Koninklyke Nederlandsche Stoomboot Maalschappy, N v. Royal Netherlands Steamship Company v. Strachan Shipping Co.
301 F.2d 741
5th Cir.
1962
Check Treatment

*2 RIVES, Before CAMERON and Judges. GEWIN, Circuit Judge. RIVES, Circuit court below dismissed third-party complaint Strachan, Royal appeals. Rawlinson, long- employed Strachan, shoreman sued while on sustained 743/ helping own- 99 Houston dock to load L.Ed. 337. As framed' Royal. impression occurred the issue in ed accident case first caught respect between when Rawlinson piece to maritime insurance *3 pipe side loaded and the tracts. of ship. injuries of the Since occurred “ ** * in the absence of con dock and not while Rawlinson was on the trolling Congress Acts of this Court navigable waters, pursued settle- he to large part has fashioned of the a ment Workmen’s an action under the existing govern rules that admiral of Texas. Rawlinson ty. And States can no over more Royal then sued state court claim- judicial validly ride such rules fash ing by that his were caused they ioned than can Acts of override negligence by unseaworthiness Congress. See, g., e. Garrett v. By to removal case came vessel. Co., 239, Moore-McCormack 317 U.S. Royal court. then a federal filed 246, 63 S.Ct. 87 L.Ed. 239. Conse third-party complaint Strachan quently questions'in the crucial this asking any for an (1) case narrow down to these: Is ground by obtained Rawlinson on judicially there a established federal had Strachan breached admiralty governing rule these war warranty perform contractual to services (2) not, ranties ? If should we fash Royal in a workmanlike settled fashion. ion one?” 314, 348 U.S. at 75 S.Ct. Rawlinson, the suit Strachan with then at 370. summary judgment moved for on the While the Court there held that mari- third-party claim on the gov- time insurance contracts should be payments to Rawlinson in Strachan’s by law, erned there can be no doubt compliance state with the clearly that cially-fashioned judi- a established federal Compensation Act barred third- governs maritime rule agreed action. district court a warranty per- stevedore’s breach of judgment Strachan entered dis- form services in a missing workmanlike fashion. third-party complaint. cases, In a series Supreme recent presented purely are issues ones has held shipowner Court that where a may (1) of law and be stated: Can a damaged by personal injury recovery is a compensation statute cut off an against it, damage was occasioned shipowner against a stevedor- of the stevedore ing company for breach a maritime performance of his contractual undertak- warranty perform services ings, then a contract action for breach of fashion, (2) in workmanlike and/or warranty will lie the stevedore. have the Texas courts so construed the Ryan Stevedoring See Co. v. Pan At- exclusive clause of the Texas Corp., 1956, lantic S. S. 350 124, U.S. 76 act? 133; Weyerhaeuser 100 L.Ed. S.Ct. question- can Steamship There be little Co. Operating v. Nacirema Co., 1958, contract is a mari 355 U.S. S.Ct. 491; Crumady time breach an im L.Ed.2d v. The Joachim warranty perform plied Fisser, 1959, in a Hendrik services 358 U.S. governed by fashion is workmanlike fed S.Ct. L.Ed.2d 413. The action is general, law. In eral maritime a derivative fact one from the basis disposi is is party against that a contract maritime suit applied. shipowner, the law be purely tive but is ab on dam- statute, resulting age judicially- a federal from sence a breach of contract. rule, personal or is need for Once it injury fashioned throughout uniformity admiralty juris judgment damage recoverable in such may action, applied. diction relevant law a contract has the as, Boat Co. v. Fireman’s example, Wilburn Fund exact same status dam- 368, age injury resulting Ins. S.Ct. U.S. to it- question no means follows that either Swanson is whether self. The then proposition or Kent for the stevedore’s as the result arose law can control the local whether breach on its maritime contract with duct question Swanson rele- Strachan. both not see the bar We do right of injured party and Kent was the existence position of the vance of the injured employee. In personal un- action in an both remedies or alternative his Congress cases it compensation acts. was held that since der state expressly weight the had reserved the states attached The court below provide within the Supreme fact *4 (i. e., jurisdiction limits all state of whether of made the determination first injuries place Longshoremen’s permit- on not take Act did the navigable Longshoremen’s warranty. recovery waters), of ted a breach Act, argued Compensation Harbor Workers’ that a similar deter- From this it rights injured party’s respect to U.S.C.A. the § must made with mination be by may compensation act. local applicable and remedies be controlled state by law. Kent therefore that Louisiana Federal stat- This follows. no means injured employee’s utes, constitutional, paramount could bar the if are against party. any judicially-fashioned a third Section rules of ad- extended, however, to miralty; 903 cannot be allow are not. Wil- state laws See rights independent Texas to control the supra. Boat, a Con- while burn Thus on its with Strachan contract denying gressional the direction permitted employee once the recovery decisive, rule would be a state Nothing in can read sue. section the not. would give rights state control over the the upon our recent deci- Strachan relies shipowner. and remedies We are the Co., 5 in Kent v. Shell Oil sion opinion Kent has therefore that holding that a state rights. bearing Royal’s contractual no on compensation can act control workmen’s rights parties we no constitu Since find remedies of the all contrary statutory tional, rule There truck or other this action. a involved injured unloading pipe rule fashioned to the federal while driver was Royal’s barge supra, conclude that contrac a we his truck onto moored from rights against Mississippi. tual Strachan are The driver the shore of the governing by compensation rules the Louisi- affected the state under received party’s act and then tried ana holding Ryan barge on a tort and unsea- remedies. was owner sue marginal grounds theory on such of based One worthiness contrary upset given grounds by deny- the court for state law require a ing decision in favor rationale was the state com- injured party note pensation that under barred Strachan. act Boat, suing party Wilburn a fed if rationale of a third the work only performed rule is established when the was usual eral opinion party. that there is of such third Court is trade business upon need for a uniform admiral relied Swanson Marra substantial The court ty result not Bros., 1946, rule—a consistent with U.S. S.Ct. position appellee’s proposition here. note We also that Con- L.Ed. gress in'the decided context of of all had left the determination admiralty rights, unusual that an in rule duties for nonmari- and remedies longshoreman injuries jured can recover local land-based law. time Assuming showing shipowner that, e., shipowner’s Swanson, unsea local law also controls land- —i. possibility working contem while worthiness —a sustained matters, plated the Texas exclusive maritime relation to direct ady Fis the normal [v. H[endrik] clause. the context of J[oachin] ser, U.S. 423 3 L.Ed.2d industrial accident covered S.Ct. [79 * * *” (1959)] compensation, F.2d 413] workman’s at argues for a common-lawaction While ginia Vir showing a third of that court had considered the of á1 issue party’s negligence. indemnity being such circum- Under Virginia stances, opinion we are applicable present remains the lower conflict between squarely and federal law dismissed was in error when it presented, possibility of such con Royal’s third-party complaint. argued by flict parties that, Several have held other Circuits summarily dismissed the Court general proposition, adopted identical reasons we have repair contracts service here. are maritime that breach contracts and assuming perform in a But services governed by *5 rights, could affect workmanlike fashion is fed- contractual state, our eral, See, g., decision not law. e. Booth be the since same Steamship Texas 2 not construed v. Meier & Oelhaf its Co. Cir., 312-13; Royal’s indemnity. 310, act to bar 262 F.2d A/S language Ludwig The J. Rederi v. Com- the exclusive Mowinckels Stevedoring Co., Cir., 1958, clause in Compen mercial 2 Texas Workmen’s Act, sation cases, 256 F.2d Ann.Civ.Stat., 230. In both how- Vernon’s Art. 8306,1 ever, does not on were incurred on the its face bar ship, Very language- contract action. the court was therefore not and similar Longshoremen’s in the faced with the distinction the Act2 was Export Lines, construed not to makes here. In American bar such an action in Ryan. Revel, Inc. v. 4 are therefore faced question affirming, (E.D.Va., F.Supp. 162 what 279 construction the Texas 1958), have, likely to, put court faced with issue courts or are on this indemnity article. Strachan the court below rely an place support accident which took Nor- on two eases to their reading third-party position. cases, folk docks. While the de- A of these how indemnity ever, fendant raised issue indicates issue was neither Virginia raised nor considered. The earliest case Compensation Act, the district court dis- Renner, West is Texas Utilities Co. v. peremp- missed their contention with a (Tex.Civ.App.1930), S.W.2d 264 aff’d tory F.Supp. citation to at (Com.App.1932), S.W.2d which in and the Court of considered employee independent of an volved subsequent Supreme and the injured by high contractor who was cited, controlling cases voltage premises wires on the of the de discussing possible effect of said, As fendant. independent the court there state law. As the Court there said: impleaded contractor “was “We find in this record no basis for a joint wrong the defendant below as a significant legally distinction from joint Crum- tortfeasor, doer and 1. Art. carrier], Sec. Vernon’s Ann.Civ. surance as the same is herein- Stat.: provided after for.” employes “The of a subscriber and the parents 2. employes Longshoremen’s of minor shall have no and Harbor Work employer Compensation Act, to action (33 their ers’ Section 5 U.S. * * * damages personal inju- says: 905), liability § “The C.A. of an * * * employes employer prescribed ries but such in section 904 of this representatives place their beneficiaries title shall be exclusive compensation solely liability employer shall look all other to the- * * employee [workmen’s Association in- ”* * binding sought against

over more S.W. Court than that if merits, 2d at the lower of the below. On the 453. It held that court then saying the in McCormick court was correct in found dependent third-party action was covered contractor “ agree- # express * * indemnity contractual charged by the parties, ment between the pleading shown evidence allegation common-law tort guilty any active have been was Again Renner. invalid on negligence, and, having protected it- issue of by providing compensation self in- warranty raised, action was was not employees, surance for action, express not a maritime compelled indirectly pay when indemnity agreement may have waived liability directly.” pay exists to any possible implied one. The slender 53 S.W.2d at 456. thread, then, upon relies which Strachan warranty issue a contractual off cut the well-settled maritime not raised and the court did extrapolation free-wheeling is pass possible reach or distinction. language the em- in Renner that Nor is such a indication that compelled ployer pay in- not be “could law. The under Texas exists directly liability when no exist [ed] point.' second case even less pay directly.” Co., 287 Westfall v. Lorenzo Gin S.W.2d (Tex.Civ.App.1956), go along. driver of very We cannot basis from the one in a collision truck collected distinction in the contract other; *6 independent right owner of the the defendant-owner it is of action that an bring plaintiff’s injured em- then tried to in the or related based ployer theory it had been party’s When guilty gross therefore attempted and follow the indemnity. subject to a common-law route, indirect courts tort federal First, was no contractual relation quick there been as have as it down strike impleader. parties between the was in the Texas court Renner. See Second, any proof Liability there was never American Mut. Ins. Co. v. Mat- gross negligence. finally, 322; And, thews, the court Cir., Brown Cir., Co., said: v. American-Hawaiian SS Further, 211 F.2d 16. note we gin company was a “Since the Westfall, Texas later court in under subscriber Compensation the Workmen’s supra, did not consider the Renner lan- Law, appellants cer- guage dispositive when faced with judgment tainly not obtain theory indemnity, different based one or over indemnity it for contribution gross negligence. feel allegation dispositive would be less even when the constituting gross proof act of some suit based on contract. In the absence negligence.” 287 554. S.W.2d at holding express barring Royal’s of an indicating indemnity no Far from claim, no we see reason dis- allowed, any type ever be this will of language turbing Ryan. the rule laid down in yet as indicates that Texas is indemnity Kent, unwilling out an held in to rule where We that a state showing gross negligence compensation injured can bar an act ais employer, employee suing party. If, a third man’s might imply however, permitted, be read to a suit is such and is indemnity pursued settlement, final an arti- state com- prevent pensation cites cannot also Mc- act an 8306. cle States, employer by S.D.Tex., 1955, United the third v. Cormick posi- judicially-establshed F.Supp. 243, support in "of its on a federal warranty. first be should noted that maritime More- It tion. over, interpretation state law is Texas does court’s by' the differ as terms, iier. States to allowance as construed says attempt actions do. Texas courts, so Texas is there- no.” of the district fore statement, On the basis of Reversed. I believe is an accurate statement sitting we, law of Texas and which Judge (dissent- CAMERON, follow; think, court,, ought, Circuit I ing). v. our decision in Kent recent (1961), Shell Oil F.2d 746 says decision in its below The court respectfully I dissent. majority opinion reverses: which the progeny acci “In aboard were

dents or ,(cid:127) act, injury sus applied. Here the * ** I do not on a dock. tained Supreme

believe that Con and related cases

gress, passing com gap fill in com pensation act to coverage, at the pensation intended COMPANY, PHILLIPS CHEMICAL com to limit valid state Appellant, same time coverage pensation manner. there is I understand As HULBERT, Jr., Appellee. C. E. prop to stevedore No. 19220. is action erly, of which the breach United States Court of if, applicable if, able Fifth Circuit. prevent act does April 27, thinking 1962. True, the Court’s it. why does not bar the federal act Rehearing Denied June *7 applied as well result, same Texas act with the chosen have not Texas courts thinking. Apparently follow this legislative policy so com convinced compliance pels, Texas courts hold by employer the Texas Com liability all pensation Act terminates arising employer of covered out employees.

. injuries West Renner, 32 S.W. Utilities

(Ct.Civ.Apps.1930), 53 S.W.2d

(Com.Apps.1932); Lor Westfall v. Company, 287 S.W.2d

enzo Gin

(Ct.Civ.Apps.1956, no writ his States, ;

tory) McCormick v. United (S.D.Tex.1955). F.Supp. 243 I believe that when the

“In short gap filled a work- law coverage men’s indemnity recovery it did allowed validity law where oust force; force neither limit the did man- valid law of this