310 F.2d 481 (9th Cir. 1962), 17616, Italia Societa Per Azioni di Navigazione v. Oregon Stevedoring Co.

Docket Nº:17616.
Citation:310 F.2d 481
Case Date:October 25, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 481

310 F.2d 481 (9th Cir. 1962)




No. 17616.

United States Court of Appeals, Ninth Circuit.

October 25, 1962

Rehearing Denied Dec. 6, 1962.

Wood, Wood, Tatum, Mosser & Brooke, Erskine Wood, and Erskine B. Wood, Portland, Or., for appellant.

Gray, Fredrickson & Heath, and Floyd A. Fredrickson, Portland, Or., for appellee.

Before BARNES, HAMLIN and JERTBERG, Circuit Judges.

HAMLIN, Circuit Judge.

Appellant, Italia Societa Per Azioni di Navigazione, a shipowner, contracted with the Oregon Stevedoring Company, Inc., appellee herein, for the performance of stevedoring services on appellant's ship, the M.S. Antonio Pacinotti. On or about November 19, 1958, during

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the course of stevedoring operations a longshoreman named Griffith, an employee of the stevedoring company, was injured due to a latently defective rope which had been brought onto the ship by the stevedoring company. Griffith recovered a judgment against appellant shipowner which it satisfied. Thereafter, in a separate action appellant shipowner brought suit against appellee stevedoring company claiming indemnity from appellee for the amount of the judgment which it had been required to pay Griffith. Appellant based its claim for indemnity on the ground that the stevedoring company had been negligent and had breached its warranty of workmanlike service in supplying the defective rope. The stevedoring contract contained an express warranty whereby the stevedoring company undertook to indemnify the shipowner for negligence in the performance of its services. 1 The District court found that the stevedoring company had not been negligent in any way in bringing onto the ship the rope which caused injury to the longshoreman. The district court held that the presence of the express warranty covering negligence precluded any recovery for breach of an implied warranty of workmanlike service, in essence relying on the maxim expressio unius est exclusio alterius (expression of one thing is the exclusion of another). Judgment was entered for the stevedoring company and the shipowner appealed to this court which has jurisdiction pursuant to 28 U.S.C.A. § 1291.

No complaint is made on this appeal of the district court's finding that the stevedoring company was not negligent. Appellant contends merely that an implied warranty of workmanlike service arose from the contractual relationship between the parties which implied warranty placed a duty upon the stevedoring company to supply proper and seaworthy equipment. It is contended that a failure to supply seaworthy equipment is a breach of the implied warranty of workmanlike service which entitles the shipowner to indemnity for any liability it incurs resulting from the faulty equipment regardless of whether the stevedoring company was negligent in supplying the equipment. Assuming that there is an implied warranty which covers the facts of this case, the appellant shipowner argues that the mere presence of the express clause indemnifying for negligence does not preclude a recovery on the implied warranty. It will be unnecessary to consider the last contention if we determine that the warranty of workmanlike service does not include elements of liability without fault, i.e., that the stevedoring company absent negligence on its part does not warrant the suitability of the equipment which it supplies pursuant to its stevedoring contract.

We address ourselves, then, to the question whether a stevedoring company breaches its implied warranty of workmanlike service, which breach results in indemnity to the shipowner, when it supplies unseaworthy equipment to a ship on which it is to perform stevedoring services even though the stevedoring company has not been negligent in any way.

The leading case on indemnity liability for breach of the implied warranty of workmanlike service is Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). In that case a stevedoring company had agreed to perform

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stevedoring services and one of its employees was injured during the unloading. A jury returned a verdict for the longshoreman against the shipowner. The shipowner had impleaded the stevedoring company claiming that it was entitled to full indemnity because the stevedoring company had negligently failed to stow the cargo in a safe and proper manner which negligence caused the shipowner to be liable to the longshoreman. The informal stevedoring contract made no reference to an express indemnity agreement. After rejecting the contention of the stevedoring company that indemnity was precluded by the provision in the Longshoremen's and Harbor Workers' Compensation Act which made a longshoreman's recovery of compensation his exclusive remedy against his employer, 2 the Court held that the shipowner was entitled to indemnity based on the stevedoring company's breach of its implied warranty of workmanlike service.

Prior to Ryan the Court had recognized that a stevedoring company could by contract expressly agree to indemnify the shipowner for any liability to longshoremen occasioned by the fault of the stevedoring company, American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011 (1947). Where the contract did not deal expressly with indemnity such liability arose from the stevedoring company's obligation to perform its services in a workmanlike manner. The contractual obligation was described as a 'warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product.' The warranty 'is of the essence of * * * (the) stevedoring contract.' 3 In Ryan the obligation was to stow the cargo 'properly and safely' and a breach of the obligation was a breach of the warranty of workmanlike service giving rise to a right in the shipowner of indemnity against the stevedoring company for money which the shipowner became liable to pay to a longshoreman on account of the breach.

Much judicial effort since Ryan has been concerned with defining the nature and scope of a stevedoring company's implied warranty of workmanlike service. But only one case, Booth S.S. Co. v. Meier & Oelhaf Co., 262 F.2d 310 (2d Cir.1958), has decided that the warranty of workmanlike service includes elements of liability without fault. In the Booth case a contractor who undertook to repair a ship brought some unseaworthy equipment on board which caused injury to a workman and as a result the shipowner was liable for unseaworthiness. Indemnity was sought from the contractor, but the district court dismissed the third-party claim of the shipowner since there had been no proof that the contractor had been negligent in supplying the equipment. On appeal the parties agreed that neither of them had been negligent, and the court stated that the question was whether the contractor could be liable for indemnity where it had supplied defective equipment without fault. Recognizing that the question had not been decided before, the court, nevertheless, did not believe that the leading cases on indemnity excluded 'the existence of liability without fault as an element of the warranty of workmanlike service in appropriate cases.' 4 After its discussion the court stated:

'(We) hold that if the contractor undertook to do the work of repair of the vessel's engines, and if he supplied the equipment which failed in the course of the use for which it was supplied, then the failure constituted a breach of the contractor's implied warranty of workmanlike service and rendered him liable to indemnify the owner for damages paid to the contractor's employee on

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account of injuries resulting directly from the failure.' 5

Appellant shipowner in the instant case urges us to follow the Second Circuit's Booth decision and therefore hold the stevedoring company liable for indemnity for bringing onto the ship a defective rope even though the stevedoring company was not negligent in any way. Appellee stevedoring company argues that some negligence of the stevedoring company is required to constitute a breach of its implied warranty of workmanlike service. Appellee would also have us distinguish Booth from the instant case on the ground that Booth involved a repairman whereas this case involves a stevedoring company. We consider Booth to be indistinguishable from this case on the ground urged or any other. In the context of this case a repairman cannot be distinguished from a stevedoring company. Any distinction in kind is without legal significance. However, we find ourselves in disagreement with the result reached in Booth that non-negligent action can give rise to indemnity liability. 6 Thus, we refuse to follow the Second Circuit on the point here involved.

It is our belief that the term 'warranty of workmanlike service' is not properly susceptible to an interpretation which makes an act done free of negligence and totally without fault the basis of a breach of the warranty. We think the word 'workmanlike' means a 'proper', 'safe' and 'non-negligent' manner of doing something. 'Workmanlike' has been defined as 'skillful' or 'well done' and is said to be synonymous with 'deft', 'proficient' or 'adept', 7 all words which connote a standard of skill similar to that associated with the reasonable man test for negligence. Cases discussing the legal meaning of 'workmanlike' are replete with words and phrases of similar import. 8

We have scrutinized the leading Supreme Court cases in the field and have found in the Court's discussion terms the repeated use of which support a conclusion that 'workmanlike' describes an ordinary standard of care in the performance of a service the breach...

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