The opinion of the court was delivered by: TEITELBAUM
On June 23, 1972, the plaintiff, Joseph Saus, fell and sustained injuries while attempting to secure two barges owned by third-party defendant Dravo Corporation. Delta Concrete Company, defendant and third-party plaintiff in this case, was the plaintiff's employer and the owner of the tug boat which was towing the barges at the time. The case is before the Court on Dravo's motions for judgment on its counterclaim, for judgment against the defendant and for judgment that the plaintiff may not recover from the third-party defendant. In making its motions, which shall be treated as a motion for judgment on the pleadings under F.R. Civ. P. 12(c), Dravo makes two basic contentions which are set out below.
" Admiralty or Maritime Claims
A pleading or count setting forth a claim for relief within the admiralty or maritime jurisdiction . . . of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82. . . ."
The significance of Rule 9(h) is that it leads to Rule 14(c), which provides:
"When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third party defendant who may be wholly or partly liable, either to the plaintiff or to the third party plaintiff, by way of remedy over, contribution, or otherwise. . . ."
Dravo's procedural contention herein is essentially twofold: first, that since the plaintiff has failed to allege an admiralty or maritime claim under Rule 9(h), defendant Delta is then unable to bring Dravo into the case using Rule 14(c); and second, that the trial of a Rule 9(h) maritime claim and a Jones Act jury trial are mutually exclusive concepts because of Rule 38(e).
A careful consideration demonstrates that both of these contentions are without merit.
The first part of Dravo's argument is without merit because it is clear that an admiralty or maritime claim within the meaning of Rule 9(h) is alleged in plaintiff's complaint. As to the second part of his procedural argument, Dravo's contention must likewise fail. Both the Supreme Court and the Third Circuit have met with the issue presented and decided it against Dravo's contentions. In Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 21, 83 S. Ct. 1646, 1650, 10 L. Ed. 2d 720 (1963), it was stated: "Only one trier of fact should be used for the trial of what is essentially one law suit [the trial of a Jones Act claim along with an admiralty or maritime claim] to settle one claim split conceptually into separate parts because of historical developments". Haskins v. Point Towing Co., 395 F.2d 737, 740 (3d Cir. 1968) is also unequivocally in point against Dravo's argument. Dravo's procedural argument is without merit.
Dravo's second major contention is that Delta Concrete can be entitled to neither contribution nor indemnity, should joint liability be established, on the basis of Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952). Dravo argues that because this is so, it should be dismissed from the action.
In the Halcyon case, an employee of the Haenn company was injured while making repairs on a vessel owned by Halcyon. The employee sued Halcyon in the Eastern District of Pennsylvania for negligence and unseaworthiness. Halcyon sought contribution and brought in Haenn as third-party defendant. The district court allowed evidence of the degree of negligence of the parties and the jury returned a verdict that Haenn was 75% at fault and Halcyon 25%. Nevertheless, the district court held that damages should be apportioned equally between Halycon and Haenn. On appeal, the Third Circuit Court of Appeals sustained Halcyon's right to contribution,
but limited contribution to the amount of Haenn's liability under the Longshoremen's and Harbor Workers' Act.
The Supreme Court reversed. Justice Black, writing for the majority, reasoned that while contribution between joint tortfeasors in a case where two ships had collided was an "established doctrine," contribution between joint tortfeasors had never been expressly
applied by the Court in a non-collision case. The majority opinion "concluded that it would be unwise to attempt to fashion new judicial rules of contribution", in view of the complexity of the issues and interests involved.
Inasmuch as Congress had "already enacted much ...