D'AGOSTA v. Royal Netherlands Steamship Co.
| Decision Date | 27 March 1962 |
| Docket Number | No. 237,Docket 27156.,237 |
| Citation | 301 F.2d 105 |
| Parties | Carmine D'AGOSTA, Plaintiff, v. ROYAL NETHERLANDS STEAMSHIP CO., Defendant and Third-Party Plaintiff-Appellee, v. MAUDE JAMES, INC., Third-Party Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexander, Ash & Schwartz, New York City, of counsel.
Sidney A. Schwartz, New York City (Edward Ash, Hanlon & Dawe, New York City, on the brief), for third party defendant-appellant.
George J. Conway, New York City, for third party plaintiff-appellee.
Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.
Maude James, Inc. (Maude) appeals from a judgment of the district court granting Royal Netherlands Steamship Co. (Royal) recovery over against Maude in a suit for personal injuries brought by Carmine D'Agosta, a longshoreman employed by Maude, wherein D'Agosta recovered a judgment against Royal. D'Agosta was injured in the course of his employment on board one of Royal's ships when he was struck by a boom which buckled during the course of an operation by Maude's employees while they were removing a rain tent from the deck of the ship to the dock. D'Agosta brought his action against Royal, alleging that the accident was caused by the unseaworthy condition of the ship. He claimed that a latent defect in the boom made it unfit for its intended use and that this defect contributed to its buckling. Royal brought a third-party action against Maude claiming that, if it were held liable, its liability would have been brought about by either (1) Maude's primary, active negligence, or (2) by unworkmanlike conduct by Maude's employees which breached an implied warranty of workmanlike service contained in the stevedoring contract. D'Agosta's action which was tried to a jury resulted in a verdict of $17,500. The court, which by agreement of the parties tried the claim over by Royal against Maude, found that Royal was entitled to indemnity because an implied warranty had been breached by the unworkmanlike way in which Maude's employees had attempted to remove the rain tent from the ship.
At the trial, Maude introduced in evidence the following provision of the stevedoring contract:
The contractor shall have and hold the Royal Netherlands Steamship Company harmless from and against all liability, claims and demands on account of bodily injuries including death, arising out of or in any manner connected with the performance of this contract, whether such injury shall be caused by the negligence of the contractor or the Royal Netherlands Steamship Company up to a limit of $100,000 for each person, and subject to the same limit for each person, $300,000 for each accident involving more than one person, and the contractor shall defend any and all actions based thereon.
Maude contends here, as it did below, that the existence of this express indemnity agreement precludes an action for indemnity on an implied warranty. While admitting that it would be liable to Royal under the express indemnity provision for the amount of D'Agosta's recovery, Maude insists that the judgment of the district court must be reversed because Royal...
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