The opinion of the court was delivered by: Leisure, District Judge:
Plaintiff Alec Marcinowski commenced this action against McCormack Boys
Corporation (hereinafter "McCormack"), Great Lakes International, Inc.
(hereinafter "GLI"), and Amboy Aggregates (hereinafter "Amboy") to
recover damages for injuries sustained aboard Scow MC-191, a sand barge
owned and maintained by Amboy. Plaintiff, a deckhand aboard the tugboat
McCormack Boys, injured his left knee when he fell through a cavity in
the asphalt sand while climbing through the cargo area of Scow MC-191.
Plaintiff sued McCormack, GLI, and Amboy for negligence under the Jones
Act, 46 U.S.C. § 688 et seq. In addition, plaintiff alleged that
defendants were strictly liable for the unseaworthiness of both McCormack
Boys and Scow MC-191. McCormack and GLI (hereinafter the
"cross-claimants") filed cross-claims against Amboy seeking (1) full
indemnification for any liability to plaintiff resulting from Amboy's
alleged breach of its implied warranty of workmanlike performance and (2)
$30,213.72 in maintenance and cure payments they made to plaintiff. On
February 27, 1998, plaintiff settled his claims with Amboy. In February
of 2001, plaintiff settled his claims with GLI and McCormack. Therefore,
GLI and MeCormack's cross-claims against Amboy to recover (1) their
$84,410.50 settlement with plaintiff and (2) $30,213.72 in maintenance
and cure payments made to plaintiff were the only issues remaining for
From April 23, 2001 through April 25, 2001, the Court conducted a bench
trial regarding the disputed issues in this case, and the parties have
subsequently submitted post-trial briefs further addressing these issues.
Having considered the parties' post-trial submissions and the evidence
presented at trial, the Court sets forth herein its findings of fact and
conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil
On October 10, 1994, Amboy employees loaded Scow MC-191 with 1,011
cubic yards of asphalt sand at Amboy's facility in South Amboy, New
Jersey. See Trial Transcript (hereinafter "Tr.") at 90-91; Amboy Ex. B.
Pursuant to a contract with Amboy, GLI agreed to tow and deliver Amboy's
scows from Amboy's facility to its customers in the tri-state area. See
Towage Agreement between GLI and Amboy, signed Sept. 13, 1990, Amboy
Trial Ex. C. On October 10, 1994, Amboy placed Scow MC-191 in the care,
custody, and control of GLI for towage to a customer in Norwalk,
Connecticut. See Letter from Thomas A. Newton, Chief Financial Officer of
Amboy, to Joseph J. Perrone, Esq., dated July 14, 1997, Amboy Ex. B. On
October 12, 1994, Scow MC-191 was affixed to a floating mooring buoy in
the Long Island Sound off the coast of Port Chester, New York. See
Deposition Transcript of Alec Marcinowski, dated Aug. 26, 1997
(hereinafter "Marcinowski II"), at 9.
On October 12, 1994, plaintiff was employed as a deckhand on the tug
McCormack Boys, which was owned by McCormack and operated and staffed by
plaintiff's employer, GLI. See id. at 6. As a deckhand, plaintiff was
considered a "seaman" pursuant to the Jones Act.*fn1 Plaintiff was a
highly experienced deckhand, having worked on tugboats since 1969. See
Deposition Transcript of Alec Marcinowski, dated Nov. 13, 1996
(hereinafter "Marcinowski I"), at 10-11. On the evening of October 12,
1994, the tug McCormack Boys towed unloaded barges to the Port Chester
mooring and exchanged them for loaded barges, including Scow MC-191. See
id. at 14. Since it was dark, the tug was required to place two
navigation lights on the loaded scows. See id. at 14. GLI's procedure for
transferring the navigation lights between the unloaded and loaded scows
required placing one deckhand on an unloaded scow and one deckhand on a
loaded scow. See id. at 12-15. To transfer the lights, the deckhand on
the unloaded scow would throw the navigation lights onto the sand in the
cargo load of the loaded scow. See id. At that point, the deckhand on the
loaded scow would climb into the sand load to pick out the navigation
lights and place them in their proper position on the loaded scow. See
id. Cross-claimants' procedure for transferring navigation lights between
scows is the custom and practice in the tugboat industry. See id. at 37;
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.
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 ...