Maris, McLaughlin and Kalodner, Circuit Judges.
The issue presented on this appeal is whether the District Court erred in granting appellee third-party defendant's motion for summary judgment, Rule 56, Fed.R.Civ.Proc.,*fn1 against appellant third-party plaintiff, the original defendant. (Third-party plaintiff will hereinafter be referred to as "defendant".)
The original action was instituted in the District Court on February 6, 1963 by John H. Taylor, now deceased, against defendant, Rederi A/S Volo, for damages arising out of personal injuries allegedly sustained by Taylor.
Taylor's complaint alleged that on or about April 11, 1961, while he was employed as a longshoreman on board the S/S Othem, a vessel then "owned, operated and controlled by the defendant" and docked in the Port of Philadelphia, he sustained certain specified personal injuries "due to the unseaworthy condition of the S/S Othem and due to the negligence of the defendant by its duly authorized servants, agents and employees acting within the course and scope of their duties."*fn2 Damages in the amount of $75,000.00 were claimed.
In its amended answer, filed on April 24, 1963, defendant admitted that it owned and operated the S/S Othem at the time in question, but denied that the portion of the vessel where Taylor allegedly sustained his injuries was controlled by it at the time of the accident. The amended answer further averred that Lavino Shipping Company, a stevedore, which it later joined as a third-party defendant, controlled the area where the accident allegedly occurred. Defendant also denied that plaintiff was injured as a result of the unseaworthy condition of the S/S Othem or as a result of defendant's negligence. Defendant's answer also contained two "separate" defenses, one of which was that Taylor was contributorily negligent.*fn3
On March 22, 1963, prior to the defendant's filing of its amended answer, and prior to its joining of Lavino Shipping Company as third-party defendant, defendant took Taylor's deposition. At his deposition, Taylor stated, inter alia, that his injuries occurred when he fell into a space created by the separation of the cargo which was comprised of coca beans.
Subsequently, on September 11, 1963, defendant joined Lavino Shipping Company as a third-party defendant. The third-party complaint alleged: that Taylor was in the employ of third-party defendant at the time of his alleged injury; that at the time of the accident, "Third Party Defendant was performing stevedoring services aboard the Defendant's vessel pursuant to a contract and/or agreement" made between defendant and third-party defendant; that "by virtue of the contractual relationship existing between the parties, Third Party Defendant undertook to and was under a duty and obligation to well and truly perform its services in a safe, proper, competent and workmanlike manner;" that third-party defendant breached this duty in that "it furnished and used improper, unsafe and defective equipment and further that its agents, servants and/or employees conducted cargo operations in a hazardous, negligent, unsafe and improper manner"; that such breach of contract was a "substantial factor in and the cause of Plaintiff's accident and injuries"; that if Taylor's injuries were caused by the negligence of any person other than himself, such negligence was that of third-party defendant and that if Taylor's injuries resulted from the unseaworthy condition of the vessel, such condition was "caused, created and/or brought into play" by third-party defendant. Defendant accordingly prayed for judgment over for indemnity against third-party defendant as to all sums which may be awarded in favor of Taylor and against defendant.
On October 23, 1963, third-party defendant ("Lavino") filed its answer to the third-party complaint*fn4 in which it admitted that it was performing stevedoring services for defendant at the time of Taylor's injury and that Taylor was in its employ at that time. It also admitted that it owed defendant a contractual duty to perform its stevedoring services in a proper and workmanlike manner. However, it denied that it breached this duty and that any such breach was a substantial factor or cause of Taylor's accident or injuries. It also denied that Taylor's injuries were caused by its negligence or that of its agents, servants or employees.*fn5
Taylor died December 25, 1964. On March 17, 1965 his wife, Mary, administratrix of his estate, was substituted as plaintiff.
Thereafter, on March 25, 1965, Lavino filed a "Request for Admissions" in which it requested defendant to admit that it had no evidence concerning Taylor's accident other than that contained in his deposition. The "Request for Admissions" was never answered by the defendant although a 10-day period had been fixed for the filing of an answer.
On May 25, 1965, Lavino filed a motion to strike the third-party complaint and/or for summary judgment in its favor. After argument, the District Court entered an order granting Lavino's motion for summary judgment.*fn6
In an accompanying opinion, Taylor v. Rederi A/S Volo, 249 F. Supp. 326, 328 (E.D.Pa., 1966), the District Court first considered the preliminary question "whether any use of Taylor's deposition against third-party defendant can be made at trial." With respect to this question, the District Court ...