Cooper v. Loper
| Decision Date | 17 January 1991 |
| Docket Number | 90-5374,Nos. 90-5373,s. 90-5373 |
| Citation | 923 F.2d 1045 |
| Parties | Thomas COOPER v. Irving W. LOPER; and Michael Loper, Third Party Plaintiffs, v. AXELSSON & JOHNSON, INC., Third Party Defendants. Appeal of Irving W. LOPER and Michael Loper. Thomas COOPER v. Irving W. LOPER; and Michael Loper, Third Party Plaintiffs, v. AXELSSON & JOHNSON, INC., Third Party Defendant. Appeal of AXELSSON & JOHNSON, INC. |
| Court | U.S. Court of Appeals — Third Circuit |
Michael D. Wilson (argued), William E. Bell, Kirlin, Campbell & Keating, Caldwell, N.J., for Irvin W. Loper and Michael Loper.
William M. Honan, Daniel J. Saul (argued), Horn, Kaplan, Goldberg, Gorny & Daniels, P.C., Atlantic City, N.J., for Axelsson & Johnson, Inc.
Before STAPLETON, HUTCHINSON, and ROSENN, Circuit Judges.
Plaintiff Thomas Cooper was injured while off-loading a ship; after bringing this action, he received compensation in exchange for settling his claim against the shipowners. These cross-appeals arise from the efforts of the shipowners, third-party plaintiffs, Irving W. Loper and Michael Loper ("shipowners"), to secure indemnification or contribution from the dockowner, third-party defendant, Axelsson & Johnson, Inc. ("dockowner"). Both parties appeal from the district court's entry of final judgment after a bench trial of the third-party claims. The shipowners argue that the district court erred in awarding only 80% of the amounts paid by them in settlement and in refusing to award attorneys' fees. The dockowner argues that the district court lacked subject matter jurisdiction, that the case should have been tried to a jury, and that the district court's findings of fact are clearly erroneous. We hold that the district court had jurisdiction, that it could hear this case as a bench trial, and that its findings of fact are not clearly erroneous. We further hold, however, that full indemnity and attorneys' fees should have been awarded. Therefore, we will remand this case for entry of a judgment in accordance with this decision.
Cooper, an employee of the shipowners, was injured when he was hit with a large bucket of fish suspended from the boom of a shoreside crane. Cooper had been filling the bucket on the ship and then swinging it to dock employees on land. The district court found that the dock employees failed to catch the bucket and that it swung back to the ship, hitting Cooper who had bent down to clear fish and other debris from the deck around his feet.
Cooper brought this case under the Jones Act and "General Maritime Law" against the shipowners. The shipowners impleaded the dockowner pursuant to Rule 14(c) of the Federal Rules of Civil Procedure, demanding a judgment in favor of the plaintiff, as well as asserting their own claim for contribution or indemnity. After a jury was empaneled, but before trial, the shipowners settled with Cooper. The dockowner was given the opportunity to approve the settlement or assume defense of Cooper's claim against the shipowners.
After the settlement was announced, the judge proposed that he conduct a bench trial of the remaining claims against the dockowner. He conferred with counsel, and because there was ultimately no objection, he proceeded to trial. The judge determined that Cooper had been adequately compensated by the settlement and so made no award in Cooper's favor against the dockowner. He further concluded that the shipowners were not entitled to indemnification, but that they were entitled to contribution in the amount of 80% of their settlement together with prejudgment interest from the date of the settlement. Finally, the district court held that the shipowners were not entitled to recover from the dockowner any part of the attorneys' fees spent in defending against Cooper's claim. These cross-appeals followed.
The dockowner argues that the indemnity claim was not within the district court's admiralty jurisdiction and that therefore the district court lacked subject matter jurisdiction over that claim. It bases this argument on the requirement of Rule 9(h) of the Federal Rules of Civil Procedure 1 that, in certain cases, an admiralty claim must be specifically identified as such in the pleadings. Even assuming the dockowner is correct in asserting that the shipowners did not comply with Rule 9(h), this argument is without merit.
The dockowner's argument confuses admiralty as a source of procedural rules with admiralty as a basis for federal subject matter jurisdiction. Rule 9(h) states that when an alternate basis for federal jurisdiction exists, admiralty procedures will be followed only if the pleadings identify the admiralty claim as such. If a claim can only be brought as one in admiralty, there is no need to specify that admiralty procedures will be used. Nothing in Rule 9(h) speaks to subject matter jurisdiction.
Whether a particular claim is an admiralty claim for purposes of federal subject matter jurisdiction pursuant to 28 U.S.C. Sec. 1333, 2 depends solely on the nature of the claim. A "stevedoring contract is a maritime contract" and a federal district court has jurisdiction over a claim for breach of such a contract under Section 1333. A & G Stevedores v. Elleman Lines, 369 U.S. 355, 359, 82 S.Ct. 780, 783, 7 L.Ed.2d 798 (1962). As we shall hereafter see, the shipowners' claim for indemnity under the doctrine of Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) is a claim for breach of a warranty implied in such a contract. As a result, Ryan 's indemnity claims have uniformly been regarded as admiralty claims. See, e.g., Humble Oil & Refining Co. v. Philadelphia Ship Maintenance Co., 444 F.2d 727, 729 (3d Cir.1971) (). Hamburg-Amerika Linie v. Gulf Puerto Rico Lines, 579 F.2d 115, 118 (1 Cir.1978) ().
The dockowner cites cases in which indemnity claims have been tried to a jury as evidence that such claims are not necessarily within admiralty jurisdiction. See, e.g., Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). This also confuses admiralty procedure with admiralty subject matter jurisdiction; that non-admiralty procedure is applied does not demonstrate that the claim has ceased to be an admiralty claim. All of those cases involved at least one other claim that created a right to a jury trial; the indemnity claims were tried to the jury, not because the indemnity claim ceased to be an admiralty claim, but because there is no bar to trying an admiralty claim to a jury and conducting two separate trials in the same case "unduly complicates and confuses a trial, creates difficulties in applying the doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery." Id. at 19, 83 S.Ct. at 1649. None of these cases demonstrates that federal courts lack subject matter jurisdiction over such claims.
The parties dispute whether the dockowner had a right to a jury trial on the indemnity claim. But even assuming that the dockowner was entitled to a jury trial, that right was waived by its participation without objection in the bench trial. In answer to the court's inquiry, "Doesn't the Waterman [S.S. Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960) ] case clearly bring this under admiralty?", counsel for the dockowner replied, "I think so, your Honor, yes sir." The court then continued "Therefore, all agreed that we won't need a jury or we shouldn't have a jury?" [counsel for shipowners, "Yes Sir."] "If there is any question I can do this, because I don't like to try cases over again, it is like watching a bad movie over again, if there is any doubt, I will let the jury be advisory only." Appendix at 162-63a. Counsel for the dockowner made no objection at any point.
Rule 39(a)(1) of the Federal Rules of Civil Procedure provides that once a timely demand is made for a jury trial, the parties may waive that right only if "[they] or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury[.]" However, all courts of appeals that have addressed the issue have established a general rule that "participation in a bench trial without objection constitutes waiver of the jury trial right." Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018 (2d Cir.1989) (collecting cases). 3
The facts in this case closely resemble those in Molett v. Penrod Drilling Co., 826 F.2d 1419 (5th Cir.1987), vacated on other grounds, 872 F.2d 1221 (5th Cir.), cert. denied sub nom. Columbus-McKinnon, Inc. v. Gearench, Inc., --- U.S. ----, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989). There, the main action settled--after a trial to the jury, but before the verdict was announced--and the third-party defendants failed to object to the judge's announcement that he would determine the merits of the third-party action. The court of appeals concluded that the third-party defendant had waived any jury trial, noting that,
[Third-party defendant's] silence on the matter at trial and until now certainly suggested to the trial court and opposing parties that it acquiesced in the court's proposed plan. [It] may not now deny that it waived its right to a jury trial and demand a new trial only after it has lost on the merits and failed to make a...
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