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December 17, 1991


The opinion of the court was delivered by: Mukasey, District Judge.


Plaintiff Carolynn Anne Stanley was injured while aboard a vessel she alleges was negligently designed and manufactured by defendant Bertram-Trojan, Inc. Defendant has impleaded the vessel's owner, Chris Blackwell, seeking indemnification or contribution. Blackwell moves for summary judgment dismissing the third-party complaint. For the reasons set out below, the motion is granted, and the third-party complaint is dismissed.


On June 20, 1988, Stanley sustained an injury to her leg aboard the vessel "SeaBee." During a pleasure cruise, a hatch door located on the floor of the vessel was dislodged, exposing an access with a sharp fiberglass border. The injury occurred when plaintiff fell through the access and the sharp edge severed nerves and muscle tissue in her calf. Plaintiff alleges that defendant negligently designed and manufactured the hatch door and access.

She filed this action in June 1989 in the Eastern District of New York against Bertram-Trojan, Island Records Company, and Chris Blackwell, the owner of the vessel. Following transfer of the action to this Court on motion of Island Records, plaintiff, by an "Order and Stipulation of Dismissal With Prejudice" agreed to dismiss her claims against Blackwell and Island Records. Bertram-Trojan then impleaded Blackwell, alleging that plaintiff's injury was due to Blackwell's negligent maintenance of the vessel. This court has jurisdiction pursuant to 28 U.S.C. § 1333. Blackwell now seeks dismissal of Bertram-Trojan's alternative claims for indemnity or contribution.


The doctrine of indemnity entitles a tortfeasor cast in judgment to shift the entire loss to a joint tortfeasor. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 51, at 341 (5th ed. 1984). Indemnification is proper when: (1) an express agreement creates the right; (2) the right is inferred from the relationship between the parties; or (3) a tort has occurred, and there is great disparity in the fault of the parties. Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Authority, 693 F.2d 1, 2 (1st Cir. 1982). Because there is no express agreement between the parties and no prior relationship that may give rise to a right to indemnification, defendant's claim must be one for tort indemnity.

Tort indemnity is based on the difference between the "kinds" of fault for which the tortfeasors are responsible. Slattery v. Marra Bros. Inc., 186 F.2d 134, 138 (2d Cir.) (L. Hand, J.), cert. denied, 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed. 1351 (1951). For instance, indemnification is warranted if the indemnitee's negligence is "passive," and the indemnitor's negligence is "active." Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 719 (2d Cir. 1978) (Friendly, J.). Active negligence is the creation of an unreasonable risk; passive negligence is the failure to discover or remedy a risk created by a joint tortfeasor. Wedlock v. Gulf Mississippi Marine Corp., 554 F.2d 240, 243 (5th Cir. 1977); see Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 34 (2d Cir. 1980), cert. denied sub nom., Pittston Stevedoring Corp. v. Doca, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 351 (1981). Under such circumstances "'both are liable to the same person for a single joint wrong . . . [and] the temptation is strong if the faults differ greatly in gravity, to throw the whole loss upon the more guilty of the two.'" Zapico, 579 F.2d at 718 (quoting Slattery, 186 F.2d at 138).

Plaintiff's claims in the underlying action are as follows:

    (a) Defendant was negligent in (i) failing to
  provide a latch to hold a hatch door in place,
  (ii) manufacturing a hatch with sharp edges, and
  (iii) failing to warn of potential dangers posed
  by the hatch. (Amended Complaint ¶ 10-13);
    (b) Defendant breached a warranty of fitness and
  merchantability. (Amended Complaint ¶ 15-19);
    (c) The vessel was inherently dangerous;
  therefore defendant is strictly liable. (Amended
  Complaint ¶ 21-22).

These claims allege "active" misconduct by defendant. If plaintiff prevails on any of her claims, the result must be predicated on a finding that defendant acted negligently and was not merely passive in failing to discover another's negligence. Thus, even if it is found that Blackwell negligently maintained the vessel as alleged in the third-party complaint, both tortfeasors will have been found actively negligent and their relative fault would not "differ greatly in gravity." Where joint tortfeasors are actively negligent the law refuses to recognize any disparity in fault that would justify shifting the entire loss onto one of the tortfeasors. Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625 (2d Cir.) ("because [defendant's] negligence contributed to the loss, [defendant] cannot obtain indemnity"), cert. denied, Maislin Transport of Delaware v. Farrell Lines, Inc., 449 U.S. 875, 101 S.Ct. 217, 66 L.Ed.2d 96 (1980); In re Complaint of American Export Lines, Inc., 568 F. Supp. 956, 964 (S.D.N Y 1983) ("A party may sue in admiralty for tort indemnity if he is ...

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