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BURNSIDE SHIPPING CO., v. FED. MARINE TERMINALS

May 19, 1967

BURNSIDE SHIPPING COMPANY, PLAINTIFF,
v.
FEDERAL MARINE TERMINALS, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

     Motion for Summary Judgment, and Plaintiff's Motion to
                      Dismiss Counterclaim

Gordon T. McNeill, a stevedore superintendent employed by Federal Marine Terminals, died on June 2, 1965, at approximately 8:45 a.m., as a result of a fall into the Number 3 starboard deep tank of the M/V OTTERBURN. Mr. McNeill is survived by his widow, age 28, and three minor children, ages 8, 6, and 2, who are receiving compensation benefits pursuant to the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. §§ 901-950). A claim was filed under such Act by the widow for herself and her children. Thereafter, the Department of Labor entered a compensation order for weekly payments of $36.75 to Mr. McNeill's widow and $33.25 (total) for the three children, which is currently being paid by Federal Marine Terminals.

The M/V OTTERBURN, a 504 foot ocean freighter, arrived in Chicago on May 31, 1965, and moored at the Federal Marine Dock. Employees of Federal Marine worked aboard the ship May 31 and June 1, until they ceased work at about 4:00 p.m. of June 1, and replaced the hatch covers due to rain. The deep tank in question had been worked on by the ship's crew in Detroit, prior to coming to Chicago, in order to make it, along with other cargo areas, suitable to receive a cargo of grain. The original plan had been for grain to be loaded while at Chicago, but this plan was changed and the deep tanks were not filled until the vessel called, sometime later after the accident, at Three Rivers, Canada. The work of cleaning the deep tanks was begun in Detroit and continued on May 31 in Chicago by Federal Marine employees.

Federal Marine Terminals had been employed to continue with the work of readying the vessel for its grain cargo. Acting on instructions from the vessel's Chief Officer, the boatswain, in the presence of McNeill, "winged out" the deep tank lids (i.e., pulled outboard into the wings of the `tween deck, leaving only the corner of the cover on the hatch coaming). This was done in preparation for receipt of grain in Chicago, prior to the accident. The deep tank lids were not replaced prior to the accident. There was no railing, wire, or guard of any kind placed around the deep tank opening until shortly after the accident. The area around the deep tank opening was dark, there being no artificial lighting present. The number three main deck hatch was covered except that one or two pontoons had been removed from the forward end to furnish daylight for the Federal Marine employees working in the 'tween deck feeder. Portable cargo lamps or "clusters" for lighting the 'tween decks and lower holds were aboard the vessel but not in use or in place at the time of the accident.

At that time McNeill was supervising the work of the stevedores and was properly in the area of the number three starboard deep tank. Federal Marine employees, including McNeill, first came aboard the vessel at approximately 7:00 a.m. on June 2, 1965, to continue with preparations for the receipt of grain. McNeill was last seen shortly after 8:00 a.m. There were no eye witnesses to the accident. McNeill's body was discovered shortly after 8:45 a.m., lying face up on the bottom of the number three starboard deep tank.

There are two cases pending before this Court, both resulting from the death of McNeill. The administratrix of McNeill's estate filed a maritime wrongful death action against Burnside Shipping Company, the owner of the Otterburn (No. 65 C 1655). In a separate action against Federal Marine Terminals, (No. 66 C 593), the shipowner seeks indemnification for any judgment which it may be required to pay in the wrongful death action. Federal Marine Terminals filed an Answer to the action brought by Burnside. In addition, it filed a counterclaim against Burnside seeking indemnification for all payments made by Federal Marine, or by its insurer, pursuant to the Longshoremen's and Harbor Workers' Compensation Act, to Mrs. McNeill and/or her children. The latter payments by Federal Marine Terminals' insurer, in behalf of its insured, have a potential total liability of approximately $70,000.

Burnside has filed a motion for summary judgment on its claim, and Federal Marine Terminals has submitted a similar motion on the counterclaim. In addition, Burnside moves to dismiss the counterclaim on the ground that it does not state a cause of action.

Plaintiff Burnside's Motion for Summary Judgment

It is settled law that a shipowner has a nondelegable duty to furnish to longshoremen employees of the stevedore a seaworthy vessel and a safe place to work. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). But if injuries are caused by hazards which the longshoremen either created or had the primary responsibility or opportunity to eliminate or avoid, the shipowner, although vicariously liable to the longshoremen, has a right to indemnity against the stevedore. Albanese v. N.V. Nederl Amerik Stoomy Maats Inc., 346 F.2d 481 (2d Cir. 1965); Mortensen v. A/S Glittre, 348 F.2d 383 (2d Cir. 1965). The recovery is premised upon the stevedore's breach of its warranty of workmanlike performance. Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

Furthermore, even if the shipowner created the unsafe conditions by his negligence, the stevedore is still liable if his own negligence has brought the unseaworthiness of the vessel into play. Mortensen, supra, 348 F.2d at 385; Crumady v. J.H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). See Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). Negligence of the stevedore's employees is imputed to the stevedore. Lusich v. Bloomfield Steamship Co., 355 F.2d 770 (5th Cir. 1966); D/S Ove Skou v. Hebert, 365 F.2d 341, 350 (5th Cir. 1966). Although in some instances, the shipowner's conduct may be sufficiently wrongful to preclude recovery on the stevedore's indemnity, it was concluded in Albanese, supra, and reaffirmed in Mortensen, supra, that the conduct "must at the least prevent or seriously handicap the stevedore in his ability to do a workmanlike job" or amount to "active hindrance of the contractor in the performance of its contractual duties."

Burnside is willing, solely for purposes of this motion, to assume that it furnished an unseaworthy craft specifically manifested by the unguarded number three starboard deep tank. Nevertheless, it posits, Federal Marine is still liable in indemnity, because of its failure to correct the defect, which it is argued, amounted to bringing the unseaworthiness into play. Burnside believes that its conduct in furnishing a presumptively unseaworthy vessel does not amount to "active hindrance" of Federal Marine in the exercise of its duties, because Federal Marine had the opportunity, and in fact the duty, to correct the open condition of the deep tank but failed to do so. Consequently Burnside argues that no genuine issues of material fact remain, and it is entitled to summary judgment.

We cannot agree. At this juncture, crucial facts remain uncovered with respect to the activities of Federal Marine's employees in the area of the deep tank. Indeed, we do not yet know if the longshoremen had knowledge of the open hatch covers prior to the accident. This issue of fact is vigorously contested. Although McNeill was present when the deep hatch covers were "winged out" prior to June 2, it is suggested that the ship's personnel had from 4:00 p.m. of June 1 until the time of the accident to correct the dangerous condition. Defendant argues that McNeill may well have assumed that the hatch covers were so replaced, and went into the area merely to check it for safety. In any event, substantial dispute remains respecting the happenings prior to the accident.

Furthermore, no stipulation could be achieved as to the relative duties of inspection imposed upon the parties. Whether defendant should have been aware of the defect, if in fact it was not, depends upon the circumstances surrounding the accident. Although various legal principles have been evolved with respect to duties of inspection*fn1, where issues of ...


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