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LEACH v. MON RIVER TOWING

July 10, 1973

Russell LEACH
v.
MON RIVER TOWING, INC., et al. v. CAMPBELL BARGE LINES, INC.


Snyder, District Judge.


The opinion of the court was delivered by: SNYDER

Snyder, District Judge.

 Russell Leach filed a complaint against Mon River Towing, Inc., Hillman Transportation Company, and Sinclair-Koppers Company alleging that as an employee of Campbell Barge Lines, Inc. performing his assigned duties as a deckhand, he was injured and thrown to the bottom of an empty barge. He alleged varying types of negligence against the parties. Sinclair-Koppers filed an answer; Hillman Transportation Company answered and filed a third party complaint against Campbell Barge Lines alleging that the unseaworthy condition and negligence was that of Campbell and asked for indemnity as to any amounts shown to be owed by Hillman. Mon River answered the original complaint, alleging inter alia that:

 
"3. Plaintiff on December 4, 1972, settled his claim against Campbell Barge Lines, Inc., plaintiff's employer, for damages allegedly arising out of the accident of December 20, 1970, which is allegedly the basis for the present action."
 
"4. As plaintiff's employer was discharged from any liability under Jones Act, General Maritime Law and for maintenance and cure, plaintiff can have no recovery from this defendant."

 All defendants, including the third party defendant Campbell Barge Lines, Inc. filed motions for summary judgment. Briefs were submitted and oral argument on these motions was heard.

 Defendants, Mon River Towing, Inc. and Sinclair-Koppers Company, seek summary judgment on the grounds that since plaintiff executed a release with Campbell Barge Lines, Inc. at Civil Action No. 71-994, the release of the one party should release all parties. Defendant Hillman makes the same argument but also states that if such were not true, third party defendant Campbell would be liable to defendant Hillman for indemnity for any judgment entered against them.

 Third party defendant Campbell seeks dismissal of the third party complaint and/or summary judgment on the grounds that the release executed by Leach exempts defendant Campbell from any further liability.

 MOTIONS FOR SUMMARY JUDGMENT

 Re: Mon River Towing, Inc. Sinclair-Koppers Company Hillman Transportation

 At oral argument the above named defendants placed great reliance on the case of Cates v. United States, 451 F.2d 411 (5th Cir. 1971). The facts in the Cates case are: Frank W. Cates brought suit against the United States and Reynolds Submarine Services Corporation, his employer, (Reynolds), for injuries suffered while leaving the USS NIMBLE and getting into a whaleboat alongside for transportation back to the quartering vessel. On the eve of trial, Cates settled his claim with Reynolds and executed a release in their behalf and their vessels. The United States argued that failure to reserve rights against it expressly in the release operated to absolve the United States from liability. The United States in Cates relied on the general common law rule that the release of one joint tortfeasor operates to release all tortfeasors unless the written instrument contains an express reservation of rights against others. In a footnote in the Cates case the Court stated the various rules governing releases.

 
"The three rules identified are: (i) The ancient common-law rule that a release extinguished the cause of action to which it related, regardless of the wording or attempted reservation of rights; (ii) The First Restatement of Torts rule that a release releases all parties except those against whom rights are expressly reserved; and (iii) the Restatement Second approach that the effect of the release is governed by the intentions of the parties. [Zenith Radio Corp. v. Hazeltine Research, Inc.] 401 U.S. [321] at 343, 91 S. Ct. [795] at 808 [28 L. Ed. 2d 77]."

 The Supreme Court in Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1970), and in Aro Mfg. Co. v. Convertible Top Replacement Co. (1964), 377 U.S. 476, 84 S. Ct. 1526, 12 L. Ed. 2d 457, held that the intentions of the parties to a release governed in an anti-trust case (Zenith) and in a patent case (Aro). In Aro, supra, the Supreme Court specifically rejected the old common law rule and refused to find that the joint tortfeasor was released. We see no reason for not applying the Aro rationale to the instant motions. The applicable rule then is that the effect of the release is to be determined by the intentions of the parties involved in such a release. See also: M. Sobol, Inc. v. A.H. Robins Company, 446 F.2d 546 (2nd Cir. 1971); Ruskay v. Jensen, 342 F. Supp. 264 (S.D.N.Y. 1972); Mustang Oil Company v. Crown Central Petroleum Co., 52 F.R.D. 207 (W.D.N.C. 1971).

 
"It was in sweeping terms as to those protected. But these were limited to 'Reynolds * * * and/or its underwriters and their heirs, executors, administrators, successors and assigns, and their several vessels and * * * the vessel submarine Aluminaut and/or the M/V Privateer and the owners, agents, operators, charterers, masters, officers, and crews, of said vessels * * *.'"

 Cates signed the following:

 
"Do you know that your rights include not only a right to sue for and recover maintenance, cure, and wages, but, also, a right to sue for and recover damages if you can prove that your illness and/or injuries were caused by negligence or by something wrong (unseaworthiness) with the vessel or vessels to which your rights relate; and that you can have your own lawyer advise you further on your rights should you wish to engage [one] before you sign this if you have not already done so."

 In two places, the release stated that Cates was giving up every right he had in the ...


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