Weigel v. THE M/V BELGRANO

• Decision Date: 03 August 1960
• Docket Number: Civ. No. 10027.
• Citation: 188 F. Supp. 605,1960 AMC 1641
• Parties: George WEIGEL, Libelant, v. THE M/V BELGRANO, her engines, tackle and gear, and any and all persons claiming any interest therein, and Partenweederei, M. S. Belgrano, owner and operator, Seekonter Line, Charterer and/or operator, Respondents. Rudolph A. OETKER, Claimant, v. BRADY-HAMILTON STEVEDORE COMPANY, a corporation, Third-Party Respondent.
• Court: U.S. District Court — District of Oregon

188 F. Supp. 605

1960 AMC 1641

George WEIGEL, Libelant, v. THE M/V BELGRANO, her engines, tackle and gear, and any and all persons claiming any interest therein, and Partenweederei, M. S. Belgrano, owner and operator, Seekonter Line, Charterer and/or operator, Respondents.

Rudolph A. OETKER, Claimant, v. BRADY-HAMILTON STEVEDORE COMPANY, a corporation, Third-Party Respondent.

Civ. No. 10027.

United States District Court D. Oregon.

August 3, 1960.

Frank H. Pozzi, Pozzi & Wilson, Portland, Or., for libelant.

Erskine B. Wood, Wood, Matthiessen, Wood & Tatum, Portland, Or., for respondents.

Nathan J. Heath, Gray & Lister, Portland, Or., for third-party respondent.

EAST, District Judge.

Libelant was awarded herein a decree of damages against the Respondents and Claimant (Petitioners) in compensation for personal injuries received while working as a dock-working longshoreman employee of Brady-Hamilton Stevedore Company (Stevedore), third-party respondent herein, then engaged in loading and stowing the M/V Bulgrano (Vessel) with lumber cargo and in all respects performing the stevedoring work on dock and on board the Vessel pursuant to a stevedore contract with the representatives of Vessel.

With the view of placing ultimate liability, if any, at the doorstep of Stevedore, the Petitioners interpleaded the Stevedore, petitioning for indemnity and reparations for all loss that they might sustain by reason of Libelant's claims. The Petitioners contend, inter alia:

A. "2. As contracting stevedore, impleaded respondent owed the implied contractual obligation to perform the stevedoring work in a safe and proper manner.

"6. If (Petitioners) herein should be held liable in this case to libelant, then (Petitioners) have a right to recover over against impleaded (Stevedore) for full and complete indemnity because of said (Stevedore's) failure to perform its stevedore contract in a safe and proper manner * * *;"

B. "4. The gear and machinery of the vessel were in good and seaworthy condition, and the accident was caused by negligence of (Stevedore) in failing to properly use said gear and machinery, and particularly in failing to properly secure the topping lift pennant (pigtail line) to the winch gypsy head.

"5. If the gear and machinery of the vessel were unseaworthy at the time of the accident, which (Petitioners) deny, then said unseaworthiness was either created by the negligence of (Stevedore), or was `brought into play' by (Stevedore's) improper use of said gear and machinery or by (Stevedore's) negligence in using said gear and machinery after knowledge of its condition."

C. "6. * * * and (Petitioners) are entitled to recover from and against (Stevedore) for all damages that may be awarded herein and for costs and expenses, including such reasonable attorney's fee as may be incurred by (Petitioners) in defending against the libel."

The issue of indemnity was segregated and reserved awaiting adjudication of Libelant's claims against Petitioners.

In connection with the segregated issue of Libelant's claim, the Court concluded¹ that the Vessel was unseaworthy in that her topping "lift gear" for the starboard boom at No. 1 hatch malfunctioned and permitted the boom to fall upon the Libelant, and more particularly:

"(1) * * * * *

"3. That (pawls) on the ratchet in the topping lift gear was (were) defective and inadequate in that it (they) did not drop into each cog as the boom was hoisted so as to prevent the boom from falling."

"(2) That (Petitioners) were negligent in:

"4. Failing to properly inspect said vessel and particularly the said ratchet and (pawl) device to said hatch to determine the defective nature of same * * * (Reasonable inspection would have disclosed the malfunctioning of the pawls, known to the longshoreman the day before.)

"5. Failing to provide (the) libelant with a safe place to work * * *"

"(3) That said unseaworthiness of the vessel and concurring negligence of (Petitioners) were the proximate causes of the falling of the boom and libelant's resulting injuries."

The segregated and reserved issue of Petitioners' claim for indemnity from Stevedore is now ripe for packaging.

As will be later pointed out, the circle of judicial legislation is now complete except for trimming the loose ends of the knot and making it shipshape. The longshoreman who was deprived of a cause of action to recover damages for personal injuries caused through the negligent act of his employing stevedore by the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C.A. § 901 et seq., has now for all practical purposes regained this comfort.

The first stage of this metamorphosis commenced by clothing the longshoreman (seaman pro hac vice) with the mantle of protection against unseaworthiness of the Vessel in whose service he worked, all to the despair of the shipowner.²

The second stage was the bringing of the employer-stevedore to accountability for causing the unseaworthy condition through the now out-of-favor theory of active negligence of stevedore versus passive negligence of the shipowner.³

Then the third stage, where a stevedore is now ultimately liable to make reparations for loss resulting from its breach of a pre-existing continuing contractual duty, namely, the failure while performing its stevedore contract to meet its contractual warranty to handle the cargo and use the ship's gear incidental thereto with reasonable safety in light of expertise in the field. This is so even though the ship's gear may have been malfunctioning and therefore unseaworthy when taken over by a stevedore. Smith v. Jugosalvenska Linijska Plovidea, 4 Cir., 1960, 278 F.2d 176, at page 180, citing Crumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413.

Will the cycle be eventually completed with a fourth-stage judicial sanction of an action by the injured longshoreman directly against his defaulting employer-stevedore, on the premise that the longshoreman was engaged in ship's service and was a person who in the reasonable contemplation of the parties to the warranty might be expected to be injured through failures caused by the Stevedore's breach of warranty to handle cargo and use ship's gear incidental thereto with reasonable safety?⁴

In view of the ultimate holding to follow, it is not necessary to deal with Petitioners' contentions (B, above) of a breach of Stevedore's warranty by reason of negligent use of the Vessel's gear (pigtail line dog and gypsy head locking devices) by a longshoreman-employee of Stevedore, which in turn "put into play" the defective and unseaworthy "lift gear" under the teachings of Crumady.

In passing, we might say there is strong suspicion of such negligence,⁵ but suspicion in and of itself is not as yet circumstantial evidence of negligence.

The tenable basis of Petitioners' claim for indemnification is simply the alleged breach by Stevedore of the contractual implied in-fact warranty in its stevedoring contract to perform its contract with reasonable safety.

For the duties of the Stevedore to the Petitioners in the performance of its stevedoring contract, we find that:

"In Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 567, 78 S.Ct. 438, 441, 2 L.Ed.2d 491, the Supreme Court, after stating that the stevedore's contractual obligation to perform his work with reasonable safety related not only to handling of cargo, but also to the use of equipment incidental thereto, said: `* * * If in that regard respondent rendered a substandard performance which led to foreseeable liability of petitioner, the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery. * * *' While a standard to be applied to `conduct * * * sufficient to preclude recovery' has not been created, it has been decided that the mere furnishing of defective equipment by the ship to the stevedore does not bar recovery over under the contract. Crumady v. The Joachim Hendrik Fisser, supra; Calmar S. S. Corp. v. Nacirema Operating Co., 4 Cir., 1959, 266 F.2d 79; American Export Lines, Inc. v. Revel, 4 Cir., 1959, 266 F.2d 82." Italics supplied.

* * * * * *

"Although the contractual obligation of Stevedores in this case arises through implication by the conduct of the parties, we are of the opinion that such contract was binding. Restatement, Contracts § 5 (1932). As is stated in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 1956, 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133:

"`* * * This obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of petitioner's stevedoring contract. It is petitioner's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured products. * * *'

* * * * * *

"`* * * The shipowner's action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner's stevedoring service.'" Smith v. Jugosalvenska Linijska Plovidea, supra 278 F.2d 181.

The full acceptance by the Supreme Court of the United States in Crumady of the rationale of the foregoing contractual-duty theory rather than the active versus passive negligence theory of Stevedore's liability for indemnity was anticipated and forecast by District Judge William C. Mathes in Hugev v. Dampskisaktieselskabet International, D. C.S.D.Cal.1959, 170 F.Supp. 601, later adopted as the settled rule for the Ninth Circuit in Metropolitan Stevedore Company v. Dampskisaktieselskabet International, 1960, 274 F.2d 875 (affirmal of Hugev.)

The correlative contractual duty of Petitioners (shipowner) under the stevedoring contract is clearly set forth in Hugev in the following language:

"(1) * * *

"(2) to give the stevedoring contractor reasonable warning of the existence of any latent or hidden danger which has not been remedied and is not

...