Kawasaki Kisen, KK v. Detroit Harbor Terminals, Inc.

• Decision Date: 03 February 1972
• Docket Number: Civ. A. No. 32757.
• Citation: 339 F. Supp. 115
• Parties: KAWASAKI KISEN, K. K., Plaintiff, v. DETROIT HARBOR TERMINALS, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

339 F. Supp. 115

KAWASAKI KISEN, K. K., Plaintiff, v. DETROIT HARBOR TERMINALS, INC., et al., Defendants.

Civ. A. No. 32757.

United States District Court, E. D. Michigan, S. D.

February 3, 1972.

John L. Foster, Detroit, Mich., for plaintiff.

Joseph J. Bileti, Donald J. Miller, Floyd S. Westcott, Detroit, Mich., for defendants.

MEMORANDUM AND ORDER

DeMASCIO, District Judge.

The Kamikawa Maru, a cargo vessel, docked in Cleveland, Ohio, to unload a portion of her cargo prior to her arrival in Detroit. The defendant Cleveland Stevedore Company (Cleveland) was employed for the stevedoring operations aboard the vessel. During Cleveland's unloading of the vessel, its personnel partially dislodged a king beam supporting the No. 2 upper tween deck hatch boards. The chief mate of the vessel was duly informed. He and the ship's crew, as well as Cleveland's employees, sought unsuccessfully to replace the king beam. The weight of the Detroit load remaining in the No. 2 hold made it impossible. They agreed it would be necessary to completely unload the No. 2 hold before replacement of the beam was possible. To save an unnecessary loss of time and a duplication of effort involved in completely unloading the No. 2 hold, the chief mate decided to attend to the dislodged beam at the next port.

With the ship anchored in Detroit, the defendant Detroit Harbor Terminals (Detroit Harbor) undertook the unloading operation. Detroit Harbor, finding itself in need of a laborer, had previously called defendant Avis Men, Inc. (Avis) and requested Avis to supply them with a laborer capable of performing as a longshoreman. Avis furnished Mr. Charles Cross. Cross undertook the task of unloading the balance of the load of the No. 2 hold under the supervision and at the direction of Detroit Harbor. While engaged in unloading the cargo, Cross was injured. To recover damages for his injuries, he instituted a state court action against the shipowner and both stevedore companies, alleging that his injuries were proximately caused by the unsafe condition of the negligently dislodged king beam.

The shipowner, a defendant in the state action, started this admiralty suit against the two stevedore companies and Avis seeking indemnification for sums expended to date in defense of the state action as well as future costs, attorney fees, and for the amount of the judgment entered against it if any. Plaintiff's claim for indemnity is based upon the authority of Ryan Stevedoring Co. v. Pan Atlantic Steamship Co., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, which established the principle that a stevedore warrants that his contractual services will be rendered in a workmanlike manner. If a stevedore company breaches this warranty and an injured third party brings suit against the shipowner, the shipowner may look to his contractual relationship with the stevedore company for indemnification.

"Petitioner's (shipowner's) claim for indemnity primarily rests on the contractual relationship between it and respondent (stevedore company). While the stevedoring contract contained no expressed indemnity clause, it obligated respondent `to faithfully furnish such stevedoring services as may be required' and to provide all necessary labor and supervision for `the proper and efficient conduct of the work.' As this court said in Ryan ... such language constitutes `a contractual undertaking to perform with reasonable safety' 350 U.S. at 130, 76 S.Ct. at 235, and to discharge `foreseeable damages resulting to the shipowner from the contractor's improper performance' 350 U.S. at 129, footnote 3, 76 S.Ct. at 235." Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 565, 78 S.Ct. 438, 440, 2 L.Ed.2d 491 (1958) (Emphasis Added)

Cleveland and Avis separately moved for summary judgment pursuant to Rule 56 F.R.Civ.P. The court considers the merits of each motion separately. Cleveland's motion for a summary judgment is grounded upon the theory that its negligent dislodgment of the king beam, if it in fact were negligent, was not the proximate cause of Cross' injuries. Cleveland's theory is that even though the court may find that its act in dislodging the king beam was negligence, it nevertheless notified the chief mate about this condition and his decision to proceed to Detroit despite the dislodged beam was an intervening cause. This intervening cause, as a matter of law, broke the causal connection between its negligence and Cross' injuries. Because of this, it argues entitlement to a summary judgment. The court must consider, therefore, whether the chief mate's decision to continue his journey to Detroit with a dislodged king beam was an intervening cause and the sole proximate cause of Mr. Cross' injury. There is Michigan law supporting Cleveland's position. Fowles v. Briggs, 116 Mich. 425, 74 N.W. 1046; Griffin v. Jackson Light and Power Co., 128 Mich. 653, 87 N.W. 888; Kurtz v. Detroit, Toledo, and Ironton Railroad Co., 238 Mich. 289, 213 N.W. 169; Lellis v. Michigan Central Railroad, 124 Mich. 37, 82 N.W. 828; Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805; Shadduck v. Grand Rapids & I. R. Co., 179 Mich. 433, 146 N.W. 238.

The difficulty with Cleveland's position, is that the shipowner's cause of action for indemnification does not have its origin in tort. The question presented here is whether Cleveland performed their stevedoring contract with "reasonable safety."

"Competency and safety of stowage are inescapable elements of the service undertaken. The obligation is not a quasi-contractual obligation implied in law or arising out of a non-contractual relationship. It is of the essence of petitioner's stevedoring contract. It is petitioner's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product. The shipowner's action is not changed for one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner's stevedoring service." Ryan, supra, 350 U.S. at pp. 133, 134, 76 S.Ct. at p. 237.

Therefore, the circumstances of this action for indemnity must withstand the argument that an intervening act destroyed the chain of causation. Cleveland urges this court to rule that the shipowner is equally as responsible for Mr. Cross' injuries because the shipowner with complete knowledge of the dislodged beam put to sea...