Lilleberg v. Pacific Far East Line, Inc., 35855.

• Decision Date: 28 October 1958
• Docket Number: No. 35855.,35855.
• Citation: 167 F. Supp. 3
• Parties: Harold LILLEBERG, Plaintiff, v. PACIFIC FAR EAST LINE, INC., a corporation, Defendant. PACIFIC FAR EAST LINE, INC., a corporation, Defendant and Third Party Plaintiff, v. MUTUAL TERMINALS, INC., a corporation, Third Party Defendant.
• Court: U.S. District Court — Northern District of California

167 F. Supp. 3

Harold LILLEBERG, Plaintiff, v. PACIFIC FAR EAST LINE, INC., a corporation, Defendant.

PACIFIC FAR EAST LINE, INC., a corporation, Defendant and Third Party Plaintiff, v. MUTUAL TERMINALS, INC., a corporation, Third Party Defendant.

No. 35855.

United States District Court N. D. California, S. D.

October 28, 1958.

Dorr Cooper & Hays, San Francisco, Cal., by C. W. Kenady, Jr., San Francisco, Cal., for third party plaintiff.

John H. Black, San Francisco, Cal., by Henry W. Schaldach, San Francisco, Cal., for third party defendant.

HARRIS, District Judge.

Pacific Far East Line, Inc. (hereafter called PFE), defendant, seeks indemnity against Mutual Terminals, Inc. (hereafter called Mutual), for breach of a written contract between the parties under which Mutual warranted it would perform its stevedoring duties in an efficient and proper manner.

The action arises on a third-party complaint filed by PFE against Mutual. By stipulation contained in this court's pre-trial order, PFE settled its potential liability with plaintiff Lilleberg in his damage action. The reasonableness of the amount is not disputed.

The facts of the accident under which the instant action arose are as follows: Mutual employees were working aboard a PFE vessel at a San Francisco pier on a cargo loading operation. When plaintiff's gang boarded the ship, the deck on which they were to work was littered with pontoons, tarps, dunnage, etc., from the previous shift of Mutual stevedores. Despite complaints made by the new gang to their supervisors, nothing was done by the stevedores to make the deck safe.

After midnight when a Mutual winch driver was attempting to take dunnage across the littered deck, the bundle became caught. Without examining his surroundings or observing the position of workers, the driver broke the load loose in such a manner as to cause it to swing out and strike plaintiff. The blow drove him to his knee and caused the injury for which he brought the instant action. The evidence fails to disclose any defect in ship equipment which might have caused the accident.

PFE contends that these facts establish a breach of warranty of careful workmanship on the part of Mutual. They present a situation comparable to that which was before the Supreme Court in Ryan Stevedoring Company v. Pan-Atlantic S. S. Corporation, 350 U.S. 124, 76 S.Ct. 232, 235, 100 L.Ed. 133, in which case the stevedoring firm was held liable under an implied agreement of indemnity arising out of the negligence of the firm in conducting its operations. The stevedoring company had failed to stow rolls of paper in a proper manner and plaintiff was injured during the unloading work.

In the third party suit brought against the stevedoring company on its contract, the court stated: "It is not an action by or on behalf of the employee and it is not one to recover damages `on account of' an employee's `injury or death.' It is a simple action to recover, under a voluntary and self-sufficient contract, a sum...