Hurdich v. Eastmount Shipping Corp., s. 907

• Decision Date: 12 September 1974
• Docket Number: 1037,D,Nos. 907,s. 907
• Citation: 503 F.2d 397
• Parties: William HURDICH, Plaintiff, v. EASTMOUNT SHIPPING CORP., Defendant and Third Party Plaintiff, Appellant-Cross Appellee, v. R.C.A. CORPORATION, Third Party Defendant Appellee-Cross Appellant. ockets 73-2727, 74-1088.
• Court: U.S. Court of Appeals — Second Circuit

Page 397

503 F.2d 397

William HURDICH, Plaintiff, v. EASTMOUNT SHIPPING CORP., Defendant and Third Party Plaintiff, Appellant-Cross Appellee, v. R.C.A CORPORATION, Third Party Defendant Appellee-Cross Appellant.

Nos. 907, 1037, Dockets 73-2727, 74-1088.

United States Court of Appeals, Second Circuit.

Argued April 30, 1974.

Decided Sept. 12, 1974.

Thomas H. Healey, Darby, Healey, Stonebridge & Whelan, New York City, for Eastmount.

John F. X. McKiernan, Hill, Betts & Nash, New York City, for R.C.A.

Before WATERMAN, FRIENDLY and MULLIGAN Circuit Judges.

WATERMAN, Circuit Judge:

These are cross-appeals from a judgment of the United States District Court for the Southern District of New York, Lasker, J., entered in a third-party action which developed out of a fact pattern frequently recurring in the field of maritime law. In the principal action the seaman plaintiff William Hurdich sued his shipowner employer, Eastmount Shipping Corporation (Eastmount) for personal injuries sustained by him because of the alleged negligence of Eastmount and the unseaworthiness of its vessel on which Hurdich was employed when injured. Eastmount, after answering and controverting Hurdich's allegations of negligence and unseaworthiness, then filed its third-party complaint against RCA Corporation (RCA) which had performed certain repair work on the vessel on which Hurdich was injured. By this impleader Eastmount, claiming a breach of RCA's implied warranty of workmanlike service, asserted that Hurdich's injuries, if any, had been caused by the negligence of RCA. Accordingly, in the event that Eastmount should be adjudged liable to Hurdich, the vessel owner sought full indemnity from RCA. After a trial by jury in the principal action, a judgment of $75,000 was awarded in Hurdich's favor against Eastmount. No appeal has been taken from that judgment. The third-party action was then tried separately by the district court sitting without a jury. The court found that RCA had indeed breached its implied warranty of workmanlike service. Despite this breach, the court nevertheless believed that Eastmount was not entitled to a full recovery over against RCA. Instead, finding that their combined negligence had produced Hurdich's injuries, and thereby concluding that Eastmount and RCA were joint tortfeasors, the court held that Eastmount was entitled to contribution from RCA of $37,500, one-half the abount for which Eastmount had been held liable to Hurdich. It is from this judgment that these cross-appeals by Eastmount and RCA arise.

Eastmount protests that under Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) and its progeny, Eastmount was entitled to full recovery over, i.e., indemnity, on its claim of breach of implied warranty of workmanlike service, and that it was impermissible under prevailing maritime law for the district court to dispose of the case by regarding Eastmount and RCA as joint tortfeasors with Eastmount entitled to contribution only, instead of to its implied contractual indemnity. RCA presents a bifurcated argument on appeal. It primarily argues that Eastmount is entitled to neither indemnity nor contribution because Eastmount's conduct, which we shall discuss below, precludes both. However, RCA urges alternatively an affirmance of the district court's decision to allow contribution and to disallow indemnity.

Although, as mentioned, the district court 'conclude(d) that RCA is liable to Eastmount for breach of its warranty of workmanlike service,' the court's award of only one-half of what Eastmount sought from RCA demonstrates that the breach of the warranty was not, in fact, the basis upon which Eastmount was allowed to recover against RCA. If it had been then Eastmount should have been entitled to indemnity, that is, a full recovery over. Rather, despite some misleading language in the district court's opinion, a careful examination of that opinion reveals that the only basis on which Eastmount could properly have been allowed to recover against RCA was on a theory of contribution since Eastmount was precluded by its own conduct from obtaining a recovery under an implied warranty. ¹ Thus construing the district court decision as one disallowing an indemnity but ordering a contribution between joint tortfeasors, we affirm the judgment below.

The facts are not complex. Eastmount, through an intermediary, retained RCA to replace an antenna insulator on one of Eastmount's vessels, the Susquehanna. The repairs were performed in Mobile, Alabama on May 17, 1968 and May 20, 1968 by one of RCA's service employees, Jack Hays. On May 17 Hays was assisted by two of Eastmount's employees, the Susquehanna's radio officer and the first assistant engineer. ² The work that day involved chipping and removing the old insulator so that that the new insulator might be installed at a later date. In the course of removing the old insulator, insulation debris accumulated on the deck of the flying bridge, the area of the vessel upon which the antenna was located. Hays testified that this debris had been cleaned up by the end of May 17 and further asserted that the ship's radio officer had aided in this cleanup. On May 20, Hays returned alone to the flying bridge to fasten the new insulator into place on the antenna. No further debris was created by the bolting operation and no additional cleanup was undertaken.

On June 2, 1968, Hurdich, while walking on the flying bridge, slipped and fell on some of the insulation debris which had purportedly been cleaned up on the 17th of May. Hurdich then initiated the litigation, described above, which has led to this appeal.

We heard oral argument before the United States Supreme Court rendered its decision in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974). There the Court held that contribution between joint tortfeasors is permissible under maritime law in noncollision cases, as well as in collision cases, provided that neither of the joint tortfeasors is immunized from a suit which the injured victim of the tort could institute. Inasmuch as Hurdich was not precluded by statute, or otherwise precluded from suing either Eastmount, which he did sue, or the other tortfeasor, RCA, the Cooper Stevedoring holding applies here. That holding defeats Eastmount's contention that contribution between joint tortgeasors is impermissible in a noncollision case. Therefore, under Cooper Stevedoring the district judge, on the basis of his considered belief that Eastmount and RCA were concurrently at fault, was entitled to award Eastmount contribution from RCA, and, whether or not more should be awarded, was at least reasonably entitled to assess this contribution at one-half of Hurdich's recovery against Eastmount. What remains for us to decide is whether the judge should have granted Eastmount more-- namely, a full recovery over against RCA on the basis that Eastmount had a right to full indemnity because RCA had breached its implied warranty of workmanlike service. In Cooper Stevedoring the Fifth Circuit had affirmed the district court's denial of a request for full indemnity. See 479 F.2d 1041 (5 Cir. 1973). This issue of whether full indemnity should have been granted was not, however, presented for review to the Supreme Court, see 94 S.Ct. at 2176, n. 4 and we thus lack the benefit of a recent clarifying pronouncement on this difficult issue.

Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., supra, established the right of a vessel owner to be indemnified by a workman company in the event a judgment is recovered against the shipowner for shipboard injuries which are attributable to the careless manner in which the workman company had performed work on the vessel. The theory articulated by the Court to support this doctrine is that the workman company impliedly warrants that it will perform the agreedupon tasks in a workmanlike manner. Within two years of the decision in Ryan, however, the Supreme Court superimposed an important qualification onto the shipowner's right to an indemnity. In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), the Court announced:

'If . . . (the workman company) rendered a substandard performance which led to foreseeable liability of (the shipowner), the (shipowner) was entitled to indemnity absent conduct on its part sufficient to preclude recovery. The evidence bearing on these issues-- (the shipowner's) action in making the shelter on its ship available to (the workman company's) employees in Boston although it apparently was unsafe, as well as the (workman company's) continued use of the shelter for five days thereafter without inspection-- was for jury consideration under appropriate instructions.' Id. at 567, 78 S.Ct. at 441.

Thus a shipowner can by its own conduct foreclose its right to indemnity, and in any particular case the determination of whether the shipowner has so precluded itself is an issue of fact. Regrettably, Weyerhaeuser failed to provide ample legal guidelines to be used in...