Biggs, Ganey and Freedman, Circuit Judges.
Plaintiff, a longshoreman, obtained a verdict against the defendant-shipowner for either its negligent conduct or the unseaworthiness of the Matsudasan Maru, a ship upon which he was injured during the unloading operation of bulk sugar. The shipowner in turn recovered a verdict for indemnity against the third-party defendant stevedoring company, plaintiff-longshoreman's employer at the time he was injured. The same jury returned both verdicts. An amount, agreed to by the shipowner and the stevedoring company, was added to the judgment of indemnity. The stevedoring company appeals from the judgments denying its motion for judgment n.o.v. and its motions for a new trial, and the awarding the shipowner its expenses for defending the principal action.*fn1
At the trial, lasting seven days, there was evidence that the hold of the ship in question carried approximately 1,300 tons of bulk sugar and that it was unloaded by means of a large clamshell crane working in a vertical plane. When the loose sugar in the sides of the hold became inaccessible to the jaws of the crane, longshoremen pushed it to the center of the hatch with bulldozers. When the major portion of the loose sugar was removed from the hold, a gang of longshoremen was sent into the hold to sweep and shovel up the remaining sugar on the floor and scrape the sugar which had caked on the bulkheads. The plaintiff-longshoreman, Clinton Gilchrist, was injured when a scraper fell from the hands of one of his fellow workers and struck him on the head. Gilchrist testified, on cross-examination by counsel for the stevedoring company, that if the sugar had been unloaded and scraped in stages, the longshoremen would not have been required to reach as high as they did in order to scrape the caked sugar from the sides of the ship. There also was evidence that the scraper which struck Gilchrist was dull and shorter than the others, and that the longshoremen in the hold did not wear helmets.
From this evidence the jury could have found: (1) The ship was negligent or unseaworthy, or both, because when it was turned over to the stevedoring company, its loading was such as to permit sugar to cake on the bulkheads; (2) The stevedoring company was negligent in unloading the sugar in the manner that it did, such as (a) scraping the caked sugar from the bulkheads, (b) lowering the level of the sugar to such a depth before ordering the workers to scrape the sides, (c) failing to inspect the scrapers and requiring the longshoremen to use sharp scrapers with sufficient length handles, (d) requiring the men to work too close together, and (e) failing to require the longshoremen to wear protective headgear.
The stevedoring company maintains that the jury could have concluded that the conduct of the shipowner in turning over to the stevedoring company a ship with caked sugar on its bulkheads was the basic or real cause of plaintiff-longshoreman's injury, even though that same body might have found that the stevedoring company's conduct was a substantial factor in causing the injury. If the jury came to these conclusions, the argument runs, it had no alternative but to find for the stevedoring company on the issue of indemnity, and the jury should have been so instructed. The trial judge did not misapply the substantive law of indemnity in refusing to charge in this vein. See Crumady v. The J. H. Fisser, 358 U.S. 423, 428-429, 79 S. Ct. 445, (1959); Italia Soc. per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 320-321, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964); Johnson v. Sword Line, Inc., 257 F.2d 541, 545 (C.A.3, 1958).
The stevedoring company also argues that the jury could have found that on the day plaintiff-longshoreman was injured, it performed the unloading operation in the usual manner, which was reasonably proper, and there was nothing unusual until a longshoreman tried to chop away at the caked sugar, and the scraper was not sharp enough to cut into the unforeseeably latently hard bit of sugar. The fault with this argument is that no evidence was produced that the caked sugar was unforeseeably hard.
The stevedoring company also claims that the charge on causation was wrong. The trial judge told the jury that the shipowner is entitled to indemnity if they found that the unseaworthiness of the ship or the negligence which caused the shipowner to be liable was "brought into play" by the stevedoring company's breach of warranty of workmanlike service. He also told the jury that it should find for the shipowner if they concluded that the stevedoring company's breach of its duty of workmanlike conduct "was one of proximate cause of the injury [to plaintiff-longshoreman] and caused the liability of the shipowner." In this connection he told the jury to bear in mind the definitions given in his charge in the principal action where "proximate cause" was defined in part as being such conduct "as to lead reasonable men to regard it as a cause." Because of this charge the stevedoring company maintains that the jury was told that no matter how much they thought the shipowner's liability was in fact caused by the ship itself, they should nevertheless give the shipowner indemnity if the stevedoring company's breach of warranty contributed to that liability even if it were as little as five to ten percent.
Counsel for the stevedoring company did not object to the use of the term proximate cause or its definitions in the charge either in the principal action*fn2 or in the third-party action. The jury had already found in the principal action that the shipowner was liable to the injured plaintiff-longshoreman. This liability stemmed only from the conduct of the stevedoring company. Even if the jury found that the caked sugar made the ship unseaworthy, this condition could not have injured the plaintiff-longshoreman unless it was brought into play or acted upon by the longshoremen. Consequently, the issues remaining to be decided by the jury were: (1) Did the stevedoring company breach its warranty of workmanlike service, and (2) Was there any conduct on the part of the shipowner which was sufficient to wipe out its right to indemnification. The stevedoring company should not be heard to complain of a portion of a charge which was more favorable than that to which it was entitled.
Next, the stevedoring company complains about the charge on latent condition. The trial judge told the jury that a shipowner can recover indemnity from a stevedoring company for its breach of warranty of workmanlike service even though the defect causing the injury was latent and the stevedoring company was without fault. The reason for its objection is that such a charge was inapplicable to the indemnity action. As pointed out by counsel for the stevedoring company, the only possible latent condition in the case was the degree of hardness in the caked sugar on the bulkhead, and on this factual issue evidence was lacking. The scrapers which the stevedoring company brought aboard the ship may have been too dull or too short for the purpose for which they were to be used, but such defects were open to view and not latent. We agree that this portion of the charge was unnecessary.*fn3 However, we are of the opinion that the stevedoring company was not prejudiced by such reference when the charge is considered in its entirety. In summarizing the situation to the jury, the trial judge said:
"* * * The shipowner's negligence is not fatal to recovery against the stevedore in this area of contractual indemnity, and thus there is no application of any theory of primary or secondary negligence. A shipowner can recover from a stevedore for breach of warranty even though the [defect] causing the [injury] was latent, and the stevedore was without fault. The stevedore's implied warranty of workmanlike performance is sufficiently broad to make him liable where there is a failure to furnish reasonably safe equipment pursuant to its contract with the shipowner notwithstanding the fact that the stevedore was not negligent.
"Now let me give you an example of what I mean. Let's take the cable case again. Let's assume a stevedoring company brings onto a ship a cable to life 3 tons and when it looked at it and inspected it in a reasonable manner they would have reason to believe that the cable would in fact, lift 3 tons, but when it lifted 3 tons it snapped in the center and then only after it was broken it became obvious that some of the internal strands were defective * * *. The stevedoring company was not negligent because they inspected it, but, nevertheless, they could be liable because the cable was not reasonably safe equipment to do the job it was intended to be used for."*fn4
We can construe this portion of the charge in the light that the trial judge was telling the jury to what extent the law goes in permitting recovery of indemnity against a stevedoring company by a shipowner and not as specifically referable to the facts of this case. Since there was no evidence of any latent defect in the scraper brought aboard ship by the stevedoring company, the jury could not have been misled by this discussion. Thus the effect of this portion of the charge was to inform the jury that if they believed that any of the equipment supplied by the stevedoring company was not reasonably safe for the purpose for which it was ...