McCross v. Ratnakar Shipping Co.

• Decision Date: 16 March 1967
• Docket Number: Civ. No. 15956,Admiralty No. 4897,17705.,4931,17105,15957,4997
• Citation: 265 F. Supp. 827
• Parties: Hezekiah McCROSS v. RATNAKAR SHIPPING CO., Ltd. v. TERMINAL SHIPPING COMPANY. James BOOKER v. SAANUM, EINAR (SKIBS A/S AGNES) v. NACIREMA OPERATING COMPANY. William RANDOLPH v. CENTRAL GULF STEAMSHIP CORP., a body corporate, and Lawrence E. Wilson and Central Gulf Steamship Corp. v. TERMINAL SHIPPING COMPANY and Maryland Port Authority. Julia T. KLOSEK, surviving widow of Joseph J. Klosek, deceased, to her own use and to the use of her minor children, and Julia T. Klosek, Administratrix, Estate of Joseph J. Klosek v. BETHLEHEM STEEL COMPANY, a body corporate v. NACIREMA OPERATING COMPANY, Inc. William H. JOHNSON v. BETHLEHEM STEEL COMPANY, a body corporate v. NACIREMA OPERATING COMPANY, Inc. Milton J. LEJK v. YAMASHITA-SHINNAHON STEAMSHIP COMPANY v. PATAPSCO SHIP CEILING & STEVEDORE COMPANY. Leroy M. PARKER for himself and to the use of Pennsylvania National Mutual Insurance Company v. JAPAN LINES, LTD. v. TERMINAL SHIPPING COMPANY.
• Court: U.S. District Court — District of Maryland

265 F. Supp. 827

Hezekiah McCROSS v. RATNAKAR SHIPPING CO., Ltd. v. TERMINAL SHIPPING COMPANY.

James BOOKER v. SAANUM, EINAR (SKIBS A/S AGNES) v. NACIREMA OPERATING COMPANY.

William RANDOLPH v. CENTRAL GULF STEAMSHIP CORP., a body corporate, and Lawrence E. Wilson and Central Gulf Steamship Corp. v. TERMINAL SHIPPING COMPANY and Maryland Port Authority.

Julia T. KLOSEK, surviving widow of Joseph J. Klosek, deceased, to her own use and to the use of her minor children, and Julia T. Klosek, Administratrix, Estate of Joseph J. Klosek v. BETHLEHEM STEEL COMPANY, a body corporate v. NACIREMA OPERATING COMPANY, Inc.

William H. JOHNSON v. BETHLEHEM STEEL COMPANY, a body corporate v. NACIREMA OPERATING COMPANY, Inc.

Milton J. LEJK v. YAMASHITA-SHINNAHON STEAMSHIP COMPANY v. PATAPSCO SHIP CEILING & STEVEDORE COMPANY.

Leroy M. PARKER for himself and to the use of Pennsylvania National Mutual Insurance Company v. JAPAN LINES, LTD. v. TERMINAL SHIPPING COMPANY.

Admiralty Nos. 4897, 4931, 4997; Civ. Nos. 15956, 15957, 17105, 17705.

United States District Court D. Maryland.

March 16, 1967.

Raymond J. Cardillo, Fried & Cardillo, Baltimore, Md., for plaintiff in Admiralty No. 4897.

Howard Fine and Raymond J. Cardillo, Fried & Cardillo, Baltimore, Md., for plaintiffs in Admiralty Nos. 4931 and 4997.

John J. O'Connor, Jr., O'Connor & Preston, Baltimore, Md., for plaintiffs in Civil Nos. 15956 and 15957.

Fred Ginsberg and Eugene V. Chircus, Baltimore, Md., for plaintiff in Civ. No. 17105.

Maurice J. Pressman and Louis G. Close, Jr., Baltimore, Md., for plaintiffs in Civ. No. 17705.

Southgate L. Morison, Ober, Williams & Grimes, Baltimore, Md., for defendant and third-party plaintiff in Admiralty No. 4897.

Carlyle Barton, Jr. and Donald A. Krach, Niles, Barton, Gans & Markell, Baltimore, Md., for defendant and third-party plaintiff in Admiralty No. 4931.

Randall C. Coleman and Thomas W. Jamison, III, Ober, Williams & Grimes, Baltimore, Md., for defendant and third-party plaintiff in Admiralty No. 4997.

Peter Parker, Semmes, Bowen & Semmes, Baltimore, Md., for defendants and third-party plaintiffs in Civ. Nos. 15956 and 15957.

Southgate L. Morison and Richard R. Jackson, Jr., Ober, Williams & Grimes, Baltimore, Md., for defendant and third-party plaintiff in Civ. No. 17105.

Southgate L. Morison, Baltimore, Md., for defendant and third-party plaintiff in Civ. No. 17705.

Louis G. Close, Jr., Due, Whiteford, Taylor & Preston, Baltimore, Md., for third-party defendants in Admiralty Nos. 4897 and 4997.

Southgate L. Morison, Baltimore, Md., for third-party defendant in Admiralty No. 4931.

Herbert F. Murray, Baltimore, Md., for third-party defendant Maryland Port Authority in Admiralty No. 4997.

Randall C. Coleman, Baltimore, Md., for third-party defendants in Civ. Nos. 15956 and 15957.

John H. Skeen, Jr., Skeen, Wilson & Gilbert, Baltimore, Md., for third-party defendant in Civ. No. 17105.

W. Hamilton Whiteford, Due, Whiteford, Taylor & Preston, Baltimore, Md., for third-party defendant in Civ. No. 17705.

David R. Owen, of Semmes, Bowen & Semmes, Baltimore, Md., amicus curiae.

FRANK A. KAUFMAN, District Judge.

In all seven of these cases an employee of a stevedoring company has filed suit in this Court against a shipowner, claiming damages for injuries suffered by him in the performance of his work.¹ In each case the shipowner (defendant) has answered, denying his liability and, in addition, has impleaded the stevedoring company as third-party defendant alleging, inter alia, that any injuries sustained by plaintiff were due to the failure of the stevedoring company to perform its work in a careful and workmanlike manner, as it was obligated to do, and that therefore the shipowner is entitled to full indemnity from the stevedoring company for the amount of any recovery by the employee plaintiff against the defendant shipowner. The third-party defendant stevedoring companies have each filed motions to dismiss the respective third-party complaints against them on the ground that the Maryland Workmen's Compensation Act, 8B Md.Ann.Code art. 101, § 15 (1964 Replacement Vol.), provides that the liability imposed upon a complying employer is exclusive and that they are each complying employers under that act.² Each of the seven third-party defendants contends that, as an employer, it is thus not subject to any further liability whatsoever as a third-party defendant, under an implied warranty of indemnity, or otherwise.³ The Court of Appeals of Maryland has so held in American Radiator & Stand. San. Corp. v. Mark Eng. Co., 230 Md. 584, 187 A.2d 864 (1963); Flood v. Merchants Mut. Ins. Co., 230 Md. 373, 187 A.2d 320 (1963); Cox v. Sandler's, Inc., 209 Md. 193, 120 A.2d 674 (1956); Hart v. Sealtest, 186 Md. 183, 46 A.2d 293 (1946); Baltimore Transit Co. v. State to Use of Schriefer, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460 (1944).

The claims in all seven cases are maritime in nature. Spann v. Lauritzen, 344 F.2d 204 (3d Cir. 1965), cert. denied, 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348 (1965); Thompson v. Calmar S.S. Corp., 331 F.2d 657, 659 (3d Cir. 1964), cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184 (1964), in which the Circuit Court said: "If the longshoreman is actually engaged in the service of the ship, it is immaterial whether the accident caused by the vessel's unseaworthiness occurs away from the ship or on the pier"; Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563, 567, 582 (3d Cir. 1963) in which the "accident occurred a hundred feet away from the vessel in a building on a pier"; Koninklyke Nederlandsche, Etc. v. Strachan Shipping Co., 301 F.2d 741 (5th Cir. 1962), rehearing denied, 304 F.2d 545 (5th Cir. 1962), cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962); Revel v. American Export Lines, Inc., 162 F.Supp. 279, 281 (E.D.Va.1958), aff'd, American Export Lines, Inc. v. Revel, 266 F.2d 82, 84 (4th Cir. 1959) (in which the "plaintiff was working on the pier").

Three of the seven cases were instituted as libels in admiralty. The other four cases are actions on the "law side" of this Court. This difference is without legal distinction, insofar as the "substantive" issues common to all seven cases are concerned. "For it is now clear that the maritime law controls all "substantive' issues in the disposition of maritime claims regardless of the form or forum of suit. * * * This is so whether * * * the suit * * * be treated as a libel in admiralty * * * or as an action on the `law side' of the federal court * * * or if the suit * * * had been brought in a state court under the saving clause." Larios v. Victory Carriers, Inc., 316 F.2d 63, 65 (2d Cir. 1963).

Two questions are raised in all seven cases:

I. Does the Maryland Workmen's Compensation Act preclude a shipowner from enforcing an existing contractual indemnity running in its favor from a stevedoring company when the latter is a complying employer under that act?

II. In the absence of an express indemnity undertaking, does the law imply an indemnity undertaking by the stevedoring company in favor of the ship, when the stevedoring company is a complying employer under the Maryland act?

I.

In American Radiator & Stand. San. Corp. v. Mark Eng. Co., supra, 230 Md. 584, 187 A.2d 864, American Radiator employed Mark Engineering to repair American's elevated water tank in Baltimore. Mark, in a written agreement, undertook that its workmanship would be of good quality and its work free from unnecessary hazards. Lambert, a painter employed by a subcontractor of Mark, was injured while working on American's tank. Lambert was paid compensation under the Maryland act. The Court of Appeals of Maryland considered the case on the basis that Mark was the "statutory employer" under the act. Lambert, and the insurance company which paid Lambert's claim, sued American for damages for failure to provide Lambert a safe place to work. American impleaded Mark as a third-party defendant alleging that Mark "had breached its contract with American by failing to perform its work in a careful and workmanlike manner and, as a result, was obligated to indemnify American for any liability it had as a result of the failure of the work." The trial court sustained Mark's demurrer to American's third-party complaint, without leave to amend. The Court of Appeals affirmed. Judge Hammond reviewed the earlier holdings of the Court in Standard Wholesale Phosphate & Acid Works, Inc. v. Rukert Terminal Corp., 193 Md. 20, 65 A.2d 304 (1949) and Baltimore Transit Co. v. State to Use of Schriefer, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460 (1944) as well as the opinion of the Supreme Court of the United States in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), and wrote:

In 1948, in Standard Wholesale Phosphate & Acid Works, Inc. v. Rukert Terminal Corporation, * * *, this Court construed the Longshoremen's and Harbor Workers' Compensation Act and, finding no controlling federal decisions on the point, held that the act made the obligation of a conforming employer to pay compensation to an injured employee exclusive and in place of all other liability to the employee or anyone else otherwise entitled to recover damages from the employer, at law or in admiralty, on account of the injury or death of the employee. From this the Court concluded that, in the absence of an express contractual agreement to assume an obligation of indemnity, as distinguished from an implied or quasi-contractual obligation, the act foreclosed all right to contribution of indemnity from the employer. Emphasis added.

* * * * * *

In 1956, the Supreme Court in a five to four decision, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., * * *, held, in a suit by an employee of a stevedoring contractor to recover from a ship owner damages for injury resulting from improper stowage of cargo aboard the ship, that the ship owner could maintain a

...