King v. Waterman Steamship Corporation, 12537.

• Citation: 272 F.2d 823
• Decision Date: 17 November 1959
• Docket Number: No. 12537.,12537.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: Jasper KING v. WATERMAN STEAMSHIP CORPORATION, Defendant and Third-Party Plaintiff, Appellant (Dugan & McNamara, Inc., Third-Party Defendant, Appellee).

272 F.2d 823 (1959)

Jasper KING v. WATERMAN STEAMSHIP CORPORATION, Defendant and Third-Party Plaintiff, Appellant (Dugan & McNamara, Inc., Third-Party Defendant, Appellee).

No. 12537.

United States Court of Appeals Third Circuit.

Argued June 10, 1958.

Reargued December 1, 1958 and October 5, 1959.

Decided November 17, 1959.

Harrison G. Kildare, Philadelphia, Pa., (Rawle & Henderson, Thomas F. Mount, Philadelphia, Pa., on the brief), for appellant.

George E. Beechwood, Philadelphia, Pa., for appellee.

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.

HASTIE, Circuit Judge.

This is an appeal by a third-party plaintiff from a decision that as a matter of law it is not entitled to be indemnified by the appellee, against which it has made the present third-party claim. The appeal, originally argued before a division of this court, has been reargued twice before the court en banc. We ordered the second reargument so that the parties might fully present their views concerning the force and effect of the decision of the Supreme Court in Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, after the first reargument. This second reargument has also permitted Judge Forman, who has joined us since the first reargument, to participate in the decision of a doubtful question of importance which has divided us.

In the court below appellant shipowner, Waterman Steamship Co., was both defendant to the original maritime tort claim of a stevedore for shipboard injury and third-party plaintiff claiming indemnity from appellee, Dugan & McNamara, Inc., the stevedore's employer. The shipowner now appeals from a decision that it is not entitled to indemnity from the stevedoring company for an amount it has paid in satisfaction of the stevedore's principal claim. In the present posture of the litigation it must be and is admitted that the stevedore's injuries were caused in part by improper stowage of cargo. Appellant concedes its absolute liability to the injured stevedore for the hurtful consequences of this unseaworthy condition. However, appellant claims indemnity from the stevedoring company on the theory that primary responsibility for the accident and an obligation to indemnify the shipowner should be imposed on the appellee because the immediate cause of the accident was appellee's negligence in unloading the cargo, improper though the stowage admittedly was.

How this case might have stood had the stevedoring company been employed by the owner or operator of the ship to unload the cargo in question we need not and do not decide. For appellant neither alleged in its third-party complaint nor sought to prove any contractual relation or undertaking as the basis of the alleged liability. Rather, as an affirmative defense, appellee in its answer asserted that there was no contract between these parties. The correctness of this allegation was stipulated at trial. Whatever arrangement was made for unloading the cargo,¹ the shipowner was not party to it and on the present record claims no standing under it.

The District Court ruled that in such a situation as this the absence of a contractual relation between the parties is fatal to the indemnity claim. We have said as much in Brown v. American-Hawaiian S.S. Co., 3 Cir., 1954, 211 F.2d 16, 18 and Crawford v. Pope & Talbot, Inc., 3 Cir., 1953, 206 F.2d 784, 792. Any obligation of a stevedoring company to indemnify a shipowner for shipboard injury of its employees in the course of their employment must be bottomed on a promise, express or implied in fact, of the stevedoring company. Otherwise, tort liability would be imposed upon the stevedoring company for negligent injury of its employee, a result prohibited by the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 901 et seq. However, it is strongly urged that the Supreme Court in Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, has rejected the reasoning and impaired the authority of the Brown and Crawford cases. That contention is our principal concern here.

In the Crumady case the Supreme Court reviewed a decision of this court. We had not adjudicated the question of indemnity because it had been our view that there was no liability on the principal claim. However, the Supreme Court reversed us on the principal claim and then considered and sustained the indemnity claim. Thus, in considering what the Supreme Court said and did in the Crumady case we deal with an entirely familiar record.

Crumady was a libel in rem against a vessel by a stevedore who had been injured in unloading cargo. The ship impleaded the stevedoring company which had undertaken the unloading operation and had employed the principal plaintiff. The evidence showed that the shipowner had chartered the vessel to an operator who had contracted with the stevedoring company to unload the vessel. In these circumstances the Supreme Court ruled that "the warranty of workmanlike service which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel's owners are parties to the contract or not." 358 U.S. at page 428, 79 S.Ct. at page 448. The court added that the circumstances under consideration suffice "to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries". Ibid. Thus, the actual holding of the Crumady case seems to be that a contractual undertaking of the stevedore with the operator of a ship, who is not the owner, to unload in a safe and workmanlike manner inures to the ship. In contrast the case now before us affords no basis for finding or assuming that the operator of the ship had any dealing whatever with the stevedoring company which discharged the cargo. To the contrary, as already pointed out, the District Court indicated and counsel have represented that the carriage was on such terms and conditions that the consignee was responsible for the discharge of its own goods and arranged with the stevedoring company for the performance of that job. The shipowner and the stevedoring company were strangers. It necessarily follows that the alleged duty upon which the present claim rests can only be an imposition on a wrongdoer in invitum. It is a question of tort liability, rather than one of contract or warranty, whether either wrongdoer must share the burden of a recovery by the injured party against the other wrongdoer. In reality we have here a problem of contribution between tortfeasors and not one of indemnification for breach of warranty. And the Supreme Court has clearly...