The opinion of the court was delivered by: HUYETT
Congress in 1972 gave careful consideration to the compensation scheme provided by the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 901 et seq. (1970). Among the matters extensively treated in the 1972 Amendments to the Act, 33 U.S.C. § 901 et seq. as amended (Supp. II 1972), was the question whether third-party suits should be allowed by the longshoreman against the vessel which caused the longshoreman to be injured. Congress did provide for such suits when the vessel's negligence caused the injuries. 33 U.S.C. § 905(b) (Supp. II 1972). The cases before us present the question whether any recovery obtained by the longshoreman as a result of the vessel's negligence should either be diminished or be allowed against the longshoreman's employer -- the stevedore -- when its negligence is a concurrent cause of the injuries.
In each case a longshoreman seeks to recover damages against the defendant vessel owner as a result of injuries caused while working on the vessel.
The basis for recovery is alleged to be that the vessel owner was negligent. The vessel owners have filed third-party complaints against the longshoremen's employers alleging that the third-party defendant stevedores were negligent in causing injury to plaintiffs and failed in their contractual duty to perform their services in a competent and workmanlike manner causing injury to plaintiffs. In the alternative it is alleged that if the acts or omissions of the third-party defendants contributed to plaintiffs' injuries, the vessel owners are entitled to a credit or reduction of 50% of any damages awarded to plaintiffs.
The second amended third-party complaints seek (1) full or partial indemnity from third-party defendants for some or all of the damages which may be awarded to the plaintiffs in the proceedings, as well as all legal fees, costs and expenses incurred and expended by defendants and third-party plaintiffs, (2) a credit or reduction of 50% of any and all damages adjudged and awarded to the plaintiffs in these proceedings, (3) contribution from third-party defendants for a proportionate share of any amount of damages adjudged and awarded to plaintiffs in these proceedings, or (4) contribution or indemnity from third-party defendants to the extent of all medical expenses and compensation paid or payable pursuant to third-party defendants' legal liability therefor under the terms and provisions of the Longshoremen's and Harbor Workers' Compensation Act, said amount to be applied as a credit or set off against whatever damages are awarded to plaintiffs in these proceedings.
The third-party defendant stevedores have moved to dismiss the second amended third-party complaints for failure to state claims upon which relief can be granted. And the plaintiff in LUCAS has moved to strike the vessel's answer setting forth a 50% credit as a defense if the stevedore's negligence also caused plaintiff's injuries. We will grant these motions.
DEVELOPMENT OF THE THIRD-PARTY SUIT
Longshoremen's remedies historically have been subject to the crosswinds sweeping o'er land and sea. Although employed by the land-based stevedore, the longshoreman typically performs his services on the vessel while it is in navigable waters. ATLANTIC TRANSPORT CO. v. IMBROVEK, 234 U.S. 52, 58 L. Ed. 1208, 34 S. Ct. 733 (1914), held that admiralty has jurisdiction over a suit by a longshoreman against his employer for injuries occurring on the vessel while it is in navigable waters. With respect to the maritime nature of the longshoreman's work the Court stated: "Formerly the work was done by the ship's crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class 'as clearly identified with maritime affairs as the mariners. '" ATLANTIC TRANSPORT CO. v. IMBROVEK, 234 U.S. supra at 62. The theme that work performed on the vessel afforded longshoremen the benefit of admiralty remedies has been the source of much of the conflict Congress sought to resolve in the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act.
A. ENACTMENT OF A WORKMEN'S COMPENSATION SCHEME
Tension between the two great bodies of law governing affairs of the sea and of the land began when the Court in SOUTHERN PACIFIC CO. v. JENSEN, 244 U.S. 205, 61 L. Ed. 1086, 37 S. Ct. 524 (1917), asserted that a state compensation scheme providing benefits for a longshoreman injured on navigable waters was incompatible with the need for uniformity in maritime law. In rapid succession the Court struck down two further attempts by Congress to bring longshoremen within the ambit of state compensation acts. KNICKERBOCKER ICE CO. v. STEWART, 253 U.S. 149, 64 L. Ed. 834, 40 S. Ct. 438 (1920), held unconstitutional an amendment to the "saving to suitors clause"
allowing application of state compensation laws to injuries occurring on the vessel. WASHINGTON v. DAWSON & CO., 264 U.S. 219, 68 L. Ed. 646, 44 S. Ct. 302 (1924), invalidated a statutory amendment similar to that involved in STEWART.
True to its reasoning in IMBROVEK the Court then held that longshoremen were seamen within the meaning of the Jones Act, 46 U.S.C. § 688, and could, therefore, recover under that Act against the stevedore-employer for the latter's negligence. INTERNATIONAL STEVEDORING COMPANY v. HAVERTY, 272 U.S. 50, 71 L. Ed. 157, 47 S. Ct. 19 (1926). The Jones Act provided the longshoreman with an attractive negligence remedy against his employer. The Jones Act plaintiff was not subject to the assumption of risk or contributory negligence defenses. This situation was altered, however, when Congress enacted the Longshoremen's and Harbor Worker's Compensation Act making the longshoreman's remedy under the Act the exclusive method of relief against the employer.
See SWANSON v. MARRA BROTHERS, INC., 328 U.S. 1, 90 L. Ed. 1045, 66 S. Ct. 869 (1946) (holding that the Harbor Workers' Act provided the exclusive remedy by the longshoreman against his employer and that he could not sue under the Jones Act).
Liability of the employer under the Act likewise was to be "exclusive and in place of all other liability of such employer to his employee, his legal representative, husband or wife, parents, defendants, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death * * *." § 5, 44 Stat. 1426, as amended, 33 U.S.C. § 905 (1970). The Act permitted the longshoreman, however, to bring an action against any third party who may have caused the injuries. § 33, 44 Stat. 1440, as amended, 33 U.S.C. § 933 (1970). The admiralty remedy of unseaworthiness became the predominant relief sought in these third-party actions.
B. THE DOCTRINE OF UNSEAWORTHINESS
Historically, the vessel's duty to provide a seaworthy ship was available only to the seaman and then only in limited circumstances. The seaman could not recover for the operating negligence of the master in giving an order which caused the seaman injury. THE OSCEOLA, 189 U.S. 158, 47 L. Ed. 760, 23 S. Ct. 483 (1903).
Furthermore, "the shipowner's liability in American Courts, as in the English, was limited to cases in which he had failed to use reasonable care to provide proper appliances, and liability did not attach where mariners' injuries resulted from the failure of those aboard the vessel to make proper use of such appliances." F. Tetreault, Seamen, Seaworthiness, and the Right of Harbor Workers, 39 Cornell L.Q. 381, 392 (1954) (footnote omitted).
Later cases, however, have established the doctrine of seaworthiness of the vessel as an absolute non-delegable duty without regard to negligence owed to the seaman, the longshoreman and other harbor workers injured on the vessel. MAHNICH v. SOUTHERN S.S. CO., 321 U.S. 96, 88 L. Ed. 561, 64 S. Ct. 455 (1944), established the warranty of seaworthiness to be absolute. Harking back to the maritime nature of the longshoremen's work articulated in IMBROVEK, supra, the Court in SEAS SHIPPING CO., INC. v. SIERACKI, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946), held that the warranty of seaworthiness was available to the longshoreman. POPE & TALBOT, INC. v. HAWN, 346 U.S. 406, 98 L. Ed. 143, 74 S. Ct. 202 (1953), extended the warranty of seaworthiness to other harbor workers injured on the vessel. The warranty was also available to the harbor worker even though he was directly employed by the vessel. REED v. YAKA, 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349 (1963).
The scope of the liability imposed on the vessel by the doctrine of seaworthiness was broad. As stated by one commentator:
"Since Mahnich, courts have found liability under the warranty of seaworthiness for such conditions as defects in cargo containers,
improper stowage of cargo,
the presence of extraordinarily hostile or aggressive seamen,
the requiring of two men to do the work of four,
faulty ship's structure
defective equipment brought aboard by the stevedore,
and incompetent personnel.
" Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 10 L. Ed. 2d 297, 83 S. Ct. 1185 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962).
n.34 " Gindville v. American-Hawaiian S.S. Co., 224 F.2d 746 (3d Cir. 1955); Amador v. A/S J. Ludwig Mowinckels Rederi, 224 F.2d 437 (2d Cir.), cert. denied, 350 U.S. 901, 100 L. Ed. 791, 76 S. Ct. 179 (1955); Palazzolo v. Pan-Atlantic S.S. Corp., 211 F.2d 277 (2d Cir. 1954), aff'd sub nom. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956).
n.35 " Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 99 L. Ed. 354, 75 S. Ct. 382 (1955).
n.36 " Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 18 L. Ed. 2d 482, 87 S. Ct. 1410 (1967).
n.37 " Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 3 L. Ed. 2d 413, 79 S. Ct. 445 (1959).
n.38 " Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946).
n.39 " Alaska S.S. Co. v. Petterson, 347 U.S. 396, 98 L. Ed. 798, 74 S. Ct. 601 (1954), aff'g per curiam 205 F.2d 478 (9th Cir. 1953). The Ninth Circuit had 'assumed ' that the equipment causing the longshoreman's injury had been brought aboard by the stevedore contractor, had said that no proof existed that the equipment was defective, had conceded that the stevedore had control of the ship at the time of the injury, and then had held that the shipowner's duty is 'one he cannot delegate. ' 205 F.2d at 480.
n.40 " Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d Cir. 1952)."
Maritime Jurisdiction and Longshoremen's Remedies, 1973 Wash. U. L.Q. 649, 655. In addition, the vessel has been held liable when the primary cause of the longshoreman's injury was brought into play by his fellow workers. CRUMADY v. THE JOACHIM HENDRIK FISSER, 358 U.S. 423, 3 L. Ed. 2d 413, 79 S. Ct. 445 (1959); ALBANESE v. MATTS, 382 U.S. 283, 15 L. Ed. 2d 327, 86 S. Ct. 429 (1965); BLASSINGILL v. WATERMANN S.S. CORP., 336 F.2d 367 (9th Cir. 1964).
C. INDEMNITY ACTION BETWEEN SHIPOWNER AND STEVEDORE
The liability imposed on the vessel by the warranty of seaworthiness soon washed ashore engulfing the land-based stevedore in indemnity actions whenever the stevedore's actions caused the unseaworthy condition. RYAN STEVEDORING CO., INC. v. PAN-ATLANTIC STEAMSHIP CO., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956), held that an action by the vessel against the stevedore based on an implied contract to perform his duties in a workmanlike manner was not barred by the exclusivity provision of section 5 of the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. § 905(1970).
In regard to the exclusivity provision the Court reasoned that section 5 evidenced a trade-off between the employer and the employee. The employee obtained compensation regardless of fault and the employer was free from any other liability to the employee. "On the other hand, the Act prescribes no quid pro quo for a shipowner that is compelled to pay a judgment obtained against it for the full amount of a longshoreman's damages." 350 U.S. supra at 129 (footnote omitted). Furthermore, "the Act nowhere expressly excludes or limits a shipowner's right, as a third person, to insure itself against such a liability either by a bond of indemnity, or the contractor's own agreement to save the shipowner harmless." 350 U.S. supra at 130. The Act, therefore, did not preclude relief against the stevedore.
The SIERACKI-RYAN line of cases thus resulted in the stevedore often being held liable to his employee far beyond his compensation obligations under the Act.
RIGHT TO CONTRIBUTION IN ADMIRALTY
The RYAN court was precluded by HALCYON LINES v. HAENN SHIP CEILING & REFITTING CORP., 342 U.S. 282, 96 L. Ed. 318, 72 S. Ct. 277 (1952), from holding that the vessel had a right of contribution against the stevedore when the stevedore was also a cause of the longshoreman's injury. HALCYON refused to permit contribution against the stevedore even though there was a jury determination that the stevedore was 75% responsible for the longshoreman's injuries. While raising doubts about the existence of the right to contribution in a non-collision admiralty case, the Court based its refusal to provide for contribution upon the inappropriateness of the judiciary in fashioning rules of contribution. The Court felt the matter should be left to Congress.
"Indeed, it is fair to say that application of the rule of division of damages between joint tortfeasors in admiralty cases has been as broad as its underlying rationales. The interests of safety dictate that where two parties 'are both in fault, they should bear the damage equally, to make them more careful. ' The Alabama, supra, 92 U.S. 695 at 697. And a 'more equal distribution of justice ' can best be achieved by ameliorating the common-law rule against contribution which permits a plaintiff to force one of two wrongdoers to bear the entire loss, though the other may have been equally or more to blame. See The Max Morris, supra, 137 U.S. 1 at 14."
COOPER STEVEDORING CO. v. KOPKE, 417 U.S. 106, at 110-111, 40 L. Ed. 2d 694, 94 S. Ct. 2174, at 2177.
With respect to the specific issue raised in HALCYON, the COOPER court agreed with lower federal courts that HALCYON provided only an immunity for the employer from tort liability by statute. See IN RE SEABOARD SHIPPING CORP. 449 F.2d 132 (2d Cir. 1971), cert. denied Seaboard Shipping Corp. v. Moran Inland Waterways Corp. et al., 406 U.S. 949, 92 S. Ct. 2038, 32 L. Ed. 2d 337 (1972); WATZ v. ZAPATA OFF-SHORE CORP., 431 F.2d 100 (5th Cir. 1970); HORTON & HORTON, INC. v. T.S.J.E. DYER, 428 F.2d 1131 (5th Cir. 1970), cert. denied, 400 U.S. 993, 27 L. Ed. 2d 441, 91 S. Ct. 461 (1971). Referring to HALCYON the Court stated:
"Before this Court, both parties in Halcyon agreed that 'limiting an employer's liability for contribution to those uncertain amounts recoverable under the Harbor Workers' Act is impractical and undesirable. ' 342 U.S., at 284. The Court also took cognizance of the apparent trade-off in the Act between the employer's limitation of liability and the abrogation, in favor of the employee, of common-law doctrines of contributory negligence and assumption of risk. Id., at 285-286. Confronted with the possibility that any workable rule of contribution might be inconsistent with the balance struck by Congress in the Harbor Workers' Act between the interests of carriers, employers, employees, and their respective insurers, we refrained from allowing contribution in the circumstances of that case."
COOPER STEVEDORING CO., INC. v. KOPKE, 417 U.S. 106 supra at 112, 94 S. Ct. 2174 at 2178. It is therefore clear that, absent considerations imposed by statutes such as the Longshoremen's and Harbor Workers' Compensation Act, admiralty courts are relatively free to fashion ...