Before KALODNER, STALEY and HASTIE, Circuit Judges.
On this appeal we are called on to determine a shipowner's right to indemnity from a stevedoring company for damages paid to a longshoreman for personal injuries sustained during the loading of a ship.
James Hodgson, a longshorman employed by Murphy-Cook & Company, the stevedoring company, commenced an action against Lloyd Brasileiro Patrimonio Nacional ("shipowner") for personal injuries inflicted on him aboard its ship during a loading operation. The theory of Hodgson's suit was that the ship was unseaworthy and that the shipowner was negligent in failing to maintain or inspect a winch used in loading, or to warn him of its dangerous condition. The winch, operated by an employee of the stevedoring company, was part of the gear supplied by the shipowner under its written stevedoring contract. The evidence showed that on the day of and immediately prior to the accident, the brakes of the winch failed to hold, causing drafts to drift past their target. Hodgson was injured when a crate being lowered into the ship's hold struck him as the draft failed to stop when the brakes were applied.
The shipowner joined the stevedoring company as third-party defendant and maintained in the district court that Hodgson's injury was caused by a failure to properly use the winch, i.e., that the stevedoring company failed to perform its work in a safe, proper and workmanlike manner. Hodgson introduced evidence to show that the accident was caused by a defectively operating winch. The jury, in answer to a special interrogatory, found that the shipowner was not guilty of negligence but, based upon a finding of unseaworthiness, made an award in favor of Hodgson against it. That award has been satisfied and is not now before us. However, the district court's refusal to grant the shipowner's motion to enter judgment in its behalf against the stevedoring company or, alternatively, to grant a new trial form the basis for this appeal.
The shipowner contends that it is entitled to indemnity as a matter of law because the stevedoring company, once it became aware of defects in the winch, should have ceased using it until repaired. Relying on several recent Supreme Court decisions, the shipowner also asks this court to overrule its decision in Hagans v. Farrell Lines, Inc., 3 Cir., 1956, 237 F.2d 477.*fn1 In this regard, it asserts that the issue here is not whether a contractual right of indemnity existed, but, more precisely, what is the "effect of the admittedly existing contract." In the alternative, the shipowner contends that it is entitled to a new trial because of an erroneous charge to the jury.
Under the contract, the stevedoring company was required to "provide all necessary stevedoring labor, including winchmen, * * * and such other stevedoring supervision as are needed for the proper and efficient conduct of the work." It also served to impose upon the shipowner the duty to supply "booms and adequate winches, in good order and with sufficient steam or current for their efficient operation * * *." Under this agreement, the stevedoring company was not required to act as an insurer against any loss that the shipowner might suffer, or to maintain the winches. Calderola v. Cunard S.S. Co., 2 Cir., 279 F.2d 475, certiorari denied, 1960, 364 U.S. 884, 81 S. Ct. 172, 5 L. Ed. 2d 104. Rather, such language constitutes a contractual undertaking by the stevedoring company to perform its services in a workmanlike, proper and reasonably safe manner. 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 Operating Co., 1958, 355 U.S. 563, 565, 78 S. Ct. 438, 2 L. Ed. 2d 491; Calderola v. Cunard S.S. Co., supra. Whether the stevedoring company's conduct constituted a breach of this provision was, of course, a question of fact for the jury. Weyerhaeuser S.S. Co. v. Nacirema Operating Co., supra.
The shipowner candidly concedes that if our decision in Hagans "is still good law," its contention, that the judgment must be reversed as a matter of law, cannot prevail. What makes this case different, however, is that in Hagans we held, as a matter of law, that there was no right to indemnity, whereas here, the contractual right to indemnity is admitted, but the jury, in a special interrogatory submitted to it, found that the stevedoring company had performed its services in a "workmanlike, safe, and proper manner." Faced with this fact, the shipowner in effect then takes the position in its reply brief that this finding is against the weight of the evidence. The shipowner forgets that an appellate court will not interfere with a judgment entered on a verdict returned by a jury simply because of its opinion as to the weight or preponderance of the evidence. Liberty Mutual Insurance Co. v. Thompson, 5 Cir., 1948, 171 F.2d 723; Harnick v. Lilley, 8 Cir., 1948, 167 F.2d 159; 5 Moore's Federal Practice 38.08(5), p. 89. In any event, that finding is fully supported by the record. In light of this, we certainly cannot say that the shipowner was entitled to judgment as a matter of law.
The accident occurred at approximately 9:30 a.m. on December 19, 1956. Danelli, the winch operator, testified that shortly after he commenced work on that day it became apparent that the brake on the winch was not properly functioning and that it slipped, causing drafts to drift past their target. He immediately notified one Horan, a hatch foreman for the stevedoring company, who, in turn, obtained a member of the ship's crew to repair the winch. It will be recalled that the shipowner was obliged to maintain the winches under the stevedoring contract. Another longshoreman, called as a witness for Hodgson, testified that the following then occurred:
"Q. What did you see with respect to anyone working on the winches? A. One of the crew members, whether he was the electrician or not I don't know, but you ordinarily do not get an electrician to repair the winches when you have difficulty with them. So one of the crew members was working on the winches and he was talking to Mr. Danelli at the time, to keep working them so he could make the proper adjustment.
"Q. Did you observe approximately how long he worked on the winches? A. We weren't held up over five or ten minutes at the most.
"Q. Did you see where he was working on the winches? A. Yes, he was directly behind the winch on the opposite side from where I was standing.
"Q. Did you see what if anything he did? A. No, I couldn't. I know he had the cover off of it, which he had to take off to work on it. Whether he worked on the brakes or the electrical part I don't know, but they are ...