Cia Maritima Del Nervion v. James J. Flanagan Ship. Corp.

• Decision Date: 18 September 1962
• Docket Number: No. 19492.,19492.
• Citation: 308 F.2d 120
• Parties: CIA MARITIMA DEL NERVION, Appellant, v. JAMES J. FLANAGAN SHIPPING CORPORATION, STEVEDORE DIVISION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

308 F.2d 120 (1962)

CIA MARITIMA DEL NERVION, Appellant, v. JAMES J. FLANAGAN SHIPPING CORPORATION, STEVEDORE DIVISION, Appellee.

No. 19492.

United States Court of Appeals Fifth Circuit.

September 18, 1962.

Edward W. Watson, Galveston, Tex., for appellant.

Bryan F. Williams, Jr., Galveston, Tex., for appellee.

Before CAMERON, WISDOM and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

Leo Stagg, a longshoreman, brought a libel against the Mar Tirreno, a cargo vessel, for personal injuries suffered while aboard the ship. Seeking indemnity for the amount for which it might be liable, Cia Maritima del Nervion, owner of the vessel, impleaded James J. Flanagan Shipping Corp., Stagg's stevedore employer. Flanagan cross-libeled for the compensation and medical expenses it had paid Stagg under the Longshoremen's and Harborworkers' Act. Nervion, after settling with Stagg for $17,500, was denied indemnity by the District Court and was ordered to pay Flanagan $1,867.96 to cover the stevedore's payments to Stagg. Nervion appeals from this judgment. The appellant shipowner's position is that the stevedoring company breached its warranty of safe and workmanlike performance by failing to make a prior inspection of the hold in which the longshoremen were to work and by inadequately supervising the men; that this alleged breach of warranty entitles it to indemnity for the damages sustained. We find this contention lacking in merit, and we affirm the judgment below.

I.

July 22, 1958, the Mar Tirreno, a Spanish general-cargo vessel, arrived at Port Arthur, Texas and took on a load of petroleum coke in her No. 2 lower hold. This coke is a fine, jet-black substance, loaded by means of a chute, so that no longshoremen were used in the hold before or during the loading. The hatch was closed after loading. Except for a surveyor from the National Cargo Bureau, who inspected the ship when the coke was taken on, the No. 2 hold was not entered until the ship reached Beaumont two days later. At ten o'clock that morning a gang of longshoremen came aboard to level the coke. The hatch had been reopened about thirty minutes before work was to begin. Stagg, the libellant, was the first man down the fixed steel ladder into the No. 2 hold. A few feet above the level of the coke, he lost his footing. At that point one rung of the ladder was missing and the rung below it was bent downward. Stagg managed to hold onto the ladder, but he wrenched his back so severely that he was permanently disabled.

Stagg worked by the job for different stevedores. On the morning of the accident, he and the other members of his gang were hired at the Union Hall and worked under the direction of Droddy, Flanagan's "walking foreman," and its stevedore superintendent, Jordan. It is undisputed that no inspection, however cursory, was made of the ladder or other parts of the No. 2 hold, where the longshoremen would be working. It is not clear, however, as the appellant insists, that merely looking down the ladder into the hold would have revealed the defect in the ladder. Although on the morning in question the hatch was completely open to a bright summer sky and cluster lights had been lowered at the four corners of the hatch, there was testimony that the silt-like, jet-black coke was light absorbent and provided no reflection for the sun's rays or the artificial lighting. Since the missing and bent rungs were about four feet from the coke and about eight feet in the lower hold below the 'tween deck, it is not clear from the evidence in the record that anything other than a careful inspection or an actual descent at least part way down the ladder would have disclosed the defect.

It was not customary to make such an inspection. On this the record is explicit. Stagg, a longshoreman of fifteen or sixteen years experience, testified that he knew of no custom of stevedores' sending someone into the hold to make an inspection before work began. Droddy's testimony was to the same effect. Jordan, the superintendent, was asked, "You have no fixed rule for your walking foreman to follow that covers going down in the hold first and looking around, or checking on the lighting, or checking on the ladders, or things of that kind?" He replied: "Let me say this. I have been on the waterfront a long time, and I have worked a hold many a time, with all different kinds of men, and that instruction, I have never heard of before, until right then. I never heard anybody mention that kind of instruction." Egurrola, chief mate of the Mar Tirreno, also testified that it was not customary, in Gulf Coast ports, for longshoremen to refrain from beginning work until a representative from the stevedore company checked the holds. Miss Flanagan, vice president, secretary and treasurer of the Flanagan Shipping Corp., stated that it was not a practice to have an inspection because of the expense to the ship owners in paying the men while they were waiting. Only the testimony of Lluch, second mate of the Mar Tirreno, could be construed as indicating that there was usually an inspection. But the second mate was speaking through an interpreter. In view of the agreement in the testimony of the other witnesses, including that of the chief mate, the marked failure of communication between examining counsel and Mr. Lluch, which is clear at several places in the record, and the later indication that Lluch was probably referring to the surveyor from the National Cargo Bureau, the district judge properly discounted his statement.

On this evidence, the district judge found that the defective ladder at the No. 2 hatch, which rendered the vessel unseaworthy, was the sole cause of Stagg's injury and that Flanagan, the stevedore, having accorded Stagg, "all of the normal supervision given to longshoremen generally," had contributed in no way to his injury.

II.

It has been clear since Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, that the shipowner's action for indemnity is not founded upon a tort or any duty which the stevedore owes its employee, but rather upon the contract between the shipowner and the stevedore and the stevedore's implied warranty of workmanlike service in stowing the cargo. This contractual obligation to perform the duties with reasonable safety extends not only to the actual handling of cargo, but to the "use of equipment incidental thereto" as well. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. And, even though the vessel or its equipment may themselves be unseaworthy, if the stevedore brings this condition into play, he is liable to indemnify the owner for any damages which may be sustained because of the breach of warranty. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Calmar Steamship Corp. v. Nacirema Operating Co., 4th Cir. 1959, 266 F.2d 79, cert. den. 361 U.S. 816, 80 S.Ct. 56, 4 L.Ed.2d 62. See Halliburton Co. v. Norton Drilling Co., 5th Cir. 1962, 302 F.2d 431, 434-435. But the stevedore is not an insurer or guarantor of any and all accidents which may result in injury to a longshoreman working on the vessel. The stevedore's negligence which breaches his warranty of workmanlike performance is a question of fact, to be decided by the trier of fact, and it cannot be redetermined by this court unless it is manifestly against the weight of the evidence. See Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). See also, Norris, The Law of Maritime Personal Injuries (1959) § 55, p. 152. On the record before us, we cannot hold that the District Court clearly erred in finding that "in performing its stevedoring services aboard M/V Mar Tirreno on the occasion in question, Flanagan acted in a safe,...