Sims v. Chesapeake & O. Ry. Co.
| Decision Date | 25 July 1975 |
| Docket Number | No. 74-2205,74-2205 |
| Citation | 520 F.2d 556 |
| Parties | Jim F. SIMS, Plaintiff, Tomlinson Fleet Corporation, a corporation, Cross-Plaintiff-Defendant-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia Corporation, Cross-Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert A. Straub, Southfield, Mich., for cross-defendant-appellant.
John T. Jaeger, Johnson, Branand & Jaeger, Cleveland, Ohio, John A. Hamilton, Foster, Meadows & Ballard, Detroit, Mich., for cross-plaintiff-defendant-appellee.
Before EDWARDS, McCREE and LIVELY, Circuit Judges.
This case concerns the right of a shipowner to recover by way of indemnity from a wharfinger the attorneys fees and other costs of litigation incurred by the shipowner in defending an action by a crew member against the shipowner and the wharfinger for personal injuries suffered in a fall on property subject to the control of the wharfinger. The plaintiff Sims was a member of the crew of the Sylvania, owned by Tomlinson. He was returning to the Sylvania from shore leave by driving over a road which led through the marshaling area of the C & O yard at Toledo, Ohio adjacent to Slip No. 2 where the Sylvania was berthed. He alighted from his automobile to inspect a tire which had gone flat and, in doing so, stepped into a hole which was partly filled with ice and slush, suffering an injury to his ankle. Sims was not about the ship's business at the time of the accident and testified that it occurred approximately 1400 feet from the head of Slip No. 2 and 2500 feet from the bow of the Sylvania.
In his complaint and amended complaint, Sims sought recovery against his employer Tomlinson on three causes of action: (1) negligence under the Jones Act, 46 U.S.C. § 688, consisting of the failure to furnish the plaintiff a safe place to work, failure to furnish a safe means of ingress and egress and failure to warn of the dangerous condition of the dock; (2) under the general maritime and admiralty law of the United States for failure to furnish the plaintiff a seaworthy vessel; and (3) for maintenance and cure. As to C & O the plaintiff claimed under the general admiralty and maritime law in addition to alleging diversity of citizenship and the right to recover under the common law; charging that the injury was caused solely by the negligence of C & O in (a) allowing debris to accumulate on its dock; (b) failing to inspect and clean the dock area; and (c) failing to warn the plaintiff of the dangerous condition of the dock area. The complaint stated that there was an agreement between Tomlinson and C & O for use of the dock and that both defendants knew that the plaintiff and other seamen would be using the area as a means of ingress and egress to the Sylvania and other vessels moored at the C & O docks.
In its answer, Tomlinson stated that the claim for maintenance and cure had been paid, denied any liability on its part and pled as affirmative defenses contributory negligence and assumption of risk by the plaintiff and that the plaintiff's injuries were caused solely by the negligence of C & O. Tomlinson also filed a cross-claim against C & O stating that the maintenance and care of the dock at which the Sylvania was moored was under the exclusive control of C & O and that plaintiff's claim for damages is one for which C & O impliedly agreed to assume responsibility and indemnify Tomlinson. The cross-claim further charged that C & O warranted the safe condition of the dock and agreed to pay Tomlinson any damages and indemnify and save Tomlinson harmless from all liability to third persons from breach of this warranty. The prayer for relief in the cross-claim extended to reasonable attorneys fees, costs and expenses of litigation in addition to any damages for which Tomlinson might be found liable to the plaintiff. In its answer to the cross-claim, C & O denied that any agreement or warranty existed between it and Tomlinson and denied negligence on its part.
The case was tried before a jury which received general instructions and special interrogatories and was furnished a number of forms of verdict which provided alternative findings on the various claims presented by the pleadings and proof. The forms which were signed by the foreman resulted in a verdict in favor of the plaintiff Sims against C & O, and for the defendant Tomlinson on the claim of the plaintiff Sims. The jury answered "No" to the question of whether Sims was contributorily negligent. The issue raised by the cross-claim was submitted to the jury only if it found in favor of Sims against Tomlinson. Since the jury did not so find, no verdict was received on this issue. However, the court, in addition to entering judgment for Sims against C & O and dismissing the plaintiff's claim against Tomlinson, entered judgment for Tomlinson against the C & O on its cross-claim with respect to maintenance and cure "and for all attorneys fees, costs, expenses and disbursements in connection with this action."
The judgment of Sims against C & O has been satisfied and C & O has indemnified Tomlinson to the extent of the maintenance and cure portion of the judgment. The issue on this appeal is whether the district court correctly granted Tomlinson indemnity against C & O for attorneys fees, costs and litigation expenses on the basis of the jury findings. Several additional facts should be related. There was no written agreement between Tomlinson and C & O requiring C & O to indemnify Tomlinson for a judgment rendered against it under the circumstances of this case or for the payment of attorneys fees and litigation expenses. If such a duty existed it must have been implied from the relationship between the vessel and the wharfinger. A further fact which C & O emphasizes is that Tomlinson never tendered the defense of this action to C & O or demanded that it provide a defense for Tomlinson.
C & O contends that in the absence of a contract providing for indemnification, the district court should have relied upon the principles applicable to indemnity in tort as opposed to indemnity based on contract. It cites Fleischmann Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967), where the Court held that "(t)he rule here has long been that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor." It is the position of C & O that only when one secondarily liable in a tort action is required to pay damages to the claimant does the person so paying have a right of indemnity "implied in law" to recover such damages from the one primarily liable. See Ohio Casualty Co. v. Ford Motor Co., 502 F.2d 138 (6th Cir. 1974). C & O argues that in the present case, since Tomlinson was exonerated from liability to Sims by the jury, there was no issue of primary-secondary tort liability and, hence, no right of indemnity for attorneys fees and expenses. C & O argues further that Tomlinson was not liable to Sims as a matter of law. This contention is based on a number of cases which have held that when a crew member is injured while away from the ship for purposes of his own, the shipowner is not liable for such injuries caused by conditions beyond the gangway which are not under its control. Bates v. Prudential-Grace Lines, Inc., 375 F.Supp. 774 (W.D.Wash.1972), aff'd, 497 F.2d 900 (9th Cir. 1974); Wheeler v. West India Steamship Co., 103 F.Supp. 631 (S.D.N.Y.1951), aff'd, 205 F.2d 354 (2d Cir. 1953).
C & O contends that the present case should be decided under state law relating to tort indemnity rather than a rule of maritime law. In Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), the Supreme Court held that federal maritime law does not apply to accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. The Court held that the gangplank is the dividing line between state and maritime jurisdiction and that with regard to torts federal maritime jurisdiction is determined by the locality of the act and may be invoked only when the act occurs in navigable waters. The Court pointed out that the rule is different with respect to contract matters in which admiralty jurisdiction depends upon the nature of the transaction. It is the position of C & O that since the plaintiff suffered his injuries some 2500 feet from the gangplank the court correctly submitted the issue of liability as to C & O to the jury on common law principles rather than those of admiralty law. Since the primary claim was submitted and decided under the common law of Ohio, C & O maintains that the claim for indemnity should be decided also under the law of Ohio.
In Maryland Casualty Co. v. Frederick Co., 142 Ohio St. 605, 53 N.E.2d 795 (1944), the Supreme Court of Ohio held that when a case is tried on the theory that liability for a plaintiff's injuries is primary as to one defendant and secondary as to the other and the "secondary defendant" is held liable to the plaintiff, that defendant may recover by way of indemnity from the "primary defendant" if the primary defendant has been notified of the claim, tendered a defense and advised that it will be required to hold the secondary defendant harmless. In Wiper v. Great Lakes Engineering Works, 340 F.2d 727 (6th Cir. 1965), this court held that an action against the owner of a dock at which a ship was berthed for the death by drowning of a member of the ship's crew allegedly resulting from failure to maintain a safe docking area was governed by the law of Ohio rather than federal maritime law. Since docks and wharves are considered extensions of land, an action for negligently maintaining a dock is governed by state law, "absent a maritime status between the parties." Id. at 730. In Koserkoff v. Chesapeake & Ohio Railway Company, 427 F.2d 1049 (6th Cir. 1970)...
To continue reading
Request your trial