UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: August 8, 1975.
JACKSON O. KING, PLAINTIFF-APPELLEE,
DEUTSCHE DAMPFS-GES, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE-APPELLANT, V. INTERNATIONAL TERMINAL OPERATING CO. INC., AND COURT CARPENTRY & MARINE CONTRACTING COMPANY, THIRD-PARTY DEFENDANTS-APPELLANTS
Appeal from judgment entered after jury trial in the Southern District of New York, Constance Baker Motley, District Judge, awarding plaintiff $42,900 damages against shipowner for injuries sustained while working aboard ship and awarding shipowner full indemnification against both the stevedore and plaintiff's employer.
Mulligan, Timbers and Gurfein, Circuit Judges.
TIMBERS, Circuit Judge:
On this appeal from a judgment entered January 22, 1975 after a three day jury trial in the Southern District of New York, Constance Baker Motley, District Judge, awarding plaintiff $42,900 damages against the shipowner for injuries sustained while working aboard ship and awarding the shipowner full indemnification against both the stevedore and plaintiff's employer, the essential issues are:
(1) Whether the court erred in failing to dismiss the complaint for lack of sufficient evidence on the issue of unseaworthiness.
(2) Whether the court erred in granting judgment n.o.v. in favor of the shipowner on its indemnity claim against plaintiff's employer.
Finding no error, we affirm.
Jackson O. King was employed as a marine carpenter by Court Carpentry & Marine Contracting Company (Court Carpentry) on June 18, 1968. He was injured while working in the hold of the M/S Trautenfels which was owned by Deutsche Dampfs-Ges (Deutsche). King entered the hold to secure cargo which previously had been loaded into the hold. In order to do so, he was required to walk directly on steel "I" or "H" beams which had been stowed side by side facing fore and aft to form a superdeck in No. 4 hatch, by the stevedore, International Terminal Operating Co. Inc. (ITO). While walking on the beams, King fell into a space between two of the beams and sustained an injury to his left knee.
The instant appeal is from the judgment entered after a second trial which began October 9, 1974.*fn1 In response to special questions, the jury found that King's injuries were caused by the vessel's unseaworthiness, but reduced its $57,200 verdict to $42,900 because of King's 25% contributory negligence. After instructions from the court, the jury answered further special questions by awarding indemnification in favor of Deutsche against ITO ON THE GROUND THAT ITO had breached its implied warranty of workmanlike performance in stowing the beams improperly so as to leave the space between the beams into which King fell; but the jury rejected Deutsche's claim of indemnity against Court Carpentry on the ground that Deutsche had not sustained its burden of proving that Court Carpentry had breached its implied warranty of workmanlike performance by failing to discover the dangerous condition.
On Deutsche's post trial motion for judgment n.o.v., the court held as a matter of law that Deutsche was entitled to judgment over against Court Carpentry, King's employer, in view of the jury's finding of contributory negligence on the part of King.
This appeal by ITO and Court Carpentry followed. Deutsche has taken a protective appeal against King and in opposition to the appeals of ITO and Court Carpentry which seek to overturn the indemnity awards.
Turning first to the claim that the district court erred in failing to dismiss the complaint for lack of sufficient evidence on the issue of unseaworthiness, we hold that this issue was submitted properly to the jury and that there was ample evidence to support the jury's finding of unseaworthiness.
In determining whether a motion for a directed verdict should have been granted as appellants claim, it is axiomatic that the evidence must be viewed in the light most favorable to the party against whom the motion was made. Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2 Cir. 1974); O'Connor v. Pennsylvania R.R. Co., 308 F.2d 911, 914-15 (2 Cir. 1962). King testified that he fell into a space between two of the beams stowed by ITO. This was corroborated by Andrew Auletti, also an employee of Court Carpentry and King's supervisor. Auletti testified that a careful gang of longshoremen would have stowed the beams so that they fitted together; that on other occasions he had seen such beams stowed tightly together; and that this was the way beams were supposed to be stowed.*fn2 Such evidence presented a jury issue as to whether the ship was rendered unseaworthy due to improper stowage.
Deutsche and ITO at trial sought to establish that the space was on the periphery of the beams near the wall of the vessel, and that such spaces were commonly found and largely unavoidable. This evidence simply sharpened the issue of fact for the jury to resolve.*fn3 The court so held. We agree. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962); Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 2 L. Ed. 2d 491, 78 S. Ct. 438 (1958).
On appeal we are no more free than the district court to ignore evidence favorable to plaintiff or "to set aside the jury verdict merely because the jury could have drawn different inferences . . . ." Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 88 L. Ed. 520, 64 S. Ct. 409 (1944); Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 109-10, 4 L. Ed. 2d 142, 80 S. Ct. 173 (1959). Our review is limited to determining whether there was substantial evidence to support the verdict that the vessel was unseaworthy because the beams had been improperly stowed by ITO. We hold that there was substantial evidence.*fn4
The remaining issue is Court Carpentry's claim that the court erred in granting judgment n.o.v. in favor of Deutsche on its indemnity claim against Court Carpentry, King's employer, in view of the jury's finding of contributory negligence on the part of King.
The short answer to this claim of error is that it is foreclosed by a line of decisions by our Court stemming from Italia Soc. v. Oregon Stevedoring Co., 376 U.S. 315, 11 L. Ed. 2d 732, 84 S. Ct. 748 (1964).*fn5 In Mortensen v. A/S Glittre, 348 F.2d 383, 385 (2 Cir. 1965), we held that the contributory negligence of an injured plaintiff was a breach of his employer's warranty of workmanlike performance, the breach of warranty following as a matter of law from the finding of contributory negligence. Appellant's claims to the contrary have been rejected by us in Hartnett v. Reiss Steamship Co., 421 F.2d 1011, 1017-18 (2 Cir.), cert. denied, 400 U.S. 852, 91 S. Ct. 49, 27 L. Ed. 2d 90 (1970), and McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1337 (2 Cir.), cert. denied, 395 U.S. 946, 23 L. Ed. 2d 464, 89 S. Ct. 2020 (1969).
Moreover, contrary to Court Carpentry's assertion, no proof is required that the employer failed to correct a hazard or to prevent its employees from exposing themselves to a danger of which it had imputed knowledge. The warranty of workmanlike performance includes the furnishing of personnel who will not injure themselves. McLaughlin v. Trelleborgs Angfartygs A/B, supra, 408 F.2d at 1337.*fn6