Severn v. United States
| Decision Date | 10 July 1946 |
| Parties | SEVERN v. UNITED STATES et al., and four other cases. |
| Court | U.S. District Court — Southern District of New York |
Thomas A. McDonald, of New York City (Edward C. McDonald, of Brooklyn, N. Y. and Thomas A. McDonald, of New York City, of counsel), for respondent-impleaded.
John F. X. McGohey, U. S. Atty., of New York City (Kirlin, Campbell, Hickox & Keating, by Joseph M. Cunningham, Vernon S. Jones and James B. Magnor, all of New York City, of counsel), for respondents.
Exceptions by the Cardinal Engineering Company hereinafter referred to as Cardinal respondent-impleaded, to the libels and petitions of the United States of America. The exceptions are similar in each of the above entitled suits.
The several libelants and the decedent in the Traina case were employees of Cardinal who was engaged under a contract with the United States War Shipping Administration in making repairs to the ships SS Hilton and SS Douglas, then in this harbor, and owned and operated by the United States. Each of the employees and the Traina's administratrix brought suit against the United States in Admiralty to recover damages sustained as a result of injuries received in the course of the repair work. The United States has impleaded Cardinal in each of the suits. The impleading petitions allege two causes of action against Cardinal, the respondent-impleaded. The First — alleges that certain parts of the vessel where the injuries occurred were under the control of Cardinal, and that Cardinal was under a duty to eliminate any dangerous conditions under its control, and demands indemnity or contribution from Cardinal pursuant to the provisions of the 56th Rule in Admiralty, 28 U.S.C.A. following section 723. The Second cause of action in the impleading petitions alleges that the work of repairing the ships was being done by Cardinal pursuant to contracts wherein Cardinal agreed to indemnify the United States and its agencies from suits arising or growing out of Cardinal's negligence in the performance of the work.
The respondent-impleaded excepts on three grounds. First — That the libelants were the employees of respondent-impleaded and that he had taken out compensation insurance pursuant to the requirements of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and asserts immunity from any liability to anyone beyond this. Second — The respondent-impleaded asserts that the matters alleged in the impleading petition are not within the jurisdiction of the Admiralty; that the indemnity clause contained in the ship repair contract between the United States and the respondent-impleaded is separable from all other clauses in that contract and any cause of action based therein is not within the Admiralty jurisdiction. Third — That the libelants and petition fail to state a cause of action and that the impleading petition is not within the 56th Rule in Admiralty. Further the respondent-impleaded demands a trial by jury as to all matters not within the Admiralty jurisdiction.
The Longshoremen's and Harbor Workers' Compensation Act provides for the exclusive duties, rights and relief as between employer and employee, but this does not prevent a third party, a shipowner, from suing the employer as indemnitor for damages the shipowner may be required to pay the employee as a result of the negligence of such employer. Burris v. American Chickle Co., 2 Cir., 120 F.2d 218; Green v. War Shipping Administration, 66 F.Supp. 393, opinion of Judge Moscowitz; Benevento v. United States and Union Stevedoring Co., 68 F. Supp. 347, opinion of Judge Leibell. The shipowner had the right under Admiralty Rule 56 or under Rule 14 of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to implead the employer. Porello v. United States et al., 153...
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