American President Lines v. Marine Terminals Corp., 14959.

• Decision Date: 19 July 1956
• Docket Number: No. 14959.,14959.
• Citation: 234 F.2d 753
• Parties: AMERICAN PRESIDENT LINES, Ltd., a corporation, Appellant, v. MARINE TERMINALS CORP., a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

234 F.2d 753 (1956)

AMERICAN PRESIDENT LINES, Ltd., a corporation, Appellant, v. MARINE TERMINALS CORP., a corporation, Appellee.

No. 14959.

United States Court of Appeals Ninth Circuit.

June 14, 1956.

Rehearing Denied July 19, 1956.

Lillick, Geary, Olson, Adams & Charles, Edwin L. Gerhardt, Gordon L. Poole, San Francisco, Cal., for appellant.

Boyd & Taylor, Fredric G. Nave, M. K. Taylor, San Francisco, Cal., for appellee.

Before HEALY and CHAMBERS, Circuit Judges, and HAMLIN, District Judge.

HAMLIN, District Judge.

This action was brought in the District Court for the Northern District of California, Southern Division, by appellant, American President Lines, Ltd., a Delaware corporation, hereinafter called American, against Marine Terminals Corp., a Nevada corporation, appellee, hereinafter called Marine, to recover indemnity in the amount of $62,500. This amount was the sum which American had paid to Robert B. Williams, a longshoreman employed by Marine, in settlement for injuries received by Williams on January 30, 1952, while he was aboard the steamship President Polk, a vessel owned by American, and was performing stevedoring work thereon pursuant to a contract between American and Marine for stevedoring services on American's vessels. The case was tried to the Court without a jury and the District Court rendered judgment for Marine, the defendant there, denying the indemnity sought by American. This appeal is from that judgment. No contention is made here that American was not liable for the amount it paid to Williams or that the amount is not reasonable. The sole question presented is whether or not under the circumstances American is entitled to indemnity from Marine for the amount it was required to pay.

Prior to the injury appellant American and appellee Marine, a stevedoring contractor, entered into a written contract for stevedoring services to be performed aboard appellant's vessels. The contract between American and Marine was introduced in evidence. This contract contained no agreement, covenant or language of indemnity, but did provide inter alia as follows: That Marine should —

"* * * b. Provide all necessary stevedoring labor, including winchmen, hatch tenders, tractor and fork lift operators, foremen and such other stevedoring supervision as are needed for the proper and efficient conduct of the work and for the vessel\'s utmost dispatch.

"c. Adjust rigging of booms, guys and other ordinary cargo tackle at hatches where work of discharging and/or loading will be conducted as required in the operation, and readjust when completed. Remove and replace beams, hatch covers and tarpaulins."

On January 29, 1952, a stevedoring gang employed by Marine boarded the vessel SS President Polk to discharge cargo from Number 1 Hatch. On that day the chief officer of appellant told Bleile, the walking boss for Marine, to keep his eyes open because he believed there were some beams (also called "strongbacks") aboard with no locks and that such beams should be removed to the deck. Bleile testified, "He chief officer called me below. He said, `Will you keep your eyes open? I believe I have strongbacks here which have no locks.'" Bleile instructed the stevedoring gangs at work to remove excess beams from Number 1 Hatch and to place them on the deck. Work continued that afternoon and on the following morning, January 30th, the stevedoring gang came aboard to uncover Number 1 Lower Hold and to load cargo into that hold beneath the beam in question. The forward section between the hatch coaming and the Number 2 Beam was removed by the longshoremen for the first time on January 30th to permit access to the lower hold, partially exposing the Number 2 Beam and revealing the missing locking device. The remaining sections of hatch boards were left in place, leaving only one section of the hatch open. Randolph, a gang steward employed by appellee, primarily charged with responsibility for safety, noticed shortly after the work began that the safety lock or latch was missing on Number 2 Strongback. He knew that this was an unsafe condition in view of the fact that loading operations were being conducted beneath this beam. Randolph, upon discovery of this condition, reported it to his gang boss Swanson and to the walking boss Bleile, both employees of appellee. Swanson recognized that this condition constituted an unsafe condition, but did nothing about it. The work continued in the face of this knowledge until the accident occurred. The winchman testified that when only one section of the hatch was open, it presented too small an opening for the working of cargo. With the vessel down by the stern, the bridle in its movements up and down through the hatch opening swung toward the after end of the hatch so that it would strike against the partially exposed unlocked Number 2 Strongback.

The loading of the cargo here was conducted in the following manner: Oil drums were picked up off the dock by a bridle and sling operated by the winchman, and were lowered through the hatch opening into the hold where Williams and the other men would release the bridle from the drums. The winch driver would then raise the empty bridle out of the hatch with a swinging motion. Just prior to the accident Williams had released the bridle from some oil drums and as he attempted to check the swing of the bridle, the winchdriver pulled the bridle and hook up and away, and on its way up the bridle and the hook thereon hit the Number 2 Strongback, dislodged it and toppled it into the hold below where it struck Williams. It was stipulated that the safety lock on the Number 2 Strongback was missing before the accident.

At the time of the accident there was no testimony that any officer of appellant was present at the scene of the operation in Number 1 Hold. Bleile testified that it was the practice for the gang steward to remove any unsafe condition found by the steward, and that he, Bleile, had given instructions to the gang boss on the day before the accident to stop the work and remove beams that were found unsafe. Swanson, the gang boss, admitted that he had been told of the unsafe condition by Randolph, and that it was his duty to report it to the walking boss, but that he had not done so.

Appellant contends that it is entitled to recover indemnity from appellee stevedoring contractor upon the following grounds:

"1. That the conduct of American in providing a strongback without a locking device was at most proof of unseaworthiness, and that Marine was guilty of negligence in knowingly loading cargo under unsafe conditions, in negligently failing to remove the unsafe and lockless strongback during the work, and operating the bridle, sling and hook in close proximity to and against the unlocked strongback; that the negligence of Marine solely and proximately caused the accident; and that indemnity should be awarded in favor of appellant under common law.

"2. That even if it might be said that American was negligent in providing the strongback without a locking device, such negligence was passive and secondary, while Marine was actively and primarily negligent, and under such conditions Marine should pay indemnity.

"3. That under the doctrine of Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, even in the absence of an express agreement of indemnity, a stevedoring contractor is obligated to reimburse a shipowner for damages caused to the shipowner by the contractor\'s negligent performance of his stevedoring contract."

In support of appellant's first contention that it is entitled to indemnity because it was guilty of only unseaworthiness and not negligence at all, while the negligence of Marine was the primary cause of the accident, it relies on States S. S. Co. v. Rothschild International Stevedoring Co., 9 Cir., 205 F.2d 253; Berti v. Compagnie De Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397; Valerio v. American President Lines, D. C.N.Y., 112 F.Supp. 202. On the record before us, it cannot be said that the liability of American to Williams was based only upon unseaworthiness and not upon negligence. In the suit brought in the state court by Williams against American, the complaint alleged both unseaworthiness and negligence. The original complaint in this present action alleged that the suit by Williams against American was compromised because of the liability of American based on unseaworthiness. Thereafter, the complaint was amended to allege, inter alia, that the liability of American was based upon unseaworthiness and negligence. This allegation was denied by the defendant, but the District Court below found that American was negligent, and while it variously characterized that negligence as passive and joint and concurrent, its basic finding of negligence is not clearly erroneous and cannot be set aside. Thus, it cannot be said that the only liability of American was for unseaworthiness, and the questions raised by this appeal will not be decided on this ground urged by the appellant in its first contention. Therefore, we turn to other grounds urged by the appellant as alternatives.

Under the second contention of appellant that its negligence, if any, was passive and secondary while the Marine negligence was primary and active, appellant relies in the main upon U. S. v. Rothschild International Stevedoring Co., 183 F.2d 181, 182, decided by this Court. In that case the stevedoring company used a winch supplied by the ship, knowing it to be defective, and while so using it the accident happened, causing the damages for which indemnity was sought. The Court there said, "It is clear that both the United States the shipowner and Rothschild were negligent. It seems equally clear that Rothschild had warning of the defect which was the immediate cause of the accident. With this knowledge Rothschild should not have permitted Dillon to work in this dangerous circumstance as to which it was...