Appeal from judgment entered by Judge Owen of the United States District Court, Southern District of New York, in third-party complaint in admiralty for negligence and breach of warranty. Judgment affirmed.
Oakes, Circuit Judge, Wyzanski*fn* and Holden,*fn** District Judges.
On January 18, 1971, Netumar's Brazilian flag vessel M/V Amazonia sailed from New York for Brazil. Included in her cargo were two 17-ton Terex tractors. The tractors were loaded by United Terminals, Inc., and secured by New Jersey Export Marine Carpenters, Inc. The tractors were stowed athwartships in the Amazonia's No. 2 'tween deck, with the buckets removed, exposing the trunnion arms of the tractor's lifts to the shell of the vessel below the water line. For 24 hours the passage was uneventful, but late on the 19th the weather began to build and the vessel rolled and pitched continuously through the 20th. At some point the starboardmost tractor broke its lashings and the exposed arms of the device punctured the shell plating on the starboard side just above the 'tween deck level. The last watch of the 20th discovered flooding in the No. 2 hold where the Terexes were stowed. Listing heavily to starboard, the Amazonia made her port of refuge, Bermuda, on January 21.
The cargo plaintiffs, Footner et al., sued the vessel and Netumar; Netumar filed a third-party claim for indemnity against United and Export, the stevedore and marine carpentry contractor. After the cargo plaintiffs amended their complaint to assert a cause of action against the third-party defendants, Netumar settled the cargo claims and continued the suit against United and Export. In a second action Netumar sued United and Export directly for negligence and breach of warranty. The two actions were consolidated and tried before Judge Owen on the sole issue of liability. At the close of the plaintiffs' case Judge Owen dismissed the action against United and the stevedore is not a party to this appeal.
In its order of July 22, 1976, the trial court found against the vessel and her owner on their claims against Export. In its accompanying opinion the court determined that the tractors had been properly lashed with suitable materials and that the sufficiency of this lashing was confirmed by a National Cargo Bureau certificate. The court further determined that the crew of the Amazonia had failed to adjust the tautness of the lashings after a point eighteen hours out of New York, despite the heavy weather, and that either a fire on board or other problems in management of the vessel caused the crew to overlook the pounding of the tractor arms against the hull. Judge Owen concluded that the plaintiffs had failed to establish the cause of the tractor's release and resulting damage, and specifically held that the cargo had been properly lashed.
The Amazonia and Netumar appeal, challenging the trial court's findings and conclusions as insufficient under Fed. R.Civ.P. 52(a). As to the merits, the plaintiffs contend that the district court incorrectly applied negligence concepts to a relationship governed by rules of warranty arising from the contract between the vessel and her marine service contractors.
The appellants further challenge the trial court's findings on the weight attached to the National Cargo Bureau certificate and its disregard of answers to interrogatories by Export's president to the effect that the tractors were lashed horizontally to pad-eyes on the ship's sides instead of downward to deck-level fittings. The appellants charge that the court speculated that rolls of newsprint stowed in the No. 2 'tween deck could have dislodged and caused the tractor to break its lashings. Error is assigned to court's emphasis on the weather and the crew's performance as substantial factors in the misadventure.
The findings and the conclusions derived from the facts found are included in the short opinion filed by the court. The judgment of the trial court, sitting without a jury in admiralty, will not be set aside on appeal unless it is clearly erroneous. Fed.R.Civ.P. 52(a); cf. McAllister v. United States, 348 U.S. 19, 24, 99 L. Ed. 20, 75 S. Ct. 6 (1954). The court's opinion, in form and substance, meets the demands of Rule 52 and we affirm.
The court resolved the issue of liability charged against the appellee, New Jersey Export, by its factual determination that the Terexes were properly lashed. In the presence of this clear and definite finding Judge Owen found it to be ". . . impossible to tell why the Terex broke loose." After concluding that New Jersey Export was without fault in securing the vehicles and suggesting possible alternative explanations for the rupture which might be assigned to shortages in the performance of the Amazonia's crew or to improper stowage of other cargo, Judge Owen concluded that "the Amazonia has not met its burden of proving the cause of the Terexes getting loose and one of them puncturing the hull."
It must be recognized as both parties to this appeal explicitly do, that a shipowner may receive indemnity from a marine contractor for breach of implied warranty of workmanlike service, albeit that such performance was done without negligence. Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 324, 11 L. Ed. 2d 732, 84 S. Ct. 748 (1964); Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 133, 100 L. Ed. 133, 76 S. Ct. 232 (1956). The appellee's warranty of workmanlike service is an incident of its undertaking with the shipowner and "is comparable to a manufacturer's warranty of the soundness of its manufactured product." Id. 133-134; Booth Steamship Co. Ltd. v. Meier & Oelhaf & Co., 262 F.2d 310, 313 (2d Cir. 1958). Thus the plaintiff was called upon to prove that Export's lashing and securing of the tractors were performed in an unworkmanlike manner and the breach of its warranty in this respect caused the damage claimed.
The question of whether the tractors were properly secured was the subject of sharp conflict in the evidence. The trial court resolved the issue by finding Export had properly performed. The appellants challenge this determination by urging that the court ignored sworn admissions by the president of Export in 1973 in response to interrogatories to the effect that the tractors were lashed horizontally to pad-eyes on the skin of the vessel and were not chocked under the axles. The answers given by Export's president Devaney are abbreviated without explanation or detail. In any event, they do not bear the connotation of faulty lashing urged by the appellants. If the responses permit the inference that the tractors were lashed to the shell of the vessel, instead of the deck, the evidence was not given substantial weight against other proof presented by the appellee. Alphonse D'Ambrosio, the carpenter foreman on the job for Export, but not in its employ at the time of trial, testified that the tractors were cribbed and blocked with legs, braces and shorings, that they were lashed to the deck as well as the sides, and that the axles were properly chocked. Another expert witness, Captain Wheeler, testified that tractors stowed as D'Ambrosio had described and displayed according to a model, would have been properly secured. The weight to be given to the answers to appellant's interrogatories and that of the experts was exclusively the province for the trial court and not subject to revision on appeal.
The appellants assign error to the district court's reliance on the National Cargo Bureau certificate. Contrary to the appellants' contention, the surveyor's certificate that the tractors were properly lashed, was not the only evidence supportive of the ultimate finding of Export's workmanlike performance. The testimony of appellee's lashing foreman, D'Ambrosio, and Export's expert witness, Captain Wheeler, affords substantial support to the determination that the Terex tractors were properly secured and lashed.*fn1
The appellants argue that National Cargo Bureau certificates are of little or no weight, citing F. W. Pirie Co. v. SS Mormactrade, 1970 AMC 1327 (S.D.N.Y. 1970), and Waterman SS Corp. v. United States S.R. & M. Co., 155 F.2d 687 (5th Cir. 1946). We recognize that Cargo certificates are not controlling on the issue of seaworthiness in cases under the Carriage of Goods by Sea Act, 46 U.S.C. § 1304 (2), and the Harter Act, 46 U.S.C. § 192. E.g., Waterman SS Corp. v. United States S.R. & M. Co., supra (COGSA); Bank Line v. Porter, 25 F.2d 843 (4th Cir. 1928), cert. denied, 278 U.S. 623, 73 L. Ed. 544, 49 S. Ct. 25; The Vestris, 60 F.2d 273 (S.D.N.Y. 1932) (Harter Act). While this action by the vessel and her owners against the marine service contractor is not governed by those statutes, we are inclined to accept the appellant's argument that the Cargo Bureau certificate could not conclusively free the contractor from liability to the vessel or her owners for cargo losses. Be that as it may, as noted above, the ...