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April 26, 1967


The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, District Judge.

 The above captioned action was brought by the plaintiff, Clinton Gilchrist, for injuries sustained by him in August, 1961 while employed by Jarka Corporation to unload sugar from the defendant ship. The ship, in turn, impleaded Jarka as a third party defendant.

 Gilchrist was struck in the head by a sugar scraper, being used by a fellow employee next to him, as they were scraping sugar from the bulkhead of the ship. Plaintiff recovered a judgment against the ship. The ship, in turn, recovered that amount as indemnity from Jarka. The third-party defendant has now filed motions for judgment n.o.v. or, in the alternative, a new trial.

 On a motion for a new trial or for judgment n.o.v., the facts must be taken in the light most favorable to the prevailing party. Plaintiff was struck on the head by a scraper being used by an associate who was working three or four feet away. This associate, a Mr. Mooreman, had complained to his foreman that the scraper was dull (N.T., p. 133) but was not supplied with another (N.T., p. 150). The ship's boss, Mr. O'Brien, testified that his ship was similar to all other sugar ships turned over to him for discharge (N.T., pp. 412-413). On cross-examination, the plaintiff testified that there was nothing wrong with the way the sugar was stowed; however, that through the fault of Jarka's hatch boss the sugar was cut too low by the " clam digger" and the men were forced to work at a level too low for the scraping operation (N.T., pp. 182-186).

 In its motion for a new trial, the third-party defendant raises issues which have been grouped by it in three broad areas. They are: (1) errors stemming from the substantive law of indemnity; (2) those arising out of the "procedural duty" which an indemnitee owes to an indemnitor; and (3) those having to do with the exclusion of alleged relevant evidence.



 The third-party defendant (hereafter Jarka) contends that the Court when charging the jury on the question of liability, committed error in that tort principles of causation were employed to define what was essentially a contract problem. Jarka relies on Italia Soc. Per Azioni, etc. v. Oregon Stevedoring Co., 376 U.S. 315, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964) to sustain its contentions:

It further urges that negligence on the part of the stevedore company or its employees was present in all the above cases, and that the Court characterized the warranty in post-Ryan decisions as one entailing an obligation to perform with reasonable safety and reasonable competency. However, the stevedore's obligation established in Ryan was not merely an escape from the no-recovery consequences of Halcyon, as is evidenced by the fact that recovery of contribution between joint tortfeasors and recovery of indemnity for breach of warranty proceed on two wholly distinct theories and produce disparate results * * * Recovery in contribution is imposed by law and is measured by the relative fault of the joint tortfeasors or shared equally between them, * * *; while recovery in indemnity for breach of the stevedore's warranty is based upon an agreement between the shipowner and stevedore and is not necessarily affected or defeated by the shipowner's negligence, whether active or passive, primary or secondary. (376 U.S. 316 at pp. 321-322, 84 S. Ct. at p. 752.)

 It is true that the Supreme Court has held that tort principles are not applicable in the area of ship-stevedore indemnification, however, I fail to see that the charge given in this case deviated from the holdings of that Court. The following passage from Jarka's brief is relevant here:

For the stevedore's breach of warranty to make him responsible for indemnity, the liability of the ship must have been a result of the breach, or the breach must have "led to" the ship's liability. Ultimate liability is to rest "on the company whose default caused the injury". This is not, and by definition cannot be, combination stuff. (at p. 9).

 Accordingly, when I charged the jury, that if the stevedore breached its warranty, and if that breach was a proximate cause of the plaintiff's injury, the ship was entitled to indemnification, that language was clearly consistent with the doctrine as defined by the Supreme Court. If a breach "led to", or is the cause of an injury it is clearly the proximate cause of said injury.

 The Supreme Court in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956) recognized that the mere fact that a ship was negligent would not, of itself, bar indemnification by a stevedore who breached its warranty of workmanlike service. Thus, although the ship, in the instant case, may have been negligent it was not barred from a ...

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