The opinion of the court was delivered by: DUSEN
As the result of a severance (Document No. 61) of the principal action by a longshoreman for injuries received while unloading third-party plaintiff's vessel, this third-party action filed November 24, 1954 (Documents Nos. 54 and 68) against the consignee of the ore cargo, as third-party defendant, was not presented to the jury during the trial in which they returned a verdict for the longshoreman on the issue of liability. Subsequently, the damages suffered by the longshoreman were stipulated to be $ 27,000. The jury returned a verdict in favor of the plaintiff (longshoreman) and against the defendant-third-party plaintiff on the issue of liability on January 13, 1955 (see docket entry on page 146 of Vol. 90, Clerk's Civil Docket) and subsequently the parties agreed on the amount of damages. On March 4, 1955, the principal action was dismissed as the result of a stipulation of counsel (Document No. 65).
After numerous unsuccessful attempts to adjust this third-party action, it was tried to the court (see Document No. 75) and is now before the court for decision. The defendant-third-party plaintiff will be called, from this point in the opinion, 'plaintiff' and the third-party defendant will be called 'defendant.'
Plaintiff's requests for findings of fact (Document No. 76) numbered 1, 4, 5 with words 'embodied in the bill of lading' deleted, and 6-14 are adopted as Findings of Fact of the court.
Defendant's requests for findings of fact (Document No. 77) numbered 1-4, 5 with the words 'and was' inserted in the first line on page 2 after the word 'plaintiff,' 6 and 8-13 are adopted as findings of fact of the court.
These findings of fact are supplemented by the following discussion.
Lavino Shipping Company, on behalf of defendant, made all the arrangements for and carried out the discharge of this cargo in the same way that it had on numerous previous occasions when such ore cargo had been shipped under F.I.O. bills of lading from the Philippines to Philadelphia for defendant as consignee. Although the F.I.O. (free-in and out) bill of lading (Exhibit 3P-1) only requires a consignee (or the shipper) to bear the cost of the unloading (N.T. 18, 28-30 and 88), the practice followed between plaintiff and defendant on previous occasions that defendant would arrange for the unloading by the Lavino Shipping Company on its behalf became an implied term of each contract of F.I.O. shipment of ore from the Philippines to Philadelphia and was a term of the contract covering this shipment, only part of such agreement being integrated in the F.I.O. bill of lading marked 3P-1 (see N.T. 31-33, 35, 40-41, 44-45, 52 and 235(e), Restatement of Contracts). The agreement that defendant would arrange for the discharge of the cargo became firm at the time the booking letter
Paragraphs 9 and 11 of plaintiff's requests for findings of fact
describe how the injuries to the longshoreman were caused by the use by the stevedoring company, employed by defendant to discharge the cargo (Exhibit 3P-2), of an inadequate and improper wire, which was not fit or proper for the use to which it was put. Wherever an agreement has been made with an owner or operator of a ship requiring a party to be responsible for the unloading, that party is obligated to see that it is done in a safe, workmanlike manner and to indemnify such owner or operator of the ship for failure to comply with that undertaking. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133; Weyerhaeuser S.S. Co. v. Nacirema Co., 1958, 355 U.S. 563, 78 S. Ct. 438, 2 L. Ed. 2d 491; Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413; Waterman S.S. Co. v. Dugan & McNamara, 1960, 364 U.S. 421, 81 S. Ct. 200, 5 LEd.2d 169. In the Waterman case, supra, the court said, 364 U.S. at pages 423-424, 81 S. Ct. at page 201:
'This warranty of workmanlike service extends to the handling of cargo, as in Ryan, as well as to the use of equipment incidental to cargo handling, as in Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563 (78 S. Ct. 438, 2 L. Ed. 2d 491). The warranty may be breached when the stevedore's negligence does no more than call into play the vessel's unseaworthiness. * * *
'* * * the stevedore's assumption of responsibility for the shipowner's damages resulting from unsafe and improper performance of the stevedoring services was unaffected by the fact that the shipowner was not the party who had hired the stevedore. * * *
"* * * The warranty 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. That is enough to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries. Restatement, Law of Contracts, 133. Moreover, as we said in the Ryan case, 'competency and safety of stowage are inescapable elements of the service undertaken.' 350 U.S., at (page) 133 (76 S. Ct. at page 237). They are part of the stevedore's 'warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product.' Id., (350 U.S.) at (pages) 133-134 (76 S. Ct. at page 237). See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (L.R.A.1916F, 696).
"We conclude that since the negligence of the stevedores, which brought the unseaworthiness of the vessel into play, amounted to a breach of the warranty of workmanlike service, the vessel may recover over.' (Crumady ...