353 F.2d 660 (5th Cir. 1965), 21830, Waterman Steamship Corp. v. David

Docket Nº:21830.
Citation:353 F.2d 660
Party Name:WATERMAN STEAMSHIP CORPORATION, Appellant, v. Francis DAVID et al., Appellees.
Case Date:November 11, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 660

353 F.2d 660 (5th Cir. 1965)

WATERMAN STEAMSHIP CORPORATION, Appellant,

v.

Francis DAVID et al., Appellees.

No. 21830.

United States Court of Appeals, Fifth Circuit.

November 11, 1965

Rehearing Denied Feb. 1, 1966.

Page 661

George W. Healy, III, Harry S. Redmon, Jr., New Orleans, La., for appellant, Jas. Hy. Bruns, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., of counsel.

Christopher Tompkins, George W. Reese, New Orleans, La., for appellees, Cornelius G. Van Dalen, Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel.

Before JONES and WISDOM, Circuit Judges, and BREWSTER, District Judge.

WISDOM, Circuit Judge:

This appeal turns on the Weyerhaeuser corollary to the Ryan doctrine of stevedore-shipowner indemnity. 1 Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corporation, 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Weyerhaeuser Steamship Company v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. Under the Sieracki line of decisions, a shipowner is liable to an employee of a stevedoring or ship-refitting company for an injury caused by negligence of the shipowner or unseaworthiness of the vessel on which the injured longshoreman or other employee

Page 662

is working. 2 The Ryan doctrine enables the shipowner to recover indemnity from the longshoreman's employer, when the unseaworthiness for which the shipowner is liable results from a breach of the stevedoring company's implied warranty of workmanlike service. Weyerhaeuser makes explicit a caveat implicit in Ryan: To recover indemnity, the shipowner's 'conduct on its part (must not have been) sufficient to preclude recovery'. 355 U.S. at 567, 78 S.Ct. at 441. The Supreme Court did not declare just what conduct is sufficient to bar indemnification, although the Court did declare that 'in the area of contractual indemnity an application of the theories of 'active' or 'passive' as well as 'primary' or 'secondary' negligence is inappropriate.' Id. at 569, 78 S.Ct. at 442. In the case before us the question was properly put to the jury. The jury decided that unseaworthiness was the proximate cause of the plaintiff's injuries and that the shipowner's conduct was 'so great as to preclude recovery of indemnity.' We affirm the judgment based on the jury's verdicts.

I.

Francis David, a longshoreman employed by Atlantic & Gulf Stevedores, Inc., was injured while working aboard Waterman's S.S. Arizpa in New Orleans. David was one of a gang of longshoremen opening and clearing a between-decks cargo hatch. On Waterman vessels, the hatch covers rest on a series of I-beams. The beams lie from port to starboard. At each end of the I-beam there is a wheel which runs along a metal track. A jack bar inserted into a cam engages and disengages the wheel. The end of the beam also rests on an upper guide rail as an additional safety precaution. To clear the hatch for loading or unloading cargo, the longshoremen first remove the hatch covers, then one man on each end engages the wheel by inserting the jack bar and rotating the cam. The other members of the gang, half on each end of the beam, roll the beam down to the end of the hatch by pulling with ropes or a metal pull bar inserted into a metal eye on each end of the beam. After they have rolled all of the I-beams down to the end of the hatch, the hatch is clear for loading of unloading.

On the morning of the accident, David's gang had already cleared the weather-deck cargo hatch without any difficulty. They then removed the hatch covers from the between-decks hatch and moved two of the I-beams to the end of the hatch without incident. David was operating the jack bar on the onshore end of the beams. As they were moving the third beam, the beam jumped the track at the offshore end and fell into the hold. The falling beam struck David and catapulted him into the hold. He was seriously injured.

David sued Waterman, the shipowner, alleging that his injuries were sustained as a result of unseaworthiness, 'specifically, in that the track for the roller on said beam was not safely designed and the roller, which left the track, was worn and not fit for the use intended * * *.' In its answer, Waterman denied that the accident occurred in the manner alleged, denied the alleged unseaworthiness of the S.S. Arizpa and, as a special, alternative defense, pleaded contributory negligence on the part of David. Waterman filed a third party complaint against Atlantic & Gulf Stevedores for indemnification based on the contention that Atlantic breached its warranty of due care. Waterman alleged that Atlantic was aboard the S.S. Arizpa in connection with performance of general stevedoring work and was in full custody and control of the areas where David allegedly sustained injury, that it was the duty of Atlantic to perform its work with due diligence and safety, and that any injuries sustained were caused by the negligence

Page 663

and fault of Atlantic. The jury returned a general verdict for David against Waterman in the amount of $84,000. 3 The jury returned a second general verdict denying Waterman's claim against Atlantic stevedores. The court rendered judgment in accordance with the verdicts.

II.

Waterman's argument on appeal rests chiefly on the contention that the jury's answers to certain interrogatories required a judgment in its favor and, at the very least, were inconsistent with answers to other interrogatories. 4 In answer to the first two interrogatories, the jury found that the proximate cause of the accident was the unseaworthiness of the beam roller assembly. In answer to the seventh interrogatory, the jury found that Atlantic was negligent, and that the negligence 'caused or brought into play' the vessel's unseaworthiness. Waterman assumes that these findings necessarily required a verdict in its favor, relying on the Ryan and Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 holdings that a shipowner cast for unseaworthiness may recover over against the employer of the injured seaman if the employer's negligence amounts to a breach of warranty of workmanlike performance. But the jury also found, replying to the eighth interrogatory, that the negligence did not constitute a breach of Atlantic's warranty to perform its job in a reasonably safe and workmanlike manner. The jury's answer to the tenth interrogatory is consistent with its answer to the eighth interrogatory: The unseaworthiness

Page 664

of the vessel was 'so great as to preclude' Waterman's recovery from Atlantic for breach of warranty.

It is the 'duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them', and 'to reconcile the jury's findings, by exegesis if necessary * * * before we are free to disregard the jury's special verdict and remand the case for a new trial'. Gallick v. Baltimore & Ohio R. Co., 1963, 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618. If 'there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which makes the jury's finding inconsistent results in a collision with the Seventh Amendment.' Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798.

III.

The result the jury reached agrees with the Supreme Court's treatment of the stevedore's indemnity obligation as resting on contract, not tort principles. 5 The stevedore's negligence is immaterial unless it is a breach of the contractual warranty of workmanlike service and is the proximate cause of the longshoreman's injuries. And under the Weyerhaeuser dictum, the stevedore's breach of warranty may be excusable, if the shipowner's conduct is 'sufficient to preclude recovery of indemnity'.

The stevedore's 'warranty of workman like service is comparable to a manufacturer's warranty of the soundness of its manufactured product. The shipowner's action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner's stevedoring service.' Ryan, 350 U.S. at 133, 76 S.Ct. at 237. In a more recent case the Supreme Court, declining to take a bailment approach, 6 again noted that the considerations underlying the stevedore's warranty are the same as those which 'underlie a manufacturer's or seller's obligation to supply free of defects.' Italia Societa, etc. v. Oregon Stevedoring Company, 1964, 376 U.S. 315, 323, 84 S.Ct. 748, 11 L.Ed.2d 732 (Griffith's case). See also Reed v. S.S. Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448. In Griffith's case, allowing indemnity, the Supreme Court held that 'the absence of negligence on the part of a stevedore who furnishes defective equipment is not fatal to the shipowner's claim of indemnity based on the stevedore's implied warranty of workmanlike service.' The Court said: 'Although in Ryan the stevedore was negligent, he was not found liable for negligence as such but because he failed to perform safely, a basis for liability including negligent and non-negligent conduct alike. * * * Liability should fall upon the party best situated to adopt preventive measures and thereby reduce the...

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