Appeal from summary judgment for shipowner on third-party action for indemnity from stevedore in longshoreman's negligence action, entered in United States District Court for the Eastern District of New York, Edward R. Neaher, J. Affirmed.
Moore, Feinberg and Van Graafeiland, Circuit Judges.
In this case we again have the three-cornered lawsuit involving an injured longshoreman, the shipowner and the stevedore. The complexity of the issues before us is lessened somewhat because on appeal only the stevedore and the shipowner remain in the litigation, the stevedore appealing from the grant of summary judgment for the shipowner on the latter's third-party complaint, by the United States District Court for the Eastern District of New York, Edward R. Neaher, J. We affirm.
Since the facts of the case are set out in detail in Judge Neaher's thorough opinion, 387 F. Supp. 754, we will discuss them only briefly. Joseph Rodriguez, a longshoreman employed by appellant American Stevedores, Inc. (Stevedore) was injured in July 1967 when he fell through an open hatch square in the upper tween deck of hatch #2 of a vessel owned by appellee Olaf Pedersen's Rederi A/S (Shipowner). Earlier in the day, Rodriguez had worked in that hatch, but the longshoremen had completed their work there and moved on to other tasks in another hatch. Telling his supervisor that he had left his hook and gloves in the #2 hatch, Rodriguez made his way back along a darkened corridor, with only a small penlight for illumination, ignoring a less direct but safer route. In the meantime, at the order of the vessel's chief officer, ship cleaners had removed the covers from the #2 hatch tween deck, which had been covered when the longshoremen were working; the cleaners had also covered the corresponding opening in the weather deck, so that the #2 hatch was now dark. When Rodriguez arrived on the tween deck of the darkened #2 hatch, he tripped and fell through the uncovered opening into the lower hold.
At the resulting trial in 1971, a jury found the Shipowner negligent, but reduced Rodriguez's damages from $80,000 to $35,000 because of his contributory negligence. The same jury denied the Shipowner's claim that it was entitled to indemnity from the Stevedore because the latter had breached its warranty of workmanlike performance, but the judge, the late George Rosling, set aside the verdict and ordered a new trial.*fn1 Before the new trial could begin, however, Judge Rosling died, and the case was assigned to Judge Neaher. Neither party had additional evidence to submit, and the Shipowner, contending that on the record of the prior trial it was entitled to indemnity as a matter of law, moved for summary judgment, which was granted. This appeal by the Stevedore followed.
The Stevedore raises two principal issues. First, it argues that the Shipowner is not entitled to indemnity because the Stevedore did not, as a matter of law, breach its warranty. As Judge Neaher correctly pointed out, a long line of cases in this circuit holds that as a matter of law, a stevedore's warranty is breached when it supplies a negligent employee, and that therefore a jury finding of contributory negligence on the part of a longshoreman-plaintiff requires that verdict be directed against his stevedore employer on this issue. King v. Deutsche Dampfs-Ges, 523 F.2d 1042, slip op. at 5479, 5484-85 (2d Cir. 1975); Hartnett v. Reiss S.S. Co., 421 F.2d 1011, 1017-18 (2d Cir.), cert. denied sub nom. Grain Handling Co. v. Hartnett, 400 U.S. 852, 27 L. Ed. 2d 90, 91 S. Ct. 49 (1970); McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334 (2d Cir.), cert. denied, sub nom. Golten Marine Co. v. Trelleborgs Angfartygs A/B, 395 U.S. 946, 23 L. Ed. 2d 464, 89 S. Ct. 2020 (1969); Mortensen v. A/S Glittre, 348 F.2d 383 (2d Cir. 1965).*fn2 The Stevedore's reliance on Nye v. A/S D/S Svendborg, 501 F.2d 376 (2d Cir. 1974), cert. denied sub nom. The Svendborg v. Marine Engine Specialties Corp., 420 U.S. 964, 43 L. Ed. 2d 442, 95 S. Ct. 1356 (1975), is misplaced, for that case explicitly distinguished cases involving the warranty. 501 F.2d at 380. Once the jury determined that Rodriguez, the Stevedore's employee, was contributorily negligent, no further issue of fact was presented; as a matter of law, the Stevedore breached its warranty.
The Stevedore's second argument is that even if it did breach its warranty, there remains an issue of fact as to whether there was "conduct on [the Shipowner's] part sufficient to preclude recovery." Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 2 L. Ed. 2d 491, 78 S. Ct. 438 (1958). Although the Supreme Court in Weyerhaeuser did not make clear what sort of conduct would be "sufficient to preclude recovery," we have held that in order to justify that result, the shipowner's fault
must at the least prevent or seriously handicap the stevedore in his ability to do a workmanlike job. Merely concurrent fault is not enough.
Albanese v. N.V. Nederl. Amerik Stoomv. Maats., 346 F.2d 481, 484 (2d Cir.), rev'd on other grounds, 382 U.S. 283, 15 L. Ed. 2d 327, 86 S. Ct. 429 (1965). See also Albanese v. N.V. Nederl. Amerik Stoomv. Maats., 392 F.2d 763, 765 (2d Cir.), rev'd on other grounds sub nom. International Terminal Operating Co. v. N.V. Nederl. Amerik Stoomv. Maats., 393 U.S. 74, 21 L. Ed. 2d 58, 89 S. Ct. 53 (1968); Hartnett v. Reiss S.S. Co., supra, 421 F.2d at 1017; Mortensen v. A/S Glittre, supra, 348 F.2d at 385. If this is to be the standard, a directed verdict for the Shipowner was in order here despite the Stevedore's claim that a jury question was presented. The Shipowner's fault was the creation of a potentially hazardous condition by uncovering the hatch square on the tween deck in hatch #2 and blocking off the light coming from above. Nothing about this negligence on the Shipowner's part prevented or hindred Rodriguez from rendering a workmanlike performance, that is, from using the safe route between hatches that was available, or at least securing adequate illumination before venturing down a dark corridor into a dark hatch.
The Stevedore argues, however, that a jury question was presented under our recent decisions in Conceicao v. New Jersey Export Marine Carpenters, Inc., 508 F.2d 437 (2d Cir. 1974), cert. denied, sub nom. Cia de Nav. Mar. Netumar v. Conceicao, 421 U.S. 949, 44 L. Ed. 2d 102, 95 S. Ct. 1680 (1975), and Hurdich v. Eastmount Shipping Corp., 503 F.2d 397 (2d Cir. 1974). In Conceicao, plaintiff longshoreman was injured by a rolling steel pipe when wooden pipe cribs broke because they were stowed with too many pipes by the stevedore employer. The plaintiff was not contributorily negligent. Although the jury found that the stevedore had breached its warranty, the jury also found that the shipowner's conduct precluded recovery, and we affirmed. The conduct held sufficient to preclude the shipowner's indemnity consisted essentially of its failure to give the stevedore proper information regarding the overall amount of pipes to be stowed and the location of available pipe beds and the shipowner's lack of supervision of the loading. This was a direct hindrance of a stevedore ...