The opinion of the court was delivered by: FOLLMER
This is one of seven actions by longshoremen to recover for personal injuries sustained aboard the S.S. Atlantico in the Port of Philadelphia on February 14, 1952. Plaintiffs filed suits against A. Garcia y Cia., Ltda., defendant owner of vessel. Defendant by third party complaint filed suit against Jarka Corporation of Philadelphia, the stevedoring company and employer of plaintiffs, as third party defendant in each of the actions.
The pertinent facts of the case as developed by the testimony at the trial are as follows: Under date of January 17, 1952, Jarka entered into a written contract with Garcia by which Jarka agreed, subject to the terms and conditions therein, to stevedore vessels of Garcia effective October 1, 1951 to September 30, 1952; in furtherance thereof, on or about February 14, 1952, Jarka through its employees, the plaintiff longshoremen, undertook to discharge Garcia's S.S. Atlantico of its cargo consisting of 100 pound sacks of sugar while the ship was in navigable waters and moored to Pier 27, North Philadelphia, Pennsylvania; at or about 5:45 o'clock p.m., on the day in question, the seven plaintiff longshoremen were working at the discharging operation in the No. 2 hold of the Atlantico when a large portion of the cargo of sugar collapsed and fell, burying plaintiffs under the sugar and causing the injuries complained of.
At the conclusion of the testimony there occurred the following colloquy between Mr. Beechwood, Attorney for Jarka, Mr. Alspach, Attorney for Garcia, and the Court:
'The Court: Yes, I think so too.
'Mr. Alspach: I will state for the record at this time, if the Court please, that in so far so the evidence in this case shows the third-party defendant, Jarka Corporation of Philadelphia, has not in our judgment been shown to have breached or violated any specific printed provision of this contract. But so that the record is complete, it is our position that it is Jarka's duty as a contractor in furnishing the men and the services which were used in this instance, they were under an obligation to us, as any contractor, to furnish competent and adequate supervision, to proceed about its work in a safe, careful workmanlike manner; it was under an obligation to us to see to it that its own men were not exposed to any danger or hazard, and we maintain that the evidence here clearly establishes that Jarka has failed in this case to meet its obligations which I have outlined, which are a part of this contract for services even though they are not written into the contract itself; that they are obligations resting upon Jarka by operation of law because they stood in the relation of contractor and employer of a contractor as to us.
'The Court: Doesn't that place it in the direct category then of distinction between tort and contractual liability?
'Mr. Alspach: I do not believe it does, Your Honor. I believe that the liability of Jarka can be predicated here upon either theory.
'I think that the employer, and by employer here I am referring to a contractor as distinguished from the contractor's men, owes us as the owner and possessor of the premises, and as a party who engages him, a duty to proceed about his work in a safe, careful and workmanlike manner and not to expose his employees to any hazard. That on the tort side clearly indicates that there was a breach by Jarka in this case. And there are other incidents in which I think it can well be argued that there was a violation of a tort, that there was a tort committed by Jarka here, which I shall not belabor, Your Honor, herewith at the moment.
'But to answer Your Honor's question on the contractual side, what I have said before I think holds true that by reason of the contract itself certain obligations which I have outlined before rested upon Jarka, and that Jarka under the evidence has breached those obligations.'
In answer to interrogatories submitted by the Court the jury found as follows:
1. No unseaworthiness on the part of the Atlantico which was a contributing factor in bringing about the accident.
2. That there was negligence on the part of defendant, Garcia, which was a contributing factor in ...