The opinion of the court was delivered by: PALMIERI
PALMIERI, District Judge.
This is a claim for indemnity arising out of a personal injury action brought by a seaman, Leonard Imanuel, under the Jones Act, 46 U.S.C. § 688, against his employer, Lykes Bros. Steamship Co., Inc. (Lykes). Lykes, a shipowner, has impleaded Todd Shipyards Corporation, a repair yard (Todd or Todd Shipyards), as a third-party defendant. Imanuel's underlying claim was settled before trial by the payment of $325,000.00 by Lykes Brothers. Asserting that Todd Shipyards was solely liable for the injuries, Lykes is seeking indemnity from Todd for the amount of the settlement on the ground that Todd breached its warranty to perform certain ship repairs in a careful and workmanlike manner. There is no issue before this Court regarding the amount of the settlement. The sole issue is whether Lykes has sustained its claim for indemnity against Todd.
The S.S. NANCY LYKES, the vessel on which the accident occurred, had been extensively altered and repaired by Todd over a period of months (between June and October 1971) before the occurrence of the accident. However, the events relevant to the accident took place substantially within a short period of time prior to its occurrence on December 10, 1971.The ship was tied to a pier at Houston, Texas at that time. The plaintiff seaman was one of the crewmen who had joined the ship only a few days before in preparation for its return to service.
The elevator platform and its related equipment were maintained and controlled by Lykes. On the day of the accident and for a number of days before, it was used by the ship's crew. No claim is made by Lykes that Todd's conversion and repair work in any way included work on the elevator platform. Lykes' claim for indemnity against Todd rests upon a factually circumscribed claim that Todd in performing certain work in the engine room early in December 1971, and in moving machinery through the elevator shaft by an overhead crane, struck the cables and damaged them. There were no eyewitnesses to any such occurrence, Lykes' claim resting entirely on circumstantial evidence.
At the time of the accident, the plaintiff Imanuel was working with his immediate supervisor, Chief Electrician Haag, on the engine room elevator platform. The work had progressed for several hours before the accident. Imanuel and Haag were checking its operational condition and, in the process, disconnected practically every electrical safety device of the equipment. Neither Imanuel nor Haag was an elevator mechanic. They were electricians. Both men were standing on the elevator platform checking a switch when Haag decided to leave to fetch a meter for further tests. The platform had been raised to its uppermost limits at the main deck. Just as Haag stepped off the lift platform and onto the main deck, Imanuel heard a loud grinding noise and the lift began a free fall down the shaft with Imanuel aboard. He was severely injured, having fallen about the equivalent of four stories, or about 60 feet. The immediate cause of the fall, or perhaps its result, was the substantially contemporaneous parting of the sustaining cables. They were severed, as though with a knife, by an impact occurring at the time of the accident. They were cut at about the same distance from the anchored ends. The fall of the platform might have been prevented if the broken rope safety device under the platform intended for just such a calamity, had been operable. But it had never been maintained by Lykes and it is reasonable to infer that it was permitted to become useless. In any event, the evidence is quite clear that the cables were in satisfactory condition prior to the accident. They did not part because of any inherent defect or because of any lack of tensile strength. In short, Lykes has failed to prove any actionable fault by Todd. The findings of fact and conclusions of law which follow are intended to substantiate and to amplify what has already been said, and to demonstrate that Lykes has not sustained its claim of indemnity against Todd Shipyards.
1. The plaintiff, Leonard Imanuel, was employed by Lykes Bros. Steamship Co., Inc. (Lykes) as a member of the crew and as a second electrician aboard the S.S. NANCY LYKES, a cargo vessel of about ten thousand gross tons.
2. Lykes is a corporation organized and existing by virtue of the laws of the State of Louisiana, with its principal place of business in New Orleans, Louisiana. It was at all relevant times the owner of the S.S. NANCY LYKES.
3. Todd Shipyards is a corporation organized and existing by virtue of the laws of the State of New York with its principal place of business in the Borough of Manhattan, City and State of New York.
4. On December 10, 1971, while working as a crewman in the employ of Lykes, the plaintiff was seriously injured when the engine room lift, an electrically operated platform type elevator used for the movement of stores and on which he was working, fell to the bottom of the elevator shaft.
5. On February 3, 1972, plaintiff commenced this action under the Jones Act and the General Maritime Law against Lykes to recover damages as a consequence of the injuries sustained by him in the accident hereinabove described.
6. On November 1, 1972, Lykes commenced a third-party action against Todd Shipyards Corporation (Todd or Todd Shipyards) under the General Maritime Law claiming indemnity for any recovery by plaintiff against Lykes on the ground that any liability of Lykes to plaintiff would have been brought about by the failure of Todd Shipyards to perform repair work undertaken by it on the S.S. NANCY LYKES in a safe and workmanlike manner.
7. Plaintiff's case against Lykes was settled and discontinued for the sum of $325,000.00, which was paid by Lykes. A judgment was entered for this amount against Lykes on November 29, 1974, and plaintiff's satisfaction of judgment was entered on December 17, 1974.
8. No issue is presented in this third-party action with respect to the settlement of the seaman's action. Todd has conceded the reasonableness of the amount of settlement.
9. From about December 3 to about December 6, 1971, Todd Shipyards moved certain materials into and out of the engine room of the S.S. NANCY LYKES while it was moored at a Todd shipyard dock. It used the shaft of the engine room lift for this purpose by means of an overhead shore crane with hook and falls. Todd did not use the engine room lift at any time. The lift platform remained at the bottom of the shaft throughout the Todd work in the engine room. Lykes had requested Todd not to use the platform.
10. None of Todd's work had any relation to the repair or maintenance of the engine room platform lift.
11. There is no eyewitness proof that any of the materials moved by Todd through the shaft ...