APPEAL from the Circuit Court of Madison County; the Hon. JOHN
GITCHOFF, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiff, Jerry K. Malone, brought suit against A.L. Mechling Barge Lines, Inc. (hereinafter "Mechling") under the general maritime law of the United States in the Circuit Court of Madison County to recover for personal injuries received when he fell into the hold of Barge JIH-87 owned by Mechling. He was employed by Bulk Service Corporation (hereinafter "Bulk"), a stevedore contractor, and was engaged as a "longshoreman" in unloading cargo from the barge at the time of his injury. He recovered a judgment after trial before the court, sitting without a jury, in the amount of $178,000.
In the same action, Mechling, as third-party plaintiff, recovered a judgment against Bulk for $22,048.00, the value of the barge, in partial indemnification for breach of the implied warranty of workmanlike service a stevedore owes a vessel owner under the general maritime law and attorney fees and expenses in the sum of $21,402.50. *fn1
Mechling appeals arguing that it was entitled to complete indemnification in the sum of $178,000 and attorney fees. Bulk appeals arguing Mechling was not entitled to indemnification in any amount. Mechling appeals from the judgment in favor of Malone arguing its excessiveness and that the trial court failed to reduce the award in proportion to Malone's contributory negligence.
On October 26, 1970, Bulk was engaged as a stevedore in unloading bulk fertilizer from Barge JIH-87 at its dock located on the Chain-of-Rocks Canal at Granite City, Illinois. The facility consisted of a floating dock fitted with a crane equipped with a clam shell bucket, a hopper, conveyor and warehouse for storing the fertilizer. The dock was also equipped with a motorized capstan used to open and close hatch covers and to move barges alongside the dock.
The barge on which the accident occurred was 195 feet long, 35 feet wide and 11 feet deep from bottom to deck. It contained a single cargo compartment surrounded by a coaming elevated above the deck. Rails were fitted atop the port and starboard coamings and eight cargo or hatch covers fitted with wheels rode upon these rails. The covers were designed so that four covers, called "low covers" were narrower and lower than the other four covers, called "high covers." By this arrangement the covers could roll forward and aft under or over adjacent covers and access was provided to the cargo without the necessity of removing the covers from the barge. The covers when closed were fastened together by two types of locking devices, pins called "daggers" or "dogs" that fit into brackets on the coamings and "load binders," consisting of levers and chains in the approximate middle of both sides of the hatch covers.
On the day in question, Bulk's dock crew began discharging cargo from the forward end of the barge which had been moored starboard (right) side to the dock with the bow upstream. Cover number one at the bow was a high cover; covers two and three were low covers, four and five high covers, six and seven low covers and number eight a high cover. Five covers were opened and closed without incident. As cargo was discharged from the bow, the weight of the cargo caused the barge to "trim down" to stern.
The dock crew then attempted to move cover six forward and up the incline on the rails under cover five by using the power capstan. When they were unsuccessful, they forced cover six under cover five by placing the clamshell, loaded with several tons of fertilizer, against the center of cover six and exerting the force of its weight against the cover. Gene Morgan, dock supervisor for Bulk, testified that cover six would not slide on the rails; that the cover was rusty; that it appeared that it had scraped against the side of five cover; and that it had been damaged by some heavy weight dropped on it. Some "load binders" and "locking dogs" were missing. The damage did not appear of recent origin.
After the cargo was discharged from beneath six cover, an attempt was made by use of the power capstan to close six cover by disengaging it from under five cover. The attempt was unsuccessful. Plaintiff, Malone, terminal manager for Bulk, then came from the office onto the dock and undertook the supervision of the closing operation.
Malone climbed onto the top of cover five. He attached or had attached a cable from the clamshell bucket onto an angle iron on cover six, actually part of the seal between the covers that formed a rain gutter, and directed the crane operator to apply pressure on cover six by rotating the crane boom back and forth. The force of this jerking motion caused cover six suddenly to become free from cover five and roll rapidly down the inclined rails until the flanged forward edge of six cover came in contact with the flanged after edge of five cover. The force of this impact caused five cover to come apart from four cover, to which it had been attached by a "locking dog," and at least one "load binder." The force of the impact broke the chain on the "load binder" and caused the pin to come out of the "locking dog." Malone, standing at the forward edge of five cover, lost his balance and fell into the barge a distance of approximately 17 feet landing on his feet at the bottom of the barge. The impact caused fractures of plaintiff's heels and perhaps an injury to plaintiff's neck.
1 We will first consider the correctness of the trial court's award of $22,048 to Mechling for Bulk's breach of the implied warranty of workmanlike service owed by a stevedore to a vessel owner. We observe at the outset that recovery for breach of the warranty is generally totally permitted or totally denied. See cases collected, note 6, Garner v. Cities Service Tankers Corp., 456 F.2d 476, 480 (5th Cir. 1972).
Malone brought his action under the general maritime law of the United States alleging his injuries were caused by the negligence of Mechling in failing to furnish him a safe place to work and the unseaworthy condition of the barge or either such negligence or unseaworthiness in the alternative. Both theories were predicated on the condition of the hatch covers and appurtenant equipment which caused them to become jammed and inoperative. The allegations need not be stated in detail as neither Mechling or Bulk contests the court's determination that Mechling was liable for plaintiff's injuries, as indeed they could not. (Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L.Ed. 1099, 66 S.Ct. 872 (1946).) While the applicable law is governed by the general maritime law of the United States, the action may be brought in the State forum by virtue of the "Saving to Suitors" provision of section 1333 of the Judiciary Code of 1948 (28 U.S.C. § 1333).
2 A stevedore's warranty of workmanlike service is based on contract. It has nothing to do with tort. (Ryan Stevedoring Co. Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 100 L.Ed. 133, 76 S.Ct. 232 (1956).) It arises by operation of law without regard to actual contract or privity of contract. (Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 5 L.Ed.2d 169, 81 S.Ct. 200 (1960).) Bulk does not question the general applicability of the warranty of workmanlike service to the facts of the case, but insists it is here inapplicable because the breach, if any, was not the proximate cause of the plaintiff's injuries which were caused by the negligence of Mechling, or as Bulk states the defense, caused by a breach by the shipowner (Mechling) of his duty owed a stevedore (Bulk) not to do any act which prevents or substantially hinders the stevedore in performing his work in a workmanlike manner. In any event, it argues, it should not be liable for attorney's fees and expenses, nor for any sum in excess of the value of the barge at the time of the accident inasmuch as Mechling, as indemnitee failed to exercise reasonable diligence in undertaking to limit its liability to Malone, and therefore the ultimate liability of Bulk, the indemnitor, by instituting appropriate proceedings in the Federal district court within six months of notice of Malone's claim as required by 46 U.S.C. § 185 (1970).
Section 183(a) of the Limited Liability Act (46 U.S.C. § 183 (a) (1970)) permits an owner of a vessel to limit his liability for injury or loss to an amount not in excess of the value of vessel and pending freight so long as the injury or loss was occasioned "without the privity or knowledge of such owner * * *." It is a peculiarity of maritime law. Its history and development are discussed at length in Gilmore & Black, The Law of Admiralty § 10-4 et seq. (2d ed. 1975). In answer to Malone's complaint, Mechling pleaded the affirmative defense of limitation of liability alleging that on the date of the accident the value of the barge and freight then pending did not exceed $22,048. Approximately two years elapsed before the plaintiff replied denying Mechling's alleged right to limit its liability. At that time, Mechling instituted limitation proceedings in the United States District Court for the Southern District of Illinois, Southern Division. In a memorandum opinion dated January 19, 1976 (Union Mechling Corporation v. Jerry K. Malone, 1976 A.M.C. 2301 (S.D. Ill. 1976)), the court dismissed Mechling's complaint because it was not filed within six months after Mechling had received written notice of Malone's claim as required by section 185 of the Limited Liability Act (46 U.S.C. § 185 (1970)). Accord, Cincinnati Gas & Electric Co. v. Abel, 533 F.2d 1001 (6th Cir. 1976), cert. denied, 429 U.S. 858, 50 L.Ed.2d 136, 97 S.Ct. 158 (1976).
3 Bulk argues that Mechling prejudiced its rights as indemnitor by failing to seasonably institute limitation proceedings in the proper forum; that Mechling could not in good faith assume that Malone would not contest its right to limit liability. If the right to limit liability is put in issue, then the question becomes cognizable only in admiralty and is beyond the jurisdiction of the State court to decide; however, it was thought that the claimant, at least where there was only one claimant, could admit the owner's right to limit liability in a State court under authority of Langnes v. Green, 282 U.S. 531, 75 L.Ed. 520, 51 S.Ct. 243 (1931), and Ex Parte Green, 286 U.S. 437, 76 L.Ed. 1212, 52 S.Ct. 602 (1932). We think it clear that Mechling was not justified in hoping the plaintiff would not contest its right to limit liability in admiralty. If it ...