Southern Stevedoring & Contract. Co. v. Hellenic Lines, Ltd.

• Decision Date: 23 January 1968
• Docket Number: No. 24277.,24277.
• Parties: SOUTHERN STEVEDORING & CONTRACTING COMPANY, Appellant, v. HELLENIC LINES, LIMITED, Owners of the M/V HELLENIC LAUREL, her engines, etc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

388 F.2d 267 (1968)

SOUTHERN STEVEDORING & CONTRACTING COMPANY, Appellant, v. HELLENIC LINES, LIMITED, Owners of the M/V HELLENIC LAUREL, her engines, etc., Appellee.

No. 24277.

United States Court of Appeals Fifth Circuit.

January 23, 1968.

John K. Meyer, Hinds & Meyer, Houston, Tex., for appellant.

Charles D. Kennedy, Houston, Tex., Royston, Rayzor & Cook, David C. Redford, Houston, Tex., of counsel, for Hellenic Lines, Limited.

Before WISDOM and GOLDBERG, Circuit Judges, and SEALS, District Judge.

GOLDBERG, Circuit Judge:

On December 16, 1961, a seismic drilling truck routed to Sudan, Africa, was dropped and damaged while being loaded aboard the M/V Hellenic Laurel. The parties below, Southern Stevedoring and Contracting Company ("Southern") and Hellenic Lines, Limited, ("Hellenic"), are contesting ultimate liability for the damages. As a preliminary to the contest, Southern and Hellenic each paid the truck owner, Agip Mineraria, $3,900.00 in full settlement of its claim, reserving to each all rights and claims inter se.

Southern was under contract with Hellenic to load and discharge all of the latter's vessels at the port of Houston. On December 16, 1961, pursuant to such contract, the M/V Hellenic Laurel (owned by Hellenic) was being loaded with general cargo and with two seismic drilling trucks weighing approximately eight tons each. The loading of the general cargo, in light drafts, proceeded without incident by the use of two boom arrangements, including a five-ton swivel hook which was standard for such weights. When the time came to lift the trucks, both parties realized that different arrangements would have to be made. Southern's superintendent Kincaid and walking foreman Nelius, and Hellenic's chief mate and port captain Calegaras decided that a four-fixed boom "Frisco" rig would be used. The ship's personnel, acting on this decision, arranged and affixed the gear, using the same five-ton weight swivel hook. When the long-shoremen got ready to lift the first truck, they found the ship's equipment rigged in the "Frisco" fashion, and began the lift using the five-ton hook which was affixed. As the operation began, the first seismic drilling truck was loaded successfully. However, when the longshoremen swung the second truck on board, the upper swivel ring on the swivel hook holding the lift broke by separating at its weld. The truck fell to the deck and was damaged, giving rise to the instant action.

Agip Mineraria brought suit against the M/V Hellenic Laurel, Hellenic, and Southern for damages to the truck and costs of the suit. Prior to trial, Southern and Hellenic each contributed $3,900.00 to settle for $7,800.00 the claim of Mineraria, and the main action was dismissed. This settlement was concluded under an agreement between the two defendants reserving to each party all existing rights and claims against the other. Subsequently, Southern and Hellenic each filed a cross action against the other for indemnity of its portion of the settlement, plus costs stipulated to be $1,500.00 for each party.

The District Court found as matters of fact: (a) that the swivel hook which failed under the eight-ton load was undersized for the work at hand in that it had a safe work load capacity of only five tons; (b) that the swivel hook assembly had stamped upon it an indicated safe work load of five tons which would — or should — have been obvious to the stevedoring personnel had they made a close visual inspection of the gear in question; (c) that five-ton cargo hooks made of low carbon steel (the type used aboard the M/V Hellenic Laurel and customarily used aboard merchant vessels) are visibly much smaller than ten-ton hooks of the same type; (d) that during the performance of the casual, cursory inspection of the gear made by the stevedoring personnel, the very size of the swivel hook should have placed a competent stevedore on notice of its inadequacy to handle an eight-ton load. The District Court concluded that Southern was negligent in failing to conduct a closer visual inspection of the swivel hook to determine its safe workload capacity after having been placed on notice by the hook's size of its probable inadequacy and that this negligence constituted a proximate cause of the accident. The Court also found that, aside from its being undersized to handle an eight-ton lift, the swivel in question contained a latently defective weld which was not discoverable by visual inspection and which was not known to either party. It concluded that this defect constituted unseaworthiness of the vessel and that this too was a proximate cause of the accident.

On the basis of these fact findings, the District Court held (1) that Southern's negligence in failing to conduct a closer visual inspection after having been placed on notice constituted a breach of Southern's warranty of safe and workmanlike service; and (2) that no conduct of Hellenic precluded indemnity, since Southern's negligence brought the unseaworthines of the vessel into play. Crumady v. Joachin, Hendrik Fisser 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L. Ed.2d 413. The District Court ordered Southern to indemnify Hellenic for the amount claimed. Southern's appeal attacks certain of the trial court's findings of fact and its determination that Hellenic's conduct was not sufficient to preclude indemnity. We affirm the judgment of the trial court on the basis of its findings of fact.

I. It is well established that a stevedore is under a contractual duty of workmanlike performance. In Italia Societa, etc. v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 321, 84 S.Ct. 748, 752, 11 L.Ed.2d 732, 739, the Supreme Court stated:

"The description of the stevedore\'s obligation as one of performance with reasonable safety is not a reference to the reasonable man test pertaining to negligence, but a delineation of the scope of the stevedore\'s implied contractual duties."

See also Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; Crumady v. Joachim Hendrik Fisser, supra; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. This Court has repeatedly held that the question of whether a stevedore was negligent so as to breach his warranty of workmanlike performance is a question of fact to be determined by the trier of fact. Cia Maritima Del Nervion v. James J. Flanagan Shipping Corp., Stevedore Division, 5 Cir. 1962, 308 F.2d 120, 123; D/S Ove Skou v. Hebert, 5 Cir. 1966, 365 F.2d 341. The decision of the trier of fact cannot be overturned unless it is clearly erroneous and manifestly against the weight of the evidence. Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774; McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Cia Maritima Del Nervion v. James J. Flanagan Shipping Corp., 5 Cir. 1962, 308 F.2d 120. In McAllister v. United States, id., 348 U.S. at 20, 75 S.Ct. at 8, the Supreme Court said:

"A finding is clearly erroneous when `although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed,\' United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978, 988 * * * citations omitted."

II. A stevedore's use of defective or inadequate equipment after he has notice of such defect or inadequacy allows indemnity for damages over against the stevedore. T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745; Smith v. Jugosalvenska Linijska Plovidea, 4 Cir. 1960, 278 F.2d 176; Santomarco v. United States, 2 Cir. 1960, 277 F.2d 255; D/S Ove Skou v. Hebert, supra, on the basis that the stevedore has breached his warranty of workmanlike performance. Ryan Stevedoring v. Pan-Atlantic S.S. Corp., supra; Weyerhaeuser S.S. Co. v. Nacirema Operating Co., supra. Southern argues that the lower court "went wrong on the law" in that it believed that "it was incumbent upon appellant to make a close...