Booth Steamship Co. v. Meier & Oelhaf Co.

• Decision Date: 29 December 1958
• Docket Number: No. 42,Docket 25104.,42
• Citation: 262 F.2d 310
• Parties: BOOTH STEAMSHIP CO., Ltd., Defendant and Third Party Plaintiff-Appellant, v. MEIER & OELHAF CO., Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

262 F.2d 310 (1958)

BOOTH STEAMSHIP CO., Ltd., Defendant and Third Party Plaintiff-Appellant, v. MEIER & OELHAF CO., Third Party Defendant-Appellee.

No. 42, Docket 25104.

United States Court of Appeals Second Circuit.

Argued November 10, 1958.

Decided December 29, 1958.

William P. Kain, Jr., New York City (J. Ward O'Neill and Haight, Gardner, Poor & Havens, New York City, on the brief), for plaintiff-appellant.

Joseph Arthur Cohen, New York City (Sidney A. Schwartz and Alexander, Ash & Schwartz, New York City, on the brief), for defendant-appellee.

Before HINCKS, LUMBARD and MOORE, Circuit Judges.

LUMBARD, Circuit Judge.

Appellant, Booth Steamship Co., seeks reversal of Judge Dimock's dismissal of its third party complaint against appellee Meier & Oelhaf Co., machinists, in which it claimed indemnity from whatever sum might be awarded against it in the main action on behalf of the plaintiff, an employee of Meier & Oelhaf, for injuries he sustained while engaged in engine repair work aboard appellant's vessel, the Dominic. The judgment in the main action is not contested here. The primary issues presented for decision are (1) whether the oral agreement between Booth and Meier gave rise to an implied warranty by Meier that the work to be done would be done safely, and (2) whether if such a warranty is implied, liability under it was incurred to Booth when equipment supplied by Meier broke without Meier's fault causing the injury for which plaintiff recovered from Booth. We answer both questions in the affirmative, and we therefore remand the third party action for trial on the contested issue of the terms of the agreement. There can be no question as to jurisdiction on the third party action as Booth is an English corporation and Meier is a New York corporation.

The undisputed facts are as follows. Pursuant to an unwritten agreement between them, Meier undertook to overhaul the engines on Booth's vessel, the Dominic. One of the first steps in the execution of the work was the extraction of tight fitting cylinder liners from the engine block, and this was undertaken by means of extracting equipment consisting essentially of a rigid bar, or strongback, which was attached to the liner, and a jack, which was used to raise the liner by raising the strongback. Because the lifting arm of the jack was relatively short it was necessary periodically to suspend the strongback holding the liner from a wire strap while the jack itself was lifted up. It was while the strongback was so suspended that the strap parted, allowing the strongback to fall and sever the thumb of the plaintiff, who was engaged in elevating the jack itself for further lifting.

Although the parties did dispute the question of which of them supplied or was responsible to supply the defective strap, the district court found the resolution of the issue irrelevant to the liabilities involved, and instructed the jury not to consider the question. The record reveals, however, that there was sufficient evidence on this issue for it to be sent to the jury if it was in fact relevant to the action.

From the record it appears, and both parties agree, that the plaintiff's injury was not the result of negligence of any of the parties. A count in negligence was therefore dismissed and the plaintiff's action went to the jury only on the issue of the unseaworthiness of the vessel, for which he recovered. Judge Dimock dismissed the third-party action because he held that no proof of fault on the part of Meier had been introduced, and that failing such proof Booth could not recover in the absence of an express contract of indemnity. The finding that such proof was absent is not contested here. Therefore it is established and not contested on this appeal that the defect in the wire which rendered the vessel unseaworthy was not one which could have been detected by a visual examination in the exercise of ordinary prudence.

At the outset we are confronted with the question of the source of the law which governs the implied terms of agreements of independent contractors to do repair work on vessels. It has been long established that contracts for the repair of vessels are maritime contracts. North Pac. S. S. Co. v. Hall Bros. Co., 1919, 249 U.S. 119, 128-129, 39 S.Ct. 221, 63 L.Ed. 510; The General Smith, 1819, 4 Wheat. 438, 17 U.S. 438, 4 L.Ed. 609. In the two recent cases in which the Supreme Court announced and discussed the implied warranty of workmanlike service it evidently assumed the federal character of the law to be applied to maritime service contracts, since it did not in any way advert to state law. See Weyerhauser S. S. Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; Ryan Stevedoring Co. v. Pan-Atlantic S. S. Co., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Moreover, we decided a closely related question of the source of law in A/S J. Ludwig Mowinckels Rederi v. Commercial Stevedoring Co., 2 Cir., 1958, 256 F. 2d 227, where we held that an express indemnity clause in a contract between a stevedoring company and shipowner was governed by federal law, despite the Supreme Court's holding in Wilburn Boat Co. v. Fireman's Fund Ins. Co., 1955, 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337, that although federal competence existed state law would govern a contract of marine insurance. The reasons which then sufficed to distinguish contracts of insurance from express indemnity clauses in maritime service contracts apply with equal vigor to implied warranties in the same contracts. Accordingly we hold that federal maritime law governs the construction of the agreement here in issue.

The appellee has argued that since there was no written contract governing the services it performed, no warranty may be implied. It points to the fact that in both the Ryan and Weyerhauser cases there was written evidence of the stevedoring contracts, and in each the Supreme Court construed the language of the undertaking. We find no merit in this contention. It cannot be disputed that the services performed were carried out pursuant to an agreement between Booth and Meier. That the terms of the agreement may have been oral, or implied from the course of dealing between the parties and custom of the trade, or part oral and part according to custom, can make no difference. The warranty here involved is an incident of the agreement, "it is appellee's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product." Ryan, supra,...