Drago v. A/S Inger, 247

• Decision Date: 03 July 1962
• Docket Number: No. 247,Docket 27231.,247
• Citation: 305 F.2d 139
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Frank DRAGO, Plaintiff-Appellee, v. A/S INGER, Defendant and Third-Party Plaintiff-Appellee, v. DANIELS & KENNEDY, INC., Third-Party Defendant-Appellant, and Illinois Atlantic Corp., Third-Party Defendant-Appellee.

305 F.2d 139 (1962)

Frank DRAGO, Plaintiff-Appellee, v. A/S INGER, Defendant and Third-Party Plaintiff-Appellee, v. DANIELS & KENNEDY, INC., Third-Party Defendant-Appellant, and Illinois Atlantic Corp., Third-Party Defendant-Appellee.

No. 247, Docket 27231.

United States Court of Appeals Second Circuit.

Argued March 5, 1962.

Decided July 3, 1962.

William A. Wilson, New York City (Warner Pyne and Pyne, Smith & Wilson, New York City, on the brief), for defendant and third-party plaintiff-appellee.

Raymond C. Green, New York City (Charles G. Tierney, Harry Schechter and Harold Klein, New York City, on the brief), for third-party defendant-appellant.

David P. H. Watson, New York City (J. Ward O'Neill and Haight, Gardner, Poor & Havens, New York City, on the brief), for third-party defendant-appellee.

Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

This is an appeal from a judgment of indemnity awarded the third-party plaintiff shipowner, which had been found liable to the plaintiff longshoreman for his personal injuries, against the stevedoring company which employed the plaintiff in its unloading operations on the third-party plaintiff's ship. The stevedoring company contends on this appeal that the trial judge, in deciding on the third-party complaint without the jury pursuant to stipulation, erred in holding it liable because of its use of the defective winch which injured the plaintiff, and further contends that any implied duty of indemnity to the shipowner was precluded by inconsistent express language in the stevedoring contract and by the shipowner's negligence in supplying the winch in defective condition. We find these contentions to be without merit, and in addition reject, without further discussion, certain insubstantial attacks which the stevedoring company makes on the basic judgment in favor of the longshoreman against the shipowner.

On January 4, 1956, the S. S. Elin Hope arrived at a pier at the foot of Dikeman Street in Brooklyn, N. Y. carrying a cargo of newsprint from Quebec consigned to News Syndicate, Inc. The ship was owned by A/S Inger, and operated by it under a time charter agreement with Illinois Atlantic Corp. At 8 a. m., shortly after the ship docked, gangs of longshoremen employed by Daniels & Kennedy, Inc., came aboard to unload the cargo. The plaintiff, Frank Drago, was the starboard winchman on the gang working at # 2 hatch. Apparently the unloading proceeded without incident until 12 noon, when Drago shut off the steam at his winch and went to lunch. When he returned from lunch at 1:00 p. m., Drago again opened his steam valve, but shortly thereafter was told to shut down his winch until the gang working at # 1 hatch caught up with his gang. While Drago was attempting to close the steam valve, he in some way fell on the operating handle, with the result that his left foot was crushed by the moving piston.

This diversity action was brought by Drago against the shipowner, A/S Inger, based upon theories of unseaworthiness and negligence. The shipowner impleaded the stevedoring company, Daniels & Kennedy, Inc. and the time charterer, Illinois Atlantic Corp., claiming indemnity from each, and each of the third-party defendants also cross-claimed against the other. The jury entered a verdict of $4,500 for the plaintiff against the shipowner, and in answer to special interrogatories stated that the ship had not been unseaworthy but the shipowner had been negligent and that their award had been reduced by 75 per cent because of contributory negligence. The court then considered the indemnity claim and the cross-claims, dismissing the cross-claims and the indemnity claim against the time charterer and granting the indemnity claim of the shipowner against the stevedoring company. Although various notices of appeal were filed, the only appeals pursued here are those by the stevedoring company from the judgment against the defendant and the third-party judgment against itself. Since the appeal from the judgment against the defendant presents, as we have noted, no substantial issues, we are here concerned only with the stevedoring company's attacks on the court's award of indemnity to the shipowner.

In making the findings of fact necessary for the determination of the third-party claim, the trial judge properly interpreted the jury's verdict and answers to the special interrogatories so as to prevent inconsistency between the verdict and his disposition of the indemnity claim. On review of the record, we see no reason to regard his findings as "clearly erroneous." The judge found that

"The jury accepted the defendant\'s theory of the accident, i. e. that when the plaintiff was told to close off his steam he stood up on the piston rod and leaned over the operating handle in order to reach the steam valve on the opposite side of the winch; that proper procedure and due care called for the plaintiff to walk around his winch, in order to reach the shut-off valve; that in leaning over the winch plaintiff lost his balance, slipped, depressed the operating handle with his body as he fell, and thereby activated the piston which crushed his toes because he had placed his foot on the piston rod in the first place. Implicit in the jury\'s finding of negligence on the part of the shipowner is a finding that the shipowner did not provide a safety pin which, if provided and used, would have avoided the accident."

The judge found that the missing pin would, if inserted in the proper place, have locked the operating lever in a neutral position, and thus have prevented the activation of the piston. He...