Navieros Oceanikos, S. A., Liberian Vessel Trade Daring v. S. T. Mobil Trader

• Decision Date: 20 April 1977
• Docket Number: Nos. 439,965,D,s. 439
• Citation: 554 F.2d 43,1977 AMC 739
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NAVIEROS OCEANIKOS, S.A., owner of the LIBERIAN VESSEL TRADE DARING, Plaintiff-Appellant-Appellee, v. S.T. MOBIL TRADER, her engines, boilers, etc., Mobil Oil Corporation, the owner of the MOBIL TRADER, and Mobil Sales & Supply Corporation, Defendants and Third-Party Plaintiffs-Appellees- Appellants, v. TRADE & TRANSPORT, INC., Third-Party Defendant-Appellee. ockets 76-7284, 76-7297.

Page 43

554 F.2d 43

NAVIEROS OCEANIKOS, S.A., owner of the LIBERIAN VESSEL TRADE

DARING, Plaintiff-Appellant-Appellee, v. S.T. MOBIL TRADER, her engines, boilers, etc., Mobil Oil

Corporation, the owner of the MOBIL TRADER, and

Mobil Sales & Supply Corporation, Defendants and Third-Party Plaintiffs-Appellees- Appellants, v. TRADE & TRANSPORT, INC., Third-Party Defendant-Appellee.

Nos. 439, 965, Dockets 76-7284, 76-7297.

United States Court of Appeals Second Circuit.

Argued Feb. 24, 1977.

Decided April 20, 1977.

Theodore P. Daly, New York City (Poles, Tublin, Patestides & Stratakis, Alan Van Praag, New York City, of counsel), for plaintiff-appellant and third-party defendant-appellee.

Donald M. Waesche, Jr., New York City (Bigham Englar Jones & Houston, Louis G. Juliano, New York City, of counsel), for defendants and third party plaintiffs-appellees-appellants.

Before MANSFIELD and VAN GRAAFEILAND, Circuit Judges, and MISHLER, District Judge. ^*

MISHLER, District Judge:

On March 18, 1971, shortly after midnight, a fire broke out in the engine room of the Liberian tankship M/V Trade Daring ("Daring"). The ship was a constructive loss, and the present litigation ensued.

The action was brought by the owner of the Daring against the Mobil Oil Corporation ("Mobil"), the owner of the S.T. Mobil Trader ("Trader"), a self-propelled tank barge that had been contracted by the plaintiff to refuel, or "bunker," the Daring, and which had been engaged in this task when the fire started. The Mobil Sales & Supply Corporation ("Mobil Sales"), the seller of the fuel oil, was also named as a defendant. Both defendants brought a third-party action against Trade & Transport, Inc. ("Transport"), a company employed by the plaintiff to arrange for bunkering of the Daring. The third-party action is based on an indemnification provision of the marine fuel oil sales contract between Transport and the first-party defendants, Mobil and Mobil Sales. ¹

The District Court for the Southern District of New York (Werker, D. J.), after a non-jury trial, fixed the relative liability of the parties at 75% plaintiff, 25% defendants, and dismissed the third-party complaint. 409 F.Supp. 884 (S.D.N.Y.1976). Both plaintiff and first-party defendants appeal the decision of the district court. We affirm.

On March 16, 1971, the Daring arrived at the Hess Oil Terminal in Perth Amboy, New Jersey. The following day, March 17, the Trader, after loading 375 tons of oil ordered by the plaintiff through Transport, rendezvoused with the Daring at 1920 hours (7:20 P.M.), and made fast to the tankship, starboard side to starboard side. The district court found that the following events took place.

At 2220 hours the Trader's fuel oil hoses were connected to the Daring. Thirty minutes later, at 2250 hours, the Trader's pumpman, Tranquillo Milano, began pumping bunkers from the Trader's No. 1 port tank. He pumped slowly at first, to ensure that the lines were secure, and then increased the speed to the maximum of 200 tons per hour, or 31/3 tons per minute. At 2310 hours, the bunkering from the No. 1 port was completed and, "no earlier than 2310 hours," Milano began pumping from the aft and starboard tanks. The district court found that "bunkering was probably not completed until sometime between 0051 and 0059 hours (March 18)."

At 0042 hours, the Third Engineer of the Daring signaled Milano to cease pumping. Without waiting to see if his order had been acknowledged or executed, the engineer left his post at the bunkering manifold to perform other duties. The Trader continued to pump fuel oil into the Daring. At 0050 hours, the Third Engineer returned to the engine room and, realizing that the pumping had not ceased and that excess fuel oil was coming aboard, notified the Second Engineer of the problem and again ordered the Trader to stop pumping. After a brief time, the Trader's pumpman carried out the order.

At 0052 hours, the Second and Third Engineers observed oil overflowing from a catch basin of the gas oil tank onto the No. 3 electrical generator. The excess fuel oil had filled the vessel's overflow tanks and forced its way through the save oil pipelines and into the save oil basins in the engine room. ² Moments later, the generator ignited the oil and, although the Daring's crew made reasonable efforts to put out the fire, the vessel was severely damaged.

The district court found that the overflow and resulting fire was caused in part by (1) the failure of the plaintiff to close the save oil pipeline system during bunkering, which would have diverted the excess oil onto the open deck through the normal vent system rather than into the engine room; (2) the failure to man the Daring with personnel meeting training requirements for a vessel of this type; (3) the plaintiff's failure to train the unlicensed engineering personnel to deal with an overflow, "as evidenced by the failure of the third and second Engineers to close the main intake valve on deck or in the engine room in sufficient time to prevent the overflow"; and (4) the failure to order the amount of bunkers actually required, "thus creating the false expectation that the amount of bunkers ordered could be pumped aboard the vessel without casualty." 409 F.Supp. at 889.

The Trader was found to be at fault because its pumpman had failed to execute the first order to discontinue bunkering, thereby violating its duty to perform the bunkering service in a diligent and workmanlike manner. Accordingly, the relative liability of the parties was fixed at 75% plaintiff and 25% defendants. The third-party complaint was dismissed on the ground that the indemnification provision of the marine fuel oil sales contract did not contemplate damage to bunkering vessels.

Both parties raise numerous challenges to the factual findings made by the district court. The often-elaborate factual arguments advanced by the parties misconceive the appellate function of this court. We do not sit to make de novo findings of fact, as both sides apparently would have us do. After reviewing the record in this case, we are satisfied that the findings of fact below are supported by the evidence and are not, therefore, "clearly erroneous." See McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954).

Two legal issues warrant discussion: (1) the plaintiff argues that, as a matter of law, contributory negligence on its part should not reduce its recovery for the defendants' breach of their "warranty of workmanlike service"; and (2) the defendants contend that the district court erred in its interpretation of the sales contract between Mobil Sales and Transport. We turn to an examination of these issues.

Warranty of Workmanlike Performance

Navieros contends that Mobil and Mobil Sales, in contracting to bunker the Daring, implicitly warranted that the fueling operations would be performed in a reasonably workmanlike manner. Relying on Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the plaintiff argues that its right to recover for breach of this implied warranty should not be defeated or diminished by its contributory negligence. In Ryan, a longshoreman, injured by cargo improperly stored by the stevedoring company, sued the owner of the ship on which the accident occurred. The longshoreman, who had not acted negligently, recovered damages from the shipowner. The shipowner sought indemnity from the stevedoring company on the theory that the stevedore had agreed implicitly to perform its stevedoring services in a workmanlike manner. The Supreme Court upheld the shipowner's claim, recognizing the existence of such a warranty, and ruling that this warranty required the stevedore to indemnify the shipowner for any liability incurred as a result of an unworkmanlike performance. The shipowner's failure to discover and correct the stevedore's breach of warranty, moreover, did not reduce or diminish the indemnity. Id. at 134-35, 76 S.Ct. at 238.

The Ryan doctrine was developed in response to the harsh rule that a shipowner has a nondelegable duty to provide a seaworthy ship and that concomitantly its liability to an injured party for unseaworthiness does not depend on a finding of fault. Fernandez v. Chios Shipping Co., Ltd., 542 F.2d 145, 150 (2d Cir. 1976); Flunker v. United States, 528 F.2d 239, 242-43 (9th Cir. 1975); Fairmont Shipping Corp. v. Chevron Int'l Oil Co., 511 F.2d 1252, 1256-57 (2d Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975); Schwartz v. Compagnie Generale Transatlantique, 405 F.2d 270, 275-76 (2d Cir. 1968); DeGioia v. United States Lines Co., 304 F.2d 421, 425 (2d Cir. 1962). See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952). The absolute duty of seaworthiness owed by the shipowner requires the stevedore, who is entrusted with loading operations, to indemnify the owner for liability caused by the stevedore's "failure to perform with reasonable safety." Davis v. Chas. Kurz & Co., 483 F.2d 184, 187 (9th Cir. 1973), quoted in Fairmont Shipping Corp., supra at 1257. Thus, the Ryan doctrine cannot be invoked unless the following elements are present:

(A) shipowner, relying on the expertise of another party (the contractor), enters into a contract whereby the contractor agrees to perform services without supervision or control by the shipowner; the improper, unsafe or incompetent execution of such services would foreseeably render the vessel unseaworthy or bring into play a pre-existing unseaworthy condition; and the shipowner would thereby be exposed to liability regardless of fault. Where these elements are present, there will be implied in the contract an agreement by the contractor to indemnify the shipowner for any liability it might incur as a result of an unseaworthy condition...