Nederlandsch-Amerikaansche - Stoomvaart - Maatschappij; Holland-America Line v. Vassallo

• Decision Date: 14 February 1963
• Docket Number: HOLLAND-AMERICA,NEDERLANDSCH-AMERIKAANSCHE-STOOMVAART-MAATSCHAPPIJ,No. 13965,13965
• Citation: 365 S.W.2d 650
• Parties: LINE, Appellant, v. Mrs. Connie VASSALLO et al., Appellees.
• Court: Texas Court of Appeals

Page 650

365 S.W.2d 650

NEDERLANDSCH-AMERIKAANSCHE-STOOMVAART-MAATSCHAPPIJ;

HOLLAND-AMERICA LINE, Appellant, v. Mrs. Connie VASSALLO et al., Appellees.

No. 13965.

Court of Civil Appeals of Texas, Houston.

Feb. 14, 1963.

Rehearing Denied March 14, 1963.

Fulbright, Crooker, Freeman, Bates & Jaworski, S. G. Kolius, Carl G. Stearns, Ed Bluestein, Jr., Houston, for appellant.

Mandell & Wright, Arthur J. Mandell, Houston, for appellees Connie Vassallo and Minors.

E. D. Vickery, Gus A. Schill, Jr., Houston, Royston, Rayzor & Cook, Houston, of counsel for appellee Texports Stevedoring Co., Inc.,

COLEMAN, Justice.

This is an appeal by Holland-America Line from a judgment denying it indemnity against Texports Stevedoring Company, Inc. Both Holland-America Line and Texports Stevedoring Company, Inc. have appealed from that portion of the trial court's judgment awarding interest to the plaintiffs, the widow and surviving children of Roland Vassallo.

Roland Vassallo received injuries resulting in his death while employed as a stevedore by Texports aboard the SS Eemdyk, which was owned and operated by Holland-America Line. Mrs. Connie Vassallo brought suit for damages against Holland-America Line, who impleaded Texports as a third party defendant to obtain indemnity under the applicable federal maritime law.

The answers made by a jury established that Vassallo met his death from a combination of causes: the defective condition of one of the vessel's winches, the negligence of the ship owner, the negligence of Texports, and Vassallo's contributory negligence. On June 26, 1959, judgment was entered that plaintiffs take nothing. On appeal the judgment of the trial court was reversed by the Supreme Court of Texas and the case was remanded to the trial court with instructions to enter judgment in favor of the plaintiffs in accordance with the opinion. Vassallo v. Nederl-Amerik Stoomv Maats Holland Tex., 344 S.W.2d 421.

On September 20, 1961, the trial court entered its second judgment awarding plaintiffs damages against the ship owner. The judgment denied the ship owner's plea for indemnity and awarded interest on the damages at the rate of 6% from June 26, 1959, the date of the first judgment.

Holland-America Line has predicated its appeal on two points: (1) The Trial Court erred in entering judgment that the ship-owner take nothing from the Stevedore in the Shipowner's third party action for indemnity because the findings of the jury established under the controlling maritime law that the Stevedore breached its implied contractual warranty of safe and workmanlike service and those findings required the entry of judgment for the Shipowner; and (2) The Trial Court erred in entering judgment that interest on the plaintiffs' recovery was to accumulate from June 26, 1959, the date of the original judgment (wherein plaintiffs took nothing), rather than from September 20, 1961, the date of the judgment which first created an obligation on the part of appellant to pay damages to the plaintiffs.

The following facts are established by the answers to special issues submitted to the jury:

Special Issues Nos. 1 and 2: That the port winch serving the forward part of No. 5 hatch was defective, which was a proximate cause of the accident.

Special Issues Nos. 3 and 4: That the shipowner negligently failed to keep this winch in repair and such failure was a proximate cause of the accident.

Special Issues Nos. 5, 6 and 7: That the shipowner negligently failed to supply Vassallo with a reasonably safe place to work, which was a proximate cause of the accident.

Special Issues Nos. 15 and 16: That Vassallo failed to keep a proper lookout for his own safety which was a proximate cause of the accident.

Special Issue Nos. 17, 18 and 19: That Vassallo negligently gave the operator of the port winch a signal to operate the winch while the port winch line was attached to the beam bridle and while his hand was in a position to be caught between the beam bridle chain and the beam, which was a proximate cause of the accident.

Special Issues Nos. 21 and 22: That Vassallo negligently failed for remove his hand from between the beam bridle chain and the beam, which was a proximate cause of the accident.

Special Issues Nos. 30 and 31: That the Stevedore negligently continued to use the winch with knowledge that it was defective, which was a proximate cause of the accident.

Special Issue Nos. 32 and 33: That the Stevedore negligently continued to use the winch with knowledge that the shipowner had not kept it in repair, which was a proximate cause of the accident.

Special Issues Nos. 34 and 35: That the Stevedore negligently continued stevedoring operations with knowledge that Vassallo had not been furnished a reasonably safe place to work, which was a proximate cause of the accident.

Special Issues Nos. 38 and 39: That the Stevedore's winch operator, Clyde Townsend, moved the winch control lever into hoist position just before the accident occurred, though this was not found to be negligent.

Special Issues Nos. 42, 43 and 44: That the Stevedore's winch operator, Clyde Townsend, knew or should have known the port which had an 'on' and 'off' switch, and that just before the accident he left his winch without cutting off such switch, though this was not found to be negligent.

Special Issues Nos. 46 and 47: That the Stevedore's winch operator, Clyde Townsend, just prior to the accident failed to make such use of the foot brake on the port winch as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, though this was not found to be negligent.

Special Issues Nos. 49, 50, 51, 52 and 53: That the port winch was defective when turned over to the longshoremen, that the shipowner knew or should have known this for a sufficient period of time for repairs to have been made, that it was negligent in not making repairs and such negligence was a proximate cause of the accident.

Special Issues Nos. 54, 55 and 56: That the shipowner negligently permitted loading operations to continue after it knew or should have known of the defective condition of the port winch, which was a proximate cause of the accident.

Special Issues 57, 58, 59 and 60: That the shipowner failed to supply Vassallo with a reasonably safe place to work, that it knew or should have known the place was not reasonably safe, and that it negligently failed to make the place reasonably safe after it knew or should have known that it was not safe, which failure was a proximate cause of the accident.

Special Issues Nos. 61, 62 and 64: That the shipowner negligently permitted loading operations to continue after it knew or should have known that the place supplied to Vassallo was not reasonably safe, which was a proximate cause of the accident.

It was stipulated that there was a written contract between Texports Stevedoring Company, Inc. and Holland-America Line for the Stevedoring work aboard the SS Eemdyk on May 26, 1957, containing many provisions, among which is the following: 'The work at all times to be under direct supervision of the agents of Holland America Line in consultation with their representatives, who will decide as to the number of gangs and hatches to be worked, storage of cargo * * *', etc. It was also stipulated that the contract contained no provision whereby either party assumed any responsibility for damages resulting from death other than that assumed by Texports under applicable Workmen's Compensation Acts. The contract document was not introduced into evidence.

The liability of the stevedore to indemnify the ship owner can arise only by reason of breach of contract. American Mutual Liability Ins. Company v. Matthews, 2 Cir., 1950, 182 F.2d 322; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corporation, 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. Negligence of the stevedore is pertinent only insofar as it amounts to a breach of contract. Ryan Stevedoring Company v. Pan-Atlantic Steamship Corporation, 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Here the jury found that the stevedore continued to use the defective winch with knowledge of the defect and that such conduct was negligent and a proximate cause of the injury to the longshoreman (for which the ship was required to pay damages).

In the Ryan case, supra, the court held:

'The shipowner here holds petitioner's uncontroverted agreement to perform all of the shipowner's stevedoring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner's obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of stowage are inescapable elements of the service undertaken. This obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual 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 from 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.'

In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 78 S.Ct. 438, 442, 2 L.Ed.2d 491, the court said:

'We believe that respondent's contractual obligation to perform its duties with reasonable safety related not only to the handling of cargo, as in Ryan, but also to the use of equipment incidental thereto, such as the winch shelter involved here. [citing cases] If in that regard respondent rendered a substandard performance which led to foreseeable liability of petitioner, the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery.'

The doctrine of the Ryan case was further...