Bielawski v. American Export Lines

• Decision Date: 29 July 1963
• Docket Number: Civ. A. No. 3641.
• Citation: 220 F. Supp. 265
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Herbert J. BIELAWSKI, Plaintiff, v. AMERICAN EXPORT LINES, Defendant and Third-Party Plaintiff, v. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION, Third-Party Defendant.

220 F. Supp. 265

Herbert J. BIELAWSKI, Plaintiff, v. AMERICAN EXPORT LINES, Defendant and Third-Party Plaintiff, v. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION, Third-Party Defendant.

Civ. A. No. 3641.

United States District Court E. D. Virginia, Norfolk Division.

July 29, 1963.

Francis N. Crenshaw, Norfolk, Va., for plaintiff.

Harry E. McCoy, Jr., Norfolk, Va., for defendant and third-party plaintiff.

L. S. Parsons, Jr., Norfolk, Va., for third-party defendant.

WALTER E. HOFFMAN, Chief Judge.

The remaining issue for determination in this case is the perplexing problem of attorney's fees, expenses, etc., incurred by the defendant, American Export Lines, now sought to be recovered from Norfolk Shipbuilding & Drydock Corporation under the rapidly expanding theory of indemnification.

This action was instituted by an employee of Norfolk Shipbuilding & Drydock Corporation, hereinafter referred to as the shipyard, against American Export Lines, the owner pro hac vice of the vessel known as the SS EXMOUTH, to recover for his serious personal injuries, medical and hospital expense, as a result of the alleged unseaworthiness of the vessel and alleged negligence of American Export Lines. The accident occurred on January 31, 1961. The vessel had been taken to the shipyard plant a few days prior thereto, it being the intention of American Export Lines to cause the deactivation of the vessel in order that it could be returned to the United States as a member of the "dead fleet" in the James River. Invitations for bids on the work of deactivating the vessel were extended to bidders on January 26. A bid was made by the shipyard on January 30, 1961, and verbally accepted at 4:30 P.M. that day. Actually in the interim period following the vessel's arrival at the shipyard, work had been done by the shipyard toward deactivation. Clause 7 of the invitation for bids contains the following language:

"The contractors time and liability to commence immediately upon the acceptance of the vessel at his berth and to cease when all work is completed and he has removed all his equipment, tools and appliances and all dirt, etc., from the vessel and handed over ready for towing to the layed up fleet."

On the morning of January 31, with the vessel docked at the shipyard's Pier 3, the plaintiff (employee of the shipyard) was working on the ship's forward mast house when he was struck in the back and catapulted into the vessel's No. 2 hold. All of the work being performed at the time was pursuant to orders of the shipyard in accordance with the contract to completely deactivate the vessel. While the jury, to whom the case was submitted, did not reach the point of determination as to whether the vessel had been removed or withdrawn from navigation at the time of the accident, it is clear from the record that it was in fact a dead ship at that moment.

The shipyard, as plaintiff's employer, paid the medical expense and compensation benefits in accordance with the Virginia Workmen's Compensation Act, same amounting to $4945.63. This fact was not brought out in the trial, but is a matter of record.

Prior to the institution of this action, accepting the statement of counsel for American Export Lines, an inquiry was propounded to the shipyard as to whether the shipyard would afford any protection, indemnity, or otherwise hold harmless, for the claim of plaintiff. The shipyard declined. After process was served upon American Export Lines the shipyard was brought in as a third-party defendant, the third-party complaint seeking indemnification, attorney's fees, expenses, etc.

At the trial special interrogatories were propounded to the jury with the results as noted.

"1. If the Norfolk Shipbuilding & Drydock Corp., its agents or employees were negligent in the handling of the boom, was such negligence, without regard to unseaworthiness, the sole proximate cause of the plaintiff's accident?

"Yes x No

"(If question 1 is answered in the affirmative, the jury shall not answer any further questions. Otherwise the jury must answer the remaining questions except as indicated.)

"2. Had the SS EXMOUTH been removed or withdrawn from navigation at the time of plaintiff's accident on January 31, 1961?

"Yes No

"(If your answer to question 2 is in the affirmative, you shall not answer questions 3 and 4.)

"3. Was the work which was being done by plaintiff at the time of his accident the type of work traditionally done by seamen?

"Yes No

"(If your answer to question 3 is in the negative, you shall not answer question 4.)

"4. Was the SS EXMOUTH seaworthy as defined in the Court's charge, at the time of the plaintiff's accident?

"Yes No

"(If your answer to question 4 is in the affirmative, you shall not answer question 5.)

"5. If the SS EXMOUTH was unseaworthy, did such unseaworthiness proximately cause or contribute to the plaintiff's accident?

"Yes No

"6. Was the defendant, American Export Lines, its agents or employees negligent at the time of plaintiff's accident?

"Yes No

"(If your answer to question 6 is in the negative, you shall not answer question 7.)

"7. If the defendant, American Export Lines, was negligent, did such negligence proximately cause or contribute to the plaintiff's accident?

"Yes No

"8. If you conclude that the plaintiff is entitled to recovery, what amount is he entitled to receive irrespective of any contributory negligence?

"$__________

"9. Was the plaintiff himself guilty of any negligence which proximately caused or contributed to his accident?

"Yes No

"10. If plaintiff was guilty of any contributory negligence, in what percentage or proportion did his negligence proximately cause or contribute to his accident?

________%"

From the foregoing it will be noted that the negligence of the shipyard's agents or employees constituted the sole proximate cause of plaintiff's accident. Such a conclusion foreclosed the necessity of ascertaining (1) whether the vessel had been removed or withdrawn from navigation at the time of the accident, (2) whether the work being done by plaintiff at the time of the accident was the type of work traditionally done by seamen, (3) whether the vessel was seaworthy and (4) whether American Export Lines was negligent.

The claim of the shipowner against the shipyard is predicated upon the breach of implied warranty to perform its deactivation services in a safe and workmanlike manner. The shipowner contends that the jury verdict has determined this breach. The Court acknowledges that the jury verdict is correct, and that the sole proximate cause of the accident and resulting injuries was the negligence of plaintiff's co-employee.

This Court has previously passed upon this question, as applied to an injury to a longshoreman, in Hill v. American President Lines, Ltd., E.D.Va., 194 F.Supp. 885, where the longshoreman was unsuccessful and the shipowner sought the recovery of attorney's fees and expenses from the expert stevedore. The point was also discussed in Fox v. The S. S. MOREMACWIND, E.D.Va., 182 F.Supp. 7, affirmed without discussion of the issue now presented, 4 Cir., 285 F.2d 222, likewise involving one who traditionally performs the work of a seaman. These decisions have been criticized.¹

More recently this circuit has had occasion to review a related question. Rederi A/B Dalen v. Maher, 4 Cir., 303 F.2d 565. In that case, after the evidence had been concluded, the transcript prepared, and the case ready for final argument, the stevedore settled directly with proctor representing the deceased longshoreman. There is language in this opinion which strongly intimates that Hill v. American President Line, Ltd. and Fox v. The S.S. Moremacwind were incorrectly decided to the extent that an adjudication of liability is a basic prerequisite to the shipowner's claim of indemnity. As stated by Chief Judge Sobeloff (303 F.2d 567):

"If a shipowner can show that the stevedore's breach of warranty has occasioned it expense, reimbursement is due. Of course, the shipowner must prove that the stevedore, in fact, breached its warranty and caused injury for which the shipowner was potentially liable and that the expenses incurred in defense are reasonable."

While the cited case does not mention the prior decisions in Hill and Fox, the quoted words are sufficient to convince this Court that, as to the matter of attorney's fees and expenses, the Hill and Fox cases were incorrectly decided.

Following Rederi A/B Dalen v. Maher, supra, the Fourth Circuit Court of Appeals again examined the question in American Export Lines v. Atlantic & Gulf Stevedores, 313 F.2d 414, cert. den., 83 S.Ct. 1525. In that case the jury had found for the injured longshoreman in an action against...