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.
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