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UNITED STATES LINES CO. v. MARITIME SHIPCLEANING &

June 29, 1970

UNITED STATES LINES COMPANY
v.
MARITIME SHIPCLEANING AND MAINTENANCE CO., Inc. and Northern Metal Co.


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

I.

 Introduction

 Joseph P. Rodack, a longshoreman, was injured while loading cargo aboard plaintiff's vessel, the SS PIONEER COVE, on July 25, 1961. Rodack sued plaintiff in this Court and recovered a jury verdict of $35,000. Plaintiff thereafter filed this suit in admiralty against Rodack's employer, a stevedoring company, and against the shipcleaning company that had cleaned the ship on July 17 and 23, 1961, based on the theory that the ship is entitled to indemnification from both defendants.

 Who will bear the ultimate financial responsibility for Rodack's injuries is dependent upon the resolution of three issues in this non-jury action. The Court must first determine whether the findings in the original suit of Rodack against the plaintiff are binding on the parties in this subsequent indemnity action. Secondly, it must be ascertained whether the plaintiff is entitled to recover the amount of the Rodack judgment against the defendants on the evidence presented and the theories of liability advanced. Related to this issue is whether the defendants are entitled to directed verdicts on the issue of liability. Finally, if plaintiff is entitled to indemnification from either or both defendants, I must decide whether plaintiff can recover the amounts expended to defend the Rodack suit.

 For the reasons stated hereafter, the findings of the original suit by Rodack against the plaintiff are not binding on the parties to this suit. Further, I find that plaintiff is entitled to recover the amount of the judgment against the shipcleaner, but not against the stevedore. Thus, ultimate responsibility for Rodack's injuries will fall upon the shipcleaners. Since plaintiff's counsel did not present any admissible evidence as to the legal and other related expenses incurred in the defense of the Rodack suit, it is not entitled to any judgment in its favor for the legal and related defense expenses.

 II.

 Findings of Fact

 1. The Court has jurisdiction over the parties and subject matter of this proceeding.

 2. The plaintiff, United States Lines, Inc., formerly known as United States Lines Company (hereinafter referred to as "U.S. Lines"), is a corporation engaged in the operation of merchant vessels, and at all material times to this action it owned, operated, managed and controlled the steamship, the SS PIONEER COVE.

 3. Defendant, Maritime Shipcleaning and Maintenance Co., Inc., (hereinafter referred to as "Maritime") was at all material times a corporation engaged in the business of ship cleaning in the Port of Philadelphia.

 4. Defendant, Northern Metal Company, (hereinafter referred to as "Northern Metal") was at all material times to this action a corporation engaged in furnishing terminal facilities and stevedoring services to merchant vessels in the Port of Philadelphia.

 5. On July 14 and 15, 1961, a cargo of tallow was loaded into the two forward deep tanks in No. 4 hold of the steamship, the SS PIONEER COVE, at Pier 24, South Wharves, Philadelphia. The four deep tanks are located at the bottom of the hold, and when closed constitute the floor of the lower tween deck. (N.T., 69, 142.)

 6. Plaintiff engaged the services of Maritime to clean the holds of the SS PIONEER COVE upon arrival at Pier 80, South Wharves, on July 17, 1961, after tallow had been loaded into the forward deep tanks in No. 4 hold (N.T., 67, 78). This cleaning was understood by Maritime's foreman to include the removal of any tallow spillage from the tank lids of No. 4 hold (N.T., 78).

 7. Maritime's employees carried out the contracted cleaning services on July 17, 1961 by broom sweeping the holds and banding and stacking the dunnage. (N.T., 113, 114.) After inspection of the hold, Maritime's foreman certified to the chief officer of the SS PIONEER COVE that the holds were "cleaned", including the No. 4 lower tween deck. (N.T., 80, 106-107, Exhibit P-12.)

 8. The SS PIONEER COVE, without cargo in the No. 4 hold except for the tallow stowed in the two forward deep tanks, then proceeded to Baltimore and Norfolk to load cargo in other holds on July 18-22, 1961. There was no cargo activity in No. 4 hold at these two ports. (N.T., 81, 82.)

 9. On July 22, 1961 the SS PIONEER COVE returned to the Port of Philadelphia, docking at Northern Metal in order to load government cargo in the remaining hold spaces (N.T., 81-82).

 10. The plaintiff again engaged Maritime to clean and remove dunnage in order to prepare the holds for stowage of the government cargo at Northern Metal. Maritime carried out this cleaning contract on July 23, 1961, at which time, its foreman understood that any debris, including any residue of tallow which had not been removed on July 17, 1961 at Pier 80, should be removed. (N.T., 107-108.)

 11. Maritime's foreman then certified to the ship's chief officer on July 23, 1961 that the contracted cleaning services had been performed after he or one of his men had inspected the holds, ...


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