The opinion of the court was delivered by: BRIEANT
Plaintiff Vincent Spadola is a citizen and resident of New York. Defendant Viking Yacht Company is alleged to be a "domestic corporation," (Complaint, para. SECOND) having "a place of doing business at Route 9 and Bass River, New Gretna, New York" (Complaint, para. THIRD). Apparently, in fact it is a New Jersey corporation. By paragraph TENTH of the original complaint filed April 3, 1977, subject matter jurisdiction is said to be founded on 28 U.S.C. § 1332 (diversity) and § 1333 (admiralty and maritime).
The facts, for purposes of this motion, are not in dispute. Plaintiff is a longshoreman, who was, on May 2, 1975, employed at Pier 9, Brooklyn, New York by third-party defendant John W. McGrath Corporation ("McGrath"). McGrath was a stevedore retained at that time and place to load cargo aboard a vessel owned by third-party defendant Costa Line.
Part of the cargo being lifted by the Costa Line vessel through the services of McGrath as stevedore and Spadola as long-shoreman, was a yacht. The yacht is not a "vessel" for purposes of this litigation, and in our treatment of the case we regard it no differently than a container filled with miscellaneous goods, a locomotive, or crate, box or bale of any kind of dry cargo. The defendant Viking Yacht Company ("Viking Yacht"), owner of the yacht, was a consignor or shipper of ocean freight. It had tendered the yacht to the Costa Line vessel for transportation as freight in foreign ocean commerce. To do this, Viking Yacht caused the yacht to be transported to the pier on its flat-bed truck, operated by its employee.
While Viking's motor truck was standing on the pier next to the Costa Line vessel, and while the Costa Line vessel's stevedore, McGrath, was engaged in lifting the yacht aboard its vessel to be carried as deck cargo, and while plaintiff Spadola was assisting in that stevedoring operation, Viking's truck was caused to move due to the claimed negligence of the driver of the truck, Viking's employee or authorized operator. In the words of Paragraph SIXTH of the complaint, as amended, plaintiff alleges that "due to the negligence of the driver of said truck, plaintiff was caused to sustain severe and permanent injuries, through no fault on his part, but solely as a result of the negligence of [Viking Yacht's] employee." The truck ran over his foot.
It will be seen that the accident happened in the context of a stevedoring operation. Accordingly, Spadola has been or will be paid the Workmen's Compensation benefits required by the Longshoremen's & Harbor Workers' Compensation Act (LHWCA). That compensation was paid for by his employer, McGrath.
Insofar as concerns McGrath, the third-party complaint filed September 2, 1977 seeks indemnification or contribution. McGrath has now moved, pursuant to Rule 12(b), F.R.Civ.P., to dismiss on the ground that such action is "barred by § 905(b) of the LHWCA."
Clearly, this action arises out of a maritime tort, occurring on the pier or stringpiece, next to the vessel, in the course of a stevedoring operation. This is not an automobile accident case or a pedestrian knockdown. Federal law will apply. See 33 U.S.C. § 903(a).
Accordingly, we turn first to the claim for contribution alternatively pleaded against McGrath. It has been clear at least since Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 285, 72 S. Ct. 277, 96 L. Ed. 318 (1952) that there is no contribution among joint tortfeasors in the context of a maritime personal injury case, where the tortfeasor against whom the contribution is sought has paid compensation under the LHWCA. The Halcyon rule survived the 1972 amendments to the LWHCA, which do not deal with the issue. That Halcyon "was, and still is, good law on its facts" is the express holding in Cooper Stevedoring Co., Inc. v. Fritz Kopke Inc., 417 U.S. 106, 115, 94 S. Ct. 2174, 2179, 40 L. Ed. 2d 694 (1974). In Cooper Stevedoring, the Supreme Court explained that in Halcyon no contribution could be required of Haenn because Haenn was the employer of the injured plaintiff, who had furnished compensation under the LHWCA. In Cooper Stevedoring the joint tortfeasor was not an employer. Accordingly, since the plaintiff could have sued the joint tortfeasor directly, and was not barred therefrom by the LHWCA, contribution was proper.
To the extent contribution is sought, the third-party complaint fails to state a claim against McGrath.
We turn now to the question of indemnity. Although Viking Yacht's pleading is unclear, apparently no express contract of indemnity exists between McGrath and the numerous consignors of freight. Presumably Viking Yacht relies on an implied warranty of workmanlike service given to the Costa Line vessel, recognized in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956), and its progeny, of which all injured persons on the vessel or pier are either "third-party beneficiaries," or able to sue absent any privity, or intention on the part of Costa or McGrath that they benefit thereby.
This leads us directly to the construction to be placed upon the 1972 amendment to § 5(b) of the LHWCA [33 U.S.C. § 905(b)]. That amendment reads in relevant part as follows:
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based ...