The opinion of the court was delivered by: MOTLEY
The Facts Disclosed on Trial
Plaintiff longshoreman initiated this action against defendant shipowner, Royal Netherlands Steamship Company, to recover damages for injuries sustained while working as a hatch boss in the lower hold of the "SS THERON". A jury returned a verdict of $20,000 in favor of plaintiff on his claims of negligence and unseaworthiness and this court entered a judgment in that amount on December 15, 1969.
Royal Netherlands, as third-party plaintiff, impleaded the stevedoring company Maude James, Inc., plaintiff's employer, as third-party defendant and now seeks indemnity for its liability to plaintiff. Maude James counterclaimed and asks for costs and expenses, including attorney's fees, incurred in defending this lawsuit. The issues in this third-party action were reserved to the court by consent.
The evidence adduced at trial tended to establish, and the jury could have reasonably found, the following facts. On September 28, 1966 plaintiff was employed by Maude James, Inc. and was working as a hatch boss aboard the "SS THERON" supervising a gang of longshoremen in the stowing of cargo in the aft end of the lower hold. Early that morning, as part of his duties as hatch boss, he made a cursory inspection of the hold, including several bilge covers, to ascertain that the work area was generally safe for his men. He found the bilge covers in apparent good order.
There are several bilge covers along the deck plating near the skin, or wall, of the ship on each side of the aft lower hold. These bilge covers are perforated, quarter-inch-thick steel plates placed over the bilge openings in the floor of the hold, in a slightly depressed alley which runs the length of the hold on each side of the ship. The bilge covers are bolted to metal straps that are themselves welded underneath the surrounding deck plating and protrude out into the opening or hold. The bilge proper is about one and one half feet below the deck.
During the afternoon of September 28, plaintiff had been directing the operator of a hi-lo forklift machine in the stowing of cargo in the hold. This machine is a four-wheeled vehicle weighing approximately two tons and customarily used in such fashion to move heavy loads. As plaintiff was walking backwards towards a corner of the aft hold and waving the operator towards him, he stepped on a bilge cover that gave way beneath him. Plaintiff stepped into the bilge and injured his right knee and thigh.
Uncontroverted expert medical testimony was to the effect that plaintiff consequently was suffering a chronic sprain of the right knee and a traumatic myositis ossificans affecting the hamstring muscles of the right thigh proximal to the knee joint, and thereby sustained a permanent disability involving the right knee and thigh of 10-20%.
Chief Mate Barend Coster's deposition, read into the record, disclosed that he made an inspection of the bilge cover in question on the day following the accident. He found that the bilge cover was hanging down on one side and that two or three of the metal straps, although still bolted to the bilge cover, had broken loose where they had been welded to the deck plating. His testimony was also to the effect that he had inspected the bilge covers in the lower hold one week before the accident while the vessel was at sea and found them to be in good condition.
Third-Party Plaintiff-Shipowner's Claim for Indemnity
The shipowner's claim for indemnity rests upon the assertion that the straps supporting the bilge cover were weakened by the hi-lo operator's negligently driving his heavy machine over it. Although it is possible that negligent operation of the hi-lo machine could have weakened the straps, there was no evidence on the trial that such was the case. On the contrary, the hi-lo operator testified without contradiction, that he never drove his machine over the bilge cover because of the danger of getting stuck in the "alley," or depression. The court believes his testimony, and refuses to adopt the shipowner's speculation as to how the straps were weakened.
The court instructed the jury that plaintiff longshoreman was free from contributory negligence. Having found the hi-lo operator similarly free of negligence, and there being no evidence as to negligence on the part of any other of the stevedore's employees, the court finds no basis for imputing negligence to the stevedore. No claim is asserted of independent negligence on the part of the stevedore. However, neither this freedom from imputed or independent negligence of the stevedore, nor the jury's finding of negligence and/or unseaworthiness of the shipowner and vessel, extinguishes any right to indemnity that the shipowner may have against the stevedore.
A stevedore owes a shipowner a duty to perform his services safely under an implied warranty to perform his services in a workmanlike manner. Thus, a stevedore may be free of negligence, and yet fail to perform safely: the implied warranty provides "a basis for liability including negligent and non-negligent conduct alike." Italia Societa, etc. v. Oregon Stevedoring Co., 376 U.S. 315, 320, 84 S. Ct. 748, 751, 11 L. Ed. 2d 732 (1964). Similarly, even where the shipowner is at fault, the stevedore has a duty to indemnify the shipowner "where the stevedore is responsible for bringing into play the defect which caused a seaman's injury. * * *" Vaccaro v. Alcoa Steamship Co., Inc., 405 F.2d 1133, 1138 (2d Cir. 1968). The stevedore's implied warranty of workmanlike performance is exceedingly high, see Italia Societa, supra, 376 U.S. at 326, 84 S. Ct. ...