Dodge v. Mitsui Shintaku Ginko K. K. Tokyo

• Decision Date: 21 November 1975
• Docket Number: No. 75--1442,75--1442
• Citation: 528 F.2d 669
• Parties: John DODGE, Plaintiff-Appellee, v. MITSUI SHINTAKU GINKO K. K. TOKYO, Defendant-Appellant, and Brady-Hamilton Stevedore Co., Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 669

528 F.2d 669

John DODGE, Plaintiff-Appellee, v. MITSUI SHINTAKU GINKO K. K. TOKYO, Defendant-Appellant and Brady-Hamilton Stevedore Co., Intervenor-Appellee.

No. 75--1442.

United States Court of Appeals Ninth Circuit.

Nov. 21, 1975.

Certiorari Denied April 19, 1976.

See 96 S.Ct. 1685.

John R. Brooke (argued), Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellant.

Raymond J. Conboy (argued), Pozzi, Wilson & Atchison, Portland, Or., for appellee.

Michael D. Dempsey (argued), Lillick, McHose & Charles, Los Angeles, Cal., for amicus curiae.

OPINION

Before BARNES and BROWNING, Circuit Judges, and BURKE, District Judge. ^*

BARNES, Senior Circuit Judge:

Plaintiff, John Dodge, a longshoreman employed by Brady-Hamilton Stevedore Co., suffered injuries when he slipped in snow and ice while working aboard the vessel of defendant Mitsui Shintaku Ginko K. K. Tokyo (herein Mitsui). Under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.), Dodge received compensation and medical benefits from his employer in the total amount of $1,454.92 and brought this third-party action against Mitsui for damages. Brady-Hamilton intervened, seeking reimbursement of its payments under the Act if Dodge were successful in his suit.

The District Judge found both Mitsui and Brady-Hamilton were each fifty percent negligent, that Dodge was not contributorily negligent, and (upon stipulation between the parties) that plaintiff had sustained general and special damages amounting to $9,000; and that Brady-Hamilton was entitled to a lien of $1,454.92 against Dodge's recovery, representing compensation it paid to Dodge under the Act.

On appeal, Mitsui, the vessel owner, contends that the equal concurring negligence of Brady-Hamilton should result in a fifty percent reduction of Dodge's judgment against the third party. Secondly, Mitsui argues that this Court should deny Brady-Hamilton a lien upon Dodge's judgment due to the fact that the employer was also negligent.

This case is governed by the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. The jurisdiction of this appeal is based upon 28 U.S.C. § 1291.

The facts of this case are similar to Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1951), where the Supreme Court was confronted with the question whether to apply the doctrine of contribution to non-collision cases in third party actions where the employee has recovered damages from the shipowner under the Longshoremen's and Harbor Workers' Compensation Act. In that case, the Court refused to allow contribution against the stevedore even though the stevedore was more negligent than the vessel in causing the longshoreman's injury. In so holding, the Court stated:

Halcyon now urges us to extend (the doctrine of contribution) to non-collision cases and to allow a contribution here based upon the relative degree of fault of Halcyon and Haenn as found by the jury. . . . In the absence of legislation, courts exercising a common-law jurisdiction have generally held that they cannot on their own initiative create an enforceable right of contribution as between joint tortfeasors. . . . We have concluded that it would be unwise to attempt to fashion new judicial rules of contribution and that the solution of this problem should await congressional action. 342 U.S. at 284--85, 72 S.Ct. at 279.

In Atlantic Coast Line Railroad Co v. Erie Lackawanna Railroad Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972), the Court reaffirmed its decision in Halcyon: 'We agree that in this noncollision admiralty case the District Court properly dismissed petitioner's third-party complaint for contribution against respondent Erie on the authority of Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282 (72 S.Ct. 277, 96 L.Ed. 318) (1952).' 406 U.S. at 340, 92 S.Ct. at 1550.

Defendant Mitsui contends that the 1972 Amendments to the Act alter the above result. In a very recent case, however, the Supreme Court, even after the 1972 Amendments, viewed its decision in Halcyon with approval:

These factors underlying our decision in Halcyon still have much force. Indeed, the 1972 amendments to the Harbor Workers' Act re-emphasize Congress' determination that as between an employer and its injured employee, the right to compensation under the Act should be the employee's exclusive remedy. Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 112-- 13, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974).

In a footnote, the Court in Cooper inserted the following remarks in regard to the Amendments:

Under the 1972 Amendments . . . where the vessel has been held liable for negligence 'the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties shall be void.' 33 U.S.C. § 905(b) (1970 ed., Supp. II). The intent and effect of this amendment was to overrule this Court's decisions in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (66 S.Ct. 872, 90 L.Ed. 1099) (1946), and Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124 (76 S.Ct. 232, 100 L.Ed. 133) (1957), insofar as they made an employer circuitously liable for injuries to its employee, by allowing the employee to maintain an action for unseaworthiness against the vessel and allowing the vessel to maintain an action for indemnity against the employer. 417 U.S. at 113 n. 6, 94 S.Ct. at 2178 n. 6 (emphasis added).

Hence, it appears that the effect of the 1972 Amendments was to disallow both contribution and indemnity. The House Committee Report supports this intent:

(U)nless . . . indemnity or contribution agreements are prohibited as a matter of public policy, vessels by their superior economic strength could circumvent and nullify the provisions of Section 5 of the Act by requiring indemnification from a covered employer for employee injuries.

Accordingly, the bill expressly prohibits such recovery, whether based on an implied or express warranty. It is the Committee's intention to prohibit such recovery under any theory including, without limitation, theories based on contract or tort. H.R.Rep. No. 92--1441 at 7, U.S.Code Cong. & Admin. News 1972, p. 4704 (emphasis added).

Recent federal cases also support the view that the third party vessel is not entitled to contribution against the stevedore. A recent district court decision exemplifies this rationale:

The Act clearly provides for such a suit (against a third party) regardless of the concurrent negligence by the stevedore. . . . (W)e consider it clear that with respect to the stevedore the sole liability was that provided under the Act. Congress sought to eliminate all actions against the stevedore whether for indemnity or contribution, whether based on tort or on contract, and whether for fees and expenses. Lucas v. 'Brinknes' Schiffahrts Ges., 379 F.Supp. 759, 769 (E.D.Pa.1974) (emphasis added)

In accord: Landon v. Lief Hoegh and Co., Inc., 521 F.2d 756 (2d Cir. 1975); Hubbard v. Great Pacific Shipping Co., 404 F.Supp. 1242 (D.Or.1975); Santino v. Liberian Distance Transports, Inc., 405 F.Supp. 34 (W.D.Wash.1975).

In light of the above authority, we hold that the employer-stevedore has no liability to the vessel owner, either directly or indirectly, for personal injury damages incurred in a compensation-covered accident. See Cohen & Dougherty, The 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act: An Opportunity For Equitable Uniformity in Tripartite Industrial Accident Litigation, 19 N.Y.L.F. 587, 594 (1974).

Secondly, even if the doctrine of contribution does not apply here, defendant Mitsui contends that the equal concurring negligence of the stevedore should result in a fifty percent reduction of plaintiff Dodge's recovery against Mitsui. Defendant derives its authority from Shellman v. United States Lines, Inc., Civ. No. 73--1902--R (C.D.Cal. Nov. 25, 1974), where the district judge reduced the plaintiff's recovery by the percentage of his own contributory negligence plus the percentage of the stevedore's concurring negligence. See also Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968), which held that where plaintiff's injuries were caused by the concurring negligence of the stevedore, he is only entitled to receive one-half of the damages from the negligent shipowner.

We reject both the Murray and Shellman Doctrines because they are contrary to the greater weight of authority, and also because they impose unjustified burdens upon the injured longshoreman. The Second Circuit very recently considered the adoption of the Murray Theory and rejected it, observing: 'We cannot agree that some negligence by the employer is enough to cut off the injured longshoreman's protected right to sue the ship for its own negligence.' Landon v. Lief Hoegh and Co., Inc., 521 F.2d 756, 763 (2nd Cir. 1975). The Murray Doctrine has also been criticized by commentators. See, e.g., Cohen & Dougherty, supra, at 605.

The first District Court, after the passage of the 1972 Amendments, to consider the above question was composed of a three-judge panel which held that the recovery of an injured employee against a negligent vessel owner was not to be diminished by the concurring negligence of the employer stevedore. Lucas v. 'Brinknes' Schiffahrts Ges., 379 F.Supp. 759, 769 (E.D.Pa.1974). In Hubbard v. Great Pacific Shipping Co., 404 F.Supp. 1242 (D.Or.1975), the court rejected both the Murray and Shellman Doctrines. In so holding, the District Judge observed:

The defendant-shipowner's two partial theories (Murray Credit and Shellman) would have the result of negating Congress's intent of eliminating direct or indirect third-party actions in longshoreman-injury cases as embodied in the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act. This is simply a case of concurring negligence of the defendant...