6-9 of D-2); Statement of Orval Cooper dated 1/21/57 (3 PD-3).)
Furthermore, there was testimony concerning the presence of these rock-like or hard lumps of sugar during the trial which was not objected to by counsel for defendants.
Once this testimony became evidence in the case, there was implied consent to try the issues raised by such evidence and they are to be treated as if raised in the pleadings (see first sentence of F.R.Civ.P. 15(a)).
The jury may well have found that, although the payloader was a seaworthy device to use in unloading bulk sugar with some hard lumps in it, the ship failed to exercise reasonable care in not removing, by other means, prior to operation of the payloader, the many such hard and large lumps which they found were in this hold from 1:30 to 3:30 in the very cold weather on the early morning of January 17, 1957.
For these reasons, the foregoing Motions will be denied.
III. Motion of Third-Party Defendant To Strike Fourth Interrogatory (Document No. 56),
Motion of Third-Party Defendant for Judgment on Whole Record (Document No. 57),
and Motion of Original Defendant for Judgment of Indemnity, Costs, Expenses in Defending the Case and Counsel Fee (N.T. 1074)
As noted under II above (see reference at footnote 13 and also N.T. 793-4), the third-party defendant specifically stated that he had no objection to question 4 prior to the charge. However, he made this statement after the charge (N.T. 1016):
'Your Honor, please, I wish to take exception to each word, each sentence, each paragraph of your charge relative to Question No. 4.'
Question 4 and the jury's answer are as follows:
'4. Did any fault described in question 1 or 3 above which you have answered 'yes' result from any failure of the stevedoring company (third-party defendant, Jarka Corporation of Philadelphia) to perform its obligation to discharge the cargo, including the use of equipment incidental thereto, in a reasonably safe and workmanlike manner?
'Yes or No Yes'
The charge concerning this question is at N.T. 1001-1003.
A question substantially similar to the above question 4 was approved in Curtis v. A. Garcia y Cia, 3 Cir., 1959, 272 F.2d 235, 238. Third-party defendant places the principal reliance of its contention that no right of indemnity exists in this case on King v. Waterman Steamship Corp., 3 Cir., 1959, 272 F.2d 823, certiorari granted 1960, 362 U.S. 926, 80 S. Ct. 754, 4 L. Ed. 2d 745.
However, the court emphasized in the King case, supra, at page 825, 'the absence of a contractual relation between the parties * * * bottomed on a promise, express or implied in fact * * *.' The court was careful to point out in footnote 1 '* * * no evidence was introduced concerning this matter' (circumstances under which the stevedoring company did the unloading). The King decision was also careful to distinguish Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413, where the charterer operating the vessel had contracted with the stevedoring company to do the unloading. In this case, the contract under which the stevedoring company unloaded this vessel is in evidence
and, among other undertakings, Jarka agreed to 'move and trim it into the marine gantry elevator * * * in keeping with the best operating practices.'
As pointed out above at page 580 of 188 F.Supp., Refining Company, as charterer of this vessel for this voyage under the Sugar Charter Party of December 26, 1956, is a party to this unloading contract, so that the following language from the King decision is pertinent (pages 825-826):
'The evidence showed that the shipowner had chartered the vessel to an operator who had contracted with the stevedoring company to unload the vessel. In these circumstances the Supreme Court ruled that 'the warranty (of workmanlike service) which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel's owners are parties to the contract or not.' 358 U.S. at page 428, 79 S. Ct. at page 448. The court added that the circumstances under consideration suffice 'to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries.' Ibid. Thus, the actual holding of the Crumady case seems to be that a contractual undertaking of the stevedore with the operator of a ship, who is not the owner, to unload in a safe and workmanlike manner inures to the ship.'
Although there was an intermediate Time Charter intervening between the shipowner and the charterer who had contracted with Jarka to do the unloading, this additional contract is not significant in the light of the above-quoted language used by the Supreme Court of the United States in Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 428, 79 S. Ct. 445, 3 L. Ed. 2d 413.
For these reasons, the foregoing Motions of Jarka will be denied.
Defendants seek a modification of the order of March 18 (N.T. 1094-105) to include a judgment for reasonable attorneys' fees, their expenses in defending against plaintiff's claim, including costs, as well as the amount paid on account of the dollar sum, with interest, specified in the March 14 judgment (Document No. 45), in view of the answers to the first four special questions establishing no fault of the ship's personnel as between them and the stevedoring company. In view of the conclusion that defendants are entitled to indemnity and the provisions of the June 30, 1954, stevedoring contract (D-4),
the order of March 18 will be modified accordingly. Accord, Shannon v. United States, 2 Cir., 1956, 235 F.2d 457, 459; cf. Frommeyer v. L. & R. Construction Co., 3 Cir., 1958, 261 F.2d 879, 69 A.L.R.2d 1040; A/S J. Ludwig Mowinckels Rederi v. Commercial Steve. Co., 2 Cir., 1958, 256 F.2d 227, 232. But cf. Crumady v. Joachim Hendrik Fisser, D.C.D.N.J.1959, 176 F.Supp. 595.
Counsel may submit an appropriate order in accordance with the foregoing Memorandum Opinion.