The opinion of the court was delivered by: Marovitz, District Judge.
Motion for Summary Judgment, and Plaintiff's Motion to
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.
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
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.
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
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 ...