Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROGERS v. NEW JERSEY BARGING CORP.

June 13, 1983

ANDREW T. ROGERS, JR. and BARBARA ROGERS, Plaintiffs,
v.
NEW JERSEY BARGING CORP., AMERADA HESS CORP., SPENTONBUSH FUEL TRANSPORT SERVICE, INC., SPENTONBUSH/RED STAR COMPANIES, HYGRADE OPERATORS, INC., DIESEL VESSEL OPERATORS, INC., RED STAR MARINE SERVICE INC., MORANIA # 4 INC., and MORANIA OIL TANKER CORP., Defendants; In the Matter of the: Complaint of New Jersey Barging Corporation as Owner of the tank barge SALISBURY, for Exoneration from or limitation of Liability.



The opinion of the court was delivered by: SAND

SAND, J.

New Jersey Barging Corporation ("New Jersey") and Morania Oil Tanker Corporation (and Morania #4 Inc.) ("Morania"), two of the defendants in this admiralty action, filed cross-claims against each other for indemnity and/or contribution. After settlement of plaintiff's direct claims and after three days of trial on defendants' cross-claims, we announced our findings of fact and conclusions of law in open court, awarding indemnity in favor of defendant New Jersey against defendant Morania. Morania now moves to strike the award of indemnity as unsupported by our findings of fact and the applicable law. Both parties have submitted briefs and supporting affidavits addressing the circumstances under which indemnification is proper.

 FACTS

 Plaintiff Andrew Rogers was severely injured on January 25, 1982 while serving as a mate on board the barge Salisbury, which was owned by defendant New Jersey Barging. Defendant Morania was at the time of the accident under contract to New Jersey to provide towing services to the Salisbury. Rogers *fn1" commenced this action under our admiralty jurisdiction, 28 U.S.C. ┬ž 1333, asserting claims against New Jersey for negligence, unseaworthiness, and maintenance and cure, and against Morania for negligence. Morania and New Jersey filed opposing cross-claims, each seeking contribution and/or indemnity for any liability they might incur to the plaintiff. New Jersey also filed a separate action in this Court for exoneration from or limitation of liability, which was consolidated with plaintiff's direct action for purposes of trial.

 Prior to trial, Rogers dismissed his negligence and unseaworthiness claims against New Jersey and settled his claim for past and future maintenance and cure for $49,247.24. Also prior to trial, Rogers entered into a structured settlement with respect to his negligence claim against Morania valued at $907,550, to be paid over a period of years. The case proceeded to trial solely to resolve the defendants' cross-claims for indemnity and contribution and, if necessary, New Jersey's exoneration and limitation claims.

 This Court found that Morania had contracted with New Jersey to tow the barge Salisbury on a round-trip voyage from Bayonne, New Jersey to Groton, Connecticut. The accident giving rise to this action occurred on board the Salisbury on the morning of January 25, 1982, during an otherwise routine undocking operation. The barge was moored to the dock at Groton by a set of lines. The captain of the tug, Captain Davin, instructed the bargeman, Mr. Rogers, as to the sequence in which Rogers was to release the lines in preparing to undock the barge. After all but one of the lines were released, Rogers was to wait until he heard the sound of the tug's whistle, which would serve as the signal that Davin wanted the last line released. This procedure was in accordance with custom and practice.

 After the tug's whistle is sounded, the custom and practice is for the operator of the tug to await some signal from the bargeman, either visual or by radio, indicating that the last line has been released. The tug then can begin safely to tow the barge away from the dock. We found that this practice was not followed in this case. Instead, after instructing Rogers to release the line, Captain Davin waited an interval of time and then assumed without receiving a signal from Rogers that all lines had been released. The tug began to tow the barge while one line remained attached to the dock. Because of the tension on the remaining line created by the barge's departure from the dock, the excess portion of line, which was coiled up on the barge's deck, began to unravel. As a result, the eye attached to the end of the line, used to fasten the line to the deck cleat, was projected towards Rogers. The eye struck Rogers and, together with the force of the line, threw him into the water, severed one of his legs, and caused other severe internal injuries.

 On the basis of these facts and a prior proceeding before the Coast Guard, we found that the undocking operation was negligently performed by Morania and was a cause of Rogers' injuries.

 Morania argued at trial that New Jersey was also responsible for causing Rogers' injuries, asserting that the barge was unseaworthy and negligently maintained. According to Morania, New Jersey was responsible for four factors that contributed to the accident: the presence of ice on the deck of the barge at the time of the accident; the improper placement on the end of the line of the eye that struck and injured Rogers; the improper coiling of the excess line; and the absence of a second crewmember aboard the barge at the time of the accident in violation of applicable regulations. We rejected each of these claims, finding no evidence of ice and no basis for a finding that the presence of the eye, the coiling of the line, or the absence of a second crew member created a negligent or unseaworthy condition contributing to the cause of the accident. We therefore dismissed Morania's cross-claim, held that New Jersey was entitled to indemnification for the liabilities it incurred that were caused by Morania's negligence, and directed that a judgment be submitted.

 DISCUSSION

 Morania raises a number of objections to our award of indemnity: first, that our factual findings provide no basis for indemnification under the law of the Second Circuit; second, that New Jersey should not be indemnified for that portion of its settlement covering future maintenance and cure on the grounds that Morania's prior settlement with Rogers -- of which New Jersey was fully aware -- already provided for all of Rogers' future medical needs; third, that indemnification for New Jersey's attorneys' fees should be limited to expenses incurred in defending against Rogers' direct claim for maintenance and cure, and may not include fees expended in defending against Rogers' negligence and unseaworthiness claims or Morania's cross-claim, or in pursuing New Jersey's direct indemnity action against Morania. Finally, Morania takes issue with a number of specific items for which New Jersey seeks indemnification, as well as with the overall reasonableness of New Jersey's charge for attorneys' fees.

 1. Right to Indemnity

 In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956), the Supreme Court established that a stevedore owed an implied warranty of workmanlike service to a shipowner in performing its loading contract. This warranty permits the shipowner to obtain indemnification from the stevedore where the shipowner is exposed to liability to a longshoreman injured as the result of the stevedore's negligent creation of an unseaworthy condition aboard the vessel. Later cases have expanded the breadth and contours of Ryan indemnity. In Crumady v. The J. H. Fisser, 358 U.S. 423, 3 L. Ed. 2d 413, 79 S. Ct. 445 (1959), for example, the Supreme Court held that the stevedore breaches its warranty of workmanlike service not only by negligently creating an unseaworthy condition, but also by negligently bringing into play a pre-existing unseaworthy condition aboard the ship. Other cases have extended the concept of an implied warranty of workmanlike service to other maritime contracts, including contracts of towage. E.g., Fairmont Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252 (2d Cir.), cert. denied, 423 U.S. 838, 46 L. Ed. 2d 57, 96 S. Ct. 66 (1975); Dunbar v. Henry DuBois' Sons Co., 275 F.2d 304 (2d Cir.), cert. denied, 364 U.S. 815, 5 L. Ed. 2d 46, 81 S. Ct. 45 (1960).

 Despite the varying circumstances under which Ryan has been held to apply, Morania nevertheless disputes a finding of indemnity in this action. Morania argues that this Court's sole factual finding with respect to it was one of negligence, noting correctly that we made no explicit finding after trial that Morania breached or even owed a warranty of workmanlike services. Therefore, according to Morania, the predicate to an award of indemnity is lacking. Moreover, Morania argues that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.