Palazzolo v. Pan-Atlantic SS Corp., Civ. A. No. 11520.

• Decision Date: 07 April 1953
• Docket Number: Civ. A. No. 11520.
• Citation: 111 F. Supp. 505
• Parties: PALAZZOLO v. PAN ATLANTIC S. S. CORP. et al. PAN ATLANTIC S. S. CORP. v. RYAN STEVEDORING CO., Inc.
• Court: U.S. District Court — Eastern District of New York

111 F. Supp. 505

PALAZZOLO v. PAN ATLANTIC S. S. CORP. et al.

PAN ATLANTIC S. S. CORP. v. RYAN STEVEDORING CO., Inc.

Civ. A. No. 11520.

United States District Court E. D. New York.

April 7, 1953.

Fink & Frank, New York City, Jacquin Frank, New York City, of counsel, for plaintiff.

Gay & Behrens, New York City, Edward J. Behrens, New York City, of counsel, for defendants and third party plaintiff.

Alexander & Ash, New York City, Sidney J. Schwartz, New York City, of counsel, for third party defendant.

INCH, Chief Judge.

At the trial of this personal injury action the jury rendered a verdict in favor of plaintiff against the defendant, Pan-Atlantic Steamship Corporation (hereinafter called "Pan-Atlantic"), charterer of the S. S. Canton Victory.

At a pretrial conference plaintiff agreed to discontinue the action as against the defendant, Waterman Steamship Corporation.

Plaintiff, a longshoreman employed by Ryan Stevedoring Co., Inc., was seriously injured aboard the S.S. Canton Victory when he was struck by a roll of paper pulp during the discharge of the vessel's cargo at Brooklyn, N. Y. The theory of plaintiff's claim was that the cargo of paper pulp was improperly stowed. The loading of the cargo at Georgetown, S. C. and the discharge of the cargo at Brooklyn, N. Y., were both performed by plaintiff's employer, Ryan Stevedoring Co., Inc. (hereinafter called "Ryan").

It was agreed among the parties that the only matter to be submitted to the jury was Pan Atlantic's liability to plaintiff, and, in the event of a recovery, that the Court alone should determine the issues of fact and law presented by Pan-Atlantic's third party complaint for indemnity over against Ryan.

In accordance with the allegations of plaintiff's complaint, and in line with the theory upon which the case was tried, the jury was charged as to unseaworthiness and negligence. The jury thereupon rendered a general verdict in favor of plaintiff against Pan-Atlantic in the sum of $75,000, and the matter now presented for determination is Pan-Atlantic's claim for indemnity against Ryan, the third party defendant.

It is conceded that plaintiff's employer, Ryan, has complied with the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and it is also conceded that there was no written contract of indemnity between Ryan and Pan-Atlantic.

It is Pan-Atlantic's contention that while it has been held in this type of case that there can be no "contribution" between joint tort-feasors, American Mut. Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322; Mikkelsen v. S/S Granville, 2 Cir., 191 F. 2d 858, Per Curiam on Petition for Rehearing, 2 Cir., 192 F.2d 809, 1951 A.M.C. 1938; Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, those cases are inapplicable here for the reason that Pan-Atlantic was not a joint tortfeasor. Pan-Atlantic argues that liability has been visited upon it solely because of an improper stowage of cargo which made the ship unseaworthy and that since Ryan alone created the unseaworthiness which is "essentially a species of liability without fault", Seas Shipping Company v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099, this case comes within the rule of those cases which imply a contract of indemnity based upon the failure of a party to properly perform work which it contracted to do. See: Burris v. American Chicle Co., 2 Cir., 120 F.2d 218; Rich v. U. S., 2 Cir., 177 F.2d 688; Standard Oil Co. v. Robbins Dry Dock & Repair Co., 2 Cir., 32 F.2d 182; Seaboard Stevedoring Corporation v. Sagadahoc S. S. Co., 9 Cir., 32 F.2d 886; U. S. v. Rothschild International Stevedoring Co., 9 Cir., 183 F.2d 181. In such cases the employer's or indemnitor's negligence is described as being the "sole", "active", "primary" or "affirmative" cause of the employee's injury. However, if the shipowner is a joint tort-feasor a contract of indemnity is not implied for

"To imply such a promise would mean that the employer agreed to protect the shipowner against liability arising out of the shipowner's own negligence. In the absence of an express promise, such an implication would be utterly unreasonable." American Mut. Liability Ins. Co. v. Matthews, supra, 182 F.2d at page 324.

The difficulty with Pan-Atlantic's contention is that it assumes that the jury's verdict was, and could only have been, based on a...