Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp.

Mr. Justice Burton

delivered the opinion

This case presents two questions as to the liability of a stevedoring contractor to reimburse a shipowner for damages paid by the latter to one of the contractor’s longshoremen on account of injuries received by him in the course of his employment on shipboard. 1. The first question is whether the Longshoremen’s and Harbor Workers’ Compensation Act¹ precludes a shipowner from asserting such a liability. 2. The second is whether the liability exists where a contractor, without entering into an express agreement of indemnity, contracts to perform a shipowner’s stevedoring operations and the longshoreman’s injuries are caused by the contractor’s unsafe stowage of the ship’s cargo. For the reasons hereafter stated, we answer the first question in the negative and the second in the affirmative.

In 1949, respondent, Pan-Atlantic Steamship Corporation, a Delaware corporation, operated the SS. Canton Victory in the American coastwise trade under a bareboat charter. As evidenced by letters, but without a formal stevedoring contract or an express indemnity agreement, respondent secured, for that year, the agreement of petitioner, Ryan Stevedoring Co., Inc., an Alabama corporation, to perform all stevedoring operations required by respondent in its coastwise service. Pursuant to that contract, petitioner loaded the Canton Victory at Georgetown, South Carolina, with mixed cargo. This included pulpboard, such as is used in making corrugated paper and paper bags, shipped in rolls 4 feet wide and 3 to 5 feet long. Petitioner stowed some of these rolls side-by-side on the floor of Hatch No. 3 and “nested” others above them by placing the upper rolls in the troughs between the lower ones. To immobilize the rolls, it was necessary to secure or “chock” the bottom tier with wedges or with miscellaneous pieces of wood known as “dunnage.” There is little evidence as to what took place when the rolls were stowed at Georgetown but it was the uniform practice of petitioner’s longshoremen to stow such cargo under the immediate direction of their hatch foremen, while respondent’s cargo officers supervised the loading of the entire ship and had authority to reject unsafe stowage.

A few days later, on July 20, 1949, in navigable water at a pier in Brooklyn, New York, petitioner engaged in unloading these rolls. While one of petitioner’s Brooklyn longshoremen, Frank Palazzolo, was working in Hatch No. 3, one roll, weighing about 3,200 pounds, broke loose from the others, struck him violently and severely injured his left leg. There is no evidence that he was negligent. On the other hand, it appears that the rolls in Hatch No. 3 had been insufficiently secured when stowed by petitioner in Georgetown. This is established by the absence of proper wedges and dunnage holding the rolls in place at the time of the accident.

Petitioner’s insurance carrier under the Longshoremen’s Act paid Palazzolo $2,940 compensation and furnished him medical services costing $9,857.36, all without any formal award by the Deputy Commissioner. As permitted by § 33 of that Act, Palazzolo sued the respondent-shipowner in the Supreme Court of New York.² He claimed that the unsafe stowage of the cargo, which caused his injuries, established either the unseaworthiness of the ship, or the shipowner’s negligence in failing to furnish him with a safe place to work, or both. The shipowner removed the case to the United States District Court for the Eastern District of New York and filed a third-party complaint against petitioner. By stipulation, Palazzolo’s case against the shipowner was tried to a jury, which returned a verdict in his favor for $75,000. The District Court entered judgment on the jury verdict. From the above sum, petitioner’s insurance carrier was to be reimbursed for the $12,797.36 it had advanced because of Palazzolo’s injuries.

Also by stipulation, the shipowner’s third-party complaint was submitted on the same record to the judge who had presided over Palazzolo’s case. He dismissed the complaint. Ill F. Supp. 505. The Court of Appeals affirmed Palazzolo’s judgment but reversed the dismissal of the third-party complaint and directed that judgment be entered for the shipowner. 211 F. 2d 277. Petitioner, the stevedoring contractor, contends that the order reversing the dismissal of the impleader suit is erroneous. Because of the wide application of the case and the conflicting views that have been expressed on the issues, we granted certiorari. 348 U. S. 813. The United States filed a brief as amicus curiae in support of the shipowner and took part in the oral argument. 348 U. S. 948. The judgment was affirmed by an equally divided Court, 349 U. S. 901, but the case was restored to the docket for reargument before a full Court, 349 U. S. 926.

1. The first question is whether the Longshoremen’s Compensation Act precludes the assertion by a shipowner of a stevedoring contractor’s liability to it, where the contractor is also the employer of the injured longshoreman.

Neither court below discussed this question, although petitioner presented it to them. Petitioner’s argument is based upon the following provision in the Longshoremen’s and Harbor Workers’ Compensation Act:

“Sec. 5. The liability of an employer prescribed in section 4 [for compensation] 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, except that if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. . . .” (Emphasis supplied.) 44 Stat. 1426, 33 U. S. C. § 905.

The obvious purpose of this provision is to make the statutory liability of an employer to contribute to its employee’s compensation the exclusive liability of such employer to its employee, or to anyone claiming under or through such employee, on account of his injury or death arising out of that employment. In return, the employee, and those claiming under or through him, are given a substantial quid pro quo in the form of an assured compensation, regardless of fault, as a substitute for their excluded claims. 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.³

Section 5 of the Act expressly excludes the liability of the employer “to the employee,” or others, entitled to recover “on account of such [employee’s] injury or death.” Therefore, in the instant case, it excludes the liability of the stevedoring contractor to its longshoreman, and to his kin, for damages on account of the longshoreman’s injuries. At the same time, however, § 5 expressly preserves to each employee a right to recover damages against third persons.⁴ It thus preserves the right, which Palazzolo has exercised, to recover damages from the shipowner in the present case. 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. Petitioner’s agreement in the instant case amounts to the latter for, as will be shown, it is a contractual undertaking to stow the cargo “with reasonable safety” and thus to save the shipowner harmless from petitioner’s failure to do so.

In the face of a formal bond of indemnity this statute clearly does not cut off a shipowner’s right to recover from a bonding company the reimbursement that the indemnitor, for good consideration, has expressly contracted to pay. Such a liability springs from an independent contractual right. It is not an action by or on behalf of the employee and it is not one to recover damages “on account of” an employee’s “injury or death.” It is a simple action to recover, under a voluntary and self-sufficient contract, a sum measured by foreseeable damages occasioned to the shipowner by the injury or death of a longshoreman on its ship.

A like result occurs where a shipowner sues, for breach of warranty, a supplier of defective ship’s gear that has caused injury or death to a longshoreman using it in the course of his employment on shipboard. And a like liability for breach of contract accrues to a shipowner against a stevedoring contractor in any instance when the latter’s improper stowage of cargo causes an injury on shipboard to-some one other than one of its employees. The coincidence that the loading contractor here happens to be the employer of the injured longshoreman makes no difference in principle. While the Compensation Act protects a stevedoring contractor from actions brought against it by its employee on account of the contractor’s tortious conduct causing injury to the employee, the contractor has no logical ground for relief from the full consequences of its independent contractual obligation, voluntarily assumed to the shipowner, to load the cargo properly. See American Stevedores v. Porello, 330 U. S. 446; Crawford v. Pope & Talbot, 206 F. 2d 784, 792-793; Brown v. American-Hawaiian S. S. Co., 211 F. 2d 16; Rich v. United States, 177 F. 2d 688; United States v. Arrow Stevedoring Co., 175 F. 2d 329.⁵

The shipowner’s action here is not founded upon a tort or upon any duty which the stevedoring contractor owes to its employee. The third-party complaint is grounded upon the contractor’s breach of its purely consensual obligation owing to the shipowner to stow the cargo in a reasonably safe manner. Accordingly, the shipowner’s action for indemnity on that basis is not barred by the Compensation Act.⁶

2. The other question is whether, in the absence of an express agreement of indemnity, a stevedoring contractor is obligated to reimburse a shipowner for damages caused it by the contractor’s improper stowage of cargo.

The answer to this is found in the precise ground of the shipowner’s action. By hypothesis, its action is not based on a bond of indemnity such as it may purchase by way of insurance, or may require of its stevedoring contractor, and which expressly undertakes to save the shipowner harmless. If the shipowner did hold such an express agreement of indemnity here, it is not disputed that it would be enforceable against the indemnitor. On the other hand, the shipowner’s action for indemnity here is not based merely on the ground that the shipowner and contractor each is responsible in some related degree for the tortious stowage of cargo that caused injury to Palazzolo. Such an action, brought without reliance upon contractual undertakings, would present the bald question whether the stevedoring contractor or the shipowner, because of their respective responsibilities for the unsafe stowage, should bear the ultimate burden of the injured longshoreman’s judgment. That question has been widely discussed elsewhere in terms of the relative responsibility of the parties for the tort, and those discussions have dealt with concepts of primary and secondary or active and passive tortious conduct.⁷ Because respondent in the instant case relies entirely upon petitioner’s contractual obligation, we do not meet the question of a noncontractual right of indemnity or of the relation of the Compensation Act to such a right.

The shipowner’s claim here also is not a claim for contribution from a joint tortfeasor. Consequently, the considerations which led to the decision in Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, are not applicable. See American Mutual Liability Ins. Co. v. Matthews, 182 F. 2d 322.

The shipowner here holds petitioner’s uncontroverted agreement to perform all of the shipowner’s stevedoring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner’s obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of stowage are inescapable elements of the service undertaken. This obligation is not a quasi-contractual obligation implied in law or arising out of a noncon-tractual relationship. It is of the essence of petitioner’s stevedoring contract. It is petitioner’s warranty of workmanlike service that is comparable to a manufacturer’s warranty of the soundness of its manufactured product. The shipowner’s action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner’s stevedoring service.⁸

The Court of Appeals has stated that the liability of petitioner in this case is for the performance of its obligation to stow the rolls on board ship “in a reasonably safe manner.” 211 F. 2d, at 279. That court also has affirmed the decision of the District Court which was based upon the verdict of the jury that petitioner’s improper stowage of the rolls produced either the unseaworthiness of the ship, or the hazardous working condition which is the basis for the shipowner’s liability to Palazzolo.

Petitioner suggests that, because the shipowner had an obligation to supervise the stowage and had a right to reject unsafe stowage of the cargo and did not do so, it now should be barred from recovery from the stevedor-ing contractor of any damage caused by that contractor’s uncorrected failure to stow the rolls “in a reasonably safe manner.” Accepting the facts and obligations as above stated, the shipowner’s present claim against the contractor should not thereby be defeated. Whatever may have been the respective obligations of the stevedoring contractor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the war-rantor of its own services, cannot use the shipowner’s failure to discover and correct the contractor’s own breach of warranty as a defense. Respondent’s failure to discover and correct petitioner’s own breach of contract cannot here excuse that breach.⁹

The judgment of the Court of Appeals, accordingly, is

Affirmed.

1 44 Stat. 1424 et seq., as amended, 33 U. S. C. § 901 et seq.

2 “Sec. 33. (a) If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the Secretary [of Labor] may provide, to receive such compensation or to recover damages against such third person.

“(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.

“(i) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section.” 44 Stat. 1440, as amended, 33 XJ. S. C. § 933 (a) (b) and (i).

For procedure to secure an award of compensation, see § 19, 44 Stat. 1435-1436, as amended, 33 U. S. C. § 919.

A longshoreman, after accepting compensation payments from his employer without an award, may sue a third-party tortfeasor for his injuries. American Stevedores v. Porello, 330 U. S. 446, 454-456. If the facts permit, he may recover from the shipowner for unseaworthiness, or for negligence, or both. Pope & Talbot v. Hawn, 346 U. S. 406.

3 In the instant case, the stevedoring contractor, however, has received a contractual quid pro quo from the shipowner for assuming responsibility for the proper performance of all of the latter’s steve-doring requirements, including the discharge of foreseeable damages resulting to the shipowner from the contractor’s improper performance of those requirements. See Restatement, Contracts, §§ 334, 330; Bethlehem Shipbuilding Corp. v. Gutradt Co., 10 F. 2d 769; Mowbray v. Merryweather, [1895] 2 Q. B. 640 (C. A.).

4 See § 33 (a) in note 2, swpra.

5 There is nothing in the legislative history of the Compensation Act calling for a contrary interpretation. Our interpretation of that Act is supported also by that of the New York Workmen’s Compensation Act upon which it is modeled. The latter Act provides that the— “liability of an employer [for compensation] prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death . . . .” McKinney’s N. Y. Laws, Workmen’s Compensation Law, § 11.

See Westchester Lighting Co. v. Westchester County Corp., 278 N. Y. 175, 15 N. E. 2d 567. Other state courts have reached comparable results as to exclusive liability clauses in their respective Compensation Acts. 2 Larson, Workmen’s Compensation Law, §§76.00-76.44 (a).

6 We do not reach the issue of the exclusionary effect of the Compensation Act upon a right of action of a shipowner under comparable circumstances without reliance upon an indemnity or service agreement of a stevedoring contractor. See Brown v. American-Hawaiian S. S. Co., 211 F. 2d 16,18; States S. S. Co. v. Rothschild International Stevedoring Co., 205 F. 2d 253; Slattery v. Marra Bros., 186 F. 2d 134 (N. J. statute); United States v. Rothschild International Stevedoring Co., 183 F. 2d 181; American Mutual Liability Ins. Co. v. Matthews, 182 F. 2d 322; American District Telegraph Co. v. Kittleson, 179 F. 2d 946; McFall v. Compagnie Maritime Beige, 304 N. Y. 314, 107 N. E. 2d 463. And see generally, Weinstock, The Employer’s Duty to Indemnify Shipowners for Damages Recovered by Harbor Workers, 103 U. of Pa. L. Rev. 321 (1954).

7 See Brown v. American-Hawaiian S. S. Co., supra; Crawford v. Pope & Talbot, supra; McFall v. Compagnie Maritime Beige, supra; Weinstock, The Employer’s Duty to Indemnify Shipowners for Damages Recovered by Harbor Workers, supra.

8 See Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217; Brown v. American-Hawaiian S. S. Co., supra; Crawford v. Pope & Talbot, supra, at 792-793; American Mutual Liability Ins. Co. v. Matthews, supra, at 323-325; Rich v. United States, supra; Bethlehem Shipbuilding Corp. v. Gutradt Co., supra; Mowbray v. Merryweather, supra; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214, 67 N. E. 439.

9 See Berti v. Compagnie de Navigation Cyprien Fabre, 213 F. 2d 397; Hastorf Contracting Co. v. Ocean Transportation Corp., 4 F. 2d 583, aff’d, 4 F. 2d 584; Mowbray v. Merryweather, supra; Boston Woven Hose Co. v. Kendall, 178 Mass. 232, 59 N. E. 657.