431 F.

2d 100

John M. WATZ, Plaintiff-Appellee,

v.
ZAPATA OFF-SHORE COMPANY, Defendant-AppelleeCross Appellant,
v.
EATON YALE & TOWNE, INC., Third-Party DefendantAppellee-Cross Appellant,
v.
CAMPBELL CHAIN COMPANY, Fourth-Party DefendantAppellant-Cross Appellee.
No. 27974.

United States Court of Appeals, Fifth Circuit.

September 1, 1970.
Rehearing Denied October 7, 1970.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Strong, Pipkin, Nelson & Parker, Louis V. Nelson, Beaumont,
Tex., for Zapata Off-Shore Co.
Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for Eaton Yale &
Towne, Inc.; James W. Mehaffy, Dewey J. Gonsoulin, Beaumont, Tex., of
counsel.
Orgain, Bell & Tucker, Beaumont, Tex., for Campbell Chain Co.; by John
G. Tucker, Beaumont, Tex., of counsel.
Jamail & Gano, Houston, Tex., for John M. Watz; Joseph D. Jamail, Jr.,
John Gano, Houston, Tex., of counsel.
Before TUTTLE, WISDOM, and GOLDBERG, Circuit Judges.
WISDOM, Circuit Judge.

This four-party case in admiralty presents a host of issues, some old, some new.

We discuss the warranty owed by a ship undergoing major repairs, the basis of
admiralty jurisdiction over torts, principles of negligence and legal cause in
admiralty (more particularly, where shipowners and seamen are not involved),
laches, indemnity, and contribution.
I.
2Facts, Contentions, Conclusions.
3

Unlike the legal issues, the facts of the case are uncomplicated. The plaintiff,
John Watz, was a pipefitter for Levingston Shipbuilding Company. He was
injured on October 12, 1959, when a twenty-foot pipe fell on his leg and foot.
At the time of the injury, Watz was helping to install the pipe in an exhaust
system on Zapata Off-Shore Company's vessel NOLA III. Zapata had
purchased the vessel NOLA III as a drill tender barge and had hired Levingston
to convert it to an over-the-side drilling barge.

The pipe fell on Watz because a one-ton hand hoist holding the pipe failed.
Levingston owned this hoist; Eaton Yale & Towne, Inc., had assembled the
device. The hoist failed because a link of the load chain on the hoist gave way.
Eaton had purchased the chain from its manufacturer, Campbell Chain
Company.

The link gave way for two reasons. First, the link suffered from an imperfect
weld: only 42.6 percent of the welded area had been fused and even in that area
foreign materials were present. Second, external damage from abuse of the
chain had occurred after Eaton had sold the hoist in commerce. The district
court found that neither of these two factors alone would have caused the
failure, but that together they did so.

Watz recovered medical expenses and compensation benefits from Levingston

on March 4, 1963. Not until May 15, 1967, did Watz sue Zapata. Travelers
Insurance Company, compensation insurer for Levingston, is subrogated to
$25,965.06 of the judgment. Zapata impleaded Eaton, the hoist-maker, and
Watz thereupon also named Eaton as a defendant. Eaton impleaded Campbell,
the chain-maker, but Watz did not name Campbell as a defendant.

The district court awarded Watz a joint and several judgment of $136,185.06
against Zapata and Eaton; awarded Zapata fifty percent indemnity against
Eaton; and awarded Eaton fifty percent indemnity against Campbell. Thus, if
Watz should execute his judgment against Zapata, the liabilities would be
Zapata, fifty percent; Eaton, twenty-five percent; and Campbell, twenty-five

percent.
8

These damages derive from the district court's findings that Zapata owed Watz
a warranty of seaworthiness with regard to the NOLA III and that the defective
hoist breached this warranty; that Eaton was negligent in failing to discover the
defective weld before it placed the hoist in commerce and that it breached its
implied warranty of reasonable fitness for intended use; that Campbell
negligently manufactured the chain and breached its implied warranty of
reasonable fitness for intended use.

Zapata, Eaton, and Campbell appeal. Zapata contends that Watz's claim is
barred by laches, that it owed no warranty of seaworthiness to Watz, and that it
should recover from Eaton one hundred percent of any judgment it must pay
Watz. Eaton contends that it was not negligent, that its implied warranty was
inoperative because of the external damage occurring to the chain, that Watz is
barred by the Texas statute of limitations or laches in any event, that it should
recover from Campbell one hundred percent of any judgment it must pay, and
that it should pay no indemnity to Zapata. Campbell contends that the evidence
does not prove its negligence, that the external damage to the chain was the real
cause of the accident, that having met Eaton's specifications on the chain it had
no other duty, that Eaton's claim was barred by the Pennsylvania statute of
limitations or laches, that the district court had no jurisdiction of the fourthparty complaint against Campbell, and that the court erred in refusing
Campbell's jury demand.

10

We conclude that Zapata owed Watz no warranty of seaworthiness. Therefore,

we do not reach the other issues raised by Zapata's or Eaton's argument against
indemnity. We conclude that the district court had admiralty jurisdiction over
Watz's claim against Eaton and Eaton's impleader of Campbell. It therefore
properly denied Campbell's jury demand. Eaton has not sustained its defense of
laches, and the evidence supports the district court's finding that Eaton was
negligent. We do not reach the question of its breach of warranty. The evidence
also supports the district court's finding that Campbell was negligent, and we
do not reach the question of its breach of warranty. We conclude that the
district court correctly denied indemnity from Campbell to Eaton but that
contribution was proper. Therefore, the court properly divided the damages
between Campbell and Eaton. We remand, however, for further findings and
conclusions with regard to Campbell's defense of laches.

II.
The Warranty of Seaworthiness.
11

12

The problem of what warranty a ship offers while she undergoes repairs
continues to trouble the courts notwithstanding such definitive utterances as that
of Judge Learned Hand's ten years ago that

13

It is now authoritatively settled, if indeed it was ever in doubt, that, when a ship
has been withdrawn from navigation and while she is being reconditioned, she
does not warrant her seaworthiness to those who work aboard her until she
returns to active service.

14

Latus v. United States, 2 Cir. 1960, 277 F.2d 264, 266, cert. denied, 364 U.S.
827, 81 S.Ct. 65, 5 L.Ed.2d 55. The district court here, for example, found that
at the time Watz was injured, he "was performing the duties of a seaman aboard
the vessel, NOLA III, which was in navigable waters". At one time, this
determination would have settled the issue whether the vessel owed a warranty
of seaworthiness. Courts "had held it sufficient merely to require proof that the
vessel was in navigable waters and that the shore-based worker was engaged in
seamen's work". Lawlor v. Socony-Vacuum Oil Company, 2 Cir. 1960, 275
F.2d 599, 603-604, cert. denied, 1960, 363 U.S. 844, 80 S.Ct. 1614, 4 L.Ed.2d
1728. Indeed, the district court here reached the "conclusion of law" "[t]hat the
NOLA III was not withdrawn from navigation and that the shipowner, Zapata
Off-Shore Company, owed a warranty of seaworthiness to the plaintiff".

15

Roper v. United States, 1961, 368 U.S. 20, 22-23, 82 S.Ct. 5, 7 L.Ed.2d 1, 3,
however, has declared that it is a question of fact whether a vessel is in or out of
navigation. 1 As Judge Medina had observed a year earlier, the problem in these
repair cases is that "resort to a mere phrase such as `out of navigation' [does not
get] us very far." Lawlor, 275 F.2d at 602. "[E]verything depends upon what
we mean by `out of navigation' in the context of the doctrine of
unseaworthiness." Id. at 603. That observation holds true for both the factfinder
and the reviewing court.

16

Modern cases dealing with the issue all go back to West v. United States, 1959,
361 U.S. 118, 80 S.Ct. 189, 4 L.Ed. 2d 161, the opinion that prompted Judge
Hand's utterance. In West, the Government had relegated a "Liberty" ship of
World War II vintage to the "mothball fleet" at Norfolk, Virginia. There it
rested "in total deactivation for several years, with its pipes, boilers, and tanks
completely drained, and an oil preservative injected through them to prevent
rusting". 361 U.S. at 119, 80 S.Ct. at 191, 4 L.Ed.2d at 163. In 1951, however,
with the Korean conflict at hand, the Government decided it needed the ship.
Accordingly, the Government hired an independent contractor to overhaul and
reactivate her, but in order to inspect the work in progress placed six of its own
men on board. The Government towed the ship to the contractor's repair docks

at Philadelphia and turned it over to the contractor. There, one of the

contractor's shore-based employees was injured by a condition that the
contractor had been hired to correct. The Supreme Court, concluding that the
warranty of seaworthiness did not apply, advanced a loosely defined standard:
"It would appear that the focus should be upon the status of the ship, the pattern
of the repairs, and the extensive nature of the work contracted to be done, rather
than the specific type of work that each of the numerous shore-based workmen
is doing on shipboard at the moment of injury." 361 U.S. at 122, 80 S.Ct. at
192, 4 L.Ed.2d at 165. That much is clear. The import of the decision, however,
has produced confusion.
17

The Second Circuit in Lawlor concluded from West that "at least in some cases,
control of the vessel is a decisive factor". 275 F.2d at 604.2 This Court
purportedly adopted the Lawlor reasoning, Moye v. Sioux City & New Orleans
Barge Lines, 5 Cir. 1968, 402 F.2d 238, 240, cert. denied, 1969, 395 U.S. 913,
89 S.Ct. 1759, 23 L.Ed.2d 226, but with definite reservations:

18

It is a mistake * * * to read West as a holding that once all of the ownercharterers' employees have left the scene the warrant[y] of seaworthiness * * *
will evaporate. Rather apart from the unique factor of a ship long withdrawn
from service and the injury occurring during the process of breaking her out of
lay-up status West takes a sensible but very restrictive stand as to the
question of control. It is not approached in a doctrinaire or exclusively physical
sense.

19

Id. at 241 (Brown, C. J., concurring). 3 In Parker v. Cargill, 5 Cir. 1969, 417
F.2d 772, 774, we observed that "there may be instances in which a shipowner
will be liable for injuries to a repairman caused by an unseaworthy condition
even though he does not have physical possession of the vessel".

20

With deference, we consider that Lawlor overemphasizes control as a

"decisive" factor in these unseaworthiness cases and that this overemphasis is
premised on a misreading of West. West used control as dispositive in dealing
with the petitioner's alternative argument to seaworthiness. The petitioner in
West has contended that the shipowner, apart from the warranty of
seaworthiness, had the duty to furnish him a safe place to work. He phrased this
duty both in terms of strict liability and in terms of negligence. The Supreme
Court concluded that shipowner's lack of control, in conjunction with the fact
that the subject of repair had caused the injury, disposed of these latter two
contentions separately from its discussion of seaworthiness. See Baum v.
United States, 5 Cir. 1970, 427 F.2d 215. Cf. Parker, 417 F.2d at 774 n. 5.

21

That is not to say, however, that the degree of control plays no role in West's
analysis of the seaworthiness doctrine. Id. at 121. West analyzed the
applicability of the warranty by reference to the paradigm of Seas Shipping
Company v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and its
progeny. In concluding that repairman West could not receive the protection of
those cases, the Court relied primarily on the historical scope of the doctrine.
The vessels in the Sieracki line of cases were "in the hands and under the
control" of the owners and "instead of undergoing general repairs, were in
active maritime service". West, 361 U.S. at 121, 80 S.Ct. at 192, 4 L.Ed.2d at
164. Conversely, in West the vessel was not in maritime service but was
undergoing major repairs and complete renovation. "[T]he work to be done was
equivalent to `home port structural repairs.'" Id. West's conclusion that "the
focus should be upon the status of the ship, the pattern of the repairs, and the
extensive nature of the work contracted to be done" is tied to its view that
Sieracki protection is appropriate only for "a seaman * * * doing a seaman's
work and incurring a seaman's hazards". 361 U.S. at 120, 80 S.Ct. at 191, 4
L.Ed.2d at 164. The inquiry cannot be limited to the "specific type of work that
each of the numerous shore-based workmen is doing on shipboard at the
moment of injury", for that would produce "fortuitous results". The
consequence of focusing on the project as a whole is that in a repair project
such as that in West "there could be no express or implied warranty of
seaworthiness to any person". 361 U.S. at 122, 80 S.Ct. at 192, 4 L.Ed.2d at
165 (emphasis supplied).4

22

Thus, West relies on the historical limits of the seaworthiness warranty. 5 It

appears to be a retreat from the wide ranging "humanitarian policy" approach
that imposed loss on the shipowner since he could "distribute the loss in the
shipping community which receives the service and should bear the cost".
Sieracki, 328 U.S. at 94, 66 S.Ct. at 877, 90 L.Ed. at 1106. 6 The inquiry is not
who best can bear the risk, but whether the repair project not the specific
task is one that "seamen" historically have performed. The Supreme Court
confirmed this position in Roper:

23

The view that a vessel not in navigation extends no warranty has often been
expressed in the more familiar context of to whom does the warranty extend.
Implicit within such cases is the reasoning that those working on vessels not in
navigation are not seamen (or doing seamen's work) and consequently not
among those employees protected by the warranty of seaworthiness.

24

368 U.S. at 24 n. 3, 82 S.Ct. at 7, 7 L.Ed.2d at 4 (citation omitted; emphasis

supplied). 7

25

In applying West's standards relating to the status of the ship, the pattern of the
repairs, and the extent of the work contracted, to the situation here, we are
largely unassisted by the district court's findings. We are told only that the
NOLA III was in navigable waters and that an official of Zapata, Mr. Taylor,
was in almost constant attendance "overseeing the work that was being done".
Nor can we rely on the court's "conclusion of law" that the NOLA III was in
navigation, for it was premised on an incorrect standard.

26

Undisputed evidence, however, shows additionally that Zapata purchased a drill

tender barge and delivered it to Levingston for conversion into an over-the-side
drilling barge. This conversion involved drydocking and invading the
watertight integrity of the vessel; widening the hull ten feet on each side;
fabrication and installation of steel foundations for derrick and engine
substructure, shale shaker, other drilling machinery, and material-handling
cranes; installation of pipes and wires; and related work. The project originally
was invoiced at $159,060. Extra work and the cost of installed machinery
raised the cost to about $500,000 to convert a barge Zapata had purchased
for $202,500. The project lasted from two to three months. Work was still in
progress at the time of the accident. The vessel had been set afloat again, but a
considerable amount of work remained to be performed, and the vessel was not
yet able to operate as an over-the-side drilling barge. Watz and a co-worker
were still in the process of setting up exhaust pipes for engines on the
machinery deck. Levingston men were working on most of the ship. The vessel
had not yet been certificated in its new form by the Coast Guard. The vessel
had crew's quarters, but Zapata had no crew on board. It had a galley, but the
galley was not in operation. In fact, the only Zapata representative present was
Taylor. We have attempted to glean from the record what his "overseeing"
amounted to. Zapata responded to a pretrial interrogatory (read into the record
at trial) that "the NOLA 3 was not in the control of Zapata on October 12, 1959.
The NOLA 3 was in the sole control, care, and custody of Levingston
Shipbuilding Company on that date. Levingston operated a shipyard and was
converting the NOLA 3 from its previous status as a tender to an over-the-side
drilling barge". Taylor testified, "I spent a large portion of my time in the
vicinity of the shipyard". When asked on cross-examination, "Was it your job to
see they [Levingston Shipyard] did the job the way Zapata wanted it done?", he
replied, "That is correct". Watz replied affirmatively to the question, "At the
time of the accident you were working for Levingston Shipbuilding Company?"

27

You were not working for Zapata Off-Shore Company?

28

No, sir.

29

And so was your boss and co-worker, they were employees of Levingston
Shipbuilding Company?

30

Yes, sir.

******
31
32

There was no one from this Zapata Off-Shore Company directing you in your
work that day [the day of the accident], was there?

33

No, sir.

34

There is no other pertinent evidence.

35

We now reexamine the facts as West frames them. (1) As to the status of the
ship: the NOLA III, although once drydocked, had been set afloat; considerable
work remained to be done, however, and she was neither ready to serve her
functions nor certificated by the Coast Guard to do so; she was in the sole
control and custody of Levingston Shipyard except for the scrutiny of one
Zapata official. (2) As to the pattern of repairs: Substantial repairs were taking
place throughout the ship; the very watertight integrity of the vessel was
invaded and its hull widened to convert it to another type of vessel; repairs
were not limited to a small area. (3) As to the extent of the work contracted for:
the NOLA III was to be transformed into a new vessel; extensive changes were
necessary, amounting in cost to two and one-half times the price of the vessel.

36

We conclude from these considerations that the NOLA III repairs, like those in
West, were the equivalent of "home port structural repairs", not the sort of
endeavor that seamen traditionally engage in. We reach this conclusion by
carrying out West's instruction to view the repair project as a whole rather than
Watz's specific assignment to fit pipes. With regard to Taylor's "overseeing",
we note that in West, the Government placed six men on board the ship "to
inspect the work and materials to insure compliance with the contract". 361
U.S. at 119, 80 S.Ct. at 191, 4 L.Ed.2d at 163. This sort of "control" did not
alter West's conclusion that the vessel owed no warranty of seaworthiness. See
Guenard v. United States, E.D.La.1968, 278 F.Supp. 310.

37

Finally, it is true that Roper construes the question of navigation as one of fact
not to be reversed unless clearly erroneous. But in this case, the district court
made the finding starting under a misapprehension of the factors to be
considered in reaching its determination. We do not remand the case because

the evidence under a West analysis permits no finding that the vessel was in
navigation. 8
III.
Watz v. Eaton:
Jurisdiction and Laches
38

Watz sustained his injuries October 12, 1959. The compensation award issued
March 4, 1963, Watz filed suit against Zapata May 15, 1967. Zapata impleaded
Eaton March 8, 1968. Watz named Eaton as a defendant July 3, 1968.

39

Eaton contends that Watz's complaint against it is barred on two grounds: (1)
Watz's cause of action is not in admiralty but in a civil action based on diversity
of citizenship, and therefore the Texas two-year statute of limitations9 for
personal injuries bars Watz's recovery; (2) even if the cause of action is in
admiralty, it is barred by laches.

40

Watz originally sued Zapata in admiralty. When Watz amended his complaint
to include Eaton as a defendant, he identified the claim as one in admiralty
under the provisions of Rule 9(h), Fed.R.Civ.P. We therefore treat the claim in
admiralty if we find admiralty jurisdiction.

41

Watz sustained his injuries on board a vessel afloat in navigable waters. The
conduct of which he complains, however, occurred on land with no
demonstrated relationship to maritime affairs other than its impact here on
Watz. The Plymouth, 1866, 3 Wall. (70 U.S.) 20, 18 L.Ed. 125, affirmed for
American courts the view that "the jurisdiction of the admiralty over maritime
torts depends upon locality". 18 L.Ed. at 127. There the Supreme Court dealt
with the reverse of our case: the conduct occurred within admiralty jurisdiction,
but the damages did not. A fire caused by negligence on board a ship in
navigable waters had spread to a wharf and buildings. Although it might appear
that admiralty should be concerned with such seaside conduct, the Court
declared, "The negligence, of itself, furnishes no cause of action; it is damnum
absque injuria". Since the damages had occurred on shore, the fact that the
cause of the injury originated within admiralty jurisdiction, according to the
Court, "affords no ground for the exercise of the admiralty jurisdiction", "the
cause of action not being complete on navigable waters". 18 L.Ed. at 128.
Where the "substance and consummation of the wrong were on board the
vessel", on the other hand, admiralty jurisdiction would attach.

42

In Grant Smith-Porter Ship Company v. Rohde, 1922, 257 U.S. 469, 42 S.Ct.
157, 66 L.Ed. 321, 324, the Court announced, "The general doctrine that, in
contract matters, admiralty jurisdiction depends upon the nature of the
transaction, and in tort matters upon the locality, has been so frequently asserted
by this court that it must now be treated as settled". Several courts have found
the conclusion inescapable that locality is the determining factor and that

43

it is not the place where the negligent acts occur that is all important, but rather
the place where the tort occurs. A tort is deemed to occur not where the
wrongful act or omission has its inception, but where the impact of the act or
omission produces such injury as to give rise to a cause of action.

44

McCall v. Susquehanna Electric Company, D.Md. 1968, 278 F.Supp. 209, 211
(negligent operation of a dam, an extension of land, which resulted in the
capsizing of a boat, held within jurisdiction).10 Perhaps most notable are the air
disaster cases where courts have found admiralty jurisdiction because the
airplane fortuitously crashed into the sea although the alleged negligence was
shore-based. See, e. g., Weinstein v. Eastern Airlines, Inc., 3 Cir. 1963, 316
F.2d 758, cert. denied, 375 U.S. 940, 84 S.Ct. 343, 11 L.Ed.2d 271.

45

Certainly this case meets such a test. Although the negligence and breach of
warranty charged against Eaton occurred on land and, at least so far as the
proof shows, were not maritime-oriented activity, Watz sustained his injuries
on board the NOLA III while it was afloat in navigable waters, the Sabine
River. Our earlier conclusion that Zapata owed Watz no warranty of
seaworthiness does not defeat admiralty jurisdiction. That related primarily to
the responsibility of the shipowner. For example, it is generally accepted that
an uncompleted vessel does not offer the warranty of seaworthiness, see, e. g.,
Frankel v. Bethlehem-Fairfield Shipyard, Inc., 4 Cir. 1942, 132 F.2d 634, cert.
denied, 319 U.S. 746, 63 S.Ct. 1030, 87 L.Ed. 1702, yet the Supreme Court has
held that admiralty jurisdiction attaches to a tort occurring on board such a
vessel when in navigable waters. Grant Smith-Porter Ship Company v. Rohde,
supra.

46

Commentators11 and some courts,12 however, have suggested that more than a
mere locality test should be necessary to occasion admiralty jurisdiction.
Insofar as the justification for admiralty jurisdiction is "the national interest in a
uniform judicial supervision of the maritime industry",13 it does seem
anomalous to premise exercise of that jurisdiction solely on the locale of the
injury. The American Law Institute has recommended that the statutory grant of
admiralty jurisdiction, 28 U.S.C. 1333, be amended to include the sentence,

"Unless otherwise provided by Act of Congress, the admiralty and maritime

jurisdiction does not include a claim merely because it arose on navigable
waters". ALI, Study of the Division of Jurisdiction Between State & Federal
Courts, Admiralty & Maritime Jurisdiction 1316(a), p. 34 (1969). In addition
to their recommendation of a statutory amendment, however, the Reporters
contend that judicially the question is still open, that the Supreme Court is not
committed to the "locality alone" test. Id. at 232. They base this conclusion on
two factors: (1) the Court's locality language has been used only in cases
excluding admiralty jurisdiction; (2) in Atlantic Transport. Company of West
Virginia v. Imbrovek, 1914, 234 U.S. 52, 62, 34 S.Ct. 733, 735, 58 L.Ed. 1208,
1213, the Court raised doubt as to the requirement by stating:
47

If more is required than the locality of the wrong in order to give the court
jurisdiction, the relation of the wrong to maritime service, to navigation and to
commerce on navigable waters, was quite sufficient.

48

The tort in this case seems sufficiently related to maritime affairs and
commerce to satisfy most demands.14 The mishap occurred to one repairing a
ship in preparation for its return to active maritime service. In dealing with
tortious activity it is common to focus on the injury in determining the
relationship of a claim to a forum. See Restatement (Second) of Conflicts 146
comment e (proposed official draft 1968). Of course a thorough reweighing of
the appropriate limits of admiralty jurisdiction would require analysis of data
regarding the principal orientation of the ship repair and conversion industry to
determine admiralty's interest in its regulation, see Black, supra, at 276, and
might well raise questions concerning the appropriateness of admiralty
jurisdiction over personal injuries. Id. at 278. It might indicate that state courts
could adequately manage cases such as the case before us where the "culpable"
conduct occurred away from the sea and navigable waters and where the
conduct has no demonstrated orientation towards maritime affairs. On the other
hand, it might show that uniform regulation by admiralty is necessary to protect
workers in maritime-related activities.

49

In this case we are not furnished with either the data or the arguments so to
rework the traditional bounds of admiralty jurisdiction. And although the ALI
Reporters may be accurate in their measure of the Supreme Court's
commitment to "locality alone",15 the language of its decisions leaves us less
room to manoeuvre. Grant Smith-Porter Ship Company v. Rohde (postImbrovek) stated:

50

Construing the first question as meaning to inquire whether the general

admiralty jurisdiction extends to a proceeding to recover damages resulting

from a tort committed on a vessel in process of construction when lying on

navigable waters within a state, we answer yes.
51

257 U.S. at 477-478, 42 S.Ct. at 159, 66 L.Ed. at 325 this despite the fact
that "neither Rohde's general employment, nor his activities at the time, had
any direct relation to navigation or commerce". 257 U.S. at 476, 42 S.Ct. at
158, 66 L.Ed. at 324.

52

We conclude that the district court had admiralty jurisdiction of Watz's

complaint against Eaton. The Texas statute of limitations therefore does not
apply. Instead, we look to the analogous limitations period of the Jones Act,
which is three years. 46 U.S.C. 688; Flowers v. Savannah Machine &
Foundry Company, 5 Cir. 1962, 310 F. 2d 135. Since the action was brought
after this statute had run, Watz bears the burden of proof with regard to the two
elements counteracting a laches defense: excuse for the delay and lack of
prejudice to the defendant. McMahon v. Pan American World Airways, 5 Cir.
1962, 297 F.2d 268, 270.
The district court concluded:

53

That no harm having been shown by reason of the delay for filing the plaintiff's
cause of action and by reason that he did not prevent one witness or any
evidence from being heard and by reason of the fact that all the defendants,
Zapata Off-Shore Company and Eaton Yale & Towne, Inc., had notice within a
matter of months after the occurrence that the doctrine of laches or limitations
does not apply.

54

Travelers Insurance Company, carrier for both Zapata and Levingston, notified
Eaton and its insurance company of the chain's failure on April 25, 1960. Eaton
had notice by August 1961 that a claim might be asserted against it. Travelers
furnished Eaton the hoist and chain without the defective link in July 1961.
Although Eaton did not obtain the defective link until one week before trial, the
testimony indicates that apparently it made no attempt to do so. We cannot term
the district court's findings of no prejudice clearly erroneous. Rule 52(a),
Fed.R.Civ.P.

55

The district court, however, made no finding regarding excuse for the delay in
bringing suit. In Watz's brief on appeal, he points to no evidence of such excuse
except to say that the payment of compensation benefits encourages delay.

56

Three cases more recent than McMahon v. Pan American World Airways,

however, have modified the importance of proving of an excuse for delay. In

Molnar v. Gulfcoast Transit, 5 Cir. 1967, 371 F.2d 639, 642, this Court declared
that "[a]lthough frequently classified as a separate element, the inexcusability
of the delay is closely intertwined with the predominant factor of detriment or
lack of detriment, and what is a thin excuse may turn out to be bearable because
no harm is suffered" (citations omitted). Akers v. State Marine Lines, Inc., 5
Cir. 1965, 344 F.2d 217, 220, held that unexcused delay without prejudice
would not bar a suit. Crews v. Arundel Corporation, 5 Cir. 1967, 386 F.2d 528,
530, concluded that it was settled that "claims based on unseaworthiness are
barred only if the delay in filing the libel beyond the three-year Jones Act
limitation period is inexcusable and if the delay has prejudiced the defense of
the suit" (emphasis original). Since proof of either absence of prejudice or
excuse for delay will repel a claim of laches, we conclude that the absence of
prejudice in this case justifies the district court's decision not to dismiss the suit
for laches.
IV.
Watz v. Eaton:
Substantive Claims.
57
58

We proceed now to the substantive claims. Watz and Eaton couch their
respective contentions primarily in terms of Texas law. Campbell advances
Pennsylvania law in its brief. Traditionally, courts apply general principles of
maritime law in cases subject to admiralty jurisdiction. Insofar as admiralty
jurisdiction depends on locality, however, conflicts principles indicate that the
conclusion need not inevitably follow. Although principles of negligence and
legal cause are often approached in a general common law fashion in many
American jurisdictions, we think it appropriate to indicate more specifically the
factors that guide us here in terms of what body of law applies and what that
law is.

59

Conflicts principles suggest that "[i]n an action for a personal injury, the local
law of the state where the injury occurred determines the rights and liabilities
of the parties, unless, with respect to the particular issue, some other state has a
more significant relationship to the occurrence and the parties * *" Restatement
(Second) of Conflicts 146 (proposed off. draft 1968) (emphasis supplied).
Where the tortious conduct and the injury occur in different jurisdictions, "the
local law of the state of injury will usually be applied to determine most issues
involving the tort". Id., Comment e, at p. 146. By analogy, admiralty principles
apply to this action seeking recovery for personal injuries sustained on board a
ship in navigable waters. On this reasoning then, we find Kermarec v.

Compagnie Generale Transatlantique, 1959, 358 U.S. 625, 79 S.Ct. 406, 3

L.Ed.2d 550, applicable. There, where both the injury and the tortious conduct
occurred on board ship, the Supreme Court ruled that the legal rights and
liabilities were "measurable by the standards of maritime law". By the same
token, that conclusion might be different should we find a significant policy of
Texas within whose boundaries the injury occurred or of Pennsylvania
within whose boundaries the chain and hoist were respectively made and
assembled that would be frustrated by such an application.
60

Admiralty precedent lends partial support to these concerns of conflicts law. In

Just v. Chambers, 1941, 312 U.S. 383, 390, 61 S.Ct. 687, 692, 85 L.Ed. 903,
908, the Supreme Court observed that "the maritime law was not a complete
and perfect system and that in all maritime countries there is a considerable
body of municipal law that underlies the maritime law as the basis of its
administration". Enlarging on this point, the court in The S.S. Samovar, N.D.
Calif.1947, 72 F.Supp. 574, 584, said:

61

As stated by the Supreme Court in the latest of these cases: "With respect to
maritime torts * * * the State may modify or supplement the maritime law by
creating liability which a court of admiralty will recognize and enforce when *
* * not hostile to the characteristic features of the maritime law or inconsistent
with federal legislation." [citing Just v. Chambers]

62

By the same token, where the common law of a state in whose territorial waters
a maritime tort occurs has been modified or supplemented so as to impose on
manufacturers or builders a duty of care to persons not "in privity", a court of
admiralty should recognize that duty and enforce the liability proximately
resulting from a breach thereof, if adoption of the state rule "works no material
prejudice to * * * maritime law."

63

We proceed first to discover what the maritime principles are. The source of
substantive American admiralty law originally was the general maritime corpus
that had grown up among the commercial nations. As time progressed,
however, litigated problems narrowed to more peculiarly national issues. G.
Gilmore & Black, The Law of Admiralty, 1-16, pp. 41-42 (1957). Admiralty
courts have felt free to cull what they considered the best principles from the
decisions of various courts and from treatise and textwriters. See, e. g., Petition
of Kinsman Transit Company, 2 Cir. 1964, 338 F.2d 708, cert. denied,
Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13
L.Ed.2d 963 (Friendly, J., taking from "all manner of `respectable' authority,
Bohlen, Prosser, Seavey, and cases from California, New York, Tennessee,
Texas, Wisconsin, not to mention English cases. Some are maritime and some

are not. In the end, the rule applied is substantially the common law rule". J. P.
Lucas, Admiralty: Cases & Materials, 328 (1969)). Thus, in Kermarec, the
Supreme Court declared that the standard of care for a shipowner "must be
decided in the performance of the Court's function in declaring the general
maritime law, free from inappropriate common-law concepts". In fulfilling that
function, the Supreme Court rejected the "semantic morass" of the common law
and its "conceptual distinctions" "foreign to [admiralty's] traditions of
simplicity and practicality". 358 U.S. at 630, 631, 79 S.Ct. at 410, 3 L.Ed.2d at
554, 555.
64

Although the process has afforded reasonably definable standards for

shipowners, seamen, and others related to maritime contracts, the standards for
a case such as ours are difficult "because cases brought in admiralty in which
neither party is a shipowner or in some way related to a maritime contract are
very rare".16 Lucas at 328. Perhaps one of the reasons is that an action for
unseaworthiness against a shipowner appeals to plaintiffs since negligence need
not be proved. 54 Geo.L.J. 1439 n. 2 (1966). On the other hand, some generally
applicable principles have emerged. Sinram v. Pennsylvania R.R., 2 Cir. 1932,
61 F.2d 767, 770, for example, incorporated into admiralty the doctrine of
Palsgraf v. Long Island R.R., 1928, 248 N.Y. 339, 162 N.E. 99, that a tortfeasor
was not chargeable for consequences to those to whom he owed no duty.
Sieracki v. Seas Shipping Company, 3 Cir. 1945, 149 F.2d 98, aff'd, 1946, 328
U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, adopted the principle of MacPherson v.
Buick Motor Company, 1916, 217 N.Y. 382, 111 N.E. 1050, and the
Restatement of Torts 395 (1934) disposing of privity.

65

The first question we deal with is the standard of care. With regard to Watz's
claim against Eaton, the district court found that

66

[t]he chain hoist, after assembly, was tested by Yale & Towne Manufacturing
Company and was found to be capable of lifting weights of one and one-half
times its rated capacity, expressed in long tons, or 3360 pounds. Other tests,
such as radiographic testing, ultra-sonic testing, dye-check testing, and
magnafluxing testing could have revealed the imperfect weld. That the only test
of the load chain and hoist sold by Yale & Towne Manufacturing Company
was a straight lifting load test of one and one-half tons dead weight, and such
test was not sufficient to reveal the defective weld in the link that failed.

******
67
68

That the link of the chain which was broken, broke above the hook of the chain
hoist. That a one ton Yale & Towne Load King hand hoist is a dangerous object

when a defect exists such as the defect in the link of chain, and resulted in an
unreasonable risk by producing substantial bodily harm when used in the
manner intended.
69

This case is in many respects similar to Sieracki as it was treated in the lower
courts. In Sieracki a longshoreman sued the shipowner for unseaworthiness of
the vessel. The shipowner impleaded two third-party defendants and the
longshoreman thereupon amended his complaint to include a claim against
them as well. These defendants were respectively the shipbuilder and the
installer of a ten-ton boom and tackle. The boom and tackle had injured the
longshoreman when the shackle supporting it broke. The third-party defendants
contended that the evidence was insufficient to establish their negligence. They
had purchased the shackle from another company (which in turn had purchased
it from still another company). The third-party defendants also contended that
they had taken off customary safeguards. But the Third Circuit concluded that
"even if they had, that would not necessarily excuse them for while usage is
relevant in determining whether reasonable care is exercised it is not conclusive
in (with one or two exceptions) establishing compliance with the legal
standard". 149 F.2d at 100. As the district court did here, the Third Circuit
noted that the shackle had been subjected only to a lifting test, and that an x-ray
or a tapping test would have disclosed the defect. "This conclusion, as would be
expected, was not received with enthusiasm by the [third-party defendants].
Nevertheless, we think it is sound." Id.

70

Like the third-party defendants in Sieracki, Eaton does not receive the district
court's conclusions here with enthusiasm. It argues that it did sufficiently test
the chain: "(a) random samples of the chain were tested and pulled to
destruction; (b) each chain was cut and visually inspected before it was
installed on the chain hoist; and finally (c) each chain and chain hoist were then
tested to see if the chain and chain hoist could hold 3360 pounds. * * *"
Furthermore, Eaton contends that the evidence shows that other tests were too
expensive or not reliable. But in all this Eaton faces the significant obstacle of
showing the district court's findings to have been clearly erroneous. Rule 52(a),
Fed.R.Civ.P. There was specific expert testimony that other tests would have
revealed a defective weld and that such tests are customarily used in the
industry. We conclude that the district court's finding that sufficient care had
not been used is not clearly erroneous. The standard of care violated by Eaton
would not in this case vary if we applied the law of one of the states. And of
course MacPherson v. Buick Motor Company extended the remedy for
negligence beyond the immediate purchaser of a chattel. That case has become
"so widely accepted as to be construed as a part of the general law of torts,
maritime as well as common law". Sieracki, 149 F.2d at 100. See also

Restatement (Second) of Torts 395 (1965). Watz therefore has a remedy

against Eaton in admiralty. Furthermore, we agree with the Third Circuit in
Sieracki that purchase of a component part from another source does not relieve
a defendant from his liability as manufacturer.
71

Eaton contends, however, that the chain link was not defective. Partly this
argument goes to the evidence and partly it goes to the question of legal cause.
Eaton maintains that even if it be true that the link was only 42.6 percent fused,
that factor did not produce the mishap and injury. It bases its argument on
evidence that other links sustained their loads even when cut sixty percent
through the weld, and on the district court's finding that the "imperfection in the
weld would not have caused the accident but for the accompanying damage and
injury to the chain caused by the external forces". There is ample evidence,
however, to sustain the district court's conclusion that the defective weld
contributed to the failure of the chain in this instance.

72

With regard to legal cause, Eaton argues that the abuse to which the hoist was
subjected constituted a "new and independent cause, breaking the link of
causation" and was not foreseeable. The district court found

73

That the worn place caused by external damage in the link which failed
contributed to cause the failure of the link at the time of plaintiff's injury, but
the failure at the time of plaintiff's injury would not have occurred but for the
defective weld in the link of the load chain.
Prosser writes of such circumstances:

74

On its face, the problem is one of whether the defendant is to be held liable for
an injury to which he has in fact made a substantial contribution, when it is
brought about by a later cause of independent origin, for which he is not
responsible. In its essence, however, it becomes again a question of the extent
of the defendant's original obligation; and once more, the problem is not one of
causation at all, since it does not arise until causation is established. It is rather
one of the policy as to imposing legal responsibility. * * *

75

In general, this has been determined by asking whether the intervention or the
later cause is a significant part of the risk involved in the defendant's conduct,
or is so reasonably connected with it that the responsibility should not be
terminated. It is therefore said that the defendant is to be held liable if, but only
if, the intervening cause is "foreseeable."

76

Prosser on Torts, 3d ed. 1964, 51, at 309-11. To deal with Eaton's argument,
then, we should have to decide whether the abuse to which the hoist was
subjected was foreseeable. On occasion, we have required a defendant to
contemplate the future negligence of others. See, e. g., Transcontinental Gas
Pipe Line Corp. v. Mobile Drilling Barge, 5 Cir. 1970, 424 F.2d 684; Prosser at
313. But we cannot tell from this record whether hoistmakers can expect their
hoists to be subjected to the abuse shown here.

77

It is not always necessary, however, to find intervening conduct specifically

foreseeable. Courts have held tortfeasors responsible when their conduct
threatens a particular sort of result and an unanticipated force intervenes to
produce that result. Prosser at 326. Here, despite Eaton's protestations as to the
carrying capacity of a 42.6 percent fused link, there was testimony that such a
link was dangerous, increasing the likelihood of failure of the link, and that a
prudent manufacturer would discard the link as unsafe and unsuitable for lifting
a weight of up to 2000 pounds (the capacity of the hoist). Thus, the danger
created by Eaton's conduct was the likelihood that this link would fail in lifting
weights within the hoist's capacity. It did fail in just such a manner and the
result was thus within the scope of Eaton's negligence.

78

This concept has already been incorporated into admiralty. In Kinsman Transit,
Judge Friendly wrote:

79

We would find it difficult to understand why one who had failed to use the care
required to protect others in the light of expectable forces should be exonerated
when the very risks that rendered his conduct negligent produced other and
more serious consequences to such persons than were fairly foreseeable when
he fell short of what the law demanded.

80

338 F.2d at 723-724.17 The Restatement provides that "[i]f the actor's conduct
is a substantial factor in bringing about harm to another, the fact that the actor
neither foresaw nor should have foreseen the extent of that harm or the manner
in which it occurred does not prevent him from being liable". Restatement
(Second) of Torts 435(1) (1965). Perhaps this principle has not previously
been stated so specifically in admiralty.18 But in our view, Eaton's negligence is
established, and we consider that the risk it created encompassed the sort of
injury that occurred. We therefore do not impose on Eaton after-the-fact
standards for its primary conduct. Finally, we see no significant policies of
other states to be frustrated by this result.

81

We would reach the same result, moreover, by applying Texas law, the state in

which this accident occurred. In Biggers v. Continental Bus System, Inc., 1957,
157 Tex. 351, 303 S.W.2d 359, 365, the Texas Supreme Court reaffirmed its
rule that a tortfeasor "should have anticipated the danger to others created by
his negligent act, and the rule does not require that he anticipate just how
injuries will grow out of that dangerous situation". (Quoting from Sullivan v.
Flores, 134 Tex. 55, 132 S.W.2d 110, 111). In Biggers, the tortfeasor was
driving a bus at an excessive rate of speed in its own lane of traffic. An
automobile proceeding in the opposite direction negligently knocked another
automobile into the path of the bus. In the absence of either of the two factors,
the accident would not have occurred. But the Texas Supreme Court concluded
that "[i]f negligent and excessive speed [of the bus] proximately contributed to
cause the collision it is immaterial to [its] liability that the negligence of [the
negligent automobile driver] also contributed thereto or that such concurring
cause may not have been reasonably foreseeable. It is a sufficient predicate of
liability that the excessive speed of the bus was a substantial factor in bringing
about the collision". 303 S.W.2d at 367 (citations omitted).19
82

Because we conclude that the district court properly held Eaton liable on the
basis of its negligence we do not reach the issue of what warranty it owed Watz
with respect to its hoist.20

V.
Eaton v. Campbell
83

On the fourth-party complaint of Eaton against Campbell we confront first a

jurisdictional challenge. Campbell maintains that "the fourth party complaint,
predicated on theories of negligence and breach of implied warranty arising out
a sale taking place in the State of Pennsylvania, is not within the admiralty
jurisdiction of the court".

84

Rule 14(c), Fed.R.Civ.P., provides that "[w]hen a plaintiff asserts an admiralty

or maritime claim within the meaning of Rule 9(h), the defendant or claimant,
as a third-party plaintiff may bring in a third-party defendant who may be
wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by
way of remedy over, contribution, or otherwise on account of the same
transaction, occurrence, or series of transactions or occurrences". In this case,
Watz has asserted an admiralty claim under Rule 9(h) against Eaton and Eaton
has brought in Campbell. Campbell's liability, if proved, arises out of the same
occurrence as Eaton's: the injury to Watz on board the NOLA III.

85

Campbell bases its contention that jurisdiction does not exist on cases holding

that Rule 14(c) carries forward the judicially-imposed requirement of

Admiralty Rule 56 that a third-party action be maritime in character and that
ancillary jurisdiction alone will not suffice. See, e. g., McCann v. Falgout Boat
Company, S.D.Tex.1968, 44 F.R.D. 34. Without expressing any view on the
correctness of a decision such as McCann, we note that the third-party
complaint there was distinctly not maritime. In McCann, a seaman sued the
shipowner for an injury sustained on board a ship. The shipowner impleaded
the doctor who had later treated the injury in San Antonio, Texas, for
negligence and malpractice in treatment of the injury. Using a locality test, the
district court found that no admiralty jurisdiction existed over the impleader
because the medical malpractice tort arose solely in San Antonio. In our case,
on the other hand, the consequence of Campbell's conduct was injury on board
the NOLA III. The same reasoning that led us to conclude that admiralty
jurisdiction existed over Watz's claim against Eaton sustains admiralty
jurisdiction over Eaton's claim against Campbell. And since the district court
had admiralty jurisdiction, Campbell's claim to a jury trial was properly denied.
86

Campbell raises another threshold contention: that Eaton's action is barred by

laches.21 In this regard, the district court found:

87

Yale & Towne Manufacturing Company was notified of the failure of the chain
hoist in question on or about April 25, 1960, and received notice by August of
1961 that claim might be asserted against them by reason of the failure of the
chain hoist. Yale & Towne Manufacturing Company did not give notice of any
kind [to] Campbell Chain Company until on or about the 22nd day of April
1968.

******
88
89

At the time Eaton Yale & Towne, Inc. gave notice to Campbell Chain
Company, the records of Yale & Towne Manufacturing Company with respect
to the purchase of the chain had been destroyed in the ordinary course of
business and no invoices or other records concerning such purchase were
available. Likewise, at such time, the records of Campbell Chain Company with
respect to the sale of the chain to Yale & Towne Manufacturing Company had
been destroyed, as well as the specific inspections of chain sold in 1957, as well
as detailed records with reference to the manufacture of the chain or any
unusual incidents which might have occurred during the course of such
manufacture.

90

These findings of fact suggest that the district court intended to hold that
Campbell had sustained its defense of laches on Eaton's part. Yet although the

district court found specifically that Zapata and Eaton had failed in their laches
defenses, it made no finding with regard to Campbell and instead awarded
Eaton recovery against Campbell. The picture is further complicated by the fact
that the district court had approved a pre-trial stipulation by Eaton and
Campbell that all issues with respect to Campbell's claim of "delayed notice,
laches and limitations, and the effect thereof" would be postponed until after
the trial of the other issues and that the district court would fix a date for taking
relevant evidence when the "issues become material and decision required
thereon".
91

We conclude in this context that we can make no decision on the question of

laches. We vacate the district court's order of recovery against Campbell and
remand for further proceedings. Unless the district court should find the parties
waived the right to a hearing on these issues, they should be permitted to
develop the evidence before the court.

92

Not knowing what will develop on the laches defense, however, we shall deal
with the other issues in Eaton's claim against Campbell while the case is here.

93

The district court made the conclusion of law that "[t]he load chain was
negligently manufactured. * * * Such negligence was a proximate cause of the
plaintiff's injuries and damages". The parties have construed this finding as
directed to negligence on the part of Campbell.

94

Thus the negligence found against Campbell differs to some extent from that
found against Eaton. The district court found that Eaton "was negligent in
failing to perform other tests which would have revealed the defective weld. * *
*" No such specific finding was made with regard to Campbell. The pertinent
factual findings with regard to Eaton and Campbell are contained in the same
paragraph:

95

The chain and link in question were tested by Campbell Chain Company and
found to be capable of bearing weights in excess of 8500 pounds. The rated
capacity of the chain hoist was 2000 pounds. The chain hoist after assembly,
was tested by Yale & Towne Manufacturing Company and was found to be
capable of lifting weights of one and one-half times its rated capacity,
expressed in long tons, or 3360 pounds. Other tests, such as radiographic
testing, ultra-sonic testing, dye-check testing, and magnafluxing testing could
have revealed the imperfect weld. That the only test of the load chain and hoist
sold by Yale & Towne Manufacturing Company was a straight lifting load test
of one and one-half tons dead weight, and such test was not sufficient to reveal

the defective weld in the link that failed.

96

The apparent explanation for the district court's failure to make specific
findings on the number of tests performed by Campbell and the adequacy of its
tests is the court's finding, already quoted, that Campbell had destroyed the
relevant records in the ordinary course of business. In other words, specific
evidence of the sort relating to Eaton was not available regarding Campbell's
procedures.22

97

Evidence did show and the district court did find, however, that the original
weld on the link in question was defective. We have already approved the
court's finding of a substantial connection between that defect and Watz's
injuries. It is Campbell's argument, however, that no evidence shows in what
manner Campbell was negligent either in its manufacturing or testing processes.

98

Certainly Eaton bore the burden of proof to show Campbell's negligence. But
once it was proved that a defective weld had occurred during the manufacture
of the chain by Campbell, we believe that the district court sitting as a finder of
fact could reasonably infer negligence from that circumstantial evidence.
Campbell objects that the pleadings and evidence did not specifically raise the
doctrine of res ipsa loquitur and the district court did not refer to it. The
evidence credibly established that responsible chain manufacturers attempt to
avoid defective welds in the knowledge that they are dangerous. The finder of
fact could reasonably infer that a defective weld would ordinarily not occur in
the absence of negligence. We see no reason to invoke the Latin phrase here.
We simply apply a rule of circumstantial evidence, not changing the burden of
proof or casting presumptions against the defendant. See Restatement (Second)
of Torts 328D & Comment (1965). For that matter, in viewing the district
court's order as a whole, we think its finding that certain tests would have
revealed a defective weld supports its conclusion of Campbell's negligence.

99

Our conclusion that Eaton's negligence was a legal cause of Watz's injury was
based on the defective link's role in the mishap. Since we affirm the district
court's finding that Campbell was negligent, we may also conclude that
Campbell's negligence was a legal cause of Watz's injuries unless Campbell
owed no duty to Watz or Eaton's negligence exonerates it. We believe that Watz
was within the scope of the risk of Campbell's conduct. In the sense of
foreseeability, a chain manufacturer selling chain to a hoistmaker must be held
to knowing that one danger resulting from a negligently made chain is that it
will break on the hoist thus dropping its load to the damage of the load and to
the injury of anyone beneath it. Thus, Palsgraf, adopted into admiralty by
Sinram, does not foreclose Campbell's liability. Our earlier discussion of legal

cause disposes of any idea that Eaton's negligence should cure Campbell's.
100 Because we agree with the district court that on the evidence Campbell was
negligent and that it thereby caused Watz's injury, we do not reach the issues
whether it breached a warranty of reasonable fitness, whether such a warranty
exists in admiralty, and if so to whom it extends, or the effect of the
specifications on any such warranty.
101 We turn finally to the contribution and indemnity claim of Eaton against
Campbell. Since we have concluded that both Eaton and Campbell were
negligent, we have a case of joint tortfeasors. This Court has already held that
the apparent prohibition of Halcyon Lines v. Haenn Ship Ceiling & Refitting
Corporation, 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, against
contribution between joint tortfeasors in admiralty does not apply to a situation
where Watz as plaintiff could have proceeded against both Eaton and Campbell
and could have recovered damages from both. Horton & Horton, Inc. v. T/S J.
E. Dyer, 5 Cir. 1970, 428 F.2d 1131 [No. 28,706]. Halcyon is distinguished by
the fact that there a statute precluded recovery by the plaintiff against the
impleaded party.23 With Halcyon inapplicable, we agree with the district court
that contribution was proper here. But Eaton argues for complete indemnity. It
contends that its own negligence in failing to perform sufficient tests was
passive whereas Campbell's negligence in manufacturing a defective chain was
active.
102 We are hard put to label Eaton's negligence passive. The active-passive
distinction, when made, usually contrasts the conduct of one who simply had
custody of the cause of injury and failed to discover the danger created by
another. But Eaton did not simply fail to discover a defect in Campbell's
product. Here, as the district court found, Eaton constructed a hand hoist of
which the chain was a component part. Eaton had an affirmative duty safely to
manufacture the hoist, and the hoist included the chain. As the district court
found, "a one ton Yale & Towne Load King hand hoist is a dangerous object
when a defect exists such as the defect in the link of chain". Eaton's negligence
was not simply its failure to perform sufficient tests, but "in placing in trade and
commerce the hoist with load chain attached with the defective weld"
(emphasis supplied). Consequently, the district court properly denied the claim
of complete indemnity. See Transcontinental Gas Pipe Line Corp. v. Mobile
Drilling Barge, 5 Cir. 1970, 424 F.2d 684.
103 Affirmed in part; reversed in part; remanded in part.

Notes:
1

Roper involved a "mothballed" Liberty ship. "[H]er supplies, stores, nautical

instruments, cargo gear and tackle were removed; her pipes and machinery
were drained and prepared for storage; and her rudder, tail shaft and propeller
were secured." Both her Coast Guard safety certificate and her license to
operate had been withdrawn. In 1954, however, the Government decided to use
some of the Liberty ship's holds for grain storage. The vessels were towed to
loading facilities, filled with grain, and returned to the deactivated fleet. Then in
1956, this particular vessel was towed back to the loading facility and unloaded.
Roper, an employee of Continental Grain, sustained injury during the unloading
operations from a defective part of Continental's unloading equipment. The
Supreme Court viewed the issue whether the ship was in navigation as a
question of fact and refused to overrule the trial court's finding that it was out of
navigation

InLawlor, the vessel was undergoing an annual overhaul. She had been in drydock but was moored in navigable waters at the time the accident occurred.
Electric power and water were supplied from shore. A full crew of officers and
men were aboard performing seamen's duties. No major or substantial changes
or repairs had been required, and the shipowner was in general control of the
vessel although the shipyard had control of the particular repair area where the
mishap occurred. The Second Circuit found that Lawlor was protected by the
warranty of seaworthiness.

InMoye, the shipyard had exclusive control of a barge. No representative of the

owner nor crew was present. Although no major repairs or structural changes
were involved, the barge required drydocking for repairs in its side and
deckplating and hatch covers. We concluded that it owed no warranty of
seaworthiness.

TheWest Court buttressed its conclusion by emphasizing that there was no

uncertainty regarding the status of the ship. The vessel,
as anyone could see, was not in maritime service. She was undergoing major
repairs and complete renovation, as the petitioner knew. Furthermore, he took
his orders from the contractor, not the shipowner. He knew who was in control.
This undertaking was not "ship's work" but a complete overhaul of such nature,
magnitude, and importance as to require the vessel to be turned over to a ship
repair contractor and docked at its pier for the sole purpose of making her
seaworthy. It would be an unfair contradiction to say that the owner held the

vessel out as seaworthy in such a case.

361 U.S. at 122, 80 S.Ct. at 192, 4 L.Ed. 2d at 165 (emphasis supplied).
5

For cases considered outside the bounds of the historical limits see Comment,
Seamen & the Warranty of Seaworthiness in Maritime Injuries Sieracki
Today, 34 Tulane L.Rev. 572, 578-85 (1960)

Some commentators findRoper even more of a retreat. See, e. g., H. R. Baer,

Admiralty Law of the Supreme Court 611, at p. 174 (2d ed.1969); Comment,
A New Look at the Unseaworthiness Doctrine: The Roper Case, 29
U.Chi.L.Rev. 519 (1962).

The position does find support inSieracki, however, for the Sieracki Court
justified its extension of the warranty to longshoremen on the grounds that "
[h]istorically the work of loading and unloading is the work of the ship's
service, performed until recent times by members of the crew". 328 U.S. at 96,
66 S.Ct. at 878, 90 L.Ed. at 1107. "[T]he owner should not be free to nullify
[the liability] by parcelling out his operations to intermediary employers whose
sole business is to take over portions of the ship's work or by other devices
which would strip the men performing its service of their historic protection."
328 U.S. at 95, 66 S.Ct. at 877, 90 L.Ed. at 1106. We too have said that "the
limiting factor of tradition * * * requires that the injured shore-based worker be
engaged in work traditionally that of a seaman, excluding those persons
performing such tasks as making major repairs requiring drydocking or special
skills". Atkins v. Greenville Shipbuilding Corp., 5 Cir., 1969, 411 F.2d 279,
282 Cert. denied, 396 U.S. 846, 90 S. Ct. 105, 24 L.Ed.2d 96. (Citations
omitted).
Tetreault, Seamen, Seaworthiness, & the Rights of Harbor Workers, 39 Cornell
L.Q. 381 (1954), seriously attacks the Sieracki Court's reading of history. But
West appears simply to take the Sieracki history as it stands.

This Circuit appears to have developed another doctrine with regard to repair
contracts that would also exempt Zapata. Patterson v. Humble Oil & Refining
Co., 5 Cir. 1970, 423 F.2d 883 states that the owner's warranty of
seaworthiness does not extend to noncrew members regarding transitory
conditions created by an outside repair crew during the course of substantial
repairs to an existing unseaworthy condition when the transitory condition
relates to the subject matter of the repair contractSee also Parker v. Cargill, 5
Cir. 1969, 417 F.2d 772. We think it preferable, however, to rely here on West's
broader principles directing attention to the status of the ship, the extent of the
work, and the pattern of the repairs.

Art. 5526, Vernon's Ann.Tex.Civ.Stat

10

Weinstein v. Eastern Airlines, 3 Cir. 1963, 316 F.2d 758, 765 (airplane crash
into sea because of negligence in inspection and maintenance on land is within
admiralty jurisdiction); Smith v. Lampe, 6 Cir. 1933, 64 F.2d 201, cert. denied,
1933, 289 U.S. 751, 53 S.Ct. 695, 77 L.Ed. 1496 (blowing of automobile horn
on land causing damage to barge when tug believed horn to be fog signalsheld,
within admiralty jurisdiction); Southern Bell Telephone & Telegraph Co. v.
Burke, 5 Cir. 1933, 62 F.2d 1015 (negligently maintained telegraph wires not in
or covered by navigable waters damaged ship's smokestack; held, within
admiralty jurisdiction).

11

See, e. g., 1 Benedict, Admiralty 350-51 (6 Knauth ed. 1940). Other

commentators are mentioned in ALI, Study of the Division of Jurisdiction
Between State & Federal Courts, p. 232 (1969).

12

See, e. g., Smith v. Guerrant, S.D.Tex. 1968, 290 F.Supp. 111, noted in 44
Tulane L.Rev. 166 (1969); Chapman v. City of Grosse Pointe Farms, 6 Cir.
1967, 385 F.2d 962; Thomson v. Chesapeake Yacht Club, Inc., D.Md. 1965,
255 F.Supp. 555; McGuire v. City of New York, S.D.N.Y. 1961, 192 F.Supp.
866.

13

Black, Admiralty Jurisdiction: Critique & Suggestions, 50 Colum.L.Rev. 259,

261 (1950)

14

Those cases which have demanded some maritime connection see note
12supra, have demanded only a minimum. They have refused to assume
admiralty jurisdiction in cases involving swimmers, a person falling off a dock,
a crane breaking and dropping a lift-truck into the water.

15

The apparent fact that "locality alone" has been used only to exclude admiralty
jurisdiction is not particularly persuasive, since exclusion of admiralty
jurisdiction on that basis seems no more sensible than its extensionSee, e.g.,
Swain, Yes, Virginia, There is an Admiralty: The Rodrique Case, 16 Loyola
L.Rev. 43, 46 (1969); ALI, Study of the Division of Jurisdiction, supra, at p.
230. And Imbrovek's invitation to doubt the test of locality alone seems
qualified by Rohde.

16

Of three analogous cases which we have discovered, only one refers to the
problem. In Simpson Timber Co. v. Parks, a long-shoreman was injured on
board ship when he stepped through the packaging of a bundle of doors. He
sued the shipowner and the manufacturer of the doors. In that case's long
journey through a Ninth Circuit three-judge panel (opinion and dissent), 9 Cir.
1966, A.M.C. 1081, en banc (opinion and dissent), 369 F.2d 324, the Supreme

Court (per curiam vacating of the judgment), 1967, 388 U.S. 459, 87 S.Ct.
2115, 18 L.Ed.2d 1319, two law review comments, 66 Colum.L.Rev. 1190
(1961); 54 Geo.L.J. 1439 (1960) and remand 390 F.2d 353, cert. denied, 393
U.S. 858, 89 S.Ct. 126, 21 L.Ed.2d 127, the issue was not mentioned. Nor was
the issue framed specifically in terms of what admiralty law said. The case
appears to have proceeded on undifferentiated common law principles
In McFall v. Compagnie Maritime Belge, 1952, 304 N.Y. 314, 107 N.E.2d 463,
a longshoreman was injured by carbon tetrachloride fumes in a ship's hold. He
sued the vessel's bareboat charterer and Dow Chemical, the manufacturer and
shipper of the carbon tetrachloride. In discussing Dow's negligence, the court
made no reference specifically to maritime or any other law.
But in Todd Shipyards Corp. v. United States, D.Me.1947, 69 F.Supp. 609, a
shipyard sued the manufacturer of a boom block for damage caused to its
property when the block broke. Concluding that a maritime tort had occurred,
the district court said "that the applicable principles of the law involved are a
part of the general law of torts, maritime as well as common law".
17

Ours is not the tenuous relationship thatKinsman Transit admitted might be

excluded. 338 F.2d at 725.

18

Butcf. Horton & Horton, Inc. v. T/S J. E. Dyer, 5 Cir. 1970, 428 F.2d 1131 [No.
28,706]:
Moreover, in determining causation in maritime matters, the applicability of
such doctrines as last clear chance and the interruption of negligence by a
subsequent intervening negligence is questionable. "[T]he maritime court has
been less ready than the shore courts to find that a subsequent wrongful act by
one party breaks the chain of causation connecting the accident with the prior
negligence of the other party." Gilmore and Black, The Law of Admiralty, p.
404 (1957). See also Commercial Transport. Corp. v. Martin Oil Service, Inc.,
7 Cir. 1967, 374 F.2d 813, 817.

19

See Restatement (Second) of Torts 442B (1965):

Where the negligent conduct of the actor creates or increases the risk of a
particular harm and is a substantial factor in causing that harm, the fact that the
harm is brought about through the intervention of another force does not relieve
the actor of liability, except where the harm is intentionally caused by a third
person and is not within the scope of the risk created by the actor's conduct.

Comment b, at p. 470:
This is to say that any harm which is in itself foreseeable, as to which the actor
has created or increased the recognizable risk, is always "proximate," no matter
how it is brought about, except where there is * * * intentionally tortious or
criminal intervention, and it is not within the scope of the risk created by the
original negligent conduct.
20

Compare Schaeffer v. Michigan-Ohio Navigation Co., 6 Cir. 1969, 416 F.2d

217 with Noel v. United Aircraft Corp., D.Del. 1962, 204 F.Supp. 929; See
Montgomery v. Goodyear Tire & Rubber Co., S.D.N.Y. 1964, 231 F.Supp.
447; McCune, Maritime Products Liability, 18 Hastings L.J. 831 (1967).

21

Campbell also argues that the Pennsylvania Statute of Limitations bars Eaton's
action. Since we have found admiralty jurisdiction, however, laches is the
applicable standardSee text, part III, supra.

22

Prejudice, if any, deriving from this factor should more properly be considered
on Campbell's laches defense

23

To the extent that Hartford Accident & Indemnity Co. v. Gulf Refining Co., 5
Cir. 1956, 230 F.2d 346, 354, cert. denied, Gulf Refining Co. v. Black Warrior
Towing Co., 352 U.S. 832, 77 S.Ct. 49, 1 L.Ed.2d 52, is inconsistent with this
result, we must treat it as controlled byHorton & Horton.