Leach v. Mon River Towing, Inc., Civ. A. No. 72-1084.

• Decision Date: 10 July 1973
• Docket Number: Civ. A. No. 72-1084.
• Citation: 363 F. Supp. 637
• Parties: Russell LEACH v. MON RIVER TOWING, INC., et al. v. CAMPBELL BARGE LINES, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

363 F. Supp. 637

Russell LEACH v. MON RIVER TOWING, INC., et al. v. CAMPBELL BARGE LINES, INC.

Civ. A. No. 72-1084.

United States District Court, W. D. Pennsylvania.

July 10, 1973.

Hymen Schlesinger, Pittsburgh, Pa., for plaintiff.

Frederick Egler, William Walker, Robert Wayman, Stephen Graffam, Pittsburgh, Pa., for defendant.

MEMORANDUM

SNYDER, District Judge.

Russell Leach filed a complaint against Mon River Towing, Inc., Hillman Transportation Company, and Sinclair-Koppers Company alleging that as an employee of Campbell Barge Lines, Inc. performing his assigned duties as a deckhand, he was injured and thrown to the bottom of an empty barge. He alleged varying types of negligence against the parties. Sinclair-Koppers filed an answer; Hillman Transportation Company answered and filed a third party complaint against Campbell Barge Lines alleging that the unseaworthy condition and negligence was that of Campbell and asked for indemnity as to any amounts shown to be owed by Hillman. Mon River answered the original complaint, alleging inter alia that:

"3. Plaintiff on December 4, 1972, settled his claim against Campbell Barge Lines, Inc., plaintiff's employer, for damages allegedly arising out of the accident of December 20, 1970, which is allegedly the basis for the present action."

"4. As plaintiff's employer was discharged from any liability under Jones Act, General Maritime Law and for maintenance and cure, plaintiff can have no recovery from this defendant."

All defendants, including the third party defendant Campbell Barge Lines, Inc. filed motions for summary judgment. Briefs were submitted and oral argument on these motions was heard.

Defendants, Mon River Towing, Inc. and Sinclair-Koppers Company, seek summary judgment on the grounds that since plaintiff executed a release with Campbell Barge Lines, Inc. at Civil Action No. 71-994, the release of the one party should release all parties. Defendant Hillman makes the same argument but also states that if such were not true, third party defendant Campbell would be liable to defendant Hillman for indemnity for any judgment entered against them.

Third party defendant Campbell seeks dismissal of the third party complaint and/or summary judgment on the grounds that the release executed by Leach exempts defendant Campbell from any further liability.

MOTIONS FOR SUMMARY JUDGMENT

Re: Mon River Towing, Inc. Sinclair-Koppers Company Hillman Transportation

At oral argument the above named defendants placed great reliance on the case of Cates v. United States, 451 F.2d 411 (5th Cir. 1971). The facts in the Cates case are: Frank W. Cates brought suit against the United States and Reynolds Submarine Services Corporation, his employer, (Reynolds), for injuries suffered while leaving the USS NIMBLE and getting into a whaleboat alongside for transportation back to the quartering vessel. On the eve of trial, Cates settled his claim with Reynolds and executed a release in their behalf and their vessels. The United States argued that failure to reserve rights against it expressly in the release operated to absolve the United States from liability. The United States in Cates relied on the general common law rule that the release of one joint tortfeasor operates to release all tortfeasors unless the written instrument contains an express reservation of rights against others. In a footnote in the Cates case the Court stated the various rules governing releases.

"The three rules identified are: (i) The ancient common-law rule that a release extinguished the cause of action to which it related, regardless of the wording or attempted reservation of rights; (ii) The First Restatement of Torts rule that a release releases all parties except those against whom rights are expressly reserved; and (iii) the Restatement Second approach that the effect of the release is governed by the intentions of the parties. Zenith Radio Corp. v. Hazeltine Research, Inc. 401 U.S. 321 at 343, 91 S.Ct. 795 at 808 28 L.Ed.2d 77."

The Supreme Court in Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1970), and in Aro Mfg. Co. v. Convertible Top Replacement Co. (1964), 377 U. S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457, held that the intentions of the parties to a release governed in an anti-trust case (Zenith) and in a patent case (Aro). In Aro, supra, the Supreme Court specifically rejected the old common law rule and refused to find that the joint tortfeasor was released. We see no reason for not applying the Aro rationale to the instant motions. The applicable rule then is that the effect of the release is to be determined by the intentions of the parties involved in such a release. See also: M. Sobel Inc. v. A. H. Robins Company, 446 F.2d 546 (2nd Cir. 1971); Ruskay v. Jensen, 342 F.Supp. 264 (S. D.N.Y.1972); Mustang Oil Company v. Crown Central Petroleum Co., 52 F.R.D. 207 (W.D.N.C.1971).

The important reference to the release in Cates included the following:

"It was in sweeping terms as to those protected. But these were limited to `Reynolds * * * and/or its underwriters and their heirs, executors, administrators, successors and assigns, and their several vessels and * * * the vessel submarine Aluminaut and/or the M/V Privateer and the owners, agents, operators, charterers, masters, officers, and crews, of said vessels * * *.'"

Cates signed the following:

"Do you know that your rights include not only a right to sue for and recover maintenance, cure, and wages, but, also, a right to sue for and recover damages if you can prove that your illness and/or injuries were caused by negligence or by something wrong (unseaworthiness) with the vessel or vessels to which your rights relate; and that you can have your own lawyer advise you further on your rights should you wish to engage one before you sign this if you have not already done so."

In two places, the release stated that Cates was giving up every right he had in the following terminology:

"BY SIGNING THIS YOU GIVE UP EVERY RIGHT YOU HAVE."

"IT IS A RELEASE. I AM GIVING UP EVERY RIGHT I HAVE."

The Court then held that the effect to be given the release is to be determined by the intentions of the party involved in such a release. Viewing the release in its entirety, the Court held that Cates intended to release Reynolds only.

In our present situation, the pertinent parts of the settlement transcript in the action of Leach v. Campbell Barge Lines, Inc., at Civil Action No. 71-994, includes the following:

"MR. SCHLESINGER:

May it please the Court, after some negotiations back and forth the parties have agreed upon a compromise settlement in the amount of $4500., which will be in complete satisfaction and discharge of all claims which the plaintiff has as set forth in the complaint at Civil Action No. 71-944 (sic) (correct number is 71-994), including the liability for negligence under the Jones Act, unseaworthiness under the maritime law, and for maintenance and cure, past, present and future." (Tr. pp. 1 and 2).

MR. SCHLESINGER TO MR. LEACH:

"Q. Now, do you understand that this will release all claims that you have against the defendant as recited in this case involving these two accidents and maintenance and cure, past, present and future?"

"A. I do, sir."

"Q. Are you agreeable to the settlement?"

"A. Yes, sir."

"Q. Have I advised you of your rights in the matter, all your legal rights?"

"A. Yes, sir." (Tr. pp. 4 and 5).

MR. WAYMAN TO MR. LEACH:

"Q. You understand, Mr. Leach, that this concludes every claim you have against Campbell Barge Lines?"

"A. Yes, I do."

"Q. Jones Act, maintenance and cure?"

"A. Yes, sir." (Tr. p. 5).

"THE COURT:

You understand this concludes everything? Very well, I will approve the settlement and the request for counsel fees will also be approved. You may step down, Mr. Leach." (Tr. p. 6).

After review of the transcript at Civil Action No. 71-994 and the applicable law, we conclude that Russell F. Leach intended to release Campbell Barge Lines, Inc. but none of the original defendants in this action. Therefore, the motions for summary judgment filed by Mon River Towing, Inc., Sinclair-Koppers Company, and Hillman Transportation Company are denied.

MOTION FOR SUMMARY JUDGMENT

Re: Campbell Barge Lines, Inc.

Campbell Barge Lines, Inc. was joined in this action as a third party defendant by Hillman Transportation Company, who charged Campbell with negligence, and/or with causing an unseaworthy condition, and/or with failure to furnish a safe place to work.

In order to properly analyze the situation, a reference is necessary to the facts disclosed by the various pleadings. The plaintiff, Russell Leach, was alleged to be a seaman in the employ of Campbell Barge Lines, Inc. On December 20, 1970, in his capacity as a deckhand, he was thrown into the bottom of a barge and sustained severe injuries to his back and legs. At the time of the accident Mon River Towing, Inc. was the charterer of the towboat and barge, which barge was owned by Hillman Transportation. The barge had been ordered by Mon River Towing to move from Point Marion to the Kobuta Plant of Sinclair-Koppers Company, to be unloaded. The transportation was carried out under a contract between Hillman Transportation and Mon River Towing Company and provided for the towing of loaded and empty barges by Mon River for Hillman. Barge Number H-1447 was being moved under the terms of this transportation contract. The barge had been loaded with coal at Point Marion and was picked up on December 13, 1970 and placed in the tow of the vessel "Jesse B. Guttman", operated by Mon River, and placed at the West End Landing in Pittsburgh on December 14, 1970. On December 14, 1970 it was placed in the tow of the vessel "Louise H.", operated by Campbell for Mon River, and was delivered to the Kobuta Plant on December 15, 1970. On December 20, 1970, the empty barge was picked up at Kobuta Plant by the vessel "Louise H.", operated...