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January 4, 1962

Michael CAPUTO, Plaintiff,
UNITED STATES LINES COMPANY, Defendant and Third-Party Plaintiff, v. IMPARATO STEVEDORING CORP., Third-Party Defendant

The opinion of the court was delivered by: BRUCHHAUSEN

The plaintiff, a longshoreman, employed by the third party defendant, Imparato Stevedoring Corporation, sustained injuries on December 3, 1954, while engaged in unloading cargo from the No. 1 lower hold of the SS American Ranger, owned by the defendant, United States Lines Company, hereinafter called the shipowner. He claimed that the accident and the resulting injuries were caused by the unseaworthiness of the vessel and the negligence of the shipowner. The jury rendered a verdict in favor of the plaintiff and against the shipowner in the sum of $ 70,000. The shipowner claims indemnification from the stevedore.

Witnesses testified that when the hatch was opened at approximately 8 A.M. on that day they viewed the cargo in disarray and that the crates were of uneven size, also some smaller pieces of cargo were stowed in between the larger crates. There was also testimony that some of the crates were wobbly. The hatch boss was informed of the condition and he told the men 'to do the best you can.' The longshoremen engaged in a bucket brigade operation whereby cargo passed from hand to hand until it reached the square of the hatch for lifting from the hold. There was also testimony that during the three and a half hour period, prior to the accident, the men engaged in removing the cargo observed that no dunnage was used for flooring. Testimony disclosed that the main purpose of dunnage is to insure a dry cargo and that this type of cargo does not necessarily require dunnage for proper stowage. The plaintiff testified that he picked up a box weighing approximately forty pounds, turned around to pass it to the next man in his gang when suddenly one of his feet broke through the top of a crate and he was injured.

As previously stated the question presented to the Court is whether the shipowner is entitled to indemnification from the stevedore.

 The Supreme Court in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 held that a stevedore warrants to a shipowner that it will do its job in a workmanlike manner and with reasonable safety and that any loss from this breach should be borne by the stevedore. The parties did not execute a formal contract. The Court held at page 133, 81 S. Ct. at page 237:

 'It is petitioner's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product.'

 In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 78 S. Ct. 438, 2 L. Ed. 2d 491, the Court extended the obligation of the stevedore to perform its duties with reasonable safety not only to the handling of the cargo as in the Ryan case, but also to the use of equipment of the vessel incidental thereto. The jury found the shipowner negligent, however, this did not in and of itself deprive the shipowner of indemnification because the obligations of the shipowner to the longshoreman are not identical with those of the stevedore to the shipowner. It remanding the action for a more specific finding, the Court at page 568, 78 S. Ct. at page 441 stated:

 'While the jury found petitioner 'guilty of some act of negligence,' that ultimate finding might have been predicated, inter alia, on a failure of petitioner to remove the shelter when the ship left New York, or a failure to correct or warn respondent of a latent dangerous condition known to petitioner when respondent began the Boston unloading. Likewise, the finding might have been predicated on a failure of petitioner during the five days in Boston to inspect the shelter, detect and correct the unsafe condition. Although any of these possibilities could provide Connolly a basis of recovery, at least the latter would not, under Ryan, prevent recovery by petitioner in the third-party action.'

 The Court further held at page 569, 78 S. Ct. at page 442:

 '* * * in the area of contractual indemnity an application of the theories of 'active' or 'passive' as well as 'primary' or 'secondary' negligence is inappropriate. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co., supra, 350 U.S. at pages 132-133.'

 In Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413, a longshoreman was injured when a boom fell and struck the plaintiff. The equipment was in good condition. The winch, which served the boom, had a cut-off device to shut off the current at three tons, which was also the safe working load of the boom. The circuit breaker had been set to operate at a load slightly more than six tons before the winch was turned over to the stevedore. The Court found that the unskillful handling of the winch by the stevedore was the primary cause of the parting of the topping-lift and fall of the boom. The shipowner was entitled to indemnification although a defective cut-off device was furnished the stevedore.

 In Calmar Steamship Corporation v. Nacirema Operating Company, 4 Cir., 266 F.2d 79, a defective cargo light was furnished the stevedore who accepted it, and threw it into the hold not properly 'seized', meaning secured, which fell injuring the longshoreman. The jury found both shipowner and stevedore negligent and the unseaworthiness of the ship to be the proximate cause of the accident. The Court holding that any claim over could not be other than contractual, cited Ryan and Weyerhaeuser, and, at page 80 wrote:

 'The court said that a service contract such as the one here involved implies a promise by the expert stevedore to perform 'with reasonable safety' and that this obligation relates not only to the handling of cargo, as in Ryan, but to the use of equipment incidental thereto, as in Weyerhaeuser. The District Court then held that the manner in which Nacirema had used the cargo light constituted a breach of this contractual duty.'

 In Lamazza v. United States, 190 F.Supp. 692 (S.D.N.Y.1960) both the shipowner and stevedore foreman knew of the condition of the gangway two and a half hours prior to the accident. Neither shipowner nor stevedore corrected the condition prior to the accident. The Court held the stevedore negligent in failing to correct the condition and, therefore, pursuant to the contract liable over to the government for the sum it was required to pay the longshoreman.

 In Beard v. Ellerman Lines, Ltd., 3 Cir., 289 F.2d 201, a longshoreman was injured during unloading operations. The jury found the shipowner Ellerman negligent in not providing the longshoreman a safe place to work, and such failure constitutes ...

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