over the rail of the cargo area into the sand load. See id. at 26-29.
Before climbing the rail, plaintiff did not check to see whether he was
in the vicinity of a freeing port. See id. at 68. The navigation lights
were located on the sand a couple of feet from the rail, and plaintiff
attempted to walk across the sand load to the lights. See id. at 29.
Before plaintiff reached the lights, he stepped into a cavity in the sand
— known as a washout — and severely injured his left knee.
See id. at 29.
This was not the first time plaintiff had encountered washouts. He
testified that every deckhand is well aware that washouts occur routinely
on sand barges, and that he himself had fallen into at least ten washouts
previously. See id. at 35-36 In fact, plaintiff had injured his right knee
in a similar washout a year or so before this accident. See id. at 35.
Washouts are created when water enters the sand-filled cargo area of the
scow, and then is discharged through freeing ports, known as scuppers, at
the base of the cargo area. See Marcinowski I at 17. As the water exits
the cargo hold through the scuppers, some sand washes out of the cargo
hold with the water. See id. This discharge creates a cavity below the
surface level of the sand. See id. Because washouts occur below the
surface of the sand, they cannot be detected by looking at the top of the
sand load. See Marcinowski I at 53-54. It is undisputed that washouts
occur only in the area surrounding the scuppers. See Marcinowski II at
66. Therefore, an experienced deckhand should look for the presence of
scuppers, as well as discharged sand on the scow's walkway, before
climbing into the cargo area of a scow to avoid falling into washouts.
Scuppers are necessary and required on all sand scows, including Scow
MC-191. See Tr. 143. Without scuppers to permit the drainage of water
from the cargo load, a scow would become unstable and flip over. See Tr.
143-44 Marcinowski I at 16. Therefore, scuppers are compromises by
necessity. Large scuppers make the scow significantly more stable by
readily relieving the cargo hold of excess water and some sand; on the
other hand, small scuppers allow less water and sand out of the cargo
hold, thereby making the scow more unstable. See Tr. 144-48. The scuppers
on Scow MC-191 were four inches high and twelve inches wide, the typical
size and design for sand scows. See Tr. 37, 144. Indeed, it is undisputed
that Scow MC-191 itself is of typical design and dimensions. See Tr. 30,
142-43. However, the walkway surrounding the cargo area of Scow MC-191
was twenty eight and one-half (28.5) inches wide, which was wider than
normal for sand scows. See Tr. 30. This wider walkway naturally made it
safer for deckhands to circumambulate Scow MC-191 when compared to the
typical, narrower walkways of other scows. See Tr. 66.
CONCLUSIONS OF LAW
I. Ryan Indemnity
The Second Circuit recently declared that "Ryan indemnity is virtually
dead . . . in this Circuit." Lubrano v. Waterman Steamship Co.,
175 F.3d 274, 276 (2d Cir. 1999)*fn2 Nevertheless, cross-claimants
attempt to resurrect Ryan in this action. Specifically, cross-claimants
contend that they are entitled to full Ryan indemnity from Amboy for
their $84,410.50 settlement with plaintiff because Arnboy allegedly
breached an implied duty of workmanlike performance in loading Scow MC
191.*fn3 Moreover, cross-claimants contend the Lubrano's holding
— absent an express indemnification clause, a contract between a
shipowner and stevedore does not contain an implied duty on behalf of the
stevedore to indemnify the shipowner for liability to injured
longshoreman — is strictly limited to an action by longshoremen,*fn4
and therefore inapplicable to this action because plaintiff was a
seaman. See Cross-claimants' Trial Memorandum of Law at 15.
A. Standards for Ryan Indemnity
The context in which Ryan v. Stevedoring Co. v. Pan Atlantic S.S.
Corp., 350 U.S. 124 (1956), was decided is crucial to understanding its
holding and application to this action. In Seas Shipping Co. v.
Sieracki, 328 U.S. 85 (1946), the Supreme Court found that a shipowner
could be held strictly liable to longshoremen employed by an independent
stevedoring contractor for injuries caused by dangerous conditions aboard
the ship. Id. at 99-103. According to Sieracki, the vessel's dangerous
conditions caused the ship to be unseaworthy; therefore, the shipowner
was subject to strict liability, notwithstanding that the dangerous
conditions aboard the ship were likely caused by the stevedoring
contractor's own actions. See id. A few years later, in Halvcon Lines v.
Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952), the Supreme
Court held that the Longshore and Harbor Workers Compensation Act
(hereinafter "LHWCA"), 33 U.S.C. § 901 et seq., which limited an
employer's liability with respect to its injured employees, precluded
shipowners who had been held strictly liable to an injured longshoreman
from obtaining contribution from the longshoreman's employing stevedore.
Id. at 286-87. Thus, the shipowner was in an "unenviable position: A
longshoreman might be injured as a result of an unseaworthy condition
caused wholly by the stevedore's negligence, and yet the shipowner,
wholly without fault, could be held liable for the entire amount of
compensatory damages." Fairmont Shipping Corp. v. Chevron Int'l Oil Co.,
511 F.2d 1252, 1255 (2d Cir. 1975). "The shipowner's plight was a
situation which cried out for relief, and that relief was granted in
Ryan." Fairmont, 511 F.2d at 1256.
In Ryan, the Supreme Court held that a shipowner could seek indemnity
from the stevedore-employer for the shipowner's liability to an injured
longshoreman-employee for unseaworthiness, based on the theory that the
stevedore had breached an implied warranty of workmanlike performance to
the shipowner. See Ryan, 350 U.S. 130-31. Thus, those shipowners who were
forced to pay a judgment to an injured longshoreman as a
result of an unsafe condition created by a stevedore could fully recover
from that stevedore under the theory of indemnification. See id.; see
also Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 721 (2d Cir. 1978)
(Friendly, J.) (finding that Sieracki necessitated the decision in Ryan
in order "that ultimate liability would not rest on the innocent (or
relatively innocent) shipowner, as it would have if only Sieracki and
Halcyon stood as law.").
In 1972, Congress amended the LHWCA, which made "substantial changes"
to the framework surrounding Ryan indemnity. See Gravatt v. City of New
York, 226 F.3d 108, 116 (2d Cir. 2000). In addition to substantially
increasing the statutory compensation benefits provided to longshoremen
under the LHWCA, the amendments abolished both the injured
longshoreman-employee's right to recover against a shipowner under the
strict liability theory of unseaworthiness, and the shipowner's
corresponding right to indemnity from the stevedore. See Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 165 (1981). Longshoremen,
however, were still entitled to proceed against shipowners for
negligence. See Kakavas v. Flota Oceanica Brasileira, 789 F.2d 112, 117
(2d Cir. 1986) (Friendly, J.). In these amendments, "Congress clearly
intended that the `vessel's liability is to be based on its own
negligence.'" Gravatt, 226 F.3d at 117 (quoting H.R. Rep. No. 92-1441,
1972 U.S.C.C.A.N. at 4704)(emphasis in original). Additionally, the
amendments "intended `to shift more of the responsibility for
compensating injured longshoremen to the party best able to prevent
injuries: the stevedore-employer.'" Id. at 118 (quoting Howlett v.
Birkdale Shipping Co., 512 U.S. 92, 97 (1994)). Therefore, Ryan's precise
holding — that a shipowner held strictly liable under Sieracki may
seek indemnification from the employing stevedore — has been
overruled. However, the 1972 amendments do not address whether Ryan
indemnity survives against nonemploying stevedores, see Lubrano, 175 F.3d
at 278, or when the injured employee is a seaman.
The Second Circuit has limited Ryan indemnity to cases where a
shipowner was exposed to strict liability as a result of the breach of
the implied warranty of workmanlike performance. See Fairmont Shipping,
511 F.2d at 1257; Navieros Oceanikos, S.A. v. S.T. Mobil Trader,
554 F.2d 43, 44-47 (2d Cir. 1977) ("in the absence of plaintiff's
exposure to strict liability regardless of fault this is not a Ryancase
and . . . there is no basis for an indemnity. . . ."). Thus, Ryan
indemnity is only available when the following elements are present:
"a shipowner, relying on the expertise of another
party (contractor), enters into a contract whereby
the contractor agrees to perform services without
supervision or control by the shipowner the improper,
unsafe or incompetent execution of such services
would foresecably render the vessel unseaworthy or
bring into play a preexisting unseaworthy condition;
and the shipowner would thereby be exposed to liability
regardless of fault."
Fairmont Shipping, 511 F.2d at 1258. Moreover, the Second Circuit has
been reluctant to recognize an implied warranty of workmanlike
performance in the absence of an "extensive relationship" between the
parties. Black v. Red Star Towing & Trans. Co.,