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
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.,
therefore must be granted and that claim dismissed.
Contribution distributes loss among joint tortfeasors by
requiring each to pay a proportionate share of the loss to one
who has discharged the entire joint liability. W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 52, at 341
(5th ed. 1984). The doctrine is employed when there is
concurrent fault, Cooper Stevedoring Co. v. Fritz Kopke Inc.,
417 U.S. 106, 115, 94 S.Ct. 2174, 2179, 40 L.Ed.2d 694 (1974),
and "'one of the joint tortfeasors has paid more than his fair
share of the common liability.'" In re "Agent Orange" Product
Liability Litigation, 818 F.2d 204, 207 (2d Cir. 1987) (quoting
Northwest Airlines, Inc. v. Transport Workers Union of America,
451 U.S. 77, 87-88, 101 S.Ct. 1571, 1579, 67 L.Ed.2d 750
(1981)). This motion entails an application of the doctrine
that has divided the circuits. Specifically, I must determine
whether under federal admiralty law, a settlement between
plaintiff and one tortfeasor bars an action for contribution by
a joint tortfeasor against the settling tortfeasor.
This country's treatment of the subject begins in the
mid-nineteenth century with The Schooner Catharine v.
Dickinson, 58 U.S. (17 How.) 170, 15 L.Ed. 233 (1855). Drawing
on the English maritime law of the time, Catharine held that
damages arising from a maritime collision should be equally
divided among joint tortfeasors, regardless of their degree of
fault. This rule governed maritime actions until 1975 when the
Supreme Court recognized that the United States was the only
major maritime nation that continued to follow the mutual fault
rule and that that rule yielded unjust results in most cases.
The Court overruled Catharine and held:
[W]hen two or more parties have contributed by
their fault to cause property damage in a maritime
collision or stranding, liability for such damage
is to be allocated among the parties
proportionately to the comparative degree of their
United States v. Reliable Transfer Co.,