Porello v. United States

Citation153 F.2d 605
Decision Date06 May 1946
Docket NumberNo. 96.,96.
PartiesPORELLO v. UNITED STATES et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John F. X. McGohey, U. S. Atty., of New York City (Howard F. Fanning and Thomas H. Walker, both of New York City, of counsel), for respondent-appellant.

Alexander & Ash, of New York City (Edward Ash of New York City, of counsel), for impleaded respondent-appellant.

Jacob Rassner, of New York City, for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

Writ of Certiorari Granted May 6, 1946. See 66 S.Ct. 1013.

SWAN, Circuit Judge.

This is a suit brought under the Public Vessels Act, § 1, 46 U.S.C.A. § 781, against the United States to recover damages for personal injuries sustained by a stevedore, while stowing cargo in the hold of the Navy Transport "Thomas Stone." The libellant was in the employ of the impleaded respondent, American Stevedores, Inc., which was engaged under contract with the United States in loading the vessel. He was seriously injured by the falling of a strongback from the hatch of the third platform deck into the No. 1 lower hold. The District Court held the vessel owner at fault for supplying a strongback which was defective in that it lacked the customary locking device on one end, and held the stevedoring company at fault because its foreman negligently loaded the cargo in a manner which caused the strongback to be unshipped. The libellant was given a decree against the United States for $11,719.39, less $1,421.77 already received by way of compensation under the Longshoremen's and Harbor Workers' Compensation Act, § 1 et seq., 33 U.S.C.A. § 901 et seq., and the United States was given contribution from American Stevedores, Inc., for one-half the damages less the above mentioned credit. Both the United States and the stevedoring company have appealed.

The United States contends (1) that the suit does not lie under the Public Vessels Act, (2) that the absence of a locking device on the strongback was not the proximate cause of the accident, and (3) that, if liable to the libellant, it is entitled to complete indemnity from the impleaded respondent. The latter contends that the decree is wrong in awarding contribution to the United States in any amount. The libellant has filed assignments of error asserting inadequacy in the award of damages and asks us to increase it.

The question of jurisdiction under the Public Vessels Act was raised by exceptions to the libel. They were overruled in Porello v. United States, D.C., 53 F.Supp. 569. Any doubt as to the correctness of that ruling is set at rest by the recent decision of the Supreme Court in Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 228, 65 S.Ct. 639, where the court said that the statute was intended to impose on the United States the same liability imposed by the admiralty law on the private shipowner. That a private shipowner would be liable to a stevedore for personal injuries caused by defective equipment or negligence is elementary. La Guerra v. Brasileiro, 2 Cir., 124 F.2d 553, certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. 1220; United States Fidelity & Guaranty Co. v. United States, 2 Cir., 152 F.2d 46. The District Judge found that the failure to have a lock on the strongback was negligent. The evidence supports this finding. Such a lock is customary, and the plans of the vessel called for it; but no lock was installed and its lack was visible to the naked eye. The United States really offers no excuse for its failure, but contends that the proximate cause of libellant's injuries was the negligence of the stevedoring company.

At the time of the accident the libellant was one of a gang of stevedores stowing cargo in No. 1 lower hold. The work was in charge of Di Mare, foreman of the gang. A military vehicle had been lowered into the hold and landed on the tank top preparatory to stowing it in the starboard wing aft. The vehicle was handled by wire slings, the perpendicular parts of which were separated by wooden spreaders above the top of the vehicle to prevent the wire from scraping it. After the vehicle was landed Di Mare ordered the winchman to "pick it up a little." As the vehicle did not move, in response to the order, it was repeated. The raising of the vehicle unseated the strongback, causing it and a number of the hatch cover planks to fall into the hold and hit the libellant. Di Mare, the foreman, knew that the lock was missing and should have realized the danger of unseating the strongback, if the vehicle was raised. The trial judge found Di Mare was negligent in handling the draft, and that the libellant's injuries resulted from the negligence of both the respondent and the stevedoring company. Each wrongdoer claims that the other's negligence was the sole cause of the accident. The United States argues that its fault created a situation which was harmless while cargo was being lowered into the hold and only became dangerous by reason of the supervening negligence of the gang foreman in ordering the vehicle to be raised in such a manner as to unseat the strongback. In support of the argument counsel cites The M. E. Luckenbach, D. C., 200 F. 630, affirmed 2 Cir., 214 F. 571; The Sunnyside, 2 Cir., 251 F. 271; The Mars, D.C.S.D. N.Y., 9 F.2d 183; The Aden Maru, D.C. S.D.Tex., 51 F.2d 599. The stevedoring company, on the other hand, argues that had the beam been locked, the raising of the vehicle against it would not have unshipped it and consequently the absence of the lock was the efficient, i. e., proximate, cause of the accident. The unsound notion that there can be but one "proximate cause" of an accidental injury has caused some confusion in the cases. None of the authorities cited is applicable to the facts at bar. In our opinion the absence of the lock and Di Mare's negligent order operated concurrently in producing the result. Hence both the tort-feasors would be jointly and severally liable and each should bear one-half the libellant's damages except for the statutory immunity granted by section 5, 33 U.S.C.A. § 905, which makes the compensation liability exclusive with respect to the employer.

For a right of contribution to accrue between tort-feasors, they must be joint wrongdoers in the sense that their tort or torts have imposed a common liability upon them to the party injured. A. L.I.Restitution § 86; 13 Am.Jur., Contribution § 51. Since the libellant has no cause of action against his employer, the United States can claim no contribution on the theory of a common liability which it has been compelled to pay. See Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086; Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721, 92 A.L.R. 680. It claims full indemnity by reason of its contract with American Stevedores, Inc. This required the stevedoring company to carry insurance protection against liability to its employees arising under the Longshoremen's and Harbor Workers' Compensation Act; and contained also the following provision: "The Stevedore * * * shall be responsible for any and all damage or injury to persons and cargo while loading or otherwise handling or stowing the same, * * * through the negligence or fault of the Stevedore, his employees and servants."

The impleaded respondent argues that the provision must be construed as though the final clause read "through the negligence or fault of the Stevedore alone"; that it did not agree to indemnify the United States against damages to which a defect in the ship's equipment contributed. But we do not think the contract can be limited to negligence or fault for which the stevedore alone was liable. The stevedore's agreement to carry compensation insurance forbids that construction, because, having insured, it would not be liable to the person injured. It is reasonable to construe the clause to cover cases where in respect to the injured person both the contractor and the shipowner are at fault. See United States v. Wallace, 9 Cir., 18 F.2d 20, 21. The primary duty to furnish its employees a safe place to work rested on the stevedore. It was in control of the conditions under which the work was to be done and its foreman knew the bolt was missing and should have foreseen the danger and avoided it. Although the stevedore's default in that respect might not relieve the shipowner from liability to the injured workman, it would make it reasonable for the shipowner to insist that the stevedore alone bear the loss, and the quoted provision was inserted in the contract for that purpose. The United States argues that, even without such a provision, it would be entitled to full indemnity. See Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 327, 16 S.Ct. 564, 40 L.Ed. 712; Burris v. American Chicle Co., 2 Cir., 120 F.2d 218, 222; Seaboard Stevedoring Corp. v. Sagadahoc S. S....

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