Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 74 C 545 and 74 C 924 RICHARD B. AUSTIN, Judge.
Hastings and Swygert, Circuit Judges, and East,*fn* District Judge.
In each of the above causes in admiralty (Fed. R. Civ. P. 9 (h)) for indemnity, consolidated on appeal, the District Court granted the defendant-appellee (Calumet) summary judgments dismissing the causes as a matter of law. The plaintiff-appellant (Federal) appeals. We reverse and remand.
The District Court predicated its decision of dismissal upon a time bar and a limitation of liability provision in Calumet's Terminal Tariff No. 3. The single issue on review in each of the causes is:
Did the District Court err as a matter of law in applying and enforcing the time bar and limitation of liability provisions of the tariff against Federal's alleged claims for indemnity?
Federal, for its cause in each case, alleges that:
Federal is a Canadian corporation engaged as a charter and operator of vessels engaged in the carriage of goods for hire between ports on the High Seas and the Great Lakes, including Chicago, Illinois;*fn1
Calumet is an Illinois corporation operating as a stevedore and a terminal operator in the Port of Chicago;
Calumet agreed with Federal to perform stevedoring and terminal services for cargo to be discharged from Federal's vessel at Calumet's berth in Chicago on or about November 30 - December 2, 1971 in Appeal No. 75-1625 (District Court cause No. 74 C 545) and on or about November 29 - December 1, 1971 in Appeal No. 75-1626 (District Court cause No. 74 C 924);
Federal agreed to and did pay the charges for such services as rendered by Calumet;
Calumet breached its stevedoring and terminal services contract, together with its implied in law warranty to Federal by causing and permitting certain cargo to be bent, torn, rusted and otherwise damaged and destroyed, obligating Federal for liability to the owner of the cargo for the losses sustained as a result of Calumet's breach;
The owner of the damaged cargo made a claim against Federal for the damages to its cargo and Federal settled and compromised the claim and seeks indemnification from Calumet for the amount of the settlement or so much thereof as Calumet is ultimately liable; and
Due notices of the claim against and the settlement by Federal were given to Calumet on December 4, 1972 and January 28, 1973 in District Court cause No. 74 C 545, and on August 13, 1973 and September 12, 1973 in District Court cause No. 74 C 924; notwithstanding such notices Calumet refused to participate ...