Before HAND and WATERMAN, Circuit Judges, and BYERS, District Judge.
This appeal calls into question a decision by Judge Conger in the District Court, Southern District, which held the Appellant Spencer to be liable to Erie Railroad Company as indemnitor under a stevedoring contract, during the performance of which the plaintiff Pierce (an employee of McGrath) was injured while at work on the Erie lighter No. 80.
Pierce recovered judgment against the Erie on the theory that the lighter was unseaworthy, in the sum of $10,000. That judgment was paid in full whereby any inquiry into the issues so determined is now precluded.That trial was before a jury.
The pleadings included a third-party complaint against Spencer who was the contracting stevedore with Erie; and separately against McGrath which company had been hired by Spencer to perform the actual stevedoring contracted for by Spencer.
Thus for practical purposes, McGrath was Spencer on April 9, 1954 when Pierce was injured.
Spencer's written contract with Erie contained in paragraph Sixth a carefully drawn provision touching the liability assumed by Spencer, and its undertaking by way of indemnity.*fn1
There was no written contract between Spencer and McGrath, and the third party claim of the Erie against the latter, and that of Spencer also against McGrath, rest upon the alleged failure of the latter to live up to an implied warranty to perform the stevedoring tasks in a workmanlike manner.
These respective third-party claims were heard and decided after the Pierce judgment against the Erie had been satisfied.
The judge found and decided against Spencer, pursuant to the terms of the said written contract, and awarded to the Erie $10,000 plus $2,902.34 to cover reasonable counsel fees and expenses in the action.
He dismissed the third-party complaint of the Erie against McGrath, as to which there has been no appeal; he also dismissed the third-party complaint of Spencer against McGrath for failure of proof, which is the second aspect of the matter here under review.
The factual situation giving rise to the litigation may be briefly stated:
On April 9, 1954 the S. S. Milbank lay moored to the north side of Pier B, Jersey City. A floating crane owned by Weeks, not a party, was alongside the ship, and alongside the latter in turn lay the Erie lighter No. 80. The crane lifted logs from the ship and swung them over to the lighter on which they were laden.
Pierce, being in McGrath's employ, was one of a gang of eight stevedores who went aboard the lighter at about 1:00 p. m. and handled the logs as they were swung aboard; about six or seven had been safely handled during the ensuing hour. Between 2:00 and 3:00 p. m. a draft of two logs was lowered so that one end reached the deck of the lighter, and the other end, being five feet or so in the air, was slowly being lowered while Pierce and others in his gang were pushing them into proper resting position. The operator of the crane was in the act of final lowering according to signal when Pierce slipped under these logs which came down upon his left ...