The opinion of the court was delivered by: HIGGINBOTHAM
The above-captioned matter presently before the Court is an action in admiralty wherein the defendants have lodged a third-party complaint against the United States of America (hereinafter the "Government") seeking indemnity or contribution for a pre-trial settlement effected between the plaintiff, Mack G. Coggins, and the defendants, owners of the ship in question.
The recent pronouncement of the United States Supreme Court in Atlantic Coast Line R.R. Co. v. Erie-Lackawanna R.R. Co., 406 U.S. 340, 92 S. Ct. 1550, 32 L. Ed. 2d 110 (1972) should, at least for the moment, dispel any reservations about the viability of the doctrine enunciated in Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952). Notwithstanding the trenchant criticism of Halcyon and the ingenious attempts by shipowners to circumvent its impact, the Supreme Court in its per curiam opinion reaffirmed Halcyon as being the prevailing authority on the subject. Therefore, in view of this revitalization of Halcyon, which under federal maritime law precludes the right of contribution from joint tortfeasors in non-collision personal injury cases, the defendants' request for contribution is denied and the only other question presented before the Court for decision is the defendants' entitlement to indemnity. For reasons hereinafter appearing, the defendants' indemnity claim against the Government must also be dismissed.
Due to the peculiar construction of the Sunny Point dock, the bulwarks of laden vessels were often at the level of the dock or even below it. Consequently, the laden vessel's regular accommodation gangway generally could not be utilized unless there was a very high tide. Normally, after a vessel is approximately two-thirds loaded, use of the ship's regular gangway must be discontinued in order to prevent the gangway from hitting the pier and thus being broken. At this stage of the loading when the ship's regular gangway must be heaved in, the Terminal operator, upon request, would supply a specially constructed, temporary gangway, which is known in the maritime world as a brow gangway or brow.
On the evening of February 15, 1968, a brow gangway was employed to provide access to the SS Thunderbird. Around 8:30 p.m. plaintiff Mack G. Coggins was descending the brow while in the process of helping to load vessel stores (wire, paint, food, etc.) preparatory to sailing the next morning. Coggins had been in the United States Navy for 21 years, having retired the previous June with the rank of Bosun's Mate First Class. While descending the brow during the course of this work, his left foot slipped, causing his body to twist, his leg hitting the banister supporting the handrail. The injuries sustained by Coggins from this fall precipitated the ensuing litigation against the defendants under the Jones Act, 46 U.S.C. § 688.
In the complaint filed by Coggins against the defendants, he demanded damages of $150,000, alleging negligence on the part of the defendants and unseaworthiness of the SS Thunderbird. The defendants impleaded the Government, contending among other things that the brow utilized here was supplied by the Government, that the brow was unsafe and unfit for the uses intended, and accordingly the Government was liable to them under a legal theory sounding either in indemnification (contract or tort) or contribution as a joint tortfeasor. Mounting a three-pronged defense, the Government asserted (1) the defendants by their depositions and evidence adduced at trial have not established beyond a preponderance of the evidence that the brow on which Coggins was injured was actually provided or constructed by the Government; (2) the ship became legally responsible for maintaining the brow in excellent physical condition once the ship acquired possession of the brow and began using it; and (3) the ship was actively negligent in allowing or requiring Coggins to use the brow when it became too steep and/or unsafe.
Alleging that the Government refused to participate in any settlement negotiations or contribute thereto, the defendants prior to trial settled directly with the plaintiff in the amount of $20,000, with an additional payment of $1,466.50 in satisfaction of contractual obligations to plaintiff for maintenance and cure and unearned wages accruing to him for the duration of the voyage during which he was disabled. Without here enumerating the details of Coggins' injuries and the medical treatment received, I have reviewed the relevant portions of the record and conclude that the settlement effectuated by the defendants was reasonable.
Subsequent to the foregoing settlement a non-jury trial was conducted to determine the respective liabilities of the defendants and the Government. Much of this opinion will be devoted to outlining the facts as they were reconstructed in the depositions and at the trial and thus hopefully clarifying and elucidating what actually transpired.
I. THE PHYSICAL DISSIMILARITIES OF GOVERNMENT CONSTRUCTED BROWS.
When an Army brow was requested the standard Terminal procedure would require the Army carpenters to deliver the brow to a location on the berth which was on the opposite side of the pier at which the vessel was docked. Stevedore personnel would then transport it from that position on the wharf to the loading apron, where the requesting ship's crew would secure the brow to the ship; the Army never participated in installing any brow. The evidence establishes that the brow used by the SS Thunderbird on the evening of the accident was brought to the ship by the stevedore, Ryan Stevedore Company, and either the stevedore or the ship's crew affixed it to the ship. Rollers or skid boards for use underneath the brow were not furnished by the Army, but were made available to the ship by the stevedore.
An Army-constructed brow had a very short life. After being used by two or three ships, the brows were either discarded or repaired. All the discarded brows were burned and the lumber was never reused. New brows were built at the rate of three or four per week.
The wooden brows built by the Army were in 12, 14, and 16 foot lengths, with the majority being 14 feet in length. The 14-foot brow was specially designed for use by Victory-type vessels, such as the SS Thunderbird. These wooden brows had been used for at least two years before Coggins' accident by some 600 vessels without a reported accident.
The brow on which Coggins fell differed substantially from an Army-constructed brow. The Chief Mate of the SS Thunderbird, John C. Powers, testified the brow used that evening was 10 or 12 feet in length. Coggins, on the other hand, described the brow as being 18 feet in length. ...