Petitioner was injured while working for a stevedoring company
engaged in unloading a ship in an American port under contract with
a third party to whom the ship had been chartered. Petitioner
brought this admiralty suit by libel
in rem against the
ship, which impleaded the stevedoring company. The District Court
found that the ship was unseaworthy, and therefore liable to
petitioner, but it also found that the primary cause of the
accident was negligence of the stevedoring company which brought
into play the unseaworthy condition of the ship, and it directed
the stevedoring company to indemnify the ship for the damages to
petitioner.
Held: the judgment of the District Court is sustained.
Pp.
358 U. S.
424-429.
1. The District Court correctly applied the concept of
unseaworthiness, and its findings of fact were not clearly
erroneous. Pp.
358 U. S.
426-428.
2. Since the negligence of the stevedoring company which brought
the unseaworthiness of the ship into play amounted to a breach of
the warranty of workmanlike service, and that warranty was for the
benefit of the ship, the ship is entitled to indemnity from the
stevedoring company. Pp.
358 U. S.
428-429.
249 F.2d 818 reversed, and judgment of the District Court
reinstated.
Page 358 U. S. 424
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, Crumady, was an employee of a stevedoring company
engaged in transferring a cargo of lumber from the ship
Joachim
Hendrik Fisser, of German registry, to a pier at Newark, New
Jersey. While so engaged, he was injured, and brought this
admiralty suit by libel in rem against the vessel. The vessel
impleaded the stevedoring contractor.
When the accident happened, the stevedores were trying to lift
two timbers through a hatch. The manner of the accident was
described as follows by the District Court:
". . . libellant and his fellow employees had placed a
double-eyed wire rope sling, provided with a sliding hook movable
between the eyes thereof, around the two timbers at a location two
or three feet from their after ends. The two eyes of the sling were
then placed upon the cargo hook of the up-and-down boom runner, and
a signal given by the stevedore gangwayman to the winchman to 'take
up the slack.' The winchman complied with the signal, and, during
this operation, libellant stood clear upon other timbers forming a
part of the cargo, within the open square of the hatch. There was
some testimony that, when the slack was taken up by the winchman,
the two timbers slid toward each other in the sling, the timber
Page 358 U. S. 425
which had been under the lower edge of the hatch coaming moving
or commencing to move toward the timber which lay within the open
hatch square. After the slack had been taken up by the winchman,
the same signaler called for the 'taking of a strain' upon the
cargo runner. The winchman again responded, the two-part
topping-lift broke, and the head of the up-and-down boom, with its
attached cargo and topping-lift blocks, fell to the top of the
cargo within the hatch square."
"The topping-lift had been rigged in a double purchase, and had
been supporting the head of the boom. The wire rope constituting
the topping-lift extended from a shackle on the topping-lift block
at the cross-tree of the mast, through a block at the boom head,
back through the mast block, down the mast, through a block welded
to the mast table, and thence around a drum of the winch. When the
boom fell, libellant was knocked down, either by the boom itself or
its appurtenant tackle, and thus sustained numerous serious and
permanently disabling orthopedic and neurological injuries."
142 F. Supp. 389, 391.
The safe working load of the boom and cargo runner and
topping-lift handling the load at the time of the accident was
three tons each. This equipment, which was part of the unloading
and loading gear of the vessel, was in good condition. The winch,
which served the boom, had a "cut off" device, or circuit breaker.
It was set to shut off the current on the application of a load of
about six tons, which was twice the safe working load of the
unloading gear. The circuit breaker operated perfectly, cutting off
current at the point of stress for which it was set. It had been
set to operate at a load slightly more than twice
Page 358 U. S. 426
the safe working load of the unloading gear* by employees of the
ship before the winch was turned over to petitioner's fellow
employees for operation.
The District Court accordingly found the vessel unseaworthy, and
therefore liable to petitioner. It also found that the stevedores
moved the head of the boom in an effort to clear the cargo from the
sides of the hatch, and that this "created a load on the
topping-lift greatly in excess of its safe working load." This act
was found to be "the primary cause of the parting of the
topping-lift and consequent fall of the boom." Since the
stevedoring company was found to be negligent in bringing "into
play the unseaworthy condition of the vessel," the District Court
directed the stevedoring company to indemnify the vessel for the
damages to petitioner. 142 F. Supp. 389, 401. The Court of Appeals
reversed, holding that the vessel was not unseaworthy, and that the
sole cause of the injury was the negligence of the stevedores. 249
F.2d 818. A petition for rehearing was denied en banc, Judge Biggs
dissenting. 249 F.2d 821. The cases are here on petitions for
certiorari. 357 U.S. 903.
1. We held in
Seas Shipping Co. v. Sieracki,
328 U. S. 85,
328 U.S. 95, that
stevedores, though intermediately employed, are, when performing
"the ship's service," entitled to the same protection against
unseaworthiness which members
Page 358 U. S. 427
of the crew doing the same work would receive.
And see Pope
& Talbot v. Hawn, 346 U. S. 406. The
work of loading and unloading is historically "the work of the
ship's service."
Seas Shipping Co. v. Sieracki, supra, at
328 U. S.
96.
This protection against unseaworthiness imposes a duty which the
owner of the vessel cannot delegate.
Seas Shipping Co. v.
Sieracki, supra, at
328 U. S. 100.
Unseaworthiness extends not only to the vessel, but to the crew
(
Boudoin v. Lykes Bros. Steamship Co., 348 U.
S. 336) and to appliances that are appurtenant to the
ship.
Mahnich v. Southern S.S. Co., 321 U. S.
96. And, as to appliances, the duty of the shipowner
does not end with supplying them -- he must keep them in order.
Id. at
321 U. S. 104;
The Osceola, 189 U. S. 158,
189 U. S. 175.
The shipowner is not relieved of these responsibilities by turning
control of the loading or unloading of the ship over to a
stevedoring company. It was held in
Grillea v. United
States, 232 F.2d 919, that stevedores themselves could render
a ship
pro tanto unseaworthy and make the vessel owner
liable for injuries to one of them.
And see Rogers v. United
States Lines, 347 U.S. 984;
Alaska S.S. Co. v.
Petterson, 347 U. S. 396. We
need not go so far to sustain the District Court here. For there is
ample evidence to support the finding that these stevedores did no
more than bring into play the unseaworthy condition of the vessel.
The winch -- an appurtenance of the vessel -- was not inherently
defective, as was the rope in the
Mahnich case. But it was
adjusted by those acting for the vessel owner in a way that made it
unsafe and dangerous for the work at hand. While the rigging would
take only three tons of stress, the cutoff of the winch -- its
safety device -- was set at twice that limit. This was rigging that
went with the vessel, and was safe for use within known limits. Yet
those limits were disregarded by the vessel owner when the winch
was adjusted. The case is no different in principle from
Page 358 U. S. 428
loading or unloading cargo with cable or rope lacking the test
strength for the weight of the freight to be moved. In that case,
the cable or rope, in this case, the winch, makes the vessel
pro tanto unseaworthy. That was the theory of the District
Court; it correctly applied the concept of unseaworthiness; and its
findings of fact were not clearly erroneous.
McAllister v.
United States, 348 U. S. 19,
348 U. S.
20.
II. A majority of the Court ruled in
Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U. S. 124,
that where a shipowner and stevedoring company entered into a
service agreement, the former was entitled to indemnification for
all damages it sustained as a result of the stevedoring company's
breach of its warranty of workmanlike service.
And see
Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.
S. 563. The facts here are different from those in the
Ryan case, in that this vessel had been chartered by its
owners to Ovido Compania Naviera S.A. Panama, which company entered
into the service agreement with this stevedoring company. The
contract, however, mentioned the name of the vessel on which the
work was to be done, and contained an agreement on the part of the
stevedoring company "to faithfully furnish such stevedoring
services."
We think this case is governed by the principle announced in the
Ryan case. The warranty which a stevedore owes when he
goes aboard a vessel to perform services is plainly for the benefit
of the vessel, whether the vessel's owners are parties to the
contract or not. That is enough to bring the vessel into the zone
of modern law that recognizes rights in third-party beneficiaries.
Restatement, Law of Contracts, ยง 133. Moreover, as we said in the
Ryan case, "competency and safety of stowage are
inescapable elements of the service undertaken." 350 U.S. at
350 U. S. 133.
They are part of the stevedore's
"warranty of workmanlike service that is comparable to a
manufacturer's warranty of the soundness of its manufactured
Page 358 U. S. 429
product."
Id. at
350 U. S.
133-134.
See MacPherson v. Buick Motor Co., 217
N.Y. 382, 111 N.E. 1050.
We conclude that, since the negligence of the stevedores, which
brought the unseaworthiness of the vessel into play, amounted to a
breach of the warranty of workmanlike service, the vessel may
recover over.
The judgment of the Court of Appeals is reversed, and the
judgment of the District Court is reinstated.
It is so ordered.
* Together with No. 62,
The Joachim Hendrik Fisser v.
Nacirema Operating Co., Inc., also on certiorari to the same
Court.
* One expert, Robert A. Simons, testified:
"I said that it is not safe practice to have a rig that was
designed for three tons working load and of the winch with a
cut-off set at six tons so that you could apply six tons load to
the hoist before the winch would cut off, because that would be
doubling the load for which the rig was designed for."
Another expert, Walter J. Byrne, testified:
". . . if you have three-ton gear and a three-ton winch, and,
due to cut-offs in back, you allow, let us say, a hundred per cent
overload to be developed, then I think, from my point of view as a
safety man, you are taking away a governor. You are taking away
something which is built in for the protection of the gear and
personnel."
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, dissenting.
It should be said at the outset that neither of these cases
should have been taken for review. No. 61, although, of course,
important to the unfortunate victim of this accident, satisfies
none of the criteria for certiorari set forth generally in Rules of
Supreme Court, Rule 19. The case involves merely factual issues of
consequence only in this particular litigation, and, being in
admiralty, lacks even that feature, the right to jury trial, which
some of my Brethren have found to justify the Court's reviewing the
sufficiency of the evidence in FELA and Jones Act cases. No. 62,
dependent as it is on No. 61, likewise does not belong here.
When this Court reverses a Court of Appeals, particularly on
issues of fact, I think the lower court is at least due an
understandable explication of the reasons. In No. 61, the Court
holds the vessel liable on the ground that its setting of the
circuit breaker to cut off at a strain of more than 3 tons rendered
the lifting gear unseaworthy, and further finds that the stevedores
"did no more than bring into play" this unseaworthy condition. The
Court overturns the findings of a unanimous Court of Appeals that
the setting of the circuit breaker at a strain of 6 tons did not
make the lifting gear unseaworthy, and that the accident was caused
not by this setting, but by the stevedores'
Page 358 U. S. 430
improper positioning of the head of the boom.* 249 F.2d 818. In
my opinion, the action of the Court lacks any solid basis. My views
can best be pointed up by briefly recounting what was held by the
court below in reversing the District Court.
The Court of Appeals first found that Crumady's claim of
unseaworthiness in the District Court was predicated on the alleged
defective condition of the topping-lift, and not on the setting of
the circuit breaker.
Id. at 819. It then concluded that
the District Court, "with adequate basis in the record," had
correctly rejected this claim.
Ibid.
The court then went on to hold that the District Court had
properly found the accident primarily attributable to the negligent
handling of the lifting operation by the stevedores, in that they
had permitted a long and heavy timber to become wedged under the
coaming of the hatch from which it was being removed, as well as
having changed, contrary to instructions, the position of the head
of the boom.
Ibid. This "incorrect procedure," the Court
of Appeals held, caused the topping-lift cable to be subjected to
"excessive and abnormal strain," which, in turn, caused the cable
to break and the boom to fall on Crumady.
Id. at 819,
820-821.
Next, the Court of Appeals turned to the setting of the circuit
breaker, "a new theory of the ship's unseaworthiness" which the
court found had been "adopted" by the trial court on its own
initiative.
Id. at 819. In rejecting this basis for
holding the vessel liable, the Court of Appeals analyzed the
situation as follows: (1) hoisting gear is "rated" in terms of
supporting a load of not more than
Page 358 U. S. 431
one-fifth of the strength of the lifting cable; (2) the gear
here involved was rated to lift 3 tons; (3) the cable it was
intended to and did utilize, for both the topping-lift and cargo
runner, was strong enough to withstand a strain of 15 tons; (4) the
setting of the circuit breaker to cut off the power from the winch
controlling the lifting operation at a strain of 6 tons was proper;
(5) the circuit breaker functioned properly, but the stevedores'
improper positioning of the boom subjected the topping-lift to "an
enormous, abnormal and unanticipated" additional strain.
Id. at 820.
In light of its analysis of the record, the Court of Appeals
concluded (
id. at 820-821):
"It was a proper finding that the negligence of the stevedores
was 'the sole active or primary cause' of the parting of the gear.
But we think it is equally clear that the court erred in the next
step of its reasoning, that this negligence of Nacirema 'brought
into play the unseaworthy condition of the vessel.' The concept of
seaworthiness contemplates no more than that a ship's gear shall be
reasonably fit for its intended purpose. [Footnote omitted.]
Applied to the present facts, this means that the setting of the
electrical circuit breaker could make the gear unseaworthy only if
there was reason to fear that a strain of about six tons on the
running gear, which would activate the cut off, would subject cable
of fifteen ton capacity in the topping-lift to a dangerous strain.
There is nothing in this record which suggests that such an
eventuality was reasonably to be feared or anticipated. Thus, the
gear was not proved to have been unseaworthy; neither was the
setting of the cut off device established as a legal cause of the
accident which occurred. "
Page 358 U. S. 432
What answer does this Curt now make to the Court of Appeals'
convincingly reasoned opinion? Simply the assertion that, because
the lifting gear was "rated" for only 3 tons, it was not clearly
erroneous for the District Court to conclude that it was wrong to
set the circuit breaker to cut off at 6 tons, "twice that limit."
What support does the Court muster for this assertion? Nothing but
a footnote reference to the testimony of two witnesses, without so
much as a word about the Court of Appeals' rejection of the
probative value of such testimony in the face of, among other
things,
"a Coast Guard standard for the setting of such a control,
indicating that the setting [at 6 tons] of the cut off device was
entirely safe and proper."
Id. at 820.
Perhaps I should add that I believe unavailing Chief Judge
Biggs' suggestion on petition for rehearing that liability might be
predicated on the stevedores' improper positioning of the head of
the boom and the theory of unseaworthiness enunciated by Judge
Learned Hand in
Grillea v. United States, 232 F.2d 919.
249 F.2d at 821. The record contains no indication that the
positioning of the boom was other than "an incident in a continuous
operation" beyond the compass of that theory.
Grillea v. United
States, supra, 232 F.2d at 922.
In view of the foregoing, I think the Court's action overriding
the Court of Appeals entirely unjustified. I would affirm the
judgment below in No. 61, and not reach, as the Court of Appeals
found it unnecessary to do, the indemnity issue put to us in No.
62.
Since my views have not prevailed, however, I am bound to
consider the indemnity issue in light of the Court's reasoning in
the action for unseaworthiness. In this light, I must again
dissent. As I read
Ryan Stevedoring Co. v. Pan-Atlantic S.S.
Corp., 350 U. S. 124, the
ship is entitled to indemnity only if the liability-inducing
unseaworthiness or hazardous working condition is created
Page 358 U. S. 433
by the stevedore. Here, on the Court's premises, Nacirema merely
brought into play an unseaworthy condition created by the vessel
itself. And, on the Court's further premise that this condition was
the cause of the injuries sustained by Crumady, I think neither the
decision nor the underlying principles in
Ryan justifies
the award of indemnity.
Cf. Weyerhaeuser S.S. Co. v. Nacirema
Operating Co., 355 U. S. 563,
355 U. S.
568.
* Chief Judge Biggs, dissenting from the refusal of the court of
appeals to grant rehearing en banc, did not disagree with these
findings. 249 F.2d at 821.