Government is not entitled to indemnification under provisions of the contract.
Finally, the Government contends the stevedore is liable for indemnification on an implied warranty of workmanlike performance, a warranty which was breached when the tightline was created by the negligent operation of the winches.
An implied warranty for workmanlike performance does arise out of a stevedoring contract. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956); Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413 (1959); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964); Williams v. Ocean Transport Lines, Inc., 425 F.2d 1183, 1186-87 (3d Cir. 1970). The Government contends it is entitled to the benefit of this implied warranty unless it is expressly negated in the written contract.
While there are some cases that directly support the Government's contention, e.g., Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 336 F.2d 124, 127 (9th Cir. 1964), cert. denied, 379 U.S. 973, 85 S. Ct. 668, 13 L. Ed. 2d 565 (1965); States S.S. Co. v. Portland Stevedoring Co., 216 F. Supp. 934 (D. Ore. 1963), I conclude they are not controlling in this case. First, none of them deal with the specific indemnity clause which is before me. This provision is part of a Government form that has constituted the basic agreement between the United States and countless stevedores. Since the Government is the largest employer of stevedores in the country, it would seem that hundreds of indemnification cases must have been litigated but none has been cited interpreting this clause as giving rise to a recovery on an implied warranty theory.
Second, I find that the express terms of the contract preclude implied terms on the same subject matter. The indemnification clause encompasses the full liability of the stevedore for its negligence. The provision is one for general liability, subject to specific limitations. Under certain circumstances described by the contract, the stevedore must indemnify the vessel-owner; under others, no indemnification is required. If the factual situation is one in which the parties have expressly agreed there be no liability, a court should not amend their understanding to provide relief that was bargained away. This interpretation is supported by many authorities.
In Shenker v. United States, supra, 322 F.2d at 629, a case which did deal with this same indemnity clause, Justice Thurgood Marshall, (then Circuit Judge) stated, "The existence of the express warranty makes it unnecessary for us to consider or rely upon principles of implied warranty." See also D'Agosta v. Royal Netherlands S.S. Co., 301 F.2d 105, 107 (2d Cir. 1962); Evans v. McDermott, Inc., 342 F. Supp. 1390, 1393 (E.D. La. 1972); Roselli v. Shell Oil Co., 293 F. Supp. 1395, 1397 (E.D. La. 1968).
Third, I believe those cases which require an express disclaimer of the warranty of workmanlike performance can be explained quite simply. Most of them deal with a situation in which there was an express indemnity clause, but, unlike the present case, one that did not cover bodily injuries. The stevedores in attempting to evade liability for damages caused by their negligence argued in these cases that the failure to include the specific words "personal injury" in the indemnification clause acted to negate expressly any implied warranty for such damages. The courts uniformly rejected the stevedores' reasoning and held that relief from liability for indemnification under an implied warranty must be clearly and unequivocally expressed. Pettus v. Grace Line, Inc., 305 F.2d 151 (2d Cir. 1962); Caputo v. Kheel, 291 F. Supp. 804, 808 (S.D.N.Y. 1968); DiVittorio v. Skiles A/S Siljestad, 244 F. Supp. 48, 50 (S.D.N.Y 1965). These decisions are inapposite to the case at bar.
Finding no Third Circuit case to the contrary, I conclude the Government cannot recover for breach of an implied warranty of workmanlike performance in the face of the express warranty in the contract.
CONCLUSIONS OF LAW
1. Albert Mascuilli was killed as the result of the parting of a shackle which was one of the component parts of the gear at No. 3 hatch, which had been furnished by the United States and rigged by members of the crew of the USNS MARINE FIDDLER for the use by longshoremen.
2. The defendant's longshoremen negligently operated the after port and forward vang winches so as to exert an opposing pull and thereby place excessive strain on the gear at No. 3 hatch.
3. The Government is bound in this action by the finding of the United States Supreme Court in Mascuilli v. United States, 387 U.S. 237, 18 L. Ed. 2d 743, 87 S. Ct. 1705 (1967), that a prior unseaworthy condition was brought into play by the negligent operation of the winches by the longshoremen.
4. This unseaworthy condition contributed jointly with the negligence of the longshoremen in causing the death of Albert Mascuilli.
5. Clause 12(b) (1) of the parties' contract governs the responsibility of Northern Metal Company to indemnify the Government where the unseaworthiness of the vessel contributes jointly with the negligence of the stevedore in causing the injury.
6. Clause 12(b) (1) provides that the stevedore is relieved of responsibility to reimburse the Government if the unseaworthiness of the vessel contributed jointly with the contractor's negligence to cause injury unless (1) the contractor by exercising due diligence could have discovered the unseaworthiness, or (2) by exercising due diligence could have otherwise prevented the injury.
7. The prior unseaworthy condition could not have been discovered by the defendant through the exercise of due diligence and the defendant, through the exercise of due diligence, could not have otherwise avoided the accident which caused the death of Albert Mascuilli.
8. The limitations upon the disclaimer of responsibility in clause 12(b) (1) do not apply to the circumstances of this case, and the Government is not entitled to recover indemnity from the defendant under the express terms of the contract.
9. Clause 12 is an express warranty of indemnification for the stevedore's negligence. It encompasses Northern Metal Company's total liability to the Government for negligence, and no implied warranty for workmanlike performance is applicable to the factual situation in this case.
10. Plaintiff is not entitled to recover from defendant.
AND NOW, this 28th day of June, 1974, in accordance with the foregoing Findings of Fact and Conclusions of Law, it is ordered that judgment be entered in favor of the defendant, Northern Metals Company, and against the plaintiff, the United States of America, with costs to be assessed accordingly.