party defendant, Jarka Corporation of Philadelphia, or in the alternative (3) to grant a new trial as bwtween the defendant and the third party defendant.
Since the above trial, to wit, on January 9, 1956, the Supreme Court handed down its 5 to 4 opinion in Ryan Stevedoring Co., Inc., v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 76 S. Ct. 232, 234. The majority opinion held that the facts of that case presented two questions as to the liability of a stevedoring contractor to reimburse a shipowner for damages paid by the latter to one of the contractor's longshoremen on account of injuries received by him in the course of his employment on shipboard. The Court posed the first question as follows:
'1. The first question is whether the Longshoremen's Compensation Act precludes the assertion by a shipowner of a stevedoring contractor's liability to it, where the contractor is also the employer of the injured longshoreman.'
In answer to this question the Court held:
'* * * 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. Petitioner's agreement in the instant case amounts to the latter for, as will be shown, it is a contractual undertaking to stow the cargo 'with reasonable safety' and thus to save the shipowner harmless from petitioner's failure to do so.'
And then concluded:
'The shipowner's action here is not founded upon a tort or upon any duty which the stevedoring contractor owes to its employee. The third-party complaint is grounded upon the contractor's breach of its purely consensual obligation owing to the shipowner to stow the cargo in a reasonably safe manner. Accordingly, the shipowner's action for indemnity on that basis is not barred by the Compensation Act.'
The factual recital in the last quotation is equally applicable in the instant case except, of course, that here the contractor (Jarka) was engaged in discharging rather than stowing the cargo as in Ryan.
The second question was posed as follows:
'2. The other question is whether, in the absence of an express agreement of indemnity, a stevedoring contractor is obligated to reimburse a shipowner for damages caused it by the contractor's improper stowage of cargo.'
After eliminating any consideration of the concepts of primary and secondary or active and passive tortious conduct as well as any question of joint tortfeasorship because the shipowner there relied entirely upon contractor's contractual obligation, the Court then held:
'The shipowner here holds petitioner's uncontroverted agreement to perform all of the shipowner's stevedoring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner's obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of stowage are inescapable elements of the service undertaken. This obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of petitioner's stevedoring contract. It is petitioner's warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product. The 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.
* * * * *
'Petitioner suggests that, because the shipowner had an obligation to supervise the stowage and had a right to reject unsafe stowage of the cargo and did not do so, it now should be barred from recovery from the stevedoring contractor of any damage caused by that contractor's uncorrected failure to stow the rolls 'in a reasonably safe manner.' Accepting the facts and obligations as above stated, the shipowner's present claim against the contractor should not thereby be defeated. Whatever may have been the respective obligations of the stevedoring contractor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner's failure to discover and correct the contractor's own breach of warranty as a defense. Respondent's failure to discover and correct petitioner's own breach of contract cannot here excuse that breach.'
While this Court as to its original ruling finds itself in very respectable company as evidenced by the minority opinion, the majority opinion is the law, and in accordance therewith defendant's motion to vacate and set aside the dismissal of the third party complaints and to grant a new trial as between defendant and third party defendant will be granted.
Defendant's motion to enter judgment in its favor and against Jarka will be denied.
In the Ryan case the contractor both loaded and unloaded the stowage. In the instant case the contractor only unloaded the stowage. The jury in their answers to the interrogatories found no unseaworthiness on the part of the ship, but negligence on the part of the shipowner. Without a further jury determination it is impossible to ascertain at this time whether such negligence on the part of the shipowner constituted primary or secondary, active or passive tortious conduct, and whichever it is, its relationship to the contractor's method of unloading.
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