Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
This proceeding is a third-party action by a defendant shipowner, A. Garcia y Cia, seeking indemnity from a stevedoring company, Jarka Corporation, named as a third-party defendant, for the shipowner's loss in the form of damages recovered by longshoremen for shipboard injuries suffered during the course of their employment by Jarka.The accident occurred when the longshoremen were unloading one hundred pound bags of sugar from the hold of Garcia's ship. A part of the stowage collapsed and the heavy bags fell upon the men working nearby.
At the trial of the principal claim of the longshoremen against Garcia a jury found that negligence on the part of Garcia was a responsible cause of the accident. In seeking indemnity in the present third-party proceeding Garcia has claimed and undertaken to prove that negligent procedure of Jarka in unloading cargo was the direct cause of the accident, while Garcia's own negligence consisted merely in failure either to prevent Jarka from making the hold an unsafe place for working or to observe and correct the hazard created by Jarka's operation.
If Garcia has succeeded in proving the occurrence of the accident in the manner it claims, it is as a matter of law entitled to be indemnified by Jarka. It is established and conceded that Jarka contracted with Garcia to unload the cargo in question. Such a general undertaking of an independent contractor to perform a job carries with it a promise, implied in fact, that the operation will be conducted in a safe, skillful and generally workmanlike manner. Though such a contract may contain no express agreement to indemnify, a breach of this warranty of workmanlike performance, which results in loss to the owner by way of liability to a third person in damages, is redressed by imposing an obligation to indemnify upon the responsible contractor. This is the essential holding of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Co., 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. It matters not, as between the parties to the indemnity claim, that in such a case the shipowner's duty to shipboard workers to use care to provide a safe working place may have been breached by failure to prevent the workmen's own employer from making the place unsafe. Here again the Ryan case is precisely in point:
"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." 350 U.S. 134-135, 76 S. Ct. 232, 238.
But there is an additional factor in the present case which Jarka views as significant. While the jury found in answer to a specific interrogatory that the method of unloading used by Jarka was negligent, answering another interrogatory it also found that this was a customary method of unloading at the port in question, and that Garcia was aware of the practice. Jarka argues that the finding as to accepted usage negatives the finding of negligence. However, such custom, though it may be evidence of reasonableness, is not conclusive. The jury here had sufficient basis in the testimony to support a conclusion that the unloading procedure used by Jarka did not satisfy the standard of reasonable care, despite the fact that it was a method often used.
Beyond this it is argued that in employing Jarka to unload the ship Garcia impliedly agreed to the use of customary procedure, particularly that which is said to have caused the accident here.Thus, it is reasoned that there could have been no implied warranty to follow a different safer procedure. But this argument overlooks the essential nature of the relation between a person having work done and an independent contractor he engages for that purpose. The person having the job done is normally not an expert in the work to be performed. He does not have the contractor's competence to direct and control the method of performance. Thus, the fact that he does not stipulate against a method widely used in the past does not mean that he directs the use of that method or accepts any responsibility for it. He is simply taking no position on a matter which is the independent contractor's business and within the special knowledge and skill of his calling. Cf. Jeffries v. De Hart, 3 Cir., 1900, 102 F 765; Cornec v. Baltimore & Ohio R., 4 Cir., 1931, 48 F.2d 497.
It remains to be considered whether Garcia's theory of the way the accident occurred is supported by the evidence and established by the verdict. More particularly, has it been adequately established that Garcia's liability to the longshoremen resulted from its failure either to prevent Jarka from making the ship's hold an unsafe place to work or to correct the dangerous situation after Jarka had created it? The jury to which the third-party claim was submitted on special interrogatories found, in accord with Garcia's contention, that prior to the unloading the stowage of the cargo in the area of the accident was safe and proper.A separate interrogatory asked: "Did the negligence of the plaintiff shipowner, which was a contributing factor in bringing about the accident, result from any failure of the stevedoring company to perform its obligation to discharge cargo in a reasonably safe manner?" To this question the jury answered: "Yes". Thus, the jury's findings, if acceptable, sustained Garcia's contention as to the nature and the interrelation of the negligent acts and omissions of the parties.
Seeking to avoid these findings Jarka argues that a contrary finding as to the nature of Garcia's negligence was the basis of the original judgment against Garcia, entered after a trial in which both Garcia and Jarka participated. The argument continues that this finding became res judicata, so that the question was not open for relitigation at the trial of the third-party claim. Cf. Crawford v. Pope & Talbot, Inc., 3 Cir., 1953, 206 F.2d 784. However, an examination of the findings in the first case does not show that they are inconsistent with the above stated findings in the present proceeding.
At the end of the first trial the jury found, without specifying the nature of the negligence, that there was some "negligence on the part of the defendant [Garcia] which was a contributing factor in bringing about the accident." The jury also found that no "unseaworthiness on the part of the ship was a contributing factor in bringing about this accident." Of course improper or dangerous stowage would constitute an unseaworthy condition. Thus, these findings can reasonably be read and understood as reflecting a conclusion that the accident resulted solely from the manner of unloading and the unnecessary creation of an unsafe condition in that process. True, this court in its opinion on appeal from that decision indicated its view that on the evidence it was difficult to escape the conclusion that the stowage had been unseaworthy before the unloading began. See Curtis v. A. Garcia Y Cia., 3 Cir., 1957, 241 F.2d 30, 34. But we were not and are not the triers of fact. And the conclusion which we might have drawn on the evidence may well not have been the conclusion of the jury, as the foregoing analysis of the verdict shows. Thus, the failure of the jury in the first case to specify or clearly indicate what conduct of Garcia constituted negligence prevented the judgment in that case from providing any proper basis for a claim that this issue as to the nature of Garcia's negligence had become res judicata.The matter was properly submitted to the jury which heard the third-party claim and its findings must now be accepted as conclusive.
All other points made in support of this appeal have been considered, but we find no reversible error.
The judgment will be affirmed.
Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.
On rehearing before the court en banc the reasoning and the conclusion of the division which originally considered and decided this appeal seem sound to a majority of the court. Accordingly, we adhere to the original opinion and decision. At the same time additional observations on two points seem appropriate.
The original opinion on this appeal has already dealt with and rejected the argument that language used by this court in an appeal on the principal claim in this three-party litigation negatives the explicit finding of the jury which originally heard the three-party controversy that the ship upon which the accident occurred was seaworthy. We point now to a separate and additional consideration which reinforces that conclusion.
While the third-party claim now under consideration was actually litigated in an original three-party trial, it was dismissed at the end of that trial.*fn1 Thereafter, only the original plaintiff and defendant were parties to an appeal upon which the judgment as between those parties was affirmed. Curtis v. A. Garcia y Cia, 3 Cir., 1957, 241 F.2d 30. In these circumstances no mere comment on that occasion by the appellate court about the trial evidence should bind the third-party defendant who was not and could not have been a party to the appeal. While the original judgment on the principal claim, as affirmed, left the jury's finding of negligence of the original defendant as an authoritatively established fact for purposes of the retrial of the third-party claim, it would be unfair to go further and employ mere judicial comment on the evidence made on the original appeal in the absence of the third-party defendant as a pronouncement binding against the absentee.
A second point which was considered on the first hearing but not discussed in the court's opinion has again been urged strongly and, therefore, is analysed here. Appellant says that the only evidence of negligence on its ...