Joseph Pettus v. Grace Line, Inc., and Third-Party v. Sealand Dock & Terminal Corp. And Federal Stevedoring Co., Inc., Third-Party
305 F.2d 151
2d Cir.
1962
Check Treatment

*1 сlearly to be seems in that case. construction and different

new given by agreement the Un- from that agreement this case ion to the before

decided. rules

One of the fundamental is for the construction of contracts give ‍‌‌​​​​‌‌‌‌​‌​​​​​‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌​​​‍great weight the con court parties which the themselves

struction shown have to the contract as Reynolds Met

their actions thereunder. Skinner,

als C.A. Co. v. 166 F.2d

6th, denied, 858, S.Ct. cert. Begnaud 1778; White, 92 L.Ed. v. F.Supp. See also 166 463. 323, 325-326,

170 F.2d 6th. C.A. of the District Court

is reversed and case remanded

District Court with instructions tо enter judgment declaring rights

parties in ex- accordance views

pressed herein.

Joseph PETTUS, Plaintiff-Appellee, LINE, INC.,

GRACE Defendant and Third-Party ‍‌‌​​​​‌‌‌‌​‌​​​​​‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌​​​‍Plaintiff-Appellee, DOCK TERMINAL

SEALAND CORP. Third-Party Stevedoring Co., Inc., and Federal ndants-Appellants. Defe

No. Docket 27209. Appeals

United States Court of

Second Circuit.

Argued Jan.

Decided June *2 August

ón while pier S.S. Santa Olivia at Java Street Brooklyn, in New As a result York. injury brought this an action ship, Line, Inc., al Grace owners of the by leging injuries his were caused that shipowner, of the agents by employees, and unsea and worthy condition of vessel. Jurisdic grounded diversity tion citizen was on of impleaded' Line, ship. Inc., Grace in turn Corp. Sealand Dock & Terminal and its agent, Stevedoring Co., Inc.,, Federal stevedoring plaintiff’s employer (the companies). third-party complaint by plaintiff set forth the and claims alleged plaintiff that in the recov ‍‌‌​​​​‌‌‌‌​‌​​​​​‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌​​​‍ event Inc., shipown Line, ered from Grace er would be entitled to indemnification to the by City full extent Feury, recovered New York Joseph P. claims', plaintiff, including Feury, Healey & costs.1 Both (Thomas Monica H. brief), jury. jury City, third- were tried found' on the to a York New defendants-appellants. “unseaworthy ship was with negligence” $20,000 and awarded in dam (Di- Brooklyn, Klonsky, N. Y. Robert ages plaintiff.2 Brooklyn, in N. also found Costanzo, Klonsky Sergi, third-party plaintiff, favor of the Grace brief), plaintiff-appellee. Y., on Line, Inc. The court found City (Kir- Coyne, York New Thomas third-party plaintiff entitled to rea City, Keating, York lin, Campbell & New attorney’s fees, by stipula sonable brief), third- defendant and on the agreed parties sum party plaintiff-appellee. $4,000. appeal should be at set followed. Judge, LUMBARD, Chief Before Judg- FRIENDLY, Circuit CLARK The facts are these. Santa S.S. es. pier docked Olivia at the Java at Street August 18, 3:00 P.M. on 1955. At 9:05' Judge. LUMBARD, Chief gangs day longshore- P.M. that two longshore- Joseph Pettus, Plaintiff, discharging cargo a men started a of cof- bags by bags man, draft of coffee hatch, struck fee and continuеd at No. Inc., alleged safe, proper, four causes in a form the work and com- any injury plaintiff (1) manner, petent action: and that either or both by primary duty plain- fault caused resulted in these breaches entitling stevedoring companies, injuries. thus tiff’s Line, Inc., indem to common-law disagreement, stevedoring nification; (2) 2. The record shows not rе- com colloquy foreman, obligated by explicit with the panies solved contrac finding jury indemnify shipown to what agreement meant. tual light negli In the for the third- verdict loss occasioned er for say party plaintiff, stevedoring companies; gence companies “negligence” had to- whether here referred explicit duty contrаctual breached that of the the stevedores. was conducted in the work Thus can see proper while we assume manner; ship unseaworthy, and efficient found do not we had breached know whether considered the obligation per- negligent. contractual a further owner plaintiff was con- interruptions verdict favor of unloаding, caused trary August 20, law, facts and we rain, on until 5:25 P.M. judg- insubstantial, coffee, drafts claims They and affirm the unloaded of mar- ment in favor bags, of Pettus. means 140 lb. twelve *3 rig two booms utilized which ried falls appeal are The material issues on this operat- were The winches winches. by those raised the the point; ed from a central panies’ appeal for the side operator over see winch could not against Grace Line them the third- on signalman dock, a the vessel to the party complaint. find the evi- Since we employed the winch- to indicate to was dence before the suffi- to have been lowering drafts. stop the man when to charge support cient to on thе a verdict evidence considerable There was given, find award no error the throughout electric operation the the attorney’s fees, question re- malfunc- hatch Burton winch No. 3 at only propriety of the mains the as to tioned, brake due a defective charge. aspects Appellants four attack or pay permitted three out the winch charge: (1) the instruction that applied.3 was four feet cable after it part Line the Grace on longshore- Despite the malfunction over; recovery preclude would its unloading operations; men continued the third-party the refusal of defend- the signalman mal- compensated the the ants’ “if the signal giving by stop * * * several the function then winches were defective point. normal cutoff feet above the breached its contract the stevedores’ There was evidence that provide adequate winches and cannot failure, hatch boss winch observed against stevedore”; cover over stop operation. but did that, refusal in order instruct longshoremen that both testified any indemnity, third-party recover cargo ship’s mate * * * electrician and plaintiff prove “must the malfunction some were notified of by all conditions accident, no re- * * * time before the but stevedoring] contract on [the pairs from made. clear were was not himself”; (4) the instruction that there the defect devel- the evidence whether implied warranty part of was an on the oped came before or after the stevedores they on board. perform in a work- their services accident, approxi- ‍‌‌​​​​‌‌‌‌​‌​​​​​‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌​​​‍At the time of the manlike manner. mately August 20, Pettus 6:30 A.M. on reject er claims of standing and others were on the dock first, ror. As to the it is sufficient to low- were drafts as objection point out that no whatever was The draft Pettus ered. which struck judge’s made at use .jerked jumped when the brakes language. objections, other dock, applied five or feet six above having sufficiently below, been raised re hitting drop, on then continued Pettus quire more somewhаt discussion. pallet. pinning .the him shoulder and to a Line, Inc., Defendant Grace does not The second attack on the it; rejected language -contest the verdict because must be third-party defendants, by judge properly while the the trial used stated suggested companies, contend that law and the third- Harvey Roberts, operator, wоrking drum G. and that winch continued placed testified that lever had been several instances unwind after when being draft was lowered Defendant introduced sub- over the side in neutral. indicating slip the winch would evidence the winch three or four feet stantial good applied. after before and after the the brakes were condition The reliеf was testimony signalman, Ward, operated accident, but this obvious- who had rejected jury. morning accident, ly winch the before the testified that at that time the brake was plead- sure, and we no intimation in did not. To defendants ings any attempt indemnity as- based record of since the claim only stevedoring contract, issue sert a counterclаim. The a material on raised Line instruction Grace breach of that contract simple supply- enforcing whether or not the ing fact contract preclude Weyerhaeuser indemnity. more defective winches was without See to recover indemnity, Co., Operating 355 a no bar and there can be v. Nacirema S. Co. 2 L.Ed.2d not. mere fact But relating duty to Line to fulfill failed claimed to the effect of Line’s * * * winches, in adequate “supply duty *4 which has of contractual taking good the not, did without order” preserved is been for our consideration consideration, it- circumstances into to refusal .made to the trial court’s guilty a it material self make of such jury recover instruct indеmnity that in order to the Corp. Nacire- S. v. breach. Calmar S. it “must under contract the (4 Operating Co., Cir. ma 266 F.2d 79 * * * * * * prove has that [it] 1959); Crumady Joachim cf. all the conditions 423, Fisser, Hendrik 445, 79 S.Ct. course, would, have said It contract.” (1959). not do 413 3 L.Ed.2d suggest improper been to in this Hagans Lines, F.2d v. Farrell language, in ed the statement since (3 1956), held Cir. indemnity which layman’s interpretation if a lаw correct against steve- owner’s claim It is elementary, word “conditions.” to the doring company barred because just noted, that we have as obligation to breach of its contractual perform any one Grace Line’s failure winches, provide proper obsta- an to be its duties the contract under holding. decid- clе That case was to this necessarily bar enforcement Crumady Hen- ed before v. The Joachim contract Fisser, supra, drik the law clear companies. in- bar would not that unseaworthiness negligence demnity upon of a based If the word “conditions” is understood stevedoring company, moreover denoting legal usage in its technicаl as Hagans must held “the court non-performance those by whose covenants * * * the defec- have concluded that Line would have excused the cause of tive winch substantial stevedoring companies perform- from all negligence accident, and that Restatement, ance, see Contracts §§ * * * stevedoring compаny’s] [the Corbin, 3A Contracts §§ employees substantial cause was not a though (1960), sentence, then the 237 F.2d at 480. the accident.” accurate, tautology. a mere As becomes general such, was so as to or not the Whether nothing judge trial communicate to the repair failure to a defective winch after concerning theory which the third- pre from stevedores would notice apply. party him defendants wished indemnity, or whether or vent or not record Whether was such as might damages lie counterclaim require judge trial instruct the initial, fail caused the jury to consider whether Grace Line’s sug winches, provide proper as ure gested alleged repair reported failurе to de- Judge dissent, Clark’s are mat interfered fects in the winch so with the not raised for our consideration. ters performance as to constitute stevedores’ sug requested instruction did not preclude part on its sufficient to “conduct judge might gest trial Judge dissenting recovery,”4 what as Clark’s complicating suggests, factors, of such opinion effeсt instruc- Weyerhaeuser Operating Co., S.S. Co. Nacirema 2 L.Ed. 2d held present him. been contractual issue constitute ‍‌‌​​​​‌‌‌‌​‌​​​​​‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌​​​‍a did warranty performance. to the of workmanlike And was no other there n Weyerhaeuser Op upon the issue. v. Nacirema S. Co. bore erating Co., supra, 565, 78 S. 355 U.S. at our con preserve for In order to indemnity Ct. here clausе de possible ma of a sideration the scope liability fines the steve hindering stevedor terial breach guaran dores’ and includes a ing companies’ performance, ty will necessary appellants’ have been carry sufficient insurance to cover losses action at counsel to take some arising negli out of the contractor’s bring judge’s theory atten gence. explicitly does not disavow Rules Federal Rule 51 of the tion. obligations pro created Procedure, states 28 U.S.C.A. Civil express In visions. absence an giv may assign error “No disclaimer we cannot construe clause give ing instruction failure disavowing obliga the fundamental objects before unless thereto provide tion to workmanlike service. stating verdict, retires to consider Affirmed. distinctly he ob to which matter *5 objection.” grounds jects of his and Judge CLARK, imagina (dissenting). Circuit by any stretch We cannot companies stevedoring regard the disagree my I must with brothers’ any having “distinct” holding made relevant scope permissible to of objection. Sеe, g., Palmer e. appellate or review of errors in Hoffman, Inc., 318 charge. trial court’s Massachu L.Ed. 645 87 third-party contracted with to defendants Ray Bonding Dil Ins. Co. v. setts & provide adequate the steve- winches to (8 Inc., Cir. schneider, F.2d 556 ships, dores there was its and Youngstown 1953); Sheet Flint v. evidence in record the winches that (2 Cir. Co., 143 actually Tube F.2d furnished were defective. 1944). charge import clear of the trial court’s provision was that of defective winches Finally, third-party defend right would not Grace Line’s to affect judge erred in that ants the trial assert stevedoring cover over from the charging that the warranty panies for breach of their of performance. workmanlike warranted рerformance. workmanlike third- that the of this contention is The essence charges requested defendants express presence of an in the contract that if the were defective the winches liability pertaining of clause its contract and breached 5 negates implied-in- the usual not, therefore, recover over сould service, warranty of workmanlike fact stevedoring companies and that Stevedoring Ryan v. Pan-Atlantic S. Co. proved could recover if it that it Corp., S.Ct. it had conditions all agree. do not L.Ed. stevedoring upon it contract. explicitly exceptions Timely taken super- charge. By requested provide all labor their and refusals рromised to necessary charge proper exceptions third-party and effi- “for the vision agreed clearly of the work” indicated to the defendants conduct cient they judge accept theory did his full services that provide language My liability. ships. Similar their brothers Line’s concede dock, lighters, performing piers, barges, scows, the work the contrac- ele- 5. “While cars, vators, carfloats, responsible property or be tor shall through thing arising loss, damage injury, (including death or or vessels, contractor, persons), cdrgo, stores, employees, their or fault its equipment.” gear apparel equipment, wharves, or [sic] objection. reasons winches Sincе defective provision of contract; exception is notice function of the breach would constitute sufficiency court, ex- reject er- of an they all claims of test nevertheless ception charge. whether circumstanc- ror in the closed. panies consideration which of several elect. Because owner’s breach the ing quested solving ants would human never been decided court has considered tract I must dissent. S. S. hearing deed there is I unnecessary owner’s breach of mines was remedy, asked for what jurisdiction, denying a fair determining assert a did-—but because their Thus court’s cause cannot and believe this Cir., Actually available for the that is majоrity law. on its Corp. v. Nacirema they *6 question chose charge, 266 F.2d 79. Thus the correct proper prescience charge third-party They tacitly the Fourth Circuit have had my right do restriction problem this court an erroneous now holds that opinion which admitted wrong remedy! Because legal theory brothers find no error of the effect of third-party other remedies proper be a wrong the court one case in which concede remedy say third-party defend- and have shipowner’s breach. indemnification defendants total bar to erroneous. stevedoring con- on our method'—claim- remedy exercise methods of Operating have admitted precise —which statement circuit. a harsh to have now deter- defendants, no in Calmar appellate appellate appellate the trial guessed no not be- remedy did super- suit— would issue, avoid fore- They such Co., any In- re- was erroneous. For At this should course be ble of the right A.). however, light third-party plaintiff’s breach could of pecuniary ment ance winches did not affеct a situation would be the foreseeable and thus would not excuse fendants jector disagreed clear 13(a). of contract they stitute a material breach Moore’s Federal Practice court’s es it was clear (2d Ed.1951). breach I Merryweather, Merryweather, supra, [1895], Q.B. inadequate equipment. provide see what agree stevedores. And (C.A.); Restatement, of the denial of defendants’ disagreed Therefore damages paid stevedores as a result of a reverse the stevedores. Such a action this case made would raised loss caused winches here would contract. measure failure to remedy, 5 Corbin on Contracts §§ which indicated ground my to the court it such Here the with that for give proper shipowner. [1895] abundantly with brothers that damages. counterclaim. charge, order a new a failure would if wrongful they So we should provide Pettus this reason damages any, remedy rights third-party 1J46.02,p. 1904 aspect Cf. Q.B. also nonperform- Contracts § read in is available action. clear attributa- Mowbray provision Mowbray disagree- adequate contract, not con- vis-a-vis request, portion breach, breach, in such the ob- failure trial. turn F.R. (C. de- we be 1006-1013 approach is inconsistent I the Federal Rules of Hence would reverse Rule Civil remand exception F.R. trial on the Under a new liabili- Procedure. ty if the sufficient makes known to Inc. the court his action and