would seem that it is upon this alleged breach of the implied contract that plaintiff brings the present action.
However, the fatal defect to plaintiff's argument is the assumption that defendant has breached its contractual duty. In the longshoreman's action a number of different results may be reached, only one of which would give plaintiff a cause of action for indemnity. It might be determined that neither plaintiff nor defendant are liable to Raymond, in which case no right of indemnity can arise. Or, it may be decided that Raymond's injuries were caused solely by the plaintiff's primary negligence and/or the unseaworthiness of plaintiff's vessel, not brought about by action of the defendant or its employees, which again would bar any action over against defendant. And it could be found that plaintiff and defendant were concurrent joint tortfeasors which would preclude any action between them. Halcyon Lines et al. v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143. Finally, it is possible that defendant may be held solely liable. But in any event it is obvious, because of these various contingencies, that we cannot permit plaintiff to pursue this action further at this time. Plaintiff is assuming a fact which is necessary of proof, namely, that defendant did breach its contractual duty.
There are other cogent reasons why plaintiff cannot now maintain this action. In Seavey & Scott's Notes on Restatement of Restitution, Section 77(1),
relied upon by plaintiff in advancing its argument concerning agreements to exonerate, the following comment appears: (p. 104)
'A secondary obligor has a conditional claim against the primary obligor before payment upon the obligation, although he has no cause of action for indemnity:'
It is quite clear from the authorities that before one can bring any action for indemnity, there must at least be a legal obligation fixed upon the indemnitor to pay.
Plaintiff, without attempting to show that the implied contract with defendant is one of indemnity against liability as distinguished from one against loss or damage, refers us to the following statement:
'The necessity for actual damage to the indemnitee as a condition to the liability of the indemnitor depends upon the terms or conditions contained in the contract, actual damage being required in the case of a strict contract of indemnity against loss or damage, and none in the case of an indemnity against liability.' 27 Am.Jur. 'Indemnity', Sec. 20.
But this does not mean, as plaintiff would have us believe, that the legal liability of the indemnitee need not first be established.
'Where the contract is one of indemnity against liability as distinguished from indemnity against loss or damage, it has very generally been held that an action may be brought and recovery had as soon as the liability is legally imposed. And it is sufficient to show that a judgment has been recovered against the person indemnified, although such judgment remains unpaid. But a mere claim or demand against an indemnitee when no legal liability exists does not give rise to a right to indemnity under an agreement to indemnify against liability in the sense of accrued liability.' 27 Am.Jur. 'Indemnity', Sec. 22.
And the following statement by Chief Judge Leahy in Sorensen v. Overland Corp., D.C.1956, 142 F.Supp. 354, at page 361,
is in keeping with what has been previously said:
'Indemnity contracts are 1. against liability, or 2. indemnity against loss or damage. The distinction between the two is obvious. Indemnity against liability accrues and the statute of limitation begins to run when indemnitor-liability becomes fixed and ascertained or as soon as the debt becomes due. Indemnity against loss or damage does not accrue (nor does the statute begin to run) until the indemnitee has made payment or has actually suffered loss or damage.'
So regardless of what type contract existed between plaintiff and defendant, it is clear that there must first be a legal liability imposed on the indemnitee. The complaint is therefore premature until such time as this should occur, and, defendant's motion to dismiss must be granted.