and is of no help in answering the question before us. Why was the block 'incorporated' into the ship's regular cargo handling gear and the staging not? The only answer offered by respondent would seem to be that the block (1) may have been property of the shipowner, and (2) it was the type and kind of equipment usually composing ship's gear. Reliance upon these factors seems to overlook the basic rationale upon which the courts have developed the right of a longshoreman to recover for unseaworthiness. That is, they view him as a seaman when he is engaged in loading the ship's cargo -- work traditionally performed by a seaman. Seas Shipping Co. v. Sieracki, supra. If the seaman traditionally performed the task of loading this cargo, it was the ship which presumably supplied him with materials necessary to accomplish this task. In other words, the law in this area logically negates the concept of an independent contractor performing the task of unloading. To inject such a third person into the picture, for the purpose of determining today what equipment does not belong to the shipowner or is not part of his standard gear, in order to resolve the issue of seaworthiness, is incongruous.
Although this would appear to be a logical conclusion, perhaps nowhere in the law is one less justified to rest assured in logic than in the area under discussion. Nevertheless we can do no more than rely upon precedent, when that precedent is distinguished solely by factors which we feel have no logical significance to the issue at hand.
We have purposely left until last the case of Brabazon v. Belships, Inc., supra, the only affirmative authority relied upon by the respondents on this point. A small part of that opinion dealt with the question of whether the particular plank which caused the accident rendered the ship unseaworthy.
The Court reached the conclusion that it did not (although it allowed recovery on other grounds) and in a sentence pointed up the factors which apparently influenced its decision, i.e., 'The unknown source of the board, its transitory placement and its lack of any characteristic adapting it for particular shipboard use or differentiating it from other miscellaneous lumber all combine to require the conclusion that the object was not an 'appurtenance' of the ship as that term is used in connection with the shipowner's special responsibility for seaworthiness of ship's gear and appliances.' 202 F.2d at page 908. None of these factors are present here.
The defective pallet came from the stevedore and as we mentioned above, we see no reason why this fact should preclude a finding of unseaworthiness, since, for the purposes of recovery, the law views the longshoreman as a member of the ship's crew -- necessarily negating the concept of a third party (independent stevedore) supplying the gear and appliances ordinarily used to stow cargo.
Furthermore we are not dealing with a 'transitory placement' in our case. The pallet was intentionally placed upon the floor of the hold by the longshoreman at the beginning of their loading operation. It had been there for over an hour prior to the time of the accident. It would necessarily remain there until completion of the loading operation, since its use there was the usual, customary, proper and acceptable practice for loading cartons of Hershey chocolate. It was no more transitory than the cargo hook in the De Van case or the 'Baltimore dog' in the Litwinowicz and Matyas case.
Finally, this pallet did have characteristics which made it adaptable for loading the particular type cargo involved on the ship. This is borne out by the fact that the longshoremen regularly used these pallets in just this way when loading this type cargo. They did not on one occasion use pallets and on another use dunage or hatchboards or other wood. The pallets were placed there intentionally to fulfill a need -- just as the cargo hook or 'Baltimore dog' fulfilled a need. To the extent they were so placed -- and were not merely thrown down for a moments use -- they became an appurtenance of the S.S. 'Yaka' and rendered that ship pro tanto unseaworthy.
The Question of Liability in Rem
We turn then to the second question of law in this case, which both parties agree has never been decided in the Third Circuit. The question simply stated is: May a stevedore employed by a bare boat charterer maintain an action in rem against the vessel to recover damages for personal injuries caused by unseaworthiness which arose after the ship was surrendered to the bare boat charterer?
The First Circuit in Vitozi v. Balboa Shipping Company, 1 Cir., 1947, 163 F.2d 286 held that a stevedore, in an in personam action based upon unseaworthiness which allegedly existed at the time of demise, could not recover from the real owner of the ship when the injury occurred while the ship was in the possession and control of the charterer. The basis of Circuit Judge Woodbury's opinion was that responsibility for seaworthiness of the vessel rested on the charterer under a demise charter and liability for unseaworthiness in the civil action therefore could not be asserted against the real owner. However, in Grillea v. United States, first reported at 2 Cir., 1956, 229 F.2d 687, on rehearing, 1956, 232 F.2d 919, the Second Circuit held that an action might be maintained against the vessel in rem, based upon an unseaworthy condition which arose after the demise.
The problem in this case arises from the fact that the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 901 et seq. (hereinafter referred to as the 'Act') specifically states that compensation required to be paid under that Act by the employer 'shall be exclusive and in place of all other liability of such employer * * *', 33 U.S.C.A. § 905. The impleaded respondent Pan-Atlantic, who is liable to the libellant for compensation, argues that since it is owner of the ship 'pro hoc vice' under the terms of the bare boat charter, an action against the ship in rem would in effect be an action against it and is therefore barred by the exclusive remedy provision of the Act, 33 U.S.C.A. § 905. In support of its position it points to the case of Smith v. The Mormacdale, 3 Cir., 1952, 198 F.2d 849, which held that where the employer of a stevedore is also the owner of the ship, the stevedore can not recover against the ship in rem, because in such a situation, 'an action against the vessel is realistically an action against the employer * * * (and) (t)o impose this additional liability on the employer in a situation where he is also shipowner would radically distort the intent of Congress in enacting the Longshoremens' Act', at page 850.
Undoubtedly, it is the stevedore who will be required to pay if recovery is allowed here. However, this fact alone is not controlling. Ryan Stevedoring Co., Inc. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. When the reason that such liability will ultimately fall upon the stevedore is traceable to a contract of indemnity with the real owner, he of course can not escape liability by setting this fact up as a defense.
We think that is precisely what the respondent seeks to do here.
It does not rely solely upon an indemnity clause but rather upon a 'bare boat charter', which contains, among other things, an indemnity clause. Nevertheless the critical clause in this charter -- the clause on which respondent must rely in order to establish the fact that he will stand liable in the present case (which of course was not brought against him but against the S.S. 'Yaka') is the indemnity clause.
Respondent makes much of the other features of a bare charter. It is true that such a charter results in a complete surrender of operation and control of the ship to the charterer. Leary v. United States, 1871, 14 Wall. 607, 20 L. Ed. 756. To emphasize how complete this surrender of ownership is, many cases speak of the charterer under a bare boat charter, as the owner of the ship 'pro hoc vice'. Leary v. United States, supra; Randolph v. Waterman et al., D.C.E.D.Pa.1958, 166 F.Supp. 732. That is a term of art. We do not think that an answer to the present case is to be reached by a detailed exploration of its history and significance. We simply point out that whatever bundle of rights in the ship the real owner surrenders under a bare boat charter, he does retain the right to the return of his ship at some future time.
To the extent that recovery in rem against the ship jeopardizes this unsurrendered right, this action is just as much 'in reality' against the owner, as it was 'in reality' against the stevedore in the Smith case, supra. The fact that an indemnity clause may exist, can not change this for the purpose of determining whether the exclusive remedy provisions of the Longshoremen's and Harbor Workers' Act precludes recovery. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra.
Moreover the question of operation and control of the ship would appear to have no real significance in an in rem action for unseaworthiness, since unseaworthiness is not based upon negligence or any wrongful act. Rather it is a form of absolute liability which is imposed regardless of fault. Seas Shipping Co. v. Sieracki, supra. Therefore we are not particularly persuaded by the nature of a bare boat charter. This fact might be more evident if we imagine a case with the exact same facts as the present one, the only difference being that the bare boat charter contained no indemnity clause.
In such a suit the charterer would not (as it did here) move to strike the real owner of the vessel as respondent and itself defend the action. Yet the real owner undoubtedly could not set up the Longshoremen's and Harbor Workers' Act as a bar to recovery. The only difference between such a case and our own is the indemnity clause, which the Supreme Court has said is not determinative. See, Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra.
The law is settled that where a stevedore is injured as a result of unseaworthiness which arose after the real owner surrendered control to a bare boat charterer (who is not the stevedore's employer), the stevedore can still recover in an in rem action against the ship. Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413.
The question of who defends (i.e., the real owner or the charterer under an indemnity clause) is not controlling. We see no reason why the result should be otherwise where the charterer and the stevedore are one and the same person. There are reasons why a court might find otherwise where only one person is involved as owner-stevedore combined. The Third Circuit accepted such reasons in the Smith case, supra. However, the reasons why an in rem action against the vessel in such a case is realistically viewed as an action against the stevedore (and thus barred under the Act) are not traceable to any contract of indemnity between parties. In our case they would be. This distinction is fatal to respondent's position. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra. Furthermore we see nothing in this result which will frustrate the clearly manifest intent of Congress to limit the employer's liability to his employee to the remedy provided by the Act. On the contrary, to hold otherwise would be to invite contracted for situations such as we have here, for the sole purpose of destroying a longshoreman's in rem remedy which the law of admiralty has traditionally recognized. The Act was not intended to diminish longshoremen's rights, but to enlarge them. Seas Shipping Co. v. Sieracki, supra.
It follows from what has been said above that the issue of liability must be determined in favor of the libellant. Waterman Steamship Corporation as claimant of the vessel will therefore be responsible in damages to the libellant in an amount to be determined at a subsequent hearing. It also follows that the liability imposed in this action against the claimant, the owner of the vessel, must, under the bare boat charter, be ultimately paid by the impleaded respondent, Pan-Atlantic Steamship Corporation.
Conclusions of Law
1. The Court has jurisdiction of the subject matter and of the parties to this suit.
2. The latent defect in the pallet being used for staging in the No. 2 hold of the S.S. 'Yaka' rendered that ship unseaworthy.
3. This unseaworthiness was the sole cause of the injury complained of here.
4. The libellant was not guilty of any contributory negligence.
5. The S.S. 'Yaka' is liable in rem to libellant.
6. Respondent, Waterman, as owner an claimant of the S.S. 'Yaka', is liable to libellant in an amount to be determined at a later hearing.
7. Impleaded respondent, Pan-Atlantic, is liable over to Waterman under the terms of the bare boat charter, for the amount of libellant's recovery.