On May 14, 1975, the plaintiff was employed by third-party defendant, Haenn Ship Ceiling and Refitting Corp., which had been engaged as an independent contractor to secure a cargo of Mack Trucks aboard the M/V Justinian, a vessel owned by defendants, Hilmar Reksten and R/A Hadrian. The trucks were loaded aboard the vessel in Philadelphia by an independent stevedoring contractor, J. A. McCarthy, Inc., also a defendant. Plaintiff, having sustained an injury, instituted suit against the aforementioned defendants, one of whom, J. A. McCarthy, Inc., stevedore, brought in Haenn Ship Ceiling and Refitting Corp., alleging a cause of action for contribution against it in the third-party complaint. Third-party defendant has filed a motion to dismiss third-party complaint contending that it cannot be held liable for indemnity or contribution to the third-party plaintiff, relying upon the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905, as amended November 26, 1972. Third-party plaintiff, of course, disagrees with that contention.
It appears that the issue is one of first impression in the Third Circuit; it also appears that there is precious little authority to be found in any of the other circuits. Section 906 of the Act originally provided, inter alia :
"The liability of an employer prescribed in Section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, 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 . .."
In 1946, it was held in SEAS SHIPPING CO., INC. v. SIERACKI, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, that the warranty of seaworthiness was also available to the injured longshoreman. In 1953, it was held in POPE & TALBOT, INC. v. HAWN, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143, that the warranty of seaworthiness was available to other harbor workers injured on a vessel.
In 1956, in a case where it was alleged that the stevedore's actions caused the unseaworthy condition, it was held that an action by the vessel against the stevedore based on 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. RYAN STEVEDORING CO., INC. v. PAN-ATLANTIC STEAMSHIP CORP., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. This decision led to a revision of Section 905 of the Longshoremen's and Harbor Workers' Compensation Act, by adding to it subsection 5(b), 33 U.S.C. § 905(b), which provides in part as follows:
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of Section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void . . . the liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter." (Emphasis added)