Hanseatische Reederei Emil Offen & Co. v. Marine Terminals Corp.

• Decision Date: 31 January 1979
• Docket Number: Nos. 76-1462,76-1463,s. 76-1462
• Citation: 590 F.2d 778
• Parties: HANSEATISCHE REEDEREI EMIL OFFEN & COMPANY, Plaintiff-Appellant and Cross-Appellee, v. MARINE TERMINALS CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 778

590 F.2d 778

HANSEATISCHE REEDEREI EMIL OFFEN & COMPANY Plaintiff-Appellant and Cross-Appellee, v. MARINE TERMINALS CORPORATION, Defendant-Appellee and Cross-Appellant.

Nos. 76-1462, 76-1463.

United States Court of Appeals Ninth Circuit.

Jan. 31, 1979.

John W. Ford (argued), Lillick, McHose & Charles, San Francisco, Cal., for plaintiff-appellant and cross-appellee.

Robert E. Babcock (argued), Portland, Or., for defendant-appellee and cross-appellant.

Appeal from the United States District Court for the Northern District of California.

Before SMITH, ^* DUNIWAY and WALLACE, Circuit Judges.

DUNIWAY, Circuit Judge:

Hanseatische Reederei Emil Offen & Company (the shipowner) was held liable, on the basis of unseaworthiness and negligence, to two longshoremen, Randolph and Periot, employees of a stevedore, Marine Terminals Corporation. The stevedore had contracted to unload Hanseatische's ship, the Ditmar Koel, and the longshoremen were employed by the stevedore to do that work. The shipowner then sought indemnity from the stevedore for the amounts of the longshoremen's judgments and for the expenses incurred in defending their actions, including attorneys' fees. The District Court gave judgment for the shipowner for the amount of Randolph's judgment, but denied recovery for the amount of Periot's judgment. It also denied the shipowner its expenses in defending the actions. The shipowner appeals. The stevedore also appeals, seeking reversal of the shipowner's recovery of the amount of Randolph's judgment, and recovery of its expenses in defending the shipowner's action for indemnity. On the shipowner's appeal, we reverse. On the stevedore's appeal, we affirm.

I. The Facts.

The work of unloading the ship was proceeding when the two longshoremen were injured. Periot was working in No. 2 hold. Randolph had been working in No. 1 hold, had left for a coffee break, and had returned to the ship. He called down into No. 2 hold and asked if that was where he was to work, and was told that it was.

The various holds were separated by bulkheads athwartship. There were three decks below the main deck and above the lower hold. On the first 'tween deck, holes in the bulkheads, near each side of the ship, connected No. 2 and No. 3 holds, so that automobiles could be moved from one hold to the other without their being hoisted to the main deck. The main deck hatchcover of No. 2 hold was open; that of No. 3 hold was closed, so that it was pitch dark in that hold. Also, in No. 3 hold, all or nearly all of the deck plates in the three 'tween decks had been removed, so that open voids ran from below the main deck to the bottom of the hold, four deck levels below.

Randolph asked a member of the ship's crew how to get down into No. 2 hold. The crew member directed Randolph through an unlocked door into a masthouse on the main deck. A ladder led down from the masthouse to the upper 'tween deck. The ladder did not, however, go to No. 2 hold; it went to a portion of the mostly removed upper 'tween deck within No. 3 hold. Randolph climbed down the ladder and found himself in a totally dark area with no one else around. He did not have any kind of portable light. Nevertheless, when he reached the bottom of the ladder, he remained in the hold and began walking about. He stepped off into the open area where the decks had been removed, and fell to the bottom of the hold, sustaining permanently disabling injuries.

At this point, Periot was working on the upper 'tween deck in No. 2 hold. Hearing what sounded like cries for help coming from No. 3 hold, Periot left his work area and went through one of the two large openings in the bulkhead separating the two holds. Though Periot also did not have a light, and although No. 3 hold remained in total darkness, Periot walked about the upper 'tween deck of No. 3 hold trying to follow the cries for help. As had Randolph, Periot stepped off into an open area. He fell as far as the lower car deck, receiving severe injuries.

The District Court found No. 3 hold unseaworthy because:

(a) It was totally lacking in artificial light;

(b) It was covered at the main deck and thereby totally lacking natural light;

(c) It was totally open from the upper 'tween deck level to the lower hold except for portions of the lower car deck still in place on the port side;

(d) It was lacking in any ropes, barriers or stanchions around the open area in the upper 'tween deck;

(e) It was lacking in any ropes, barriers or stanchions across either of the bulkhead openings leading from No. 2 to No. 3 at the upper 'tween deck level (f) It was devoid of anything that would give notice that this totally dark area contained a very large unprotected opening in the deck, other than such notice that total darkness may have given a person about to enter.

The District Court also found that the shipowner had been negligent in failing to warn of the dangerous conditions, in misdirecting Randolph to the ladder which led down to No. 3 hold, and in creating or not remedying most of the foregoing specific conditions which it found to make the hold unseaworthy. Finding that the unseaworthiness and the negligence of the shipowner had proximately caused the injuries to Randolph and Periot, the District Court awarded them damages against the shipowner, reducing its award on the basis of its further finding that both Randolph and Periot were contributorily negligent. On appeal, the stevedore does not dispute the findings that its longshoremen were negligent.

The District Court, on the shipowner's claim for indemnity, attributed Randolph's negligence to the stevedore. It declined to impute Periot's negligence to the stevedore, holding that Periot's attempt to rescue Randolph did not occur in the course of his employment.

II. Indemnity for the Randolph Judgment.

The stevedore's contract with the shipowner included a "warranty of workmanlike service," an implied warranty to the shipowner that the stevedore would carry out the contract competently and safely. Ryan Stevedoring Co., Inc. v. Pan Atlantic Steamship Corp., 1956, 350 U.S. 124, 133-34, 76 S.Ct. 232, 100 L.Ed. 133. Breach of the warranty by the stevedore renders the stevedore liable to the shipowner for all foreseeable harms resulting from the breach. Arista Cia. DeVapores, S. A. v. Howard Terminal, 9 Cir., 1967, 372 F.2d 152, 154, and cases there cited. Those foreseeable harms to the shipowner include lawsuits brought against the shipowner by injured longshoremen who allege that their injuries in part resulted from the unseaworthiness of shipowner's vessel. Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491.

As we explained in Arista, supra,

The stevedore company's duty under its warranty includes the duty to provide longshoremen who will exercise reasonable care for their own safety, as well as for the safety of others, in the performance of their work.

372 F.2d at 154.

When an individual longshoreman fails to exercise reasonable care for his own safety while on the job, his negligence is a breach of the stevedore's warranty of workmanlike service. Even if the longshoreman's negligence injures only himself, if those injuries lead to a lawsuit against the shipowner based upon the alleged unseaworthiness of shipowner's vessel, the stevedore must indemnify the shipowner for any damages assessed. Arista, supra, 372 F.2d at 154, as well as for its attorney fees and litigation expenses, Jones Stevedoring Company v. Nippo Kisen Company, Ltd., 9 Cir., 1969, 419 F.2d 143. As we said in Griffin v. United States, 9 Cir., 1975,513 F.2d 1321, 1323, a "longshoreman's duty of care (is) equivalent to his employer stevedore's implied warranty of workmanlike service."

Application of these rules to the facts before us requires that we affirm the judgment of the District Court insofar as it grants the shipowner indemnity from the stevedore for the judgment of Randolph against the shipowner.

The stevedore relies upon Stranahan v. A/S Atlantica & Tinfos Papirfabrik, 9 Cir., 1973, 471 F.2d 369, 373, but that decision in no way repudiated our Arista, Jones Stevedoring and Griffin cases. Stranahan merely held that a number of factors would be considered in determining which of two employers had responsibility for complying with the Safety and Health Regulations for Longshoring.

The stevedore asserts that while the shipowner was negligent, the District Court erred in holding the ship unseaworthy. It then attacks the granting of any kind of indemnity in this case on the ground that a shipowner's right of indemnity against a negligent stevedore should only come into play when the shipowner is held liable without regard to fault under the doctrine of unseaworthiness. We need not pursue this line of argument. The District Court found that the vessel was unseaworthy, and that Randolph's negligence combined with that unseaworthiness to produce his injuries. ¹ These are findings of fact and are not clearly erroneous. Rule 52(a) F.R.Civ.P.; McAllister v. United States, 1954, 348 U.S. 19, 20-21, 75 S.Ct. 6, 99 L.Ed. 20; Garrett v. United States Lines, Inc., 9 Cir., 1978, 574 F.2d 997, 999; Rederi A/B Soya v. S.S. Grand Grace, 9 Cir., 1966, 369 F.2d 159, 162-63; Stranahan v. A/S Atlantica & Tinfos Papirfabrik, 9 Cir., 1973, 471 F.2d 369, 372, fn. 2; Crescent Wharf & Warehouse v. Compania Naviera De Baja California, 9 Cir., 1966, 366 F.2d 714, 719; Molitor v. American President Lines, Ltd., 9 Cir., 1965, 343 F.2d 217, 219; Pacific Tow Boat Co. v. States Marine Corp. of Delaware, 9 Cir., 1960, 276 F.2d 745, 752, and cases cited therein.

As the Court said in Waterman Steamship Corp. v. Dugan & McNamara, Inc., 1960, 364 U.S. 421, 423, 81 S.Ct. 200, 201, 5 L.Ed.2d 169 "the warranty may be breached when the stevedore's negligence does no more than call into play the vessel's unseaworthiness." See, also, Crumady v. The J. H. Fisser, 1959, 358...