Before DUFFY, KNOCH and CASTLE, Circuit Judges.
Virgil Hayden Crass, the libelant, brought suit against the towboat Manitou and his employer, Aiple Towing Company,*fn1 respondents, for personal injuries suffered while libelant was working as a crew member of the towboat. Crass fell through an open hatch into the hold of an empty grain barge which was being towed under a contract between Aiple and the barge owner, Central Soya Company, Inc.*fn2 Crass alleged that his injuries were caused by the negligence of Aiple and the unseaworthiness of the Manitou and the barge. Aiple, by petition under Admiralty Rule 56, brought Central Soya Company, Inc. into $the suit, alleging that if Aiple is held liable to Crass then Central Soya is liable over to Aiple by virtue of the written contract of towage.
The District Court, following a trial without a jury, made and filed findings of fact and conclusions of law, and entered judgment against Aiple in favor of Crass for $60,000. The judgment order also found that Crass was not entitled to judgment against Central Soya and that Aiple was not entitled to recover against Central Soya. Aiple satisfied the money judgment and appealed from those parts of the judgment which ordered that Crass was not entitled to judgment against Central Soya and Aiple was not entitled to recover over against Central Soya, appellee.
Aiple contends the District Court erred in failing to enforce in favor of Aiple and Crass and against Central Soya, the barge owner, the specific warranty and indemnity provisions of the towage contract between Aiple and Central Soya. Those warranty and indemnity provisions are as follows: Central Soya
"* * * warrants the tow to be seaworthy and properly equipped and supplied, and in all other respects fit and suitable to be towed, and AIPLE TOWING COMPANY shall not be obligated to inspect any tow and/or the stowage of any cargo therein or thereon, but such inspection if made, shall not affect the warranties of Owner [Central Soya] as herein expressed. * * *"
"* * * Owner [Central Soya] agrees to indemnify AIPLE TOWING COMPANY and any towing craft and the owners, charterers, operators and/or underwriters of such craft and hold such parties and craft harmless against all claims for any loss of or damage to or expense incurred in connection with the tow and/or its cargo, including without limitation, claims for recoupment or by way of liability over in mutual fault collision cases wherein the towing craft will be involved, and $from any liability to or on account of the crew or personnel, or any loss of or damage to personal effects of said crew or personnel, howsoever arising; provided, however, $that nothing herein $contained shall be construed as rendering owner or the tow and/or its cargo, if any, liable for any loss of, damage to, or expense in connection with the property of AIPLE TOWING COMPANY or any third party or for loss of life or personal$injury $for which Owner [Central Soya] or the tow, and/or its cargo, if any, would not otherwise be liable."
The record discloses that Aiple's tug or towboat, the Manitou, operated on the Mississippi River. In the early, dark hours of the morning of February 21, 1961, barge AD 160, owned by Central Soya, was picked up by the Manitou with other barges for the purpose of towing it from St. Louis to Louisiana, Missouri. The tow, with the Manitou pushing, consisted of three Aiple barges. Barge AD 160, with another barge abreast, was at the head of the tow - being pushed upstream.
The cargo box of the AD 160 was 196 $feet long, 37 1/2 feet wide and 11 feet deep, not including the height of the top. The top or roof was shaped in an inverted "V" at about a 45 degree angle, sloping up from the edges. Along each side of the top were openings covered $by six sets of doors or hatch covers. Each set covered an opening. The doors or covers were hinged at the side. They were on an incline from the deck, running from three feet to six feet at the highest point. Running the length of each side of the barge was a gunwale or walkway.
Running lights at the head of the tow were required for night travel. Such lights had been strung across the bows of the two barges. The lights received their current from the Manitou through wires running the length of the barges and joined by electrical plug connections between the barges, and between the Manitou and the barge immediately in front of it. To drop off a head barge, it is necessary to remove the running lights and the wire running the length of that barge.
When the Manitou picked up barge AD 160 the stern, starboard hatch cover or door was missing. After the accident it was found lying in the bottom of the barge below the opening. Its hinges were broken. The absence of the cover or door left a four by eight foot opening. One of Aiple's mates had observed that the cover was missing. Crass and some of the other crew members had passed within two feet of the open hatch on numerous occasions during the two days the Manitou had been towing the barge. The barge itself was unmanned and there is no showing that Central Soya, its owner, had any knowledge of the missing hatch cover prior to the accident.
It was after midnight, on a dark, rainy night, when the tow approached Louisiana, Missouri, where barge AD 160 was to be dropped. Crass was ordered by the mate to remove the running lights. After unplugging the connection at the stern of AD 160, he commenced coiling the wire around his arm, "crawled on top of the timberhead first and then went onto the top of the barge". He started diagonally across the roof of the cargo box, coiling wire as he went. He had taken only a step or two when he stepped off into space where the hatch cover or door was missing and fell about sixteen feet into the hold, injuring himself.
The trial court fund that the injuries to Crass were caused by negligence of Aiple and contributory negligence of Crass, that barge AD 160 was seaworthy and that Central Soya was not negligent.
Aiple contends that (1) the delivery of the barge to it for towing with a missing hatch cover was a breach of Central Soya's contractual warranty that the barge was "seaworthy and properly equipped and supplied, and in all other respects fit and suitable to be towed" and such breach rendered Central Soya liable to Aiple for the judgment Crass recovered from Aiple resulting from his fall through the open hatch. Further, that Crass should have been permitted to recover directly $from Central Soya, because not only was the barge unseaworthy but, in addition, the above ...