A stevedoring company, which had contracted to unload a vessel
in New York and Boston, permitted its Boston employees to use,
without inspection, a temporary shelter erected by it in New York
but not removed by the shipowner upon sailing for Boston. A
longshoreman injured by a board which fell from the shelter sued
the shipowner on claim of negligence and unseaworthiness. The
shipowner impleaded the stevedoring company, claiming a right to
indemnity. A jury in the main case found for the longshoreman on
the issue of negligence and for the shipowner on the issue of
seaworthiness, and the longshoreman was awarded a judgment against
the shipowner. Concluding that the jury's verdict was also
dispositive of the third-party action, the judge directed a verdict
for the stevedoring company.
Held: the liability of the stevedoring company depended
on principles different from those governing the liability of the
shipowner; all issues of fact involved in the third-party action
should have been submitted to the jury; and the court erred in
directing a verdict for the stevedoring company based on the
finding for the longshoreman. Pp.
355 U. S.
564-569.
(a) The stevedoring company's contractual obligation to perform
its duties with reasonable safety related not only to the handling
of the cargo, but also to the use of equipment incidental thereto,
such as the shelter involved here. P.
355 U. S.
567.
(b) If, in that regard, the stevedoring company rendered a
substandard performance which led to foreseeable liability of the
shipowner, the latter was entitled to indemnity, absent conduct on
its part sufficient to preclude recovery. P.
355 U. S.
567.
(c) The evidence bearing on these issues was for jury
consideration under appropriate instructions, and these issues were
not encompassed by the instructions in the main case. Pp.
355 U. S.
567-568.
(d) Since the liability of the stevedoring company depended on
principles different from those governing liability of the
shipowner, all issues of fact involved in the third-party case
should have been submitted to the jury after the verdict in the
main case. P.
355 U. S.
568568.
Page 355 U. S. 564
(e) The verdict for the longshoreman did not
ipso facto
preclude recovery of indemnity by the shipowner. Pp.
355 U. S.
568-569.
(f) In the area of contractual indemnity, an application of the
theories of "active" or "passive," as well as "primary" or
"secondary" negligence, is inappropriate. P.
355 U. S.
569.
236 F.2d 848 reversed and remanded.
MR. JUSTICE CLARK, delivered the opinion of the Court.
The question here involves the right to trial by jury under
principles of maritime liability enunciated in
Ryan Stevedoring
Co. v. Pan-Atlantic S.S. Corp., 350 U.
S. 124 (1956). Respondent, a stevedoring company,
contracted to furnish petitioner, a shipowner, with stevedoring
services and a longshoreman employed by respondent was injured
while unloading petitioner's vessel. When the longshoreman sued
petitioner on claims of negligence and unseaworthiness, petitioner
impleaded respondent, claiming a right to indemnity for any damages
the longshoreman might recover. The main case, involving the
longshoreman's claims, was submitted to the jury, which found for
the longshoreman on the issue of negligence and for petitioner on
the issue of seaworthiness. That judgment has since been satisfied,
and is not before us. After receiving the verdict, the judge
decided that it also was dispositive of the third-party action, and
directed a
Page 355 U. S. 565
verdict for respondent. A divided Court of Appeals affirmed, 236
F.2d 848, and we granted certiorari. 352 U.S. 1030 (1957).
Petitioner contends,
inter alia, that certain issues of
fact should have been submitted to the jury. We agree with
petitioner on this point.
Petitioner's claim for indemnity primarily rests on the
contractual relationship between it and respondent. While the
stevedoring contract contained no express indemnity clause,
[
Footnote 1] it obligated
respondent "to faithfully furnish such stevedoring services as may
be required," and to provide all necessary labor and supervision
for "the proper and efficient conduct of the work." As this Court
said in
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,
supra, such language constitutes "a contractual undertaking to
[perform]
with reasonable safety,'" 350 U.S. at 350 U. S. 130,
and to discharge "foreseeable damages resulting to the shipowner
from the contractor's improper performance." 350 U.S. at
350 U. S. 129,
footnote 3. Petitioner contends that a breach of this undertaking
by respondent caused the injury to the longshoreman, and that
petitioner's liability resulting from the breach was
"foreseeable."
The
F. E. Weyerhaeuser, the vessel upon which the
accident occurred, had sailed from the West Coast with a cargo of
lumber for New York and Boston, the ports where respondent was to
perform the stevedoring operations. The vessel arrived in New York
on January 25, 1952, and, in the ensuing five days, the deck load
and part of the underdeck cargo was discharged. On January 30, the
ship left New York, arriving in Boston the next day. Respondent's
crews boarded the vessel, and the unloading continued. On the fifth
day of the Boston operations, one Connolly, a longshoreman employed
by respondent,
Page 355 U. S. 566
was injured when struck on the head by a piece of wood while
working in a lower hold. The parties agree that the wood must have
fallen into the hold from the top of a temporary which shelter
which protected the winch drivers from the elements.
The evidence indicated that winch shelters are customarily
erected by longshoremen at the beginning of their unloading
operations. They consist of a scrap lumber framework with a
tarpaulin stretched across the top. Because of their flimsy
construction, they are considered a hazard in the winds at sea, and
"automatically" are torn down by the ship's crew when the vessel
leaves port. Both the captain and the second officer of the
F.
E. Weyerhaeuser testified that it would be carelessness on
their part to allow winch shelters to remain in place when the
vessel goes to sea. We need not discuss the details which may have
led the jury to find for Connolly in the main case, but implicit in
the jury verdict was a finding that the structure was on the ship
when it arrived in Boston. [
Footnote 2] Respondent, through its employees stationed in
New York, must have built the shelter while the ship was in New
York harbor, [
Footnote 3] and
we may assume that petitioner failed to remove it upon leaving for
Boston. The record is silent as to the exact circumstances under
which it was made available to respondent in Boston. It does
appear, however, that the shelter was
Page 355 U. S. 567
used in the stevedoring operations by respondent's Boston
employees, in spite of the fact that respondent as well as
petitioner must have known of its journey from New York and the
possible effect of such a journey on an already flimsy structure.
There was evidence that the shelter was not inspected by either
party until the injury to Connolly five days after the arrival in
Boston. [
Footnote 4]
We believe that respondent's contractual obligation to perform
its duties with reasonable safety related not only to the handling
of cargo, as in
Ryan, but also the use of equipment
incidental thereto, such as the winch shelter involved here.
American President Lines, Limited v. Marine Terminals
Corp., 234 F.2d 753, 758;
United States v. Arrow
Stevedoring Co., 175 F.2d 329, 331. If, in that regard,
respondent rendered a substandard performance [
Footnote 5] which led to foreseeable liability of
petitioner, the latter was entitled to indemnity absent conduct on
its part sufficient to preclude recovery. The evidence bearing on
these issues -- petitioner's action in making the shelter on its
ship available to respondent's employees in Boston although it
apparently was unsafe, [
Footnote
6] as well as respondent's continued use of the shelter for
five days thereafter without inspection -- was for jury
consideration under appropriate instructions. These issues were not
encompassed by the instructions in the main case, where the test
of
Page 355 U. S. 568
petitioner's liability was based on failure to perform a
nondelegable duty to Connolly. Since the liability of respondent
depended on different principles,
Crawford v. Pope &
Talbot, Inc., 206 F.2d 784, 792, all fact issues involved in
the third-party action should have been submitted to the jury after
the verdict in the main case. [
Footnote 7] Further, the verdict for Connolly did
not
ipso facto preclude recovery of indemnity by petitioner, for,
as we have indicated, the duties owing from petitioner to Connolly
were not identical with those from petitioner to respondent. While
the jury found petitioner "guilty of some act of negligence," that
ultimate finding might have been predicated,
inter alia,
on a failure of petitioner to remove the shelter when the ship left
New York, or a failure to correct or warn respondent of a latent
dangerous condition known to petitioner when respondent began the
Boston unloading. Likewise, the finding might have been predicated
on a failure of petitioner during the five days in Boston to
inspect the shelter, detect and correct the unsafe condition.
Although any of these possibilities could provide Connolly a basis
of recovery, at least the latter would not, under
Ryan,
prevent recovery by petitioner in the third-party action. 350 U.S.
at
350 U. S.
134-135.
See Cornec v. Baltimore & O. R.
Co., 48 F.2d 497, 502;
Boston Woven-Hose & Rubber Co.
v. Kendall, 178 Mass. 232, 59 N.E. 657 (opinion of Chief
Justice Holmes). It
Page 355 U. S. 569
was improper, therefore, for the court to direct a verdict for
respondent based on the finding for Connolly.
In view of the new trial to which petitioner is entitled, we
believe sound judicial administration requires us to point out
that, in the area of contractual indemnity, an application of the
theories of "active" or "passive" as well as "primary" or
"secondary" negligence is inappropriate.
Ryan Stevedoring Co.
v. Pan-Atlantic S.S. Co., supra, at
350 U. S.
132-133.
The judgment of the Court of Appeals is reversed, and the case
is remanded for proceedings in conformity with this opinion.
It is so ordered.
[
Footnote 1]
See generally Weinstock, The Employer's Duty to
Indemnify Shipowners for Damages Recovered by Harbor Workers, 103
U. of Pa.L.Rev. 321, 332-346 (1954).
[
Footnote 2]
The jury found for Connolly on the issue of negligence after
being instructed as follows:
"Now, if you find from the evidence that the structure, that is,
this shelter, was on the ship when it came into Boston Harbor, and
that the ship offered it to the stevedores to use and work with,
and if you find that, in permitting that to be there, the ship was
guilty of some act of negligence as I have defined it to you, then
you could find a verdict for Mr. Connolly."
[
Footnote 3]
There was undisputed evidence that the shelter could not have
been assembled prior to the removal of the deck cargo in New
York.
[
Footnote 4]
A witness testified that, after the accident, he stood on one of
the winches to permit a view of the shelter top, which was
approximately seven feet above the deck, and discovered a second
piece of tarpaulin secured only by two loose pieces of wood similar
to that which struck Connolly.
[
Footnote 5]
It should be noted that
"[t]he 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."
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra,
at
350 U. S.
134.
[
Footnote 6]
See Corbin, Contracts, §§ 571, 947, 1264;
cf.
Restatement, Contracts, §§ 295, 315.
[
Footnote 7]
The following explanation in the charge to the jury suggests
that the trial judge intended to submit the third-party action upon
return of the verdict in the main case:
"I shall ask you to go out and consider the claims of Mr.
Connolly against the Weyerhaeuser Steamship Company first, and
then, when you come back with your verdict on that, I shall ask you
to retire again and consider the issues in the second suit, namely
Weyerhaeuser Steamship Company against the Nacirema Operating
Company, and, before I submit that second one to you, I shall give
you some instructions which apply peculiarly to that."