Flunker v. U.S.
| Decision Date | 24 November 1975 |
| Docket Number | No. 74--2590,74--2590 |
| Citation | 528 F.2d 239 |
| Parties | Donald A. FLUNKER, Plaintiff, v. UNITED STATES of America, Defendant-Appellee, and States Line, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before KOELSCH and HUFSTEDLER, Circuit Judges, and SMITH, * District Judge.
States Steamship Co. ('States') appeals from a judgment for the United States on States' cross-complaint for indemnity for payments it made to or in respect of its seaman, Flunker, who was injured by the Navy's negligence.
Flunker was a steward aboard the SS 'Hawaii,' a ship owned and operated by States. On June 27, 1971, the Hawaii was at anchor awaiting pratique at the United States Naval Base at Subic Bay, Philippines. Flunker, who had shore leave, boarded a Navy landing craft for the trip to shore. The landing craft was available for the use of all the ships anchored in Subic Bay. Due to a malfunction in the linkage of the landing craft's port engine, the engine would not back down, and the craft collided with a dock at the Base. The impact caused Flunker to fall into the deck well and break his elbow. States paid the following sums to Flunker or because of his employment contract: $1134.00, unearned wages at the end of the voyage; $728.00, maintenance; $945.61, repatriation expense from Manila to Seattle; $1389.53, to pension and fringe benefits funds pursuant to labor union agreements covering Flunker's employment; and $96.19, taxes. It also spent money defending Flunker's action for damages against it.
At the time of the injury, States was under an affreightment contract with the Government to deliver certain cargo to the Base at Subic Bay. According to the contract, when States' vessels were required to call and load and discharge cargo at Government facilities, the Government would provide necessary husbanding services, for which States was to pay in accordance with schedules established by the government agency operating the facilities concerned. States paid the Government $22.42 for boat services furnished by the Government on June 27, 1971.
Flunker sued the Government for both negligence and unseaworthiness of the landing craft and States for unseaworthiness of the 'Hawaii.' He claimed $21,000 for injuries, lost wages, pain and suffering and medical expenses. The Government compromised and settled the suit for $7500. Part of the compromise was an agreement that Flunker would dismiss his suit against States with prejudice. States seeks indemnity from the Government for its expenditures.
States offered a tort theory and a warranty theory to sustain its indemnity action against the Government. Because we conclude that the Government is liable under warranty, we do not reach the tort theory. States asserts that as a part of its affreightment contract with the Government, and possibly due to the unique conditions at Subic Bay, there was an express or implied contract that the Navy would furnish launch service to shore. Accordingly, the Government owed States an implied warranty of workmanlike performance. The Government breached that warranty by its negligence and must thus indemnify States.
This case presents facts which are in the twilight area between United States v. Tug Manzanillo (9th Cir. 1962) 310 F.2d 220 and United States v. Gallagher (9th Cir. 1972) 467 F.2d 1103. In Manzanillo, the Government had contracted with a towing company to tow the Government's vessel, and, thereafter, according to custom, one of the tugs took ashore the ship's master. The master was injured on one of these trips to shore, and the Government paid him maintenance and cure. We affirmed the district court's grant of indemnity to the Government on the ground that the tug company's contractual obligation involved a warranty of workmanlike service that the tug company had breached. (310 F.2d at 222.) In Gallagher, a Government seaman had been injured in a shore accident by the negligence of a taxi driver. The Government sought indemnity from the taxi driver to repay it for the maintenance and cure payments it had made to the seaman. The Government and the taxi driver were total strangers, and the accident had nothing to do with the activities of the vessel on which the seaman served. 1 We refused to grant indemnity. The district court concluded that Flunker was more analogous to Gallagher than to Manzanillo because here the Government did not have an express contract with States to transport the crew to shore. We think that Flunker is much closer to Manzanillo than to Gallagher because of the multiple relationships of States to the Government.
The doctrines of maintenance and cure and of unseaworthiness have been developed to give seamen no-fault damage recovery in recognition of the dangerous character of their work and their quasi-captive status during their voyage (G. Gilmore & C. Black, The Law of Admiralty, 281, 393 (1975)). Maintenance and cure is the implied contractual right of a seaman, taken ill or injured while in the service of the ship, to payments through the time of maximum recovery (Id. at 299), and wages through the end of the voyage (Id. at 309). The owner's waranty of seaworthiness gives the seaman recovery in the event of injury because of the physical condition of the ship or 'operating negligence.' (E.g., Seas Shipping Co. v. Sieracki (1946) 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Mahnich v. Southern S.S. Co. (1944) 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola (1903) 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; G. Gilmore & C. Black, supra, at 384.)
The doctrine of unseaworthiness imposes a heavy burden on shipowners, who often are held vicariously liable for the acts of third persons causing injury to seamen, and under Sieracki, supra, to a longshoreman as well. To ease that burden the Supreme Court, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co. (1956) 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, developed a theory of indemnification of the shipowner to permit recovery over against a third person for breach of the warranty of workmanlike performance. The purposes of the doctrines of unseaworthiness and indemnifiction are not only to shift losses but also to place ultimate liability on the party who was truly at fault and who should mend his negligent ways to prevent future injury. 2
The Ryan court noted that 350 U.S. at 133--34, 76 S.Ct. at 237. (See Italia Societa, supra.) Ryan has developed in two directions. It now covers cases where the potential indemnitor is not a stevedore . But most importantly for present purposes, it comprehends situations where there is no contractual relationship between indemnitor and indemnitee. (Waterman S.S. Co. v. Dugan & McNamara, Inc. (1960) 364 U.S. 421, 424--25, 81 S.Ct. 200, 5 L.Ed.2d 169; see also Crumady v. The J. H. Fisser (1959) 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413; San Francisco Elevator Co., supra.)
If the covenant were limited to the cases in which an express contract existed between the indemnitor and the indemnitee to do the act or to furnish the article from which the injury arose, its beneficient purposes would be severely curtailed. Strict contractual privity would frustrate the utility of the workmanlike performance warranty, permitting a breaching party to avoid paying indemnity in situations where workmanlike performance had been relied upon by the party primarily liable, but fortuitously there was no contract between the shipowner and the third party. Relaxing the privity constraint in this circumstance is analogous to its relaxation in the case of a manufacturer's warranty. On the other hand, to imply a covenant of workmanlike performance in favor of a claimed indemnitee, who is a total stranger to the shipowner and whose activities are unrelated to the ship, unmoors the theory from the unseaworthiness doctrine from which it sprung and potentially allocates losses to parties unrelated to the shipping enterprise, which losses neither party could reasonably have contemplated.
The appropriate course is to require that, in the absence of express contract, a covenant of workmanlike performance will not be implied in favor of a shipowner unless there is a relationship between the tortfeasor and the shipowner in the context of shipping that makes the implication reasonable. 3
We assume without deciding that the Government's contentions are well taken that its contract of affreightment did not contain any covenant of workmanlike performance 4 and that 'husbanding services,' which the Government contracted to furnish to States do not include ship-to-shore...
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