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April 3, 1950


The opinion of the court was delivered by: KAUFMAN

Parry Navigation Company, Inc., seeks indemnity from the Todd Shipyards Corporation for the damages awarded to the plaintiff, Robert Spaulding, against Perry.

The law of the state where the injury occurred is determinative of the right to contribution or indemnity. Bohn v. American Export Lines, D.C.S.D. N.Y. 1941, 42 F.Supp. 228; Kravas v. Great Atlantic & Pacific Tea Co., D.C.W.D. Pa. 1939, 28 F.Supp. 66; Brown v. Cranston, 2d Cir. 1942, 132 F.2d 631, 148 A.L.R. 1178; Friend v. Middle Atlantic Transp. Co., 2 Cir., 1946, 153 F.2d 778. In this case the law of New Jersey is applicable and that law seems to be in accord with the prevailing view.

 The general rule is that there is no contribution or indemnity between joint tort-feasors. However, there is an exception to this rule where one tort-feasor does the negligent act and the other does not join therein but is thereby exposed to liability for injuries sustained by a third party. Popkin Bros. v. Volk's Tire Co., Sup. Ct. 1941, 23 A.2d 162, 20 N.J.Misc. 1. For example, the party seeking indemnity may have been only technically or constructively at fault, as from a failure to perform some legal duty, and the negligent or wrongful act of the party from whom indemnity is sought was the primary or proximate cause of the injury. See 31 Corpus Juris at page 455, Sec. 55, 42 C.J.S.Indemnity, § 27; Popkin Bros. v. Volk's Tire Co., supra, 23 A.2d at page 164.

 As is stated in the Restatement of the Law of Restitution, Section 95: 'Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels which was created by misconduct of the other or which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditure properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.' (Emphasis is added.)

 Notable instances in which the exception to the general rule operates, as stated in 1 Moore's Federal Practice at pp. 772-773, are as follows:

 (1) Where a master has been held liable for the tort of his servant or agent under the doctrine of respondeat superior. See, e.g. Frank Martz Coach Co. v. Hudson Bus Transp. Co., Sup. Ct. 1944, 44 A.2d 488, 23 N.J.Misc. 342.

 (2) Where an owner of property has been held liable for the negligence of an independent contractor. See, e.g., Washington Gas Light Co. v. Dist. of Columbia, 1896, 161 U.S. 316, 16 S. Ct. 564, 40 L. Ed. 712.

 (3) Where one tort-feasor created the risk and the other failed to discover it. See, e.g., Popkin Bros. v. Volk's Tire Co., supra; Derry Electric Co. v. New England Telephone & Telegraph Co., 1 Cir., 1929, 31 F.2d 51; Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 1929, 32 F.2d 182.

 The rationale behind these cases seems to be that where one who has a non-delegable duty does in fact delegate that duty or turn over control of property to another, the two are tort-feasors but are not in pari delicto, and the one who has the mere legal duty or whose sole fault is an act of omission, such as a failure to inspect, has a right of contribution or indemnity against his joint tort-feasor. See Geo. A. Fuller Co. v. Otis Elevator Co., 1918, 245 U.S. 489, 38 S. Ct. 180, 62 L. Ed. 442; Corrao v. Waterman S.S. Corp., D.C.E.D. N.Y. 1948, 75 F.Supp. 482; Central Surety and Insurance Corp. v. Mississippi Export R. Co., 5 Cir., 1937, 91 F.2d 125; George's Radio v. Capital Transit Co., 1942, 75 U.S.App.D.C. 187, 126 F.2d 219.

 In the instant case the plaintiff Robert Spaulding, recovered a verdict under the Jones Act, 46 U.S.C.A. § 688, against his employer, Parry Navigation Co., for injuries sustained due to the negligence of his employer or its employees. The defendant had impleaded Todd Shipyards in the action and maintained that the ladder from which the plaintiff fell was owned and controlled by Todd and that Perry was not negligent in any way but merely was held liable under its non-delegable duty to provide the plaintiff with safe means of ingress to and egress from the ship.

 The Court required a special verdict as between Parry and Todd upon the following written questions and obtained the answers indicated:

 (1) Did Todd Shipyards provide and pay for the berth at pier 16 where the s/s Lindenwood Victory was moored on August 14, 1947? Answer: Yes.

 (2) If the answer to (1) is 'yes', was it the general practice at the Port of New York in August 1947 for ship repair companies to provide a ladder or gangway for the ship's crew to board and leave their vessel at a berth provided by the ship repair company? Answer: Yes.

 (3) Did Todd or Parry control the ladder in question when the ship was berthed at pier 16 at the time of the accident? (Answer ...

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