were found by the District Court to be the primary cause of the accident in Crumady, while the District Court in this case found the actions of the stevedore only a contributing proximate cause. The Supreme Court in Weyerhaeuser pointed out 'that in the area of contractual indemnity an application of the theories of 'active' or 'passive' as well as 'primary' or 'secondary' negligence is inappropriate.' 355 U.S. at page 569, 78 S. Ct. at page 442.
'In determining whether the actions of Calmar were such as to bar recovery, we must necessarily compare them to those of the owner in Crumady. Here, the ship did not inspect the light and did not provide seizing. In Crumady the ship's crew supplied a cut-off device which they had set at twice the rated limit of the rigging. Certainly supplying the defective cut-off device was no less a contractual violation there than the supplying of the unseized cargo light here. If the former did not preclude recovery, then, under the principle announced in Crumady, we think the latter should not.' (Emphasis supplied.)
The recovery in this case is based on contractual principles of causation. See authorities at pp. 16 and 17 of Document No. 76; cf. Reddick v. McAllister Lighterage Line, 2 Cir., 1958, 258 F.2d 297, 303.
The outline of defendant's contentions in the attached letter of March 6, 1961, has been carefully considered, but the record does not justify any change in the Findings of Fact and Conclusions of Law previously filed (Document No. 76). See brief of plaintiff docketed as Document No. 81.
III. Motion To Dismiss For Want of Jurisdiction
Page 2 of Document No. 76 discloses that the trial judge concurs in the opinion
dated May 1, 1959 (Document No. 38), holding that this court has jurisdiction of this third-party action. However, it is doubtful whether the trial judge has any authority to review the holding of that opinion. See TCF Film Corp. v. Gourley, 3 Cir., 1957, 240 F.2d 711, 723; United States v. Wheeler, 3 Cir., 1958, 256 F.2d 745, 746-748, certiorari denied 1958, 358 U.S. 873, 79 S. Ct. 111, 3 L. Ed. 2d 103; Two Guys from Harriosn-Allentown, Inc. v. McGinley, 3 Cir., 1959, 266 F.2d 427, 432.
Defendant's letter of March 16, 1961, has been attached to the backer on defendant's brief (Document No. 80).
For the above reasons, these post-trial motions will be denied.