Strachan Shipping Co. v. KONINKLYKE NEDERLANDSCHE SM, NV
| Decision Date | 14 November 1963 |
| Docket Number | No. 20371.,20371. |
| Citation | 324 F.2d 746 |
| Parties | STRACHAN SHIPPING COMPANY et al., Appellants, v. KONINKLYKE NEDERLANDSCHE STOOMBOOT MAALSCHAPPY, N.V., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Eikel, Eikel, Feltner & Goller, Houston, Tex., Theodore Goller, Houston, Tex., of counsel, for appellant Strachan Shipping Co.
John P. Forney, Jr., Eastham, Watson, Dale & Forney, Houston, Tex., for appellee Koninklyke Nederlandsche Stoomboot Maalschappy, N. V.
Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge.
This appeal presents a case of first impression for this Court. The problem to be resolved is whether a shipowner is entitled to recover from the stevedore, a third party defendant, attorneys' fees and expenses for defending a suit by an injured longshoreman where the jury made the following findings in answer to specific interrogatories propounded by the court: (a) the shipowner was blameless, was not guilty of negligence and the ship was not unseaworthy; (b) the proximate cause of the injury was the stevedore's failure to perform its duties in a safe and workmanlike manner because it made improper use of the ship's loading facilities; and (c) the plaintiff longshoreman was injured. In answer to the interrogatory as to whether the failure of the stevedore to load the cargo in a safe and workmanlike manner was a proximate cause of plaintiff's injury, the jury answered: The trial court awarded to the shipowner that part of his attorneys' fees that were incurred in defending against the long-shoreman's claim, but refused to award any attorneys' fees incurred in "getting the stevedore into the case and establishing that the stevedore, rather than the shipowner, was responsible * * *." 223 F.Supp. 102.
We cannot follow the argument of the stevedore that it is not liable because there was no express contract of indemnity, "* * * but only an obligation or warranty implied by law to perform its services properly." (emphasis added)1 It is contended that to extend such warranty to cover attorneys' fees incurred in a successful defense of a long-shoreman's claim would cast an intolerable burden on the stevedore. It would require the stevedore to foot the bill for all claims, however groundless, and would hold him responsible for the actions of a third party over whom he has no control. The short answer to such arguments is that the jury found that the stevedore did not perform its services properly. If it had done so, there would have been no lawsuit of the kind here involved. Breach of an implied contract stands on the same footing as breach of an express contract in the circumstances of this case. Gonzalez v. Pennsylvania R. Co., (S.D.N.Y.1960) 183 F.Supp. 779.
Among other cases, the court below relied heavily on Paliaga v. Luckenbach Steamship Co., 2 Cir. 1962, 301 F.2d 403, a case very similar to the one at bar. It was there held that after the stevedore had settled with the longshoreman while trial was in progress, the court should have...
To continue reading
Request your trial
-
D/S Ove Skou v. Hebert
...That its defense was successful would not, of itself, prevent indemnity for counsel fees and expenses. Strachan Shipping Co. v. Koninklyke, 5 Cir., 1963, 324 F.2d 746; Lusich v. Bloomfield S. S. Co., 5 Cir., 1966, 355 F.2d 770. But while the trial Court's findings of breach of the WW LP by ......
-
Whisenant v. Brewster-Bartle Offshore Company
...5th Cir. 1967), aff'g Smith v. Brown & Root Marine Operators, Inc., 243 F. Supp. 130 (W.D.La.1965); Strachan Shipping Co. v. Koninklyke Nederlandsche S.M., N.V., 324 F.2d 746 (5th Cir. 1963), cert. denied 376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972; Damanti v. A/S Inger, 314 F.2d 395 (2d Cir......
-
Todd Shipyards Corp. v. Auto Transp., S.A.
...see also McCawley v. Ozeanosun Compania, Maritime, S.A., 505 F.2d 26, 32 (5th Cir.1974); Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboot Maalschappy, N.V., 324 F.2d 746, 747 (5th Cir.1963), cert. denied, 376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972 (1964). Such an award of attorne......
-
Todd Shipyards Corp. v. Turbine Service, Inc.
...breach of warranty of workmanlike performance include reasonable attorneys' fees and litigation expenses. Strachan Shipping Co. v. Koninklyke Nederlandsche, 5th Cir. 1963, 324 F.2d 746." McCawley v. Ozeanosun Compania, Maritime, S.A., 505 F.2d 26, 32 (5th Cir. 1974); Accord, Thibodeaux v. T......