T. Smith & Son, Inc. v. SKIBS A/S HASSEL

• Decision Date: 07 September 1966
• Docket Number: No. 20767.,20767.
• Citation: 362 F.2d 745
• Parties: T. SMITH & SON, INC., Appellant, v. SKIBS A/S HASSEL, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 745 (1966)

T. SMITH & SON, INC., Appellant, v. SKIBS A/S HASSEL, Appellee.

No. 20767.

United States Court of Appeals Fifth Circuit.

June 23, 1966.

Rehearing Denied September 7, 1966.

Anthony R. Occhipinti, Charles Kohlmeyer, Jr., New Orleans, La., for appellant.

William E. Wright, Leon Sarpy, Walter Carroll, Jr., Paul A. Nalty, Robert Acomb, Jr., New Orleans, La., for appellee.

Before WOODBURY,^* JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge:

The SS Bow Santos, owned by Skibs A/S Hassel and under charter to Alcoa Steamship Co., Inc., had been at the Port of Mobile, Alabama, where an ore cargo had been discharged by Cooper Stevedoring Company, a contract stevedore. The vessel proceeded to the Port of New Orleans, Louisiana, and was moored at the Bienville Street wharf for the discharge of boxed cargo from the tween deck area. The vessel was boarded by a gang of longshoremen of the stevedoring firm of T. Smith & Son, Inc. One of this gang was Leo Duvernay. Shortly after going aboard, Duvernay fell through a hatch when an ill-fitting hatch board slipped from under him and caused him to fall into the lower hold. He was severely injured. Duvernay brought an action against Skibs and Alcoa charging negligence and unseaworthiness. Skibs filed a third party complaint against Smith, the New Orleans stevedore, and against Cooper, the stevedoring company which had worked the vessel at Mobile, Alabama, its next previous port. Duvernay, by amendments, asserted a claim against Cooper and its insurance carrier, Travelers Insurance Company. Other claims of the parties against one another were set up by pleadings of one sort or another. The case was tried to a jury. By a special verdict it was found that Skibs, the shipowner, was guilty of negligence and the vessel was unseaworthy. Damages were found in the amount of $77,000 and these were reduced by fifty percent to $38,500 because of Duvernay's contributory negligence. Smith, Duvernay's employer, was allowed recoupment of $24,491.74 for its payments of compensation and medical expense under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. Duvernay appealed on the ground that the award was inadequate.

Cooper was exonerated by the jury, and judgment for it and for Travelers was entered. Duvernay and Skibs appealed from the judgment for Cooper and Travelers. The district court directed a verdict for Alcoa on the claim of Duvernay and the jury returned a verdict for it on the issue of negligence. Judgment for Alcoa was entered from which appeals were taken by Duvernay, Skibs and Smith.

The claim of Skibs, the shipowner, against Smith, the stevedore, was for indemnity under the so-called Ryan¹ doctrine. The jury rendered a verdict for Skibs and it was given judgment over against Smith for the amount of the Duvernay judgment plus an attorney's fee of $11,666.66 and litigation expense of $1,576.10. Smith has appealed from the judgment. The appeal of Duvernay has been settled and dismissed. The appeals against Cooper, Travelers and Alcoa have also been disposed of and have been dismissed. Remaining for consideration and disposition is the appeal of Smith against Skibs, the New Orleans stevedore against the owner of the vessel.

The gang, of which Duvernay was one, had been on the vessel for perhaps thirty minutes before the accident. It was not shown when or where the misfitted board was placed over the hatch. The identity of the person or persons who placed it over the hatch was not established. Duvernay said he had not noticed the board but he had walked over the hatch once before he fell through it. Three of the other members of the gang had observed the board and tried, without success, to "prize" it into place. No report was made of the condition of the hatch board to the stevedore foreman or other supervisory personnel of Smith.

The appeal of Smith, on the merits, is based upon three assertations of error. It is contended that the finding of negligence on the part of Skibs, which was a causal factor in producing the injury, bars any recovery over against Smith, the stevedore, on an implied warranty. Smith urges that no duty is breached by a failure of the stevedore to inspect the work areas of a vessel in the absence of some knowledge indicating the existence of a defect, and that it is not to be charged with the knowledge of non-supervisory employees. Finally, Smith takes the position that the failure of the non-supervisory employees of Smith to repair defects discovered by them does not constitute a breach of the stevedore's implied warranty to perform its contract in a workmanlike manner.

Smith asserts that Skibs was negligent in turning the vessel over to Smith with the illfitting hatch board and in failing to give a warning before permitting the Smith gang to come aboard and begin work. The negligence of Skibs, according to Smith's theory, precludes any recovery against it as stevedore. Some of the statements in the Weyerhaeuser case² suggest that negligence of the ship or its owner may, under some circumstances, prevent recovery on the implied warranty of the stevedore. We find...