Scott v. SS Ciudad De Ibague

• Decision Date: 20 April 1970
• Docket Number: No. 26545.,26545.
• Citation: 426 F.2d 1105
• Parties: Bridges SCOTT, Plaintiff-Appellee, v. The SS CIUDAD DE IBAGUE, her engines, tackle, furniture and apparel, Defendant, and Flota Mercante Grancolombiana, S. A., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

426 F.2d 1105 (1970)

Bridges SCOTT, Plaintiff-Appellee, v. The SS CIUDAD DE IBAGUE, her engines, tackle, furniture and apparel, Defendant, and Flota Mercante Grancolombiana, S. A., Defendant-Appellant.

No. 26545.

United States Court of Appeals, Fifth Circuit.

April 20, 1970.

Walter Carroll, Jr., New Orleans, La., for appellant.

Clifton S. Carl, New Orleans, La., Harmon F. Roy, H. Purvis Carmouche, Jr., Lafayette, La., for appellee.

Before GOLDBERG, DYER and CARSWELL, Circuit Judges.

GOLDBERG, Circuit Judge:

We consider here a familiar problem: A shipowner, having paid damages for personal injuries suffered by a long-shoreman on board its vessel, seeks indemnity from the longshoreman's stevedore employer on the theory that the stevedore breached its warranty of workmanlike performance.¹ Having lost the battle in the court below, the shipowner comes to this court armed with a variety of appellate arguments fashioned from inferences and presumptions. Because we conclude that the facts of this case foreclose a successful assertion of the shipowner's arguments, we affirm the trial court's denial of indemnity.

I.

Bridges Scott, a longshoreman employed by the New Orleans Stevedoring Company (stevedore), was injured while working on board the Ciudad Ibague, a vessel owned by Flota Mercante Grancolombiana, S. A. (shipowner). Scott and other longshoremen were removing sacks of coffee from one of the 'tween deck hatches of the ship. The sacks, each of which weighed approximately 150 pounds, were stacked one atop another to a height above the heads of the longshoremen. Working in pairs, the men were pulling the sacks down and placing them on pallet boards for removal. The sacks which had not yet been pulled down appeared to be stacked in a normal manner; there was no apparent defect in their stowage. The evidence also indicates that the procedures used by the longshoremen were customary and ordinary. Nevertheless, for some unexplained reason, a number of the heavy sacks fell from the stow completely without warning and landed on Bridges Scott.

Scott brought suit against the ship and its owner for damages for his personal injuries, alleging unseaworthiness and negligence. After answering Scott's complaint the shipowner filed a third-party complaint against the stevedore for indemnity, alleging that any injuries suffered by Scott had resulted from a breach of the stevedore's warranty of workmanlike performance. On these two claims — Scott's claim for damages and the shipowner's claim for indemnity — the case proceeded to trial.

At trial none of the parties was able to offer evidence to explain precisely why the sacks fell. On the basis of the circumstantial evidence that was introduced, the court as the trier of fact inferred that the sacks "fell through some non-apparent defect in their stowage." Scott v. SS Ciudad Ibaque, E.D. La. 1968, 285 F.Supp. 613, 615. Concluding that the vessel was therefore unseaworthy,² the court entered judgment for plaintiff Scott.³ The court denied the shipowner's indemnity claim against the stevedore on the grounds that (1) the stevedore had not been guilty of any conduct which would constitute a breach of its warranty of workmanlike performance and (2) the shipowner, by furnishing a vessel whose cargo fell without apparent cause or warning, had been guilty of conduct sufficient to preclude indemnity.

The shipowner initially filed a notice of appeal from both judgments against it. Later, however, the shipowner settled with plaintiff Scott, and Scott was dismissed from this proceeding. Consequently, the only claim now before this court is the shipowner's claim against the stevedore for indemnity.

In support of its claim for indemnity appellant shipowner now advances four contentions, which we discuss seriatim. For the reasons hereinafter given, we conclude that none of these contentions compels a reversal of the judgment below.

II.

Appellant's initial contention is that "the unexplained falling of cargo being discharged by a contract stevedore creates a presumption" that the stevedore breached its warranty of workmanlike performance. As this contention is developed in appellant's brief, it becomes clear that appellant is attempting to invoke the aid of an inference in the nature of res ipsa loquitur.⁴ We are asked, in effect, to hold that this is a case in which the trier of fact could have, and should have, inferred a breach of the stevedore's warranty.

In assessing appellant's contention we note at the outset that the application of the doctrine of res ipsa loquitur is not unknown in the law of admiralty. The doctrine has been applied in admiralty actions grounded in negligence theories. Johnson v. United States, 1948, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (seaman's action for personal injuries under the Jones Act); Furness, Withy & Co. v. Carter, 9 Cir. 1960, 281 F.2d 264 (longshoreman's action for personal injuries under the general maritime law). See also Logan Charter Service, Inc. v Cargill, Inc., 8 Cir. 1967, 373 F.2d 54, 60; Russell, Poling & Company v. Tug Alice M. Moran, S.D.N.Y. 1962, 205 F.Supp. 874, 876. Moreover, in personal injury actions based on the theory of unseaworthiness — a species of liability without fault — an inference in the nature of res ipsa loquitur has been applied. Gibbs v. Kiesel, 5 Cir. 1967, 382 F.2d 917, 919; Petterson v. Alaska S.S. Co., 9 Cir. 1953, 205 F.2d 478, 479, aff'd per curiam, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L. Ed. 798. See also Marshall v. Ove Skou Rederi A/S, 5 Cir. 1967, 378 F.2d 193, cert. denied, 389 U.S. 828, 88 S.Ct. 86, 19 L.Ed.2d 84.

We have no doubt that such an inference — whether bearing the label "res ipsa loquitur" or not — can properly be applied, when the factual context is appropriate, in a shipowner-stevedore indemnity action. In the present indemnity action, however, we need not decide whether an inference in the nature of res ipsa loquitur could properly have been applied by the trial court, for the court impliedly rejected any such inference in its findings of fact. After hearing all the evidence, the court found that "the unloading procedure was customary and ordinary and no conduct of the stevedoring contractor through any of its agents or employees contributed proximately to the injuries incurred by Bridges Scott." 285 F.Supp. at 615 (emphasis added).

The doctrine of res ipsa loquitur does not have such compulsive power that its inference of fault can override a specific negation of fault by the trier of fact. See American Commercial Lines, Inc. v. Silver Creek Coal Co., 7 Cir. 1968, 393 F.2d 178, 183; United Fruit Co. v. Marine Terminals Corp., 9 Cir. 1967, 376 F.2d 1007, 1009. Though the doctrine has strength, it clearly does not possess such Samsonian muscle. Consequently, unless the trial court's finding of fact is set aside on appeal, it effectively forecloses any inference that the stevedore breached its warranty of workmanlike performance.

The cordon surrounding a finding of fact by virtue of Rule 52(a) is neither porous nor malleable; unless a finding is clearly erroneous, it cannot be set aside on appeal.⁵ Applying the "clearly erroneous" standard to the fact finding now in question, we note that the record is replete with evidence (1) that the cargo of coffee had not been disturbed by the stevedore prior to the day of Bridges Scott's injury, (2) that there was no apparent defect in the stow, and (3) that the procedures used by the stevedore's employees were in all respects customary and ordinary. In the light of this evidence, we cannot label as "clearly erroneous" the court's finding that "no conduct of the stevedoring contractor . . . contributed proximately to the injuries incurred by Bridges Scott." Since the finding must stand, appellant's res ipsa loquitur argument must fall.

III.

As an alternative contention appellant advances the argument that the stevedore should be held liable for a breach of its warranty of workmanlike performance on the ground that "inherent risks in a contracted activity under the full direction and control of a contract stevedore rest with the stevedore as the party best situated to adopt preventive measures and reduce the likelihood of injury." Appellant obviously intends to include within this principle all defects in cargo and equipment, whether apparent or not. Thus appellant is asking this court to hold, in effect, that a stevedoring contractor is a virtual insurer as to every risk which may result in injury to a longshoreman engaged in the unloading of cargo. Such an expansive principle is not the law, and it should not be the law.

Indeed, the principle espoused by appellant has been expressly repudiated by this court. In Cia Maritima del Nervion v. James J. Flanagan Shipping Corp., 5 Cir. 1962, 308 F.2d 120, a case involving a defective ladder on a ship, we employed language which was explicit on this point:

"It has been clear since Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, that the shipowner\'s action for indemnity is not founded upon a tort or any duty which the stevedore owes its employee, but rather upon the contract between the shipowner and the stevedore and the stevedore\'s implied warranty of workmanlike service in stowing the cargo. This contractual obligation to perform the duties with reasonable safety extends not only to the actual handling of cargo, but to the `use of equipment incidental thereto\' as well. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. And, even though the vessel or its equipment may themselves be unseaworthy, if the stevedore brings this condition into play, he is liable to indemnify the owner for any damages which may be sustained because of the breach of warranty. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Calmar Steamship Corp. v. Nacirema

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