Orlando v. Prudential Steamship Corporation

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: SWAN, FRIENDLY and MARSHALL, Circuit
• Citation: Orlando v. Prudential Steamship Corporation, 313 F.2d 822, 1963 A.M.C. 570 (2nd Cir. 1963)
• Decision Date: 05 February 1963
• Docket Number: No. 168,Docket 27717.,168
• Parties: John ORLANDO, Libelant, v. PRUDENTIAL STEAMSHIP CORPORATION, Respondent-Appellant, v. AMERICAN STEVEDORES, INC., Respondent-Impleaded, Appellee.

313 F.2d 822 (1963)

John ORLANDO, Libelant, v. PRUDENTIAL STEAMSHIP CORPORATION, Respondent-Appellant, v. AMERICAN STEVEDORES, INC., Respondent-Impleaded, Appellee.

No. 168, Docket 27717.

United States Court of Appeals Second Circuit.

Argued December 7, 1962.

Decided February 5, 1963.

John J. Purcell, New York City (Stapleton, Flynn & Lilly and Robert G. Farrell, New York City, on the brief), for respondent-appellant.

Michael J. Kenny, George J. Conway, New York City, for respondent-impleaded, appellee.

Before SWAN, FRIENDLY and MARSHALL, Circuit Judges.

SWAN, Circuit Judge.

Orlando, a marine carpenter in the employ of American Stevedores, sustained injuries from falling on the deck of respondent's vessel when he boarded the vessel to commence work. His fall was caused by slipping on loose kernels of grain on the deck.¹ Judge Palmieri held that the presence of the grain created an unseaworthy condition which was the proximate cause of the accident. In an opinion not officially reported he awarded libelant a recovery of $5,250 against the shipowner, and dismissed the latter's petition against the impleaded respondent for indemnity. The decree in favor of libelant has been satisfied. The shipowner's appeal questions only the dismissal of its claim for indemnity.

There being no express indemnity agreement, the appellant's claim rests on the implied warranty of workmanlike service by the stevedoring company. This principle was first announced by the Supreme Court in Ryan Stevedoring Co. v. Pan-Atlantic Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 100 L.Ed. 133. It has been frequently discussed and applied to various fact situations in later cases. See Weyerhaeuser Steampship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct. 445, 3 L.Ed.2d 413; Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169; Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798; DeGioia v. United States Lines Co., 2 Cir., 304 F.2d 421, and cases therein cited; Williams v. Pennsylvania R. R., 2 Cir. 313 F.2d 203.

In the present case the appellant contends that American should be held to have broken its implied warranty of workmanlike service on either of two theories. The more far reaching, and the one to be first discussed, is the claim that a stevedore is required to inspect a vessel before sending its men aboard to commence work.

At 11:40 a. m. on the day of Orlando's accident, the vessel was docked with her starboard side to Pier 3, Brooklyn Army Base. Cargo was to be loaded in hatches 1, 3 and 4 pursuant to American's contract with the Transportation Corps of the United States Army. Judge Palmieri found that the unseaworthy condition which caused Orlando's injury had existed for an hour and twenty minutes before any employee of the stevedoring company boarded the vessel; moreover, he found that during that period the company had access to the ship and could have discovered the unseaworthy condition if it had inspected the working area. However, after a scholarly review of the authorities, the Judge concluded that no case had imposed the duty of inspection before beginning operations. We agree with this conclusion.

Appellant relies particularly on Hugev v. Dampskisaktieselskabet International, S.D.Cal., 170 F.Supp. 601, 608, aff'd sub nom. Metropolitan Stevedore Co. v. Dampskisaktieselskabet International, 9 Cir., 274 F.2d 874, cert. denied 363 U.S. 803, 80 S.Ct. 1237, 4 L.Ed.2d 1147. That case involved a situation in which a dangerous condition was discovered by the stevedore's employees as their operations proceeded, not by prior inspection. Thus it is not authority for the appellant's contention. Calderola v. The Cunard Steamship Co., Ltd., 2 Cir., 279 F.2d 475, cert. denied 364 U.S. 884, 81 S.Ct. 172, 5 L.Ed.2d 104, is distinguishable for the same reason. And in Drago v. A/S Inger (E.D.N.Y.) 194 F.Supp. 398, 404-405, aff'd 2 Cir., 305 F.2d 139, the court did not imply a duty of prior inspection, but held that a stevedore chargeable with constructive notice of a dangerous condition through the knowledge of its employees has a duty to remedy the condition, or to have it remedied. Nor does our reading of Crumady v. The Joachim Hendrik Fisser, supra, and Calmar S. S. Corp. v. Nacirema Operating Co., 4 Cir., 266 F.2d 79, cert. denied 361 U.S. 816, 80 S.Ct. 56, 4 L.Ed.2d 62, elicit from those cases any duty of inspection prior to the stevedore's sending aboard a gang of longshoremen. Since no decision has recognized such a duty, and since there was no...