1. Shipowner may recover indemnity from a stevedore for breach
of implied warranty of workmanlike service where the stevedore,
without negligence, has supplied defective equipment which injures
its own employee who has recovered a judgment against the shipowner
on the basis of unseaworthiness. Pp. 376 U. S.
2. The effect of a contract provision making stevedore
responsible for injuries caused by its negligence on the existence
of the implied warranty, not briefed or argued here, is to be
determined by the Court of Appeals on remand. P. 376 U. S.
310 F.2d 481 reversed and remanded.
MR. JUSTICE WHITE delivered the opinion of the Court.
This is an action by a shipowner, Italia Societa per Azioni di
Navigazione (Italia), against a contracting stevedore company,
Oregon Stevedoring Company (Oregon), to recover indemnity for
breach of the stevedore's implied warranty of workmanlike service.
The issue presented is whether the warranty is breached where
Page 376 U. S. 316
stevedore has non-negligently supplied defective equipment which
injures one of its employees during the course of stevedoring
The petitioner, Italia, is the owner of the vessel M. S.
The respondent, Oregon, agreed to
render stevedoring services for Italia in all ports along the
Columbia and Willamette Rivers. Under the contract between the
companies, Oregon was to have exclusive rights to and control over
the loading and discharge of cargoes aboard Italia's vessels,
] and was to
"furnish all necessary labor and supervision and all ordinary
gear for the performance of [these] services . . . , including
winch drivers and usual appliances used for stevedoring."
Italia was to furnish and maintain in safe and efficient working
condition suitable booms, winches, blocks, steam, lights and so
forth. The agreement provided that the stevedoring company would be
responsible for damage to the ship, cargo, and for injury or death
of any person caused by its negligence, and that the steamship
company would be responsible for the injury or death of any person
or damage to property arising from its negligence or by reason of
failure of the ship's gear and equipment. [Footnote 2
Page 376 U. S. 317
During the course of Oregon's stevedoring operations in
Portland, one of its longshoreman employees, Griffith, was injured
on the M. S. Antonio Pacinotti
when a tent rope snapped.
The rope, permanently attached to a hatch tent used to protect
cargo from rain, was furnished by Oregon pursuant to its obligation
to supply ordinary gear necessary for the performance of
stevedoring services. The injured longshoreman sued the shipowner
in a state court for negligence and unseaworthiness, [Footnote 3
] and recovered a judgment against
Italia upon a general verdict. Italia satisfied the judgment and
thereupon brought this suit in a Federal District Court for
indemnity from Oregon. The District Court found that the basis for
Griffith's recovery was not negligence on the part of the
shipowner, but a condition of unseaworthiness created by the rope
supplied by Oregon, which was found defective and unfit for its
intended use. However, the District Court disallowed indemnity
because Italia had
Page 376 U. S. 318
failed to prove negligence on the part of the stevedore company,
since the defective condition of the rope was not apparent. That
court viewed the contractual provision rendering Oregon liable for
injuries caused by its negligence as an express disclaimer against
an implied warranty of workmanlike service. The Court of Appeals
for the Ninth Circuit, with one judge dissenting, affirmed, but
solely on the ground that a stevedore's implied warranty of
workmanlike service is not breached in the absence of a showing of
negligence in supplying defective equipment. 310 F.2d 481. Because
of a conflict between this decision and the decision of the Court
of Appeals for the Second Circuit in Booth S.S. Co. v. Meier
& Oelhaf Co.,
262 F.2d 310, and the importance of the
question involved, we granted certiorari. 372 U.S. 963. For the
reasons stated below, we have determined that the absence of
negligence on the part of a stevedore who furnishes defective
equipment is not fatal to the shipowner's claim of indemnity based
on the stevedore's implied warranty of workmanlike service.
In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,
350 U. S. 124
landmark decision in this area, it was established that a
stevedoring contractor who enters into a service agreement with a
shipowner is liable to indemnify the owner for damages sustained as
a result of the stevedore's improper stowage of cargo. Although the
agreement between the shipowner and stevedore was silent on the
subject of warranties and standards of performance, the Court found
that the essence of the stevedore's contract is to perform
"properly and safely." "Competency and safety . . . are inescapable
elements of the service undertaken." This undertaking is the
stevedore's "warranty of workmanlike service that is comparable to
a manufacturer's warranty of the soundness of its manufactured
product," 350 U.S. at 350 U. S.
-134, a warranty generally deemed to cover defects
not attributable to a manufacturer's
Page 376 U. S. 319
negligence. [Footnote 4
See also Crumady v. The Joachim Hendrik Fisser,
358 U. S. 423
358 U. S.
The Court further distinguished in Ryan
contract and tort actions, stating that the shipowner's suit for
indemnification was 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,"
350 U.S. at 350 U. S. 134
and pointedly declined to characterize the stevedore's conduct as
negligent, notwithstanding that discussion in the opinion below
centered on concepts of active and passive negligence on the part
of the shipowner and stevedore. [Footnote 5
] Although, in Ryan,
the stevedore was
negligent, he was not found liable for negligence as such, but
because he failed to perform safely, a basis for liability
including negligent and nonnegligent conduct alike.
Subsequent decisions have made clear that the stevedore's
obligation to perform with reasonable safety extends not only to
the stowage and handling of cargo,
Page 376 U. S. 320
but also to the use of equipment incidental thereto,
Weyerhaeuser S.S. Co. v. Nacirema Operating Co.,
355 U. S. 563
including defective equipment supplied by the shipowner,
Crumady v. The Joachim Hendrik Fisser, supra; cf. Waterman S.S.
Corp. v. Dugan & McNamara, Inc., 364 U.
, and that the shipowner's negligence is not fatal
to recovery against the stevedore.
"[I]n the area of contractual indemnity, an application of the
theories of 'active' or 'passive' as well as 'primary' or
'secondary' negligence is inappropriate."
355 U.S. at 355 U. S. 569
And last Term, in Reed v. The Yaka, 373 U.
, we assumed, without deciding, that a shipowner
could recover over from a stevedore for breach of warranty even
though the injury-causing defect was latent, and the stevedore
without fault. We think that the stevedore's implied warranty of
workmanlike performance applied in these cases is sufficiently
broad to include the respondent's failure to furnish safe equipment
pursuant to its contract with the shipowner, notwithstanding that
the stevedore would not be liable in tort for its conduct.
Oregon argues, however, that the imposition in Ryan
liability on the stevedore in warranty, rather than tort, was
necessitated by the Court's previous decision in Halcyon Lines
v. Haenn Ship Ceiling & Refitting Corp., 342 U.
, which held that maritime principles of
contribution between joint tortfeasors prevailing in collision
cases were not applicable in suits for contribution by a shipowner
against stevedore companies. It further
Page 376 U. S. 321
urges that negligence on the part of the stevedore company or
its employees was present in all the above cases, and that the
Court characterized the warranty in post-Ryan
one entailing an obligation to perform with reasonable safety and
reasonable competency. However, the stevedore's obligation
established in Ryan
was not merely an escape from the
no-recovery consequences of Halcyon,
as is evidenced by
the fact that recovery of contribution between joint tortfeasors
and recovery of indemnity for breach of warranty proceed on two
wholly distinct theories and produce disparate results. [Footnote 7
] See American
Stevedores, Inc. v. Porello, 330 U. S. 446
Recovery in contribution is imposed by law and is measured by the
relative fault of the joint tortfeasors or shared equally between
them, The North Star, 106 U. S. 17
The Max Morris, 137 U. S. 1
Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp.,
while recovery in indemnity for breach of the
stevedore's warranty is based upon an agreement between the
shipowner and stevedore, and is not necessarily affected or
defeated by the shipowner's negligence, whether active or passive,
primary or secondary. Weyerhaeuser S.S. Co. v. Nacirema
Operating Co., supra.
And the description of the stevedore's
obligation as one of performance with reasonable safety is not a
reference to the "reasonable man" test pertaining to negligence,
but a delineation of the scope of the stevedore's implied
contractual duties. The implied warranty to supply reasonably safe
equipment may be satisfied with less than absolutely perfect
equipment; [Footnote 8
Page 376 U. S. 322
issue of breach of the undertaking does not turn on whether the
contractor knew or should have known that his equipment was safe,
but on whether the equipment was in fact safe and fit for its
intended use. As the Court has aptly said with respect to the
shipowner's duty to furnish a seaworthy vessel, a duty which is
imposed by law:
"What has been said is not to suggest that the owner is
obligated to furnish an accident-free ship. The duty is absolute,
but it is a duty only to furnish a vessel and appurtenances
reasonably fit for their intended use. The standard is not
perfection, but reasonable fitness; not a ship that will weather
every conceivable storm or withstand every imaginable peril of the
sea, but a vessel reasonably suitable for her intended
Mitchell v. Trawler Racer, Inc., 362 U.
, 362 U. S. 550
We do not believe a rope designed to withstand three to five times
the pressure exerted on it when it gave way satisfies the standard
of reasonable safety. And the District Court specifically found
that the rope was unfit for the purpose for which it was intended,
and that the injury to Griffith was the natural consequence of its
Oregon, a specialist in stevedoring, was hired to load and
unload the petitioner's vessels and to supply the ordinary
equipment necessary for these operations. The defective rope which
created the condition of unseaworthiness on the vessel and rendered
the shipowner liable to the stevedore's employee was supplied by
Oregon, and the stevedoring operations in the course of which the
longshoreman was injured were in the hands of the employees of
Oregon. Not only did the agreement between the shipowner place
control of the operations on the stevedore company, but Oregon was
also charged under the contract with the supervision of these
operations. Although none of these factors affects the
Page 376 U. S. 323
primary liability to the injured employee of Oregon, since its
duty to supply a seaworthy vessel is strict and nondelegable, and
extends to those who perform the unloading and loading portion of
the ship's work, Seas Shipping Co. v. Sieracki,
328 U. S. 85
cf. Pope & Talbot v. Hawn, 346 U.
, they demonstrate that Oregon was in a far better
position than the shipowner to avoid the accident. The shipowner
defers to the qualification of the stevedoring contractor in the
selection and use of equipment, and relies on the competency of the
stevedore company. [Footnote
True, the defect here was latent, and the stevedore free of
negligent conduct in supplying the rope. But latent defects may be
attributable to improper manufacture or fatigue due to long use,
and may be discoverable by subjecting the equipment to appropriate
tests. Further, the stevedore company, which brings its gear on
board, knows the history of its prior use and is in a position to
establish retirement schedules and periodic retests so as to
discover defects, and thereby insure safety of operations. See
Booth S.S. Co. v. Meier & Oelhaf Co., supra.
considerations such as these that underlie a manufacturer's or
seller's obligation to supply products free of defects and a
shipowner's obligation to furnish a seaworthy vessel. [Footnote 10
] They also serve to
render a tort standard of negligence
Page 376 U. S. 324
inapplicable to the stevedore's liability under its warranty of
workmanlike service. For they illustrate that liability should fall
upon the party best situated to adopt preventive measures, and
thereby to reduce the likelihood of injury. Where, as here,
injury-producing and defective equipment is under the supervision
and control of the stevedore, the shipowner is powerless to
minimize the risk; the stevedore is not.
Where the shipowner is liable to the employees of the stevedore
company as well as its employees for failing to supply a vessel and
equipment free of defects, regardless of negligence, we do not
think it unfair or unwise to require the stevedore to indemnify the
shipowner for damages sustained as a result of injury-producing
defective equipment supplied by a stevedore in furtherance of its
contractual obligations. See Alaska S.S. Co. v. Petterson,
347 U. S. 396
347 U. S. 401
Both sides press upon us their interpretation of the law in
regard to the scope of warranties in nonsales contracts, such as
contracts of bailment and service agreements. But we deal here with
a suit for indemnification based upon a maritime contract, governed
by federal law, American Stevedores, Inc., v. Porello,
in an area where rather special rules governing the
obligations and liability of shipowners prevail, rules that are
designed to minimize the hazards encountered by seamen, to
compensate seamen for the accidents that inevitably occur, and to
minimize the likelihood of such accidents. By placing the burden
ultimately on the company whose default caused the injury, Reed
v. The Yaka, 373 U. S. 410
373 U. S. 414
we think our decision today is in furtherance of these
The District Court declined to pass on the issue decided above,
since it found that the implied warranty of workmanlike performance
was negated by the provision in
Page 376 U. S. 325
the agreement rendering Oregon liable for personal injuries
resulting from its negligence. The Court of appeals declined to
pass on the latter question, its finding that the warranty did not
extend to nonnegligent conduct rendering a resolution of it
unnecessary. The effect of the express assumption of liability for
negligence provision in the contract on the existence of the
implied warranty has not been briefed or argued in this Court.
Accordingly, the issue remains for the Court of Appeals to decide.
The judgment below is reversed, and the case remanded for further
proceedings consistent with this opinion.
It is so ordered.
The contract reads:
"It is mutually agreed between the parties hereto that the
Stevedoring Company will act as stevedores, and that they will with
all possible dispatch, load and/or discharge all cargoes of vessels
owned, chartered, controlled, or managed by the Steamship Company
at all Columbia and Willamette River ports as directed. And it is
agreed that the Steamship Company will grant to the said
Stevedoring Company the exclusive rights of handling all such
cargoes as before mentioned under the terms of this agreement. . .
Paragraph VIII of the agreement states:
"The Stevedoring Company will be responsible for damage to the
ship and its equipment, and for damage to cargo or loss of cargo
overside, and for injury to or death of any person caused by its
negligence, provided, however, when such damage occurs to the ship
or its equipment, or where such damage or loss occurs to cargo, the
ship's officers or other authorized representatives call the same
to the attention of the Stevedoring Company at the time of
occurrence. The Steamship Company shall be responsible for injury
to or death of any person or for any damage to or loss of property
arising through the negligence of the Steamship Company or any of
its agents or employees, or by reason of the failure of ship's gear
The shipowner is liable for unseaworthiness, regardless of
negligence, whenever the ship or its gear is not reasonably fit for
the purpose for which it was intended, and this liability extends
to longshoremen and others who work aboard the vessel, including
those in the employ of contracting stevedore companies. Seas
Shipping Co. v. Sieracki, 328 U. S. 85
Pope & Talbot v. Hawn, 346 U.
; Mitchell v. Trawler Racer, Inc.,
362 U. S. 539
the owner engages others who supply the equipment necessary for
stevedoring operations, he must still answer to the longshoreman if
the gear proves to be unseaworthy. Alaska S.S. Co. v.
Petterson, 347 U. S. 396
This liability is strict, and nondelegable. Mitchell v. Trawler
Racer, Inc., supra; Mahnich v. Southern S.S. Co., 321 U. S.
George v. Willman, 379 P.2d 103
(Alaska); Hessler Co. v. Hillwood Mfg. Co.,
302 F.2d 61
(C.A.6th Cir.); Green v. American Tobacco
Co., 154 So. 2d 169
(Fla.); Henningsen v. Bloomfield Motors, Inc.,
358, 161 A.2d
Frumer and Friedman, Products Liability, §
10.01, and cases cited therein; Uniform Sales Act, Uniform Laws
Annotated (1950 ed.), § 15(1); Uniform Commercial Code, Uniform
Laws Annotated (1962 ed.), § 2-315. See generally
Williston, Sales, § 237 (Rev. ed. 1948 and Supp.1963).
Palazzolo v. Pan-Atlantic S.S. Corp.,
211 F.2d 277
"Judgment on the action for indemnity over was awarded to Ryan.
We think this error. The trial judge found Pan-Atlantic guilty of
negligence in that its 'cargo officer did not properly perform his
admitted duty to supervise the safe and careful loading of the
vessel.' However, Ryan created the hazardous condition by its
improper stowage of the pulp paper rolls at Georgetown. We think
the improper stowage the primary and active cause of the accident.
Under our holdings . . . , indemnity over is recoverable where, as
here, the employer's negligence was the 'sole' 'active' or
'primary' cause of the accident."
211 F.2d at 279.
If the stevedore is liable in warranty for supplying defective,
injury-producing equipment, of course the provisions of the
Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424,
as amended, 33 U.S.C. §§ 901-950, are no bar to recovery. This
question was fully resolved in Ryan v. Pan-Atlantic S.S. Corp.,
at 350 U. S.
"The Act nowhere expressly excludes or limits a shipowner's
right, as a third person, to insure itself against such a liability
either by a bond of indemnity, or the contractor's own agreement to
save the shipowner harmless."
See also Reed v. The Yaka, supra.
See Crawford v. Pope & Talbot, Inc.,
206 F.2d 784
(C.A.3d Cir.); Rich v. United States,
177 F.2d 688 (C.A.2d
Cir.); McFall v. Compagnie Maritime Belge (Lloyd Royal)
304 N.Y. 314, 107 N.E.2d 463. See generally
Weinstock, The Employer's Duty to Indemnify Shipowners For Damages
Recovered By Harbor Workers, 103 U. of Pa.L.Rev. 321 (1954).
Cf. Calderola v. Cunard S.S. Co.,
279 F.2d 475 (C.A.2d
Cir.); Orlando v. Prudential S.S. Corp.,
313 F.2d 822
Seas Shipping Co. v. Sieracki, supra,
at 328 U. S. 100
Hugev v. Dampskisaktieselskabet Int'l, 170 F.
, 609-611, aff'd sub nom. Metropolitan Stevedore
Co. v. Dampskisaktieselskabet Int'l,
274 F.2d 875 (C.A.9th
Cir.), cert. denied,
363 U.S. 803; Revel v. American
Export Lines, 162 F.
, 286-287, aff'd,
266 F.2d 82 (C.A.4th
"The function of the doctrine of unseaworthiness and the
corollary doctrine of indemnification is allocation of the losses
caused by shipboard injuries to the enterprise, and within the
several segments of the enterprise, to the institution or
institutions most able to minimize the particular risk
DeGioia v. United States Lines Co.,
304 F.2d 421, 426
(C.A.2d Cir.). And see Ferrigno v. Ocean Transport Ltd.,
309 F.2d 445 (C.A.2d Cir.).
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
Today's decision is commanded neither by Ryan Stevedoring
Co. v. Pan-Atlantic S.S. Corp., 350 U.
, and its progeny nor by the general law of
warranty. In Halcyon Lines v. Haenn Ship Ceiling &
Refitting Corp., 342 U. S. 282
Pope & Talbot, Inc., v. Hawn, 346 U.
, we held that the system of compensation which
Congress established in the Longshoremen's and Harbor Workers'
Compensation Act [Footnote 2/1
the sole liability of a stevedoring company to its employees
prevented a shipowner from shifting all or part of his liability to
the injured longshoreman onto the stevedoring company, the
longshoreman's employer. Ryan
held no more than that the
shipowner could recover over from the stevedoring company by
invoking the legal formula of warranty, where there had been a
finding that the stevedoring company had been negligent. [Footnote 2/2
] In the present case, there
Page 376 U. S. 326
an express finding that the stevedoring company was not
Moreover, the Court here expands the general law of warranty in
a way which I fear will cause us regret in future cases in other
areas of the law as well as in admiralty. There is no basis in past
decisions of this or any other court for the holding that one who
undertakes to do a job for another and is not negligent in any
respect nevertheless has an insurer's absolute liability to
indemnify for liability to injured workers which the party who
hired the job done may incur.
Finally, the contract under which the parties dealt here
provided that the stevedoring company was to be liable for personal
injuries resulting from its negligence, while the shipowner was to
be liable for injury caused by its own negligence "or by reason of
the failure of ship's gear and/or equipment." This provision
appears on its face to put the burden of liability for
unseaworthiness, which was the basis of the worker's recovery here,
on the shipowner, leaving negligence as the only basis on which the
stevedoring company could be held liable. The District Court so
held. The contract is before us, and we are as competent to
interpret it now, without remanding to the Court of Appeals, as we
are to invoke "policy" reasons in order to expand Ryan
impose new financial burdens on stevedoring companies in plain
violation of the policy Congress adopted in the Longshoremen's and
Harbor Workers' Compensation Act.
For these and other reasons cogently expressed in Judge Hamlin's
opinion for the Court of Appeals, 310 F.2d 481, I dissent.
44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950.
Reed v. The Yaka, 373 U. S. 410
held only that a longshoreman could bring a suit for
unseaworthiness against a stevedoring company which chartered a
ship and was the longshoreman's employer. In that case, no issue as
to an implied warranty of workmanlike service arose, because the
stevedoring company had agreed in any case to hold the shipowner
harmless without regard to negligence, see 183 F. Supp.
, 70; furthermore, the stevedoring company there was also the
operator of the vessel, and therefore, in that particular case, was
primarily liable for unseaworthiness.