Calmar Steamship Corp. v. Nacirema Operating Co.

• Decision Date: 08 April 1959
• Docket Number: No. 7804.,7804.
• Citation: 266 F.2d 79
• Parties: CALMAR STEAMSHIP CORPORATION, a Delaware corporation, Defendant and Third-Party Plaintiff, Appellant, v. NACIREMA OPERATING COMPANY, Inc., a body corporate, Third-Party Defendant, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

266 F.2d 79 (1959)

CALMAR STEAMSHIP CORPORATION, a Delaware corporation, Defendant and Third-Party Plaintiff, Appellant, v. NACIREMA OPERATING COMPANY, Inc., a body corporate, Third-Party Defendant, Appellee.

No. 7804.

United States Court of Appeals Fourth Circuit.

Argued March 13, 1959.

Decided April 8, 1959.

George W. P. Whip and Robert E. Coughlan, Jr., Baltimore, Md. (Lord, Whip & Coughlan, Baltimore, Md., on the brief), for appellant.

Jesse Slingluff, Jr., and Mathias J. DeVito, Baltimore, Md., for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

This is an appeal from the District Court's judgment denying a shipowner indemnity from a stevedoring contractor for the amount recovered from the shipowner by an injured longshoreman-employee of the stevedore.

The longshoreman, Joseph Oleszczuk, was struck and injured by a cargo light which came loose from its cable when thrown into number 4 hold of the S. S. Portmar by a deckman who was also an employee of the stevedore. Oleszczuk brought suit against the Calmar Steamship Corporation, owner and operator of the ship, charging that his injury was due to the unseaworthiness of the vessel and the negligence of her owner. Calmar impleaded Nacirema Operating Co. Inc., the stevedore, as a third-party defendant, claiming indemnity for any amount which it might be obligated to pay Oleszczuk.

The evidence shows that the light which struck the plaintiff had a single bulb screwed into a large bell-shaped metal reflector, to which was joined a metal handle. A cable of electric wires passed through a small circular opening at the top of the reflector and the wires were supposed to be securely attached to terminal screws. It is customary, as an extra precaution, for the ship's crew to tape or tie the cable to the handle on the reflector in order to relieve the strain on the terminal screws. When so arranged, the lights are said to be "seized."

In accordance with the contract between the owner and the stevedore, the ship supplied the cargo lights. The one supplied for hold number 4, in which the plaintiff was working, had not been seized. The stevedore's deckman not only accepted and used the unseized light, but threw it over the side of the hold so roughly that the light was jerked from the cable and fell into the hold, injuring the plaintiff.

In response to written interrogatories, the jury found that the ship's crew had been negligent in regard to the light, and that the light constituted an unseaworthy appliance. Both the negligence and the unseaworthiness were found to be proximate causes of the accident. The stevedore was also found to be negligent, both in having used an unseized light and in having lowered it in an unsafe manner. The latter was declared by the jury to be also a proximate cause of the accident.

A judgment for $35,000 was entered in favor of Oleszczuk against Calmar, and this recovery is not in issue here. The sole remaining question, whether Calmar is entitled to indemnity from Nacirema, was submitted to the District Judge with the understanding that the jury's findings would control "as far as they go."

The court ruled first that any claim which Calmar might have against Nacirema must be based upon the contractual relationship between them. Citing Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 441, 2 L.Ed.2d 491, the court said that a service contract such as the one here involved implies a promise by the expert stevedore to perform "with reasonable safety" and that this obligation relates not only to the handling of cargo, as in Ryan, but to the use of equipment incidental thereto, as in Weyerhaeuser. The District Court then held that the manner in which Nacirema had used the cargo light constituted a breach of this contractual duty.

Next, the court considered the limitation on the shipowner's right of indemnity, expressed by the Supreme Court in Weyerhaeuser in the words, "absent conduct on its part sufficient to preclude recovery." While it was pointed out that the Supreme Court had not yet specified what conduct on the part of the shipowner would be sufficient to preclude recovery, the District Court reasoned that, to bar recovery, the shipowner's conduct would have to amount to a breach of a contractual duty owed by it to the stevedore. The court then decided that while the contract involved here provided simply that Calmar would supply lights for night work, it was obligated to supply lights which were reasonably safe, and that those supplied failed to satisfy this obligation. In these circumstances...