The opinion of the court was delivered by: KAUFMAN
Defendant, Parry Navigation Company, Inc., has moved the Court for the following alterations of and amendments to the judgment entered in the above entitled action on April 18, 1950:
1. (a) To vacate and amend so much of the judgment as denies the motion of Parry Navigation Company, Inc., for a judgment in its favor against Todd Shipyards Corporation;
(b) To vacate and amend so much of said judgment as grants the motion of Todd Shipyards Corporation for a judgment in its favor against Parry Navigation Company, Inc., based upon the special verdict of the jury;
(c) To vacate and amend so much of the judgment as dismisses the claim of Parry Navigation Company, Inc., against the third party defendant, Todd Shipyards Corporation.
2. (a) To reconsider the motion made at the trial on behalf of Parry Navigation Company, Inc., for judgment in its favor against Todd Shipyards Corporation, based upon the special verdict of the jury;
(b) To reconsider the motion made at the trial on behalf of Todd Shipyards Corporation against Parry Navigation Company, Inc., for judgment in its favor, based on the special verdict of the jury.
3. That the Court render judgment, in accordance with the special verdict of the jury, in favor of Parry Navigation Company, Inc., against the third party defendant, Todd Shipyards Corporation, adjudging that Todd Shipyards Corporation contribute to the payment of the judgment in favor of the plaintiff, Robert D. Spaulding, in an amount equal to fifty (50) per cent of said judgment or such higher or lower portion of said judgment as the Court may decide, and that Parry Navigation Company, Inc., have judgment against Todd Shipyards Corporation for fifty (50) per cent of said judgment or such higher or lower proportion of said judgment as the Court may decide.
4. That the Court in the alternative sever the part of the above entitled action relating to the dispute between Todd Shipyards Corporation and Parry Navigation Company, Inc., from the plaintiff's action and transfer the part of the action so severed to the Admiralty side of this Court for further proceedings.
The defendant also requested a stay of execution in this cause for an additional 20 days beyond the automatic 10 day stay allowed by the Rule 62(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and this request was heretofore granted by the Court.
The facts and proceedings in this case are fully covered in the opinion of this Court dated April 3, 1950, D.C., 90 F.Supp. 564, upon which the judgment referred to above was entered. In that decision this Court held that the defendant was not entitled to indemnity from the third party defendant since its own negligence contributed to the injury to the plaintiff and was primary in nature. Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 1929, 32 F.2d 182. Contribution, now requested by the defendant for the first time, was not considered by this Court in the foregoing decision for the issue had not been raised or apparently even considered by any of the parties. Upon the finding of the jury in the special verdict that both the defendant Parry and the third party defendant Todd controlled the ladder from which the plaintiff fell and that both were negligent in failing to properly secure the ladder, the defendant now seeks contribution.
Todd contends that defendant's failure to request 'contribution' and his emphasis on 'common-law indemnity' was a waiver of any right to contribution and should preclude the defendant from raising the issue, especially since judgment has been entered.
However, if the issues upon which the demand for contribution is predicated have been fully tried in the action, and if the defendant can as a matter of law recover contribution in the action, the Court does not believe that the defendant should be held to have 'waived' his rights. It should be noted that Rule 15(b) of the Federal Rules of Civil Procedure provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and that such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion even after judgment; but failure so to amend does not affect the result of the trial of these issues. Therefore if the defendant sought at this time to amend his pleadings to ask for contribution the Court could grant his request if the issues had been fully tries; however, the Court does not believe that an amendment is necessary in this case, and subsequent discussion will elucidate the basis for this conclusion.
The right to contribution among tort-feasors has existed since 1875 in the admiralty law, and is considered to be a substantive rights. The Ira M. Hedges, 1910, 218 U.S. 264, 31 S. Ct. 17, 54 L. Ed. 1039, 20 Ann.Cas. 1235; Barbarino v. Stanhope S.S. Co., 2 Cir., 1945, 151 F.2d 553. The suit herein dealt with a maritime tort, and there is no doubt that the defendant could have sought contribution had the suit been brought in admiralty. The Wonder, 2 Cir., 1935, 79 F.2d 312. The third party defendant contends, however, that the suit was brought on the law side of the court, and that the admiralty right to contribution is not enforcible on that side of that court. This argument lacks merit, for it is now well settled that a right peculiar to the law of admiralty may be enforced either by a suit in admiralty or by one on the law side of the court. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 88, 89, footnote 5, 66 S. Ct. 872, 90 L. Ed. 1099. It should also be noted that the right to indemnity sought in this action could also be obtained in a suit on the admiralty side of the court. See American Mutual Liability Ins. Co. v. Matthews et al., 2 Cir., 182 F.2d 322; Portal v. United States, D.C.S.D. N.Y. 1949, 85 F.Supp. 458. Hence a suit for indemnity or contribution in a case involving a maritime tort can be brought either in admiralty or at law, and the choice of forum by the plaintiff cannot affect the defendant's substantive rights.
The question then is whether the issues pertinent to contribution were litigated, i.e., whether the third party defendant is ...