OPINION AND ORDER
LEISURE, District Judge:
The third-party plaintiff, United Arab Shipping Co. (S.A.G.) ("UASC"), moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on its third-party claims for indemnity against third-party defendant, Universal Maritime Services Corp. ("Universal").
UASC asserts that Universal owes it money for damage that occurred to a shipment of wine. Universal, in turn, moves for summary judgment to dismiss the third party claims alleged by UASC as against Universal. For the reasons stated below, UASC's motion is denied and Universal's motion is granted.
In October 1990, UASC carried aboard it motor vessel, the JEBEL ALI, a refrigerated container of French wines from Fos-Sur-Mer, France to Port Newark, New Jersey. UASC mem. at 1. On arrival at the discharge port, the vessel berthed at the ocean terminal of UASC's stevedore, Universal. Id. Universal, pursuant to a written contract with UASC (the "Contract"), performed stevedoring and certain terminal service for the JEBEL ALI. Universal mem. at 2.
The shipper had received the container from UASC several days before the voyage began and had loaded the wines into the unit. Id. It then delivered the container to the vessel with instructions, printed on the bill of lading, to keep the wines in the container at temperatures of 50 degrees to 55 degrees Fahrenheit. Id. On the voyage from France to the United States, the ship's electrical officer reported in the reefer log book that the part-low temperature recorder was defective, and that he therefore took temperature readings from a second device, the digital display of the control air temperature. Universal mem. at 3. Prior to the ships' arrival in Port Newark, UASC provided Universal with the vessel's bay plan, which instructed Universal concerning the cargoes and containers that were to be discharged into the stevedore's care. UASC mem. at 1.
Universal discharged the container from the ship after employees of another independent contractor, third-party defendant Intermodal, had disconnected the electrical hook-up of the container on the ship. Universal mem. at 2. The container was then taken by Universal longshoreman to a location on the terminal where electrical power sources are situated, and an Intermodal mechanic attached the reefer container to an electrical outlet. Id.
The cargo remained in Universal's possession from October 14, 1990 to October 18, 1990, when the consignee accepted delivery. UASC mem. at 1. When the container was opened, however, it was apparent that the wines had been subjected to extreme temperatures. Id. Ice crystals were visible on some bottles, corks had popped on others, and wine stained a number of cartons and labels. Id. The consignee decided that the wine had to be destroyed. Id. at 2.
The consignee's cargo underwriter reimbursed the importer for the loss, and then commenced this action. Id. UASC settled the action over a year ago, but Universal did not participate in the settlement. Id. UASC now seeks to recover in indemnity from Universal, for an alleged breach of implied warranty, the $ 111,696 that UASC paid to plaintiff in settlement, together with the $ 41,232.97 in litigation costs and attorneys' fees that UASC incurred prior to settlement.
A. Right to Indemnity
1. Potential Liability Sufficient
UASC contends that although it settled with the cargo underwriter before the Court made any determination of UASC's actual liability, under the facts of this case, it need only establish its potential for liability to the underwriter to recover indemnity from Universal. The Second Circuit has held:
an indemnitee can only recover from an indemnitor upon proof of the indemnitee's potential liability if (1) the settlement is reasonable, and if (2) the indemnitor has sufficient notice in which to object to the settlement terms. When the indemnitor objects and the indemnitee fails to tender the defense of the action, the indemnitee must prove actual liability.
Atlantic Richfield Co. v. Interstate Oil Transport Co., 784 F.2d 106, 112 (2d Cir. 1986), cert. denied, 479 U.S. 817, 93 L. Ed. 2d 31, 107 S. Ct. 75 (1986); see also Jordan International Company of Delaware v. M.V. Cyclades, 782 F. Supp. 25 (S.D.N.Y. 1992).
USAC observes that "[a] shipper or consignee who has not proved delivery in good condition may nevertheless establish a prima facie case for recovery by producing sufficient evidence that the nature of the damage suffered indicates that the damage occurred while the cargo was in the carrier's custody." Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 355 (2d Cir. 1981). UASC contends that (1) the evidence in this case establishes its potential, if not its actual, liability; (2) the settlement was reasonable; (3) UASC tendered its defense to Universal; and (4) Universal refused to accept the defense and did not voice any objection to the settlement terms.
This Court finds that proof of potential liability is sufficient in this action because Universal does not dispute that the settlement was reasonable nor that it was offered the opportunity to assume responsibility for the defense. Moreover, this Court finds that UASC was, at least, potentially liable to U.S. Fire Insurance Co.
2. Breach of Implied Warranty
Such a finding, however, does not end this Court's inquiry. UASC seeks to recover in indemnity from Universal, for an alleged breach of implied warranty of workmanlike service. This Court, therefore, must determine whether such an implied warranty actually existed because, otherwise, Universal has no duty to indemnify.
UASC contends that "'failure on the part of the stevedore to explain what occurred to the cargo in its control gives rise to a presumption that the stevedore breached this implied warranty.' (of workmanlike service). Stein Hall & Co. v. S.S. Concordia Viking, 494 F.2d 287, 290 (2d Cir. 1974)." UASC mem. at 6. "The implied warranty may be breached even where . . . there has been no showing of negligence on the stevedore's part." David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295, 299 (2d Cir. 1964), cert. denied, 380 U.S. 976, 14 L. Ed. 2d 271, 85 S. Ct. 1340 (1965). UASC further maintains that although the implied warranty of workmanlike service can be disclaimed in a properly drawn contract, contractual provisions that purport to disclaim the warranty are viewed with disfavor and are strictly construed. See David Crystal 339 F.2d at 299-300. Finally, UASC argues that the Contract between UASC and Universal contains no express disclaimer of the warranty of workmanlike service.
Universal contends, in turn, that it had no obligation to monitor the temperatures of the reefer cargoes unless it received specific instructions to do so from UASC. Universal alleges that UASC used the services of another contractor, Intermodal, to hook up, unhook, pre-cool, maintain and monitor temperatures of reefer containers while at the terminal of Universal. Universal asserts that the only times in the fifteen years that the Contract with UASC has been in existence that UASC has instructed Universal to perform temperature checks is on those weekends when no reefer mechanic was called in to work. Universal mem. at 5.
Universal argues that the implied warranty of the stevedore to perform its services in a proper and workmanlike manner emanates from the contract terms that the stevedore promised to perform. Universal asserts that, in this case, there was no underlying promise on its part to perform the specific service of maintaining and monitoring the temperature of the container in question. As a consequence, concludes Universal, since it had not undertaken this service, no warranty to do so in a workmanlike manner, implied or otherwise, existed.
This Court notes the language of the Contract: