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TRAVIS v. INTERNATIONAL MULTIFOODS CORP.

December 11, 1978

William TRAVIS
v.
INTERNATIONAL MULTIFOODS CORP. v. GREAT LAKES ASSOCIATES, INC.



The opinion of the court was delivered by: HOLDEN

MEMORANDUM OF DECISION

The plaintiff William Travis, a longshoreman, was injured on June 7, 1974 in the course of employment by Great Lakes Associates, Inc. (Great Lakes), a stevedoring company, while unloading grain from the vessel James E. Ferris in the Port of Buffalo. The consignee of the grain was International Multifoods Corp. (International). International rented to the ship all the mechanized unloading equipment, scoops and rigging required to unload the several holds of the ship into the consignee's elevators. International paid the charges for transporting the grain and is compensated for the use of its machinery and operating personnel at the rate of $ 5.00 per thousand bushels of grain unloaded. The operator of the mechanized equipment and deck hands were employees of International.

 Great Lakes was engaged by the ship to scoop the grain into mechanical unloading equipment consisting of rotating buckets of the conveyor, referred to as the "leg," which was operated by International personnel. *fn1" The plaintiff sustained personal injuries when a common machine bolt, supplied by International as a part of the rigging, gave way under the stress of moving the back scoop toward the conveyor or buckets. The fault in the bolt unleashed the heavy steel chain, called a clevis chain, that was linked to a cleat on a wall of the hold.

 Great Lakes was insured for its liabilities to its employees under the Longshoremen's and Harbor Workers' Compensation Act (the Act) by the State Insurance Fund. This insurance carrier paid full medical and compensation benefits to the plaintiff. Thereafter the plaintiff commenced this action, seeking $ 25,000 against International, alleging negligence and breach of warranty of the safety and sufficiency of the machinery and equipment furnished for the discharge of the grain cargo. International, in turn, filed the third party claim, now in suit, seeking full indemnity from Great Lakes.

 International settled the main action before trial by the payment of $ 10,352.57. The evidence presented in the trial of the third party action is undisputed that the compromise achieved by Travis' experienced trial counsel was reasonable from the standpoint of both parties to the principal action. The case proceeded to trial on the third party claim of International against Great Lakes for indemnification of the cost of settlement, including attorney's fees incurred in the compromise of the longshoreman Travis' claim against the non-employer stevedore.

 At the close of the third party plaintiff's evidence, Great Lakes moved for a directed verdict and dismissal of the third party complaint asserted by International. Great Lakes offered no evidence except for an engineering report which was addressed to the issue of the fairness and reasonableness of the settlement made by International on the employee's claim in the main action. The court ruled from the bench that there were no issues of fact to be determined by the jury and that a written memorandum of decision would be filed which would include a direction to the clerk to enter judgment for the third party defendant on International's claim for contribution and indemnity against Great Lakes.

 The facts, presented in the light most favorable to International's claim, establish that on June 7, 1974, William Travis was dispatched by the union gang boss, with several fellow employees of Great Lakes, to unload the grain consigned to International, which was transported from Duluth to the Port of Buffalo on the James E. Ferris. Upon arrival in port, International spotted the ship at one of International's elevators. The ship was docked by direction of the International's unloading crew. International operating personnel consisted of the elevator superintendent; he controls the conveyor from a mobile tower. A deck man was stationed aboard the vessel with observation of both the tower and the hold. He served as the "eyes of the tower" and communicated messages from the longshoremen in the hold to the tower concerning the unloading operations. International also had an assistant superintendent on duty during the unloading. When the hold was opened, the tower operator lowered the leg into the hold by winches, on signal from the deck man. When the leg was first lowered into the hold the buckets on the conveyor were filled by gravity. When the force of gravity of the grain cargo was spent, the second phase of the stevedoring operation was undertaken by the scoopers employed by Great Lakes.

 The longshoremen removed the rigging for the scooping operation from the tower where it had been hung and stored after the equipment was inspected by International on May 23, 1974, when it was last used. Great Lakes' employees rely on International personnel to inspect and ready the equipment for its use in the scooping operation and this was understood by the employees of both companies.

 When the remaining cargo in the hold was ready to be scooped by Great Lakes, International's equipment and rigging was removed from its storage in the tower of the leg and turned over to Great Lakes for immediate use by the latter's longshoremen in scooping the grain remaining in the hold. The equipment and rigging included two scoops made of magnesium, approximately 41/2 feet square with a heel 3 feet high. A rope or line of polyester dacron material was attached to the back scoop and extended through a quarter block, or pulley with a J-hook. A heavy clevis chain, inserted in the J-hook, was fastened through the end links to a cleat on the back of the ship's hold by a 3/4 common machine bolt, 5 inches in length. The linkage was completed by a nut affixed to the threaded end of the lynch bolt. The rope through the quarter block extended to the friction drum in the tower. The tower operator adjusts the friction. The movement of the shovel scoops is controlled by the scooper in the hold by means of a rope attached to a clutch which governs the movement of the frictions.

 The lines and equipment for the back scoop, which Travis was operating on June 7, 1974, were rigged by Stanley Bruckman, who was operating the front scoop as a brakeman in the hold alongside Travis. It was Bruckman who made the actual connection of the clevis chain to the hold by means of the bolt. Travis' only part in the rigging operation was to lower the gear from the deck into the hold. As soon as the rigging was completed, the scooping operation was commenced with Bruckman braking the front shovel; Travis was working as brakeman for the back shovel. After a couple of pulls on the back shovel were made, the bolt, which linked the clevis chain to the ship, suddenly fractured at its threaded section, just below the shank. The clevis chain was flung against Travis, knocking him unconscious and inflicting the personal injuries which are the subject of this litigation. The parts of the fragmented bolt which were received in evidence (Pltf. Ex. 2 and 3) indicate the bolt was flawed in the lower threaded section, between the nut and the shank.

 Evidence given by Stanley Bruckman was to the effect that he was not sure whether he inspected the equipment supplied by International before it was rigged; that the equipment was supposed to be inspected by International before it was received by Great Lakes' longshoremen. Apparently the flaw in the bolt was not detected by either International or Great Lakes, for it was the practice of the personnel of both stevedores to discard all defective bolts as soon as any defect was discovered.

 THE LAW

 Upon consideration of the total evidence presented in the trial of the third party action, the court was persuaded that there was no issue of fact for determination by the jury. Great Lakes is not liable to International as a matter of law; International's third party complaint must be dismissed.

 The sum and substance of this third party action is an effort by a negligent wrongdoer to recover the cost of its settlement with the victim from the injured longshoremen's employer. Indemnification of the ship by the employer stevedore was permissible prior to 1972, E.g., Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956). The legal basis for the recovery was founded on the breach of stevedore's warranty of workmanlike performance owing to the ship. Id. at 134, 76 S. Ct. 232. Even under the Ryan doctrine, the stevedore's warranty to the ship did not prevail between co-stevedores. Hartnett v. Reiss Steamship Co., 421 F.2d 1011, 1017 (2d Cir.) Cert. denied, 400 U.S. 852, 91 S. Ct. 49, 27 L. Ed. 2d 90 (1970). See Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 721 (2d Cir. 1978). The legislative history makes clear that in 1972 the Congress became acutely aware that the ...


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