Zapico v. Bucyrus-Erie Co.

• Decision Date: 18 July 1977
• Docket Number: No. 74 Civ. 2189.,74 Civ. 2189.
• Citation: 434 F. Supp. 567
• Parties: Celia ZAPICO, Individually, as the wife of Joseph Zapico, Deceased, and on behalf of Angel Zapico, Victor Zapico, Hortensia Zapico, Celia Zapico and Joseph Zapico, children of Joseph Zapico, Deceased, and Adolfo Millan, Plaintiffs, v. BUCYRUS-ERIE CO., Defendant and Third-Party Plaintiff, v. ATLANTIC CONTAINER LINE, LTD., and Antonio Fuet, Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

434 F. Supp. 567

Celia ZAPICO, Individually, as the wife of Joseph Zapico, Deceased, and on behalf of Angel Zapico, Victor Zapico, Hortensia Zapico, Celia Zapico and Joseph Zapico, children of Joseph Zapico, Deceased, and Adolfo Millan, Plaintiffs, v. BUCYRUS-ERIE CO., Defendant and Third-Party Plaintiff, v. ATLANTIC CONTAINER LINE, LTD., and Antonio Fuet, Third-Party Defendants.

No. 74 Civ. 2189.

United States District Court, S. D. New York.

July 18, 1977.

DiCostanzo, Klonsky & Cutrona, P.C. by Robert Klonsky, Brooklyn, N. Y., for plaintiffs.

Conway, Reiseman, Michals & Wahl by Neil Reiseman, Newark, N. J., for defendant.

Alexander, Ash, Schwartz & Cohen by Joseph Arthur Cohen, New York City, for third party defendants.

OWEN, District Judge.

The major question presented by the various post-trial motions¹ is whether third-party defendant Atlantic Container Lines (ACL), a stevedore, enjoys immunity from liability to a truck-crane manufacturer, Bucyrus-Erie Co., the defendant, third-party plaintiff, under 33 U.S.C. § 905 for its proportion of fault, as found by the jury, for the injury to its ACL's employee Adolfo Millan and death of its employee Joseph Zapico, caused by the Bucyrus-Erie truck-crane that went out of control while being driven by ACL's employee, third-party defendant Antonio Fuet,² down an interior ramp of a vessel for shipment to Europe. The jury found under the Court's charge that defendant Bucyrus-Erie negligently manufactured the truck-crane in question, and also that ACL furnished an incompetent employee to drive the unwieldy crane aboard and down a ramp into the hold of the vessel. The jury found that both these factors contributed equally to the death and injuries in question. The record supports this conclusion in that while brake failure could have set the tragedy in motion, a competent driver could have taken reasonable steps to avoid it.

ACL's essential position is that it is not subject to contribution for its share of culpability since it is a compensation-paying stevedore, see, e. g., Cooper Stevedoring Co., Inc. v. Kopke, Inc., 417 U.S. 106, 114-15, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974), discussing Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972) (per curiam); Galimi v. Jetco, Inc., 514 F.2d 949 (2d Cir. 1975),³ nor is it required to indemnify Bucyrus-Erie, the primary defendant, since there was no agreement to do so, either explicit or implied, as there was in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).⁴

The extent, if any, of ACL's statutory immunity from liability in Bucyrus-Erie's third party action against it must be found in 33 U.S.C. § 905(a), since Bucyrus-Erie is not a "vessel" within the meaning of the Longshoremen's and Harbor Workers' Compensation Act, as amended (the Act), 33 U.S.C. §§ 901 et seq., and therefore does not benefit from the immunity provided for under § 905(b).⁵

§ 905(a) merely restates the law as it was prior to the 1972 amendments to the Act.⁶ That subsection bars recovery from an employer by the injured employee or the legal representative of a deceased employee and anyone else "entitled to recover damages from such employer ... on account of such injury or death" of the employee. Id. (emphasis supplied).

Here, Bucyrus-Erie did not seek damages from ACL "on account of" Zapico's death and Millan's injury.⁷ Rather, it sought partial indemnification either as a third-party beneficiary of the stevedoring contract between ACL and the vessel or on a quasi-contractual theory, based on an alleged breach of an independent duty owed to it by ACL. Both theories essentially rely on the stevedore's implied warranty of workmanlike performance, given by the stevedore to the vessel, which was characterized by the Ryan Court as "comparable to a manufacturer's warranty of the soundness of its manufactured product," 350 U.S. at 133-34, 76 S.Ct. at 237, and which in this case was found by the jury to have been breached when ACL wrongfully supplied unqualified personnel, including Antonio Fuet, the driver of the truck-crane. Just as the manufacturer's implied warranty has been extended in numerous jurisdictions to all foreseeable users of the manufacturer's product, so has the strict privity of contract requirement to benefit from the stevedore's implied warranty of workmanlike performance been abrogated. E. g., Waterman Co. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). And, indemnification based on a quasi-contractual theory has been recognized, in a statutory framework on which the Longshoremen's and Harbor Workers' Compensation Act was based. See Westchester Lighting Co. v. Westchester County, 278 N.Y. 175, 15 N.E.2d 567 (1938); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).

Extending third-party benefits of the stevedoring contract to the consignor of goods when the consignor is a manufacturer, or providing apportionment of damages based on proportion of fault when it is the stevedore's negligence that brought the manufacturer's negligence or breach of implied warranty into play, would violate no statutory or judicially recognized immunity or principle, and would only be equitable in the traditions of the maritime law.⁸ This is particularly so since such manufacturers have no control over who performs later stevedoring functions and are increasingly being subjected to strict liability in tort.⁹

Accordingly, ACL's motion for entry of judgment in its favor, on the ground that it furnished its employees with the benefits required by the Act and is therefore not subject to contribution or indemnity, is denied.¹⁰

A judgment shall therefore be submitted in conformity with the jury's verdict on reasonable notice.

So Ordered.

1 Defendant, third-party plaintiff Bucyrus-Erie Co.'s motion to amend its pleadings insofar as necessary to "conform them to the evidence" adduced at trial is granted. Fed.R.Civ.P. 15(b). Plaintiff Celia Zapico's motion to strike the jury's finding of 25% contributory negligence on the part of Joseph Zapico, which operates to reduce the award accordingly, is again denied.

2 The jury found Fuet not negligent in his driving of the truck-crane, although it found him incompetent to do so.

3 In Myers v. J. A. McCarthy, Inc., 428 F.Supp. 656 (E.D.Pa.1977), the court adopted the following syllogism: only joint tortfeasors are subject to contribution; a compensation-paying employer cannot be a tortfeasor with respect to its injured employees because it enjoys statutory immunity from suit; therefore, a compensation-paying employer cannot be subject to contribution. The validity of the proposition that there must first be underlying tort liability by the employer to the employee before contribution or...