3rd Cir.

1943) ; cf. Chapman v. Hoage, supra, 296 U.S. at'529.|} Aceéord-

ingly, third-party defendant employer is entitled to reimburse-

ment to the extent of $481.65 out of the judgment for $2,481.51

~ to be awarded plaintiff longshoreman upon his complaint against

defendant shipowner. [Fed.R.Civ.P. 54(¢) ; ef. The Etia, supra,

138 F.2d at 41:42. | w.

Turning now to* the third-party — for “indemnity”

\ef. Pope & Talbot, Inc, v. Hawn, supra, 346 US. at 408], al-

though the pleading as drawn ‘sounds in tort, it appears settled

that the shipowner cannot recover over against the stevedoring

contractor upon any tort theory. | [Weyerhaeuser SS. Co. v.

Nacirema Co., 355 U.S. 568, 569 (1958) ; ; Ryan Stevedoring Co. v.

Pan-Atlantic 8.8. Corp., 350 U.S. 124, 128-132 (1956); Halcyon

pyre Haenn Ship Corp., supra, 342 U.S. at 285-286; Considine

. Black Diamond 8.8. Corp., 163 F.Supp. 109 (D.Mass, 1958) ;

33 U.S.C. $905. | _ <t

While the shipowner's liability to the individual lenguhoremen

may be said to be p dicated upon principles of tort liability [cf.

Strika v. Netherlands : ry of Traffic, 185 F.2d 555, 558 (2d

Cir. 1950), cert. denied, 341 TAS. 904 (1951) ], the authorities hold

that the shipowner’s so-called right to indemnity, absent express

__ provisions of contract 4.1 fe J. Inddwig Mowinckels' Rederi v. Com- - 8

mercial Stevedaring Co., 256 F.2d 227 (3d Cir. 1958) ], is nothing gh

more or less than a right to recover damages for breach by the _

ste vedoring company of an im pliqgJ<in- fac}. obligation of the steve-

doring’ contract. | Weyerhaeuser S.S. Co. v. Nacirema Co., supra, _

goo U S. at 567 n.5b; Ryan Stevedoring Coa. v. Pan-Atlantic. S.S.

Corp.; supra, 350- U.S. at 132-135. J

a)

’ obligation “is not a quasi- -coritract ual obligation implied.in law or

Pt

/ : |

' i

Mr. Justice Burton declared for the Court in Ryan,that: {The

shipowner’s action is not changed irom one. for a breach of. con- -

tract to one ‘for a tort simply beeduse recovery may thrn upon the

standard of the performance of . . . stevedoring service.” | [390

U.S. at 154.) |

And Mr. Justiee Clark pointed out in Nacirema that “in the area

of contractual indemnity an application of the theories of ‘active’

or ‘passive’ as well as ‘primary’ or ‘secondary’ negligence is in-

appropriate.” 1355 U.S. at 569; and see Revel v. American Ex-

. ~ .

port Lines,.162 F.Supp. 279, 286 (E.D.Va. 1958 ).]

While tha express: words of the contract between the shipowner

~~ and the contracting stevedore at bar do no more than obligate the

latter to “perform all loading and discharging of all cargo”, it was

held in Ryanothat such af agreement necessarily inclalen the

implied-in-fact obligation to lead and discharge eargo “properly

and safely". “Competency and sifety™ . the Court pointed out,

“are inescapable elements of the service “undertaken.” Henee this

arising out_of a non-contractual relationship. It is of the essence

of... [the] stevedoring contract. * [350 U.S. at 133.) >

Thus the obsggation is one implied in fact, and not in. law, and

the content of this. implied-in-fact obligation on the part of the

stevedoring contractor is. to perform. the stevedoring service for

“his customer, the shipowner,.in a workmanlike manner. and with »

— safety to persons and property, | Weyerhacuser S.S.

Co, vo Nacirema Co., supra, 355 U.S. at M69; Ryan Stevedoring

v. Pan-Atlartic SS. Corp., supra, 350 US at 134.) Also to

“pay to the shipowner all “foreseeable damages: resulting: to the

shipowner trom the <r improper performance.” po

US. at 129 n3: ef. Reddick v. McAllister Lighterage Line, 25

Ftd 207 (2d Cir. 198); cert. de nied, 27 US.L.Week 3176 (US

‘Dee. 9: 1958) No. 4627. | . me en

The stevedoring COMPANY'S implied-in-fact contractual obligation

to perform its duties with reasonable safety efnbraces not only the

handling of earge. but “ty use of the equipment ineidental

thereto” as well. [345 U.S (& 567.) It ineludes also the duty to

“suspend the loadipe or unloading operations on its own initiative,

and thus te avoid injury or damage, whenever the stevedore real-

‘izes that it would be unsife under the cireumstances to _proeved.

s

i

vill

[United States v. Arrow Stevedoring Co., 175 F.2d 329 (9th Cir:

- 1949), cert. denied, 338 U.S. 904 (1949); The Adah, 258 Fed.

377, 380 (2d Cir. 1919); The Robert R., 255 Fed. 37, 39 (2d Cir.

1918); Smith v. Nicholson Transit Co., 39 F.Supp. 795, 797. .

(W.D.N.Y, 1941).| So if the stevedoring contractor renders a

substandard performance which foreseeingly leads to the ship-

owner's liability to a longshoreman, the shipewner would. be “en-

tithéd to indemnity absent conduct on its part sufficient to pre- .

elude recovery.” | Weyerhaeuser 8.8. Co. v. Nacirema Co., supra,

355 U.S. at 567.)

That is to say, if the stevedoring contractor commits a material

breach of -its contractual. obligation to the- shipowner and such . .

breach is a proximate cause of damage to the shipowner, then the

stevedoring. contractor would be liable ‘for breach of contract to |

the extent of such damage, ‘unless the shipowner has been guilty

of a material breach of the contract. [Cf. Oleszcuk v.. ar SS. .

Corp., 164 F.Supp. 628, 633 (D.Md. 1958). ]

Here it is clear from the facts found that third-party defendant

stevedoring contractor breached its implied-in-fact contractual

obligation to discharge the eargo in a workmanlike manner and

with reasonable safety to persons and property, and that such

‘breach Was a proximate cause of plaintiff's injuries and the re-

sulting recovery from and damage to the shipowner. Hence the .

shipowner is entitled to recover “indemnity” from the stevedoring

contractor—reparation in the form of damages for the breach of

eontract-sprovided the shipowner fully performed its matérial

bligationk under the éontract. | Restatement, Contracts §397

(1932) .] .

Defendant shipowner admits owing an implied warranty ot sea-

worthiness to plaintiff longshoreman, and- @ breach .of that war-.

ranty “due to insecure hateh boards at No. 1 hatch”; also that

such breach was one of the proximate causes of plaintiff's injuries.

But the shipowne r asserts that this unseaworthy condition did not

constitute a breach ot any obligation owed by the shipowner to the

stevedoring contractor.

* The implied warranty of the shipowner as to seaworthiness, first

raised by law in favor of the shipper of cargo [The Caledonia, .

1oF US. 124, 130 C1895) |. later extended to seamen [The Osceola,

‘TsO U.S. 15s (1903) |. and still later to longshoremen [Seas Ship-

_ ping € ov, Nu ragh, $2 2s US. 85, 89-94 (1946) ], does not extend

Som,

a,

; ix

\ |

to the. ‘stevedoring’ contractor. Those considerations of reason and

poliey which prompted extension of the benefit of. the warranty

to the individual longshoreman, absent ‘any contractual relation-

ship, do not° exist with respect to his employer, the contracting

stevedore. (Cf. Kernmutrree v, Compaguie Generale -Transatlantique,

245 F.2d-a75 (2d Cir. 1954), cert, granted, 3855 US. 902 (1957) ;

27 U.S.L.Week 3166. (U.S. Dee. 2, 1958) (No. 22).]

The stevedoring contractor represents Himself to be, and is

assumed to be, expert and experienced in the work of foading and

uihoading eargo, while the individtial longshoreman may or may

not be. Moreover, since predicated upori principles of tort liability

rather than contract, the obligations imposed. by law upon fhe

shipowner in favor of an individual. longshoreman coming aboard

ship to work in loading or unloading the cargo are quite different

from the obligations of the shipowner in favor of the longshore-

man’s employer arising from the stevedoring contract. It is nee. .

essary, then, to look to the stevedoring contraet to learn what ob-

‘Jigations are there imposed upon. the shipowner—not by law, but

by contract—in favor of ‘the stevedore employer.

Ww here, as here, the terms of! the stevedoring contract do not |

expressly impose upon the shipowner any material obligation be-

yond that of payment to cover the stevedoring Service, all addi-

tional contractual obligations onethe part of the. shipowner must,

as with the stevedores in Ryan and Nacirema, be implied in fact

from the inferenees necessarily arising out of the cireumstances sur-

rounding the contract and its performance. | Cf. Weinstock, The

Employer's -Duty to Indemnity Shipowners -for Darages Re- .

eovered by Harbor Workers, 103°U. of Pa. L. Rev. 821, 342-346

(1954). | = ) ;

The stevedoring agreement’ is 4 maritime eontract | eA tlantic

Transport Co, v. Imbrovek, 234 U\S. 52, 61-62 (1914) |, so- any

obligations to be ‘implied _as in fdet arising from the eontraet

shouldMtake cagnizance of the marjtime conside ‘rations involved.

Ships, as well as seamen and longkhoreniet n, are subject to the

“hazards of maritime service.” Ships still break up at sea. Even

though the ships of today may not be as vulnerable, the typhoons

of our day are as “formidable and swift’ as when Corirad wrote.

The Pacitie Coast is x& tre#@herous now as it Was.some two gener-

ations ago when the. Nottingham was battered into a hulk off the

Uregon coast. | The Nottingham, 256 Fed. 618 (9th Cir, 1916).!

2°

‘ . r G

In Almost every instance, when a stevedoring.-contractor com-

mences the work: of loading or unloading a seagoing vessel, the

ship -has arrived in port only a few hours before. She may have

been at sea for weeks or months. Almost always, she has ridden

some heavy seas. Often she may have rolled and pitched through

mountainous seas for days, taken thousands of tons of water over

her decks, sailed through freezing and: tropical weather, and been

- beaten by 100 mile: an hour* gales. Almost surely she will, have ©

been serviced by stevedores of varying .degrees of semepenenty. in

other parts throughout the world.

Being a mass-of plates, pipes, wires, beams and various mech-

anisms, each to some degree vulnerable to the elements, it would

be mich too much to expect a cargo vessel to arrive in port with

‘all equipment, appliances and facilities in a fully seaworthy econ-

dition. Espeeially is this true with respect to the hatches, booms

‘and winches, which ‘are relatively more likely to be in disorder

beeause of the elements, and the abuse and: misuse of men. as well.

It is reasonable to expect, then, that many things may be wrong.”

_with a freighter and her equipment and appliances when she

arrives in port; that she may well be a place of danger even as

she docks. And all of these lurking dangers may be due entirely

to the hazards of the Ship's service.

The stevedoring. contractor ‘knows that the ship has been at

sea; that she may bein many respects dangerous to the life and

limb of an unskilled person; that if a condition is found which is

unsafe for the professional longshoreman, as a rule the contractor

can remedy it at the expehse of the shipowner; that if the ‘steve-

doring operations are théreby delayed, the shipowner normally

must pay for standby time.

Stevedoring contractors hold themselves out as being trained

and. equipped to cope with these conditions and these dangers. To

this end, the stevedoring. contractor is usually given full, use and

charge of the ship's loading and unloading equipment and. appli-

ances and the eargo hatehes and holds. So it is that the stevedor-

ing contractor cannot reasonably expect, and does not expect, to

hoard a vessel which in all respects, as to equipment and appli-’

ances as Well as hull, is in ‘a seaworthy condition, or even in a

reasonably safe condition. Hence it is not reasonable to infer

that the shipowner, in executing the stevedoring contract, im-

pliedly covenants that’ the condition of the ship or of het equip-

ll el

ww

ment or appliances will exeted tlie wide a contractor's reason-

able expeétations:

This is not to suggest that the suMbounding circumstances are

such as to require the contract tobe so construed that the steve-

doring contractor boards the vessel wholly at peril. To the con-

‘trary, with the poner as with the stevéedore, certain obliga-

tions are to be implied in fact as being of the- essence of _t

‘stevedoring contract. Ryan Stevedoring Co. v. Pan-Atiantic aS.

<i n ©

Corp., supra, 350 UL. at 133.] aan

-

Although admonished in. Ryan that resort may not be had to

principles of quasi-contract or to the law of torts to ascertain the

obligations of the shipowner Vis-a- vis the stevedoring contractor,

it is heipful in considering the surrounding cireumstanees of fact

and law, in the light of which the ste ‘vedoring contract was made,

to reeall the long-settled rule that the shipowner’ owes a duty of

ordinary care impesed by law toward. Fg Pema trans-

* acting business On ships... [Pope d& Talbot, Inc, v,- dawn,

supra, 346 US. at 415, n. 6; and see «g.: The Mar ae 137

U.S. 13 (1890): Leathers & Blessing, 105 US. 626 (PMA) ; ; Tide-

water Associated Oil Co, vt. Richardson, 169 F.2d $02 (9th Cir.

-1948).|

‘The surrounding circumstances of fact, and that of law just.

recited, prompt the holding that, absent express provision to the

contrary, the shipowner owes to the stevedoring contractor under

the stevedoring contreet the implied-in-fact obligations: (1) to

exercise ordinary’ eare under the cireumstanees to place the ship

on which the stevedoring work is to be done, and the equipment

and appliances aboard ship! in sueh condition. that an expert and

experienced: stevedoring contractor, mindtul ef the dangers he

should reasonably expect to encounter. ayising from. the hazards |

of the ship'ssserviee or otherwise, will be able by the excriese of

ordinary care under the cireumstanees to load or discharge the |

cargo, as the ease mav be, in a workmanlike manner and with ~

reasonable safety to persons and property: and (2) to give the

stevedoring contractor reasenable warning of the-existenee of any

latent or hidden danger whieh has net been remedied and. is not

usually encountered or reasonably to be expected by ari expert

and experienced stevedore in, the performance of the stevedoring

_work aboard the ship, if the shipowner actually knows or, in the

exere ise of ordinary eare under the eire umstances, should know of

xii ) _ =

the existence of such datiger, and the danger is one ‘which the

_ shipowner should reasonably expeet a stevedore to encounter in

the performance of the stevedoring_ contract, | ‘f.: Parenzan t

dino AK EK, 251 Fd “Y2s (2d Cir. 1958), cert. denied, 36 i

Sa.

G39 (1958); Amerocean SS. Co. ve. Copp, 245 FP. 2d 292 (9th

Cir. 1957); United States v. Harrison, 245 F.2d 911 (9th Cir.

1957); Southport Transit Company v. Avondale Marine Ways,

234 F.2d 947, 951 (Sth Cir. 1956); American President Lines v.

~\..

Marine Terminals Corp. 234 F.2d 753 (Mh Cir. 1956), cert.

denied, 352 U'S.-926 (1956); Berti v. Compagnie de Navigatwn

-. Cyprien Fabre, 213 F.2d 397 (2d Cir, 1954); Crawford v. Pope

&- Talbot, Inc., 206 F.2d 754, 792 (3d Cir. 1953); Slattery rv.

Marra Bros., 186 F.2d 134, 139 (2d Cir. 1951); United States rv.

Rothschild Int. Stevedoring Co., 183 F.2d 181 (9th Cir. apd

American Mut. Liability Ins. Co. v. Matthews, 182 F. 2d 3 2 (2d ~

Cir, 1950); United States v. Arrow Stevedoring, Co., ougre, WW

F.2d at 331: Calanchini +. Bliss, 88 F.2d 82 (%h Mir. 1937) ;

Cornec v. Baltimore & O. R. Co, 48 F.2d 497, 502 (Ath Cir.

Co. v. Sagadulboc NN. Corp., 32 F.2d 886 (9th Cir. 1929): Beth-

lehem Shipbuidding Corp. v Joseph Gutradt Co, 10 F.2d 769,

771 (9h Cir. 1926); 2 Restatenient, Torts §§360, 332, comment

h (1934): 2 Harper & James, The Haw of Torts, $27.17 (1956). |

The evidence is not such as to warrant a jinding that the ship-

q@wner here breached either-of these tuplhied-in-faet obligations of

the stevedoring contract in any respect. On the contrary, the

evidence establishes full —~aey by the shipowner. [(Cf.

American -Mut. Liability Ins. Co. v. Matthews, supra, 182 F.2d

at 324.]-

_, 1931). cert. denied, 284 US. G21 (1931). Seaboard Stevedoring |

Of course, as third-party defendant poidts da}, there is a third-

implied-in-faet obligation on the part of the shipowher not unrea-

sonably or materially to-hinder, delay or interfere with perform-

ance -of the stevedoring —— . |Restatemerit, Contracts

* $§295, 315 (1982); 4 Corbin, Contracts $947 (1951).| However,

there is no evidence of any. unreasonable or material prevention of

performance on’ the part of the shipowner in the ease at bar. The

“contract expressly provides that the stevedoring contractor is to!

be. paid on a time basis fur serviee of every kind, including the

‘repair of deteets in hatches or other ship appliances and equip-

‘ment, and that the contractor isto be paid also for standby time —

a

mang,

due to any delay in the stevedoring operations caused by, the

shipowner. he ii .

Accordingly, the finding tuust.be thai the shipowner at bar did

“ot breach het tally, performed, both its express’ and implied-in-

fact obligations to the stevedoring contractor under the contract.

Furthermore, if it were ussumed arguendo that the misplaced

“queen beam” was a break, by the shipowner, the stevedoring

«outractor was fully aware of this laient condition prior to plain-

tiff's injury and honetheless willingly proceeded with the work

despite the hnown dangerous condition, and hence would be held

tu have waived the breach. | Restatement, Contracts $3297, 204

(1982) 2 see Leertcan, Pe sident Lines vo Marine Terminals Corp.,

| supra, 234 Fo2d at 79; cf. Ryan Nte vadoring Co, &. Pan-Atlanti

NN. Co., supra, 390 US, at 134-135. |

Finally, third-party defendant urges that the shipowner cannot

recover damages on the third-party plaintiff's claim for breach

ef the stevedoring contract because, the argument goes, the ship-

owner was a volufiteer who needlessly admitted liability and dam-

ave and so, in effect, voluntarily settle with plaintiff without

contesting liability. The aggament is wholly withetit “‘merit>“Phe

shipowner Was unquestionably liable to the Tongshoremen for a

plain breactr of the iniplied warranty of seaworthiness. | Grillea

ro United Stites, 232 F.2d 949,922 Clq Cir. 1956). The nature

‘and extent of the resulting damage was equally beyend\ dispute.

The facts as. to liability. and damage. being incontrovertible bef.

Alhina Engine de Machine Works, lac. ve Amertean Mail Line.

Ltd., — F.2d Tatin 2 ith Cir 1/2/59) | the shipowner is

not to be branded a volunteer for conceding them. | Ace. Tractor

& Equipment Conv. Olympic SS. Co, 227 Fetd 204. 276 (Oth

Cir WS). In any event, third-party défendant was by ho Wise

prejudiced, (Cf, Chapman vr. Hoey, supra, 296 U.S, at 529-582.)

For the reasons stated [-find that third-party plaintiff ship-

owner pertormed its obligations te the stevedoring company under

the contract ; that third-party Gefendant Stevedoring company,

acting through its employees, breached its impled-in-faet: con-

traetual obligation to disehatwe the fargo ma workmanlike man-

ner and with ceasenabie satety tu persons and property; and that

sue: breach by. the stevedore-was a proximate cause of the injury

¥,

s

xiv

As a result of this breach, the shipowner beeame liable to plain-

tiff longshoreman ‘for $2,481.65 and costs of suit. Reparation to-

the extent of that loss to the shipowner is the measure of the

shipowner’s damages for the stevedori ing contractor's breach. | Re-

statement; Contracts §330 (1932); 5 Corbin, Contracts §$1006,

1007. (1951) ; 5 Williston, Contracts £1356 _ ed. 1937) ; Mow-

bray v. Merryweather, 2 Q.B. 640 (1895).) .

What has beén said may serve as findings“of fact and conclu-

‘sions of law | Fed.R.Civ.P. 52 (a)| upon whieh ‘to predicate . (1).

judgment in favor of plaintiff longshoreman and against defend-

ant shipowner on the complaint for $2,481.65:and costs, of which

#481.65 is to be :paid to third-party defendant employer as reim-

_ bursement: for compensation and medical expense laid out for. the .

account of plaintiff under the Longshoremen’s and Harbor Work-

ers’ Compensation Act; and (2) judgment .on’ the third- -party

complaint of the shipowner against third-party defendant. steve-

doring, contractor_for damages for breach of contract, in such sum ~

as third-party plaintiff may be required to pay to or for the

account of. plaintiff in this action, namely, $2,451.65 and costs.

Although the third-party complaint does not allege ‘breach . of

contraet as ground fer “indemnity” or reparation, the case was

tried and submitted for decision on the elaim for damages for

breach of contract. {| Fed. R.Civ.P. 54(¢+; ef. Ryan Stevedoring’

Co. «. Pan Atlantic S.S. Corp., supra, 350 U.S. at 141; Royal

Mail Lines, Ltd. v. Peck and Associated-Banning® Company, .....

Fld .. (oth Cir. 11/18/98). ]

Judgment will be entered accordingly.

‘Filed, Nune Pro Tune, Dee. 31, 1958, dan. 21, 1959.

Clerk, U.S. Distriet Court,

‘ Southern District of California,

- Deputy Clerk.

Appendix B

United States Court of Appeals - >»

- for the Ninth Cireuit —

— = ieecemnisbaeadnaanih

Metropolitan Stevedore Company,

* a Corporation, Appellant, ;

ve , No. 16,399

VS. | ;

f ty ey! “| Jan. 11, 1960

J.

ihe

.

Dampskisaktieselskabet International, A

aCorporation, -—~ — . Appellee.

Appeal from the United States ‘District, Court for the

Southern District of California,

Central Division. ;

Before : Stephens, Barnes and Merrill, Cireuit Judec#

Per Curiam:

_We are satistied in this matter that the exhaustive opinion of

the trial judge, supported by the subsequent majority opinion. in

~Crumady v. The J. i. Fisser, 1959, 358 U.S. 423, correetly decides

the issues involved herein. . 2 .

We therefore refer to aiid adopt the reeited taets ‘and the ‘con.

elusions of that court. Muget® v. Dam pskisaktre selskabet Inte rna-

tional, S.D.Cal., 1959, 170 F. Supp. 60T.

Appellant firs deers w ith the trial ‘court's conclusions by

urging that a more extensive duty is owed to the stevedoring com-

pany by the ship than that tound due by the trial court. The cases.

cited to support such a theory, however, are primarily cases dealing

with active versus passive negligence determined prior to the

Supreme Court cases establishing the contract theory of liability,

rather than one arising in tort, Cromady rv, The J. HL. Fisser,

* supra; sige oney NLS. Co. v. Nacirema Co. 1958, 355 U.S. 563;

Ryan Co, v. Pan-Atlantic Corp... 1956, 350 ULS, 124. Further, the

poliey saihieaaans Jiseussed by the court below seem valid (a)

the possibility, or ever probability. of unseaworthiness: after long

voyages, and (by the expertise of the Sfevedorit ing company and its

employees)

Appellant's seeond confention is that it did not waive the ship-.

owner's‘breach of seaworthiness. In view of our decision on ap-

pellant: s first point, we need not consider this. We point out, how- v-

\ ce

pare | a ‘

ever, that this faetual issue depends upon the court’s conclusion as

to whether theystevedoring company continued to unload as it had

before the temporary halt in operation. There was no change in

procedures used, and no attempt to avoid the danger by the use of

another method. The evidence fully supports the finding of waiver,

were it necessary.

Appellant next contends chet there was ino finding of negligence

on its part, and had there been such, the evidence would not have

sustained it. There was no eXPTess finding of negligence, but the

third conélusion of law (Tr. 20), reads as follows:

“3. Third-party defendant failed to perform its obligation

under the stevedoring contract to discharge the cargo in a ;

workmanlike manner and with reasonable safety to persons °

and property.” :

This finding covers the gap asserted by. appellant, wil is-more _

germane to the issues of this, a contract ¢ than a finding of —

negligence would be. The inference of hire is Teadily drawn

from the evidence. Metropolitan's o oreman testified that there

were alternative methods of diseharging the same cargo which

would not entail use of the loose hatehboards. That-the work was

carried out iy, this knowingly dangerous fashion would secm suffi-

cient to support the breach of duty found by the trial judge.

Metropolitan next contends that appellee was a volunteer in pay-

ing Hugev for his injuries, and sinee the payment was not neces-

sary, no action for indemnity will lie. Appellant cites cases for the

proposition that an injury ineurred by a worker attempting to

repair an unseaworthy condition is net covered by the warranty of

unseaworthiness. W hether such proposition would apply to work

fraditiqnally done by members of the erew (cf., | nited Pilots Asen.

. Halecki, 1959, 358 U.S. 613), we need ‘not decide. It wpuld

require characterization of <the activities of Metropolitan in. con-

tinuing to unload as merely an attempt to repair the unseaworthy

condition resulting from the use of the wrong queen-beam. The |

trial judge did not so find. He dismissed thix argument as being

wholly without merit. While the bales of rubber had to be removed

in order to repair the condition, no change in mode of operation:

was commenced: which -would indicate that the femoval of bales by °

Me ‘lropolitan was other than’ a * continuation of the unloading

‘ opera ion. .

. The jddement is affirmed. ¥

| Endorsed ) Per Curiam Opinion. Filed Jan. 11, 1960. v as

: Frank H./Sehmid, Clerk:

- United States Court of Appeals .

for the Ninth Circuit re Pigg tS

.

—_

- Metropolitan Stev edore Cc ompany,

a Corporation,

} , - | Appellant, |

Vs. ; ; oS :- , No: 16,399

_Dampsk isakt iesélskabet International,

‘a Corporation, .

, ‘ p as ° | . Appellee. |

Se

©

Appeal trom the U nited States Distriet Court for the

- Southern District of California,

Central Division

0

: JUDGMENT

~ This cause came on to be heard on the Transeript ‘of the Record

: from the United States Distriet Court for the Southern District

of California, Central Divi ision, and was duly submitted.

. On Consideration Wherecof, it is now here ordered and adjudged

‘by this Court, that the judgment of the said District Court in

this Cause he, and hereby . afirmed.

Filed and entered January 11, 1960."