The opinion of the court was delivered by: Mihm, District Judge.
Pending before the Court is Third Party Defendant Central
Illinois Dock Company's Motion to Dismiss the Third Party
Complaint. For the reasons stated herein that Motion is DENIED.
Plaintiff Ray Couch III was an employee of the Third Party
Defendant Central Illinois Dock Company (hereinafter "CIDC").
CIDC is engaged in the business of loading and unloading cargo
from barges on the Illinois River, a process known as
stevedoring. On December 14, 1987, various employees from CIDC
were unloading steel, which Defendant/Counterplaintiff
Berisford Metals Corp., d/b/a Erlanger & Co. (hereinafter
"Erlanger") had shipped to Tazewell County on a barge owned by
Defendant Cro-Marine Transport, Inc. (hereinafter
"Cro-Marine"). Plaintiff was removing cargo from the hold of
one of the barges. The crew with whom he worked consisted of
supervisors and co-workers inside the barge and a crane
operator who was operating a crane located on the dock. Part of
the cargo which was being moved by the crane shifted and fell
on Plaintiff's leg, causing the injury which is the basis of
his complaint against Cro-Marine and Erlanger.
Defendant/Counterplaintiff Erlanger is the owner of the cargo
which was being unloaded from the barge. Erlanger had
contracted with CIDC to provide services and equipment for
unloading the cargo from the barges and storing it until some
later date. The cargo of steel which was being unloaded in
Tazewell County at the time of the accident had been loaded
onto the barge in New Orleans after arriving in the United
States from some foreign port (apparently Brazil). Erlanger had
not arranged for stevedoring in New Orleans. Instead, the
stevedoring in New Orleans was performed by Defendant
Flanagan-New Orleans Stevedoring Company.
The Plaintiff subsequently filed for benefits under the
Illinois Workers Compensation Act, Ill.Rev.Stat., ch. 48, §
138.1 et seq. and has not pursued any remedy that he might have
against his employer under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. § 901 et seq. (hereinafter
"LHWCA"). In addition, Plaintiff has brought this three count
lawsuit. In Count I, Plaintiff alleges negligence against
Cro-Marine, the owner of the barge, seeking compensation
($1,000,000) for his injuries. Count II seeks compensation from
Erlanger, the cargo owner, alleging negligence. Count III seeks
compensation for his injuries from Flanagan-New Orleans
Erlanger has denied all allegations of negligence. However,
in the event that this Court might find negligence, Erlanger
has also filed a Third Party Complaint against Couch's
employer, CIDC, in three counts. Count I sounds in contribution
based on the alleged negligence of CIDC and seeks a pro rata
allocation of any liability based upon relative degree of
fault. Count II seeks common law indemnification based upon
active/passive indemnity theories. Count III seeks liability
based upon indemnification ex contractu.
The Motions to Dismiss raise four legal issues. First, the
Court must determine whether there is a substantive right
(federal or state) to contribution or indemnification where the
party from whom such contribution is sought is the employer of
the injured person.
The second question which arises is whether § 905(a) of the
LHWCA should be read as barring such suits; if so, the Illinois
Workers Compensation Act is inconsistent with the LHWCA and
therefore preempted by it.
Finally, Count III alleges an implied contract from which
employer liability to the cargo owner can be inferred. Two
questions arise in this context: first, does § 905(a) act as a
bar to an action for indemnification in the face of such a
contract? Second, has such a cause of action been displaced by
At dispute is 33 U.S.C. § 905(a), a provision of the
Longshore and Harbor Workers Compensation Act. Section 905(a),
entitled Exclusiveness of Liability, provides in pertinent
(a) Employer Liability. The liability of an
employer prescribed in § 904 of this title shall be
exclusive and in place of all other liability of
such employer to the employee, his legal
representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer at
law or in admiralty on account of such injury or
death. . . . (Emphasis added).
In essence, CIDC argues that tortfeasors may not circumvent
the exclusive remedy provision of § 905(a) by obtaining
contribution from the employer. Erlanger contends that the
cases cited by CIDC in support of that proposition are
factually distinguishable, and further that some lower ...