Villain & Fassio E. Compagnia v. Atlantic & Gulf Stevedores

• Decision Date: 03 May 1968
• Docket Number: Civ. A. No. 6383.
• Citation: 283 F. Supp. 725
• Court: U.S. District Court — Eastern District of Virginia
• Parties: VILLAIN & FASSIO E. COMPAGNIA, Plaintiff, v. ATLANTIC & GULF STEVEDORES, INC., Defendant.

283 F. Supp. 725

VILLAIN & FASSIO E. COMPAGNIA, Plaintiff, v. ATLANTIC & GULF STEVEDORES, INC., Defendant.

Civ. A. No. 6383.

United States District Court E. D. Virginia, Norfolk Division.

May 3, 1968.

Vandeventer, Black, Meredith & Martin, Walter B. Martin, Jr., and Bernard G. Barrow, Norfolk, Va., for plaintiff.

Rixey & Rixey, William B. Eley, Norfolk, Va., for defendant.

KELLAM, District Judge.

Defendant is a stevedore operating in the Eastern District of Virginia. It contracted with plaintiff, owner of the SS NANDO FASSIO to load and discharge cargo at Norfolk. The work was performed on August 22 and 23, 1966. While so doing, thirteen of the longshoremen in its employ were injured. Claims were made by said thirteen longshoremen and, after investigation, the thirteen claims were settled by plaintiff. Plaintiff here seeks indemnity for the sums paid in settlement of said claims and for costs and attorneys' fees. The reasonableness of such settlements and the attorneys' fees and costs are established by uncontradicted evidence. The basis of plaintiff's claim is that the defendant breached its implied warranty of performance of its undertaking in a workmanlike manner.

We commence with the principle of law that where a shipowner, potentially liable to a longshoreman, reasonably settles the longshoreman's claim, it has a right to indemnity from the stevedore if the shipowner can show that (a) the stevedore breached its warranty of workmanlike service, and (b) the expense incurred in defense of the claim was reasonable. American Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525, 526 (4th Cir. 1964); Rederi A/B Dalen v. Maher, 303 F.2d 565, 567 (4th Cir. 1962). Where a stevedore's breach of warranty imposes liability upon the ship, the ship is entitled to indemnity from the stevedore for losses, which include expenses of litigation, and a judgment of liability is not required. American Export Lines v. Norfolk Shipbuilding & Drydock Corp., supra; Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, 386 F.2d 193, 198 (4th Cir. 1967).

The longshoremen's right of recovery against the ship was on grounds of unseaworthiness and/or negligence, but the establishment of either or both grounds would not of itself prevent shipowner's recovery over against stevedore. Here the right of recovery over is based on stevedore's alleged breach of warranty of workmanlike service, and such breach of warranty is not excused by reason of the fact that the ship was itself unseaworthy. Smith v. Jugosalvenska Linijska Plovidea, 278 F.2d 176 (4th Cir. 1960); Calmar SS Corp. v. Nacirema Operating Co., 266 F.2d 79 (4th Cir. 1959). If the stevedore renders substandard performance of its contract with the shipowner, the shipowner is entitled to indemnity, "absent conduct on its part sufficient to preclude recovery." Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, at 567, 78 S.Ct. 438, at 441, 2 L.Ed.2d 491. Negligence of the shipowner or unseaworthiness of the ship will not justify a breach of warranty of workmanlike service on the part of the stevedore. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., supra. In order for the fault of the shipowner to relieve the stevedore of his duty under the warranty, it must, at least, prevent or seriously handicap the stevedore in his ability to do a workmanlike job. Mere concurrent fault is not enough. Albanese v. N. V. Nederl Amerik etc., 346 F.2d 481 (2d Cir. 1965); Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, supra. The question is, who brought the unseaworthiness into play. Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne supra.

The failure of a stevedore to take remedial action to correct a known danger will constitute a breach of warranty and entitle the shipowner to indemnity for resulting damages. Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, supra; Smith v. United States, 336 F.2d 165, 171 (4th Cir. 1964); Gainar v. SS Longview Victory, 226 F.Supp. 912 (D.C. Va.1964). And this is true even where it is the cargo of the ship which constitutes or creates the unsafe condition. Valerio v. American President Lines, 112 F.Supp. 202 (D.C.N.Y.1952).

Turning now to the facts of this case, it is established that plaintiff's ship, SS NANDO FASSIO, put into port at Norfolk for on and off loading of cargo. The work was performed by defendant's workmen on August 22 and 23, 1966. Work commenced on the morning of August 22 about 8 o'clock a. m. on 'tween decks of hold one, and work was carried on there on August 22 and 23, and on August 23 work was also done on 'tween decks of hold two. The lower decks of hold one and hold two were loaded with "pencil pitch." It is a solid remnant from the distillation of coal tar, which is in pencil shaped pieces. The "pencil pitch" had been loaded in Baltimore through a "chute." To assist in the loading and to prevent the spread of dust, large tarpaulins were hung around the hold from the top deck to the hatch opening in the lower hold. After the loading, and before the ship arrived in Norfolk, the hatches to the lower holds were closed and covered with tarpaulins and/or plastic.

On August 22, within one or two hours after defendant's workmen commenced work on the 'tween deck of hold one, they felt an itching sensation on their faces, eyes, necks, arms and hands. This was reported to the "hatch boss" between 9 and 10 o'clock a. m. on August 22, who reported it to the stevedore's foreman. The itching and burning continued all that day and during the next day. The "hatch boss" asked the mate to turn on the blowers, but they stirred up so much dust, they were immediately turned off. On the evening of August 22, some of the men went to DePaul Hospital to obtain relief from the burning and itching, and after work was completed, all of them went to see Dr. Mallory Andrews. Some of the workmen testified they saw Dr. Andrews on the 23rd, but the Doctor testified from his record that he saw them on the 24th, and two or three of them on the 25th. While the evidence is in conflict as to when they saw Dr. Andrews, it is uncontradicted that the itching commenced soon after the men started work on the morning of August 22, and that it was reported promptly to the "hatch boss." The evidence further establishes the condition was reported to the stevedore's foreman. No protective clothing was furnished, no order was issued to stop work, the matter was not reported to the ship,¹ and no investigation was made to determine the cause of the "itching" until after the work was completed. Dr. Andrews testified all the men were suffering with itching faces, necks, arms, and some with irritated eyes. He diagnosed it as mild skin irritation as a result of coming in contact with something on the ship. He later learned, after an occupational health physician had made a study of the matter (the cargo of the ship and the symptoms) that the itching had been caused by pencil pitch. Dr. Carl U. Dernehl, an expert, testified by deposition that in his opinion the itching complained of was the result of exposure to pencil pitch dust. Dr. Andrews testified that direct contact with the dust—such as putting one's hands in it—was not a prerequisite to the itching; that exposure to it through the air was sufficient to cause the itching.

The evidence is further uncontradicted that pencil pitch had been a part of the cargo on this ship and other ships before and no difficulty had been experienced by workmen while working aboard such a ship. In fact, the expert witnesses who testified on behalf of plaintiff and defend...