# Petition for Writ of Certiorari — Metropolitan Stevedore Co. v. Dampskisaktieselskabet International > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0329%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 - **Citation:** 363 U.S. 803 ## Text Ee csOP’ t In the Supreme Conct OF THE United States ¥ (i | ar HOR Tuna, 159 ow No. +” VL rrovonii an SPEVEbonh Co wmpany, ny Corporation. 9 t : pms ; Pralileonen, =. PY PSRISVKTIESERS ABET EXTERN VEION VE, a Corporation, . Aig spoils yl e 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 — . | . 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. | _ 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 “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