United States Court of Appeals, Fifth Circuit
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Scribd Government Docs479 F.
2d 432
Preston JULIAN, Plaintiff-Appellee,
v.
MITSUI O. S. K. LINES, LTD., In Personam, and M/V
MEIJYUSAN,
In Rem, Defendant-Third-Party Plaintiff-Appellant,
v.
STRACHAN SHIPPING COMPANY, Third-Party DefendantAppellee.
No. 72-2259.
United States Court of Appeals,
Fifth Circuit.
May 23, 1973.
Rehearing and Rehearing En Banc Denied July 9, 1973
Joseph D. Cheavens, Houston, Tex., for plaintiff-appellant.
Theodore Goller, Houston, Tex., for Strachan Shipping Co.
Ned Johnson, Beaumont, Tex., for Julian.
Before BELL and THORNBERRY, Circuit Judges, and GROOMS,
District Judge.
BELL, Circuit Judge:
This case arises out of the familiar Sieracki-Ryan1 longshoreman-shipownerstevedore admiralty dispute. The injured longshoreman sued the shipowner
alleging both unseaworthiness of the ship and negligence of its officers, agents
and crew. The district court found the ship unseaworthy, but reduced the
longshoreman's damages by 95 per cent as a result of his contributory
negligence. In the shipowner's third party complaint against the stevedore to
recover any damages paid to the longshoreman, the district court held that the
shipowner was not entitled to indemnity from the stevedore. Two reasons were
given in support of the judgment for the stevedore: (1) that the stevedore did
not breach its warranty of workmanlike performance; and (2) that the
shipowner, by furnishing an unseaworthy vessel, hindered the stevedore's
performance so as to preclude indemnity.
2
This appeal involves only the indemnity claim by the shipowner against the
stevedore. The question presented is whether the longshoreman's contributory
negligence is merely a factor to be weighed in determining whether the
stevedore has breached its warranty of workmanlike performance, or whether
any contributory negligence constitutes a breach of the stevedore's warranty as
a matter of law.
The rule in this Circuit is that contributory negligence ". . . is a factor to be
taken into consideration on the issue of breach of the contractor's [stevedore's]
implied warranty." Lusich v. Bloomfield Steamship Company, 5 Cir., 1966,
355 F.2d 770, 778. See also United States Lines Co. v. Williams, 5 Cir., 1966,
365 F.2d 332, 336; D/S Ove Skou v. Hebert, 5 Cir., 1966, 365 F.2d 341, 350.
Cf. Diaz v. Western Ventures, Inc., 5 Cir., 1972, 467 F.2d 1361, 1362-1363.
We are asked to reconsider our position in light of the rule prevailing in the
Second, Fourth, and Ninth Circuits, that any contributory negligence on behalf
of the longshoreman is imputed to the stevedore and constitutes a breach of the
stevedore's warranty as a matter of law. See e. g. McLaughlin v. Trelleborgs
Angfartygs A/B, 2 Cir., 1969, 408 F.2d 1334; United States Lines v. Jarka
Corp., 4 Cir., 1971, 444 F.2d 26; Arista Cia DeVapores, S. A. v. Howard
Terminal, 9 Cir., 1967, 372 F.2d 152.2
Under the 1972 amendments to the Longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C.A. Sec. 901 et seq., the longshoremen's right to
sue a shipowner is limited to claims based upon negligence of the shipowner
alone. The doctrine of unseaworthiness is no longer available to injured
longshoremen. The effect of limiting the shipowner's liability to his own
negligence is to obviate the need for indemnity from the stevedore.
Consequently the amendments provide that the stevedore employer shall not be
held liable to a shipowner for damages paid by the shipowner to longshoremen
and any warranties to the contrary shall be void. 33 U.S.C.A. Sec. 905(b).
These amendments did not become effective until November 1972. The instant
case was tried in 1971 and final judgment in the district court was entered on
March 21, 1972.
Without further consideration of the previous decisions of this Circuit or the
conflict with those of the other circuits, we note that Congress has removed the
underlying basis for the decisions. Moreover, we are not convinced that our
prior decisions are unsound. We thus proceed to the merits on the "factor"
approach.
7
The district court found that the longshoreman's conduct was "so grossly
careless that a court might characterize the injury as wholly self-inflicted."
However, the court did find that the ship possessed a defectively designed step
which rendered it unseaworthy. Therefore, the court actually reduced the
longshoreman's damages by 95 per cent rather than 100 per cent, stating that
application of comparative negligence principles should seldom result in
complete exoneration of unseaworthiness. In view of these findings, we hold
that the longshoreman's contributory negligence was so substantial as to require
the conclusion that the stevedore breached its warranty of workmanlike
performance. This result follows even though we apply the rule that
contributory negligence is only a factor to be considered in deciding whether
the warranty is breached.
Finding a breach of the stevedore's warranty, we proceed next to the question
whether the shipowner's conduct was as the district court held, sufficient to
preclude indemnity. The district court found that the ship was "defectively
designed and unseaworthy because the only available route by which a
longshoreman might proceed from the No. 5 hold to the main deck involved a
26 1/2 inch drop for which no ladder or step had been provided". The
longshoreman in the instant case injured himself while trying to negotiate this
26 1/2 inch drop.
The district court was presented with a situation of negligence imputed to the
stevedore on the one hand and unseaworthiness on the part of the ship on the
other. The court could not prorate damages but they were in fact prorated by the
contributory negligence holding and the subsequent holding on indemnity. The
court left a five per cent charge against the shipowner for unseaworthiness by
denying indemnity. Under the "factor" rule we cannot say that this was error.
10
Affirmed.
THORNBERRY, Circuit Judge (dissenting):
11
Although, as the majority points out, the 1972 amendments to the
Longshoremen's and Harbor Workers' Act greatly diminish the importance of
this case as precedent, our duty to decide it correctly is not diminished. With
deference, I must disagree with one important aspect of the majority's reasoning
and with the result it reaches.
12
First, in considering the question of the stevedore's breach of warranty of
workmanlike performance, I believe we should follow the per se rule of the
Second, Fourth, and Ninth Circuits that the longshoreman's negligence
constitutes a breach of warranty of workmanlike performance as a matter of
law. This rule accords better with the precedents and with logic than the
majority's factor approach. If the longshoreman's negligence is imputed to the
stevedore-and it is imputed in this Circuit as in others, see United States Lines
Company v. Williams, 5th Cir. 1966, 365 F.2d 332, 334 n. 4-then it is difficult
to understand how the stevedore, having negligently contributed to the cause of
an accident through the acts of the longshoreman, might nevertheless avoid
breaching its warranty of workmanlike performance, the essence of which is to
perform its work "properly and safely." Ryan Stevedoring Company v. PanAtlantic S/S Corporation, 1955, 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100
L.Ed. 133. Lusich v. Bloomfield Steamship Company, 5th Cir. 1966, 355 F.2d
770 and United States Lines Company v. Williams, supra, upon which the
majority rely, do contain language supporting the factor approach, but I do not
read them to establish that approach in this Circuit. Those cases reversed
because the trier of fact had failed to consider the longshoreman's negligence at
all on the question of breach of warranty, but did not limit the scope of that
consideration to that due a "factor" or otherwise preclude the per se approach.
In this case, of course, the per se approach yields the same results as the factor
approach of the majority: the warranty of workmanlike performance was
breached.
13
On the question whether the district court clearly erred in finding the shipowner
was guilty of such conduct as to preclude indemnity I disagree with the
majority's result. The only fault of the shipowner was furnishing a ship with a
twenty-six and one-half inch step-a condition found to be unseaworthy. The
district court concluded, "Although the step did constitute an unseaworthy
condition, it was not particularly formidable to those who follow an active trade
and its hazards might easily have been avoided by the use of ordinary care."
The defectiveness of the step contributed only five percent to the cause of the
accident. In these circumstances, when the shipowner's conduct is weighed
against the stevedore's breach of warranty of workmanlike performance,
Waterman S/S Corporation v. David, 5th Cir. 1966, 353 F.2d 660, I do not
believe the shipowner's conduct could reasonably be found sufficient to
preclude recovery to which it would otherwise be entitled. Its conduct did not
"prevent or seriously handicap the stevedore in his ability to do a workmanlike
job." Albanese v. N. V. Nederl. Amerik Stoomv. Maats., 2nd Cir. 1965, 346
F.2d 481; see also Corbin on Contracts Sec. 1264.
Accordingly, I would reverse the judgment below denying indemnity.
14
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN
15
BANC
PER CURIAM:
16
The Petition for Rehearing is denied and no member of this panel nor Judge in
regular active service on the Court having requested that the Court be polled on
rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth
Circuit Rule 12) the Petition for Rehearing En Banc is denied.
THORNBERRY, Circuit Judge (dissenting):
17
I dissent as to the denial of the petition for rehearing.
Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099;
Ryan Stevedoring Co. v. Pan-Atlantic S/S Corp., 1956, 350 U.S. 124, 76 S.Ct.
232, 100 L.Ed. 133
The Third Circuit has taken a position somewhat near the rule of this Circuit.
See Shaw v. Lauritzen, 3 Cir., 1970, 428 F.2d 247, 250-251, where the court
approved a jury instruction which provided: "If you find [the Stevedore's
negligence] was a substantial factor in causing the injury, the shipowner . . . is
entitled to recover . . . against the stevedore . . ."
