(hereinafter called Jarka) and Chester Stevedoring (hereinafter
called Chester), filed the instant motions to dismiss said
1. In the case of Halcyon Lines v. Haenn Ship Ceiling &
Refitting Corporation, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318,
relied on by the third-party defendants, it was held that under
general maritime law no right of contribution exists as between
joint tort-feasors. It does not necessarily follow, however, that
such holding forecloses the right of a party held responsible to
be indemnified by another party if warranted by the facts of a
particular case. For example, a party is entitled to indemnity if
the facts show that it committed a passive tort and another party
committed an active tort. See Standard Oil Company v. Robins Dry
Dock & Repair Co., 2 Cir., 32 F.2d 182; The No. 34, 2 Cir.,
25 F.2d 602, and Seaboard Stevedoring Corporation v. Sagadahoc S.S.
Company, 9 Cir., 32 F.2d 886.
2. In the present state of the record it is not possible to
decide whether the instant third-party actions involve joint
tort-feasors or active and passive tort-feasors and therefore
this Court is of the opinion that the motions of the third-party
defendants to dismiss the third-party actions should be denied.
See Union Sulphur & Oil Corporation v. W.J. Jones & Son, 9 Cir.,
195 F.2d 93; Davis and Mattison v. American President Lines, D.C.
1952, 106 F. Supp. 729, A.M.C. 818 and Barber S.S. Lines v. Quinn
Bros., D.C., 104 F. Supp. 78. The record, we think, clearly shows
that the issue of indemnity is presently before the Court and the
defendant should be afforded an opportunity to prove same at
trial. It shows inter alia that Jarka, one of the third-party
defendants, committed an active tort by improperly placing a
hatch board and thereby creating a dangerous condition. It shows
also that Chester (plaintiff's employer), the other third-party
defendant, committed an active tort generally in the manner in
which plaintiff or some of Chester's other employees went about
its work of removing the hatch boards. It shows finally that the
defendant or third-party plaintiff in its third-party actions is
seeking alternative relief, contribution or indemnity.
3. The contention urged by Jarka that a dismissal of the
third-party action against it should be ordered on the ground
that the plaintiff has failed to present a claim against it,
Jarka, is invalid because the right of an original defendant to
file a third-party action is not affected by the failure of an
plaintiff to present a claim against the third-party defendant.
4. The motions of the third-party defendants, Jarka and
Chester, to dismiss the third-party actions filed against them
are accordingly denied.
An order in accordance with the foregoing opinion will be
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