304 N.Y. 314 | NY | 1952
Plaintiff, Charles McFall, a longshoreman in the employ of Transoceanic Terminal Corporation, commenced this suit to recover damages for injuries sustained when he was
The respective defendants in the primary action sought indemnity by commencing third-party actions.
Belgian Line and Atlantic commenced such actions against Dow, Bunge and Transoceanic.
Bunge commenced suit against Dow and Transoceanic.
Dow, in turn, served a third-party complaint upon Transoceanic.
Two questions are raised on this appeal: First, whether there is evidence in the record sufficient to justify the verdict in plaintiff’s favor against Belgian Line and Dow, and. second, whether recovery should be allowed to (1) Belgian Line against Dow and Transoceanic and (2) Dow against Transoceanic on their claims for indemnity. The trial court dismissed Dow’s claim and the jury returned a verdict in favor of Belgian Line on its claims. The Appellate Division affirmed the dismissal of Dow’s claim but reversed the judgment in favor of Belgian Line on the ground that “ [a] 11 of the parties referred to were joint tort-feasors and there is no basis in fact or in law for recovery over by one of the joint tort-feasors against any of the others ”. (278 App. Div. 652.) Bunge and Atlantic are no longer involved in the action.
The carbon tetrachloride in question was manufactured and put into steel drums by Dow. Early in August of 1947, Bunge ordered from Dow 110 drums of that substance for export to Belgium, and booked space for them on the S.S. Stavelot through Atlantic. They were then transported from Dow’s Texas plant to New Jersey by freight car and forwarded by lighter to Pier 37 on the North River, New York City, where the S.S. Stavelot was berthed. The drums arrived at that pier on August 27th and were checked by an employee of Trans
Plaintiff and his fellow longshoremen then loaded the drums. The first two or possibly three drafts were loaded aboard the vessel in cargo nets whose ends were caught up by a cargo hook. When drums are loaded in that manner they are caused to be jammed together. After two or three drafts had been loaded thus, the longshoremen decided to use “ pie plates ”, which are seven feet wide round wooden platforms, as a means of loading the remaining drums. Five drums were placed upright on a pie plate and the draft was then swung aboard the vessel in a rope net. Seventy-two tons of lubricating oil, in drums, were loaded on top of the drums of carbon tetrachloride, on dunnage. The hatch was then covered. The Labor Day weekend followed and on September 2d plaintiff and his gang removed the cover from the hatch and plaintiff descended into the deep tank where he was overcome by carbon tetrachloride fumes. Police and fire emergency squads were summoned, mechanical ventilators were installed and, on September 3d, the longshoremen removed the cargo from the vessel. It was then discovered that 43 of the 110 drums were leaking at the “ chime seals ” or rims. There were no leaks in the bodies of the drums.
Plaintiff’s claim against Dow is that it was negligent in shipping the carbon tetrachloride in inadequate, defective and unsafe containers.
Plaintiff rightly asserts, and Dow recognizes, that, in shipping for export carbon tetrachloride whose fumes are imminently dangerous to human life, Dow should have used containers reasonably suited to withstand handling by seamen or longshoremen as well as containers suited to withstand gas pressure
As previously stated all of the leaks developed at the chimes, admittedly the weakest point of the drums. They were slow, barely discernible leaks. Neither the presence of dents in the sides of a number of the drums that were removed from the hold, as testified to by Dow’s metallurgist, nor the stowing of drums of lubricating oil on top of the drums of carbon tetrachloride explains, of itself, the fact that 43 out of 110 drums developed slow leaks at the weakest part of the drums. It seems to us that the jury could reasonably infer, from that evidence, that the drums in question were inadequate for the purpose intended.
Dow points to the fact that the drums were made of new galvanized, 18 gouge steel and were constructed in accordance with the rigid requirements of Interstate Commerce Specification 17-EL It will be seen that that is a matter of defense and does not alter the fact that the evidence above mentioned makes out a prima facie case. It is not within our province to determine where the weight of the evidence lies. The evidence that a “ clean ” dock receipt was given by the Belgian Line when the drums were unloaded from the lighter to the pier is likewise a matter of defense. In any event a clean receipt is merely prima facie evidence that the drums were in apparent good order when received on the pier (see, e.g., The Dondo, 287 F. 239). There is evidence in the record from which it was possible for the jury to draw the inference that gas pressure developed inside of the 43 leaking drums (as a result of the hot weather over the Labor Day weekend) causing tiny cracks at their crimped seams. Consequently, the fact that the drums were in apparent, or even actual, good order when received does not preclude a finding that they were inadequate for their intended purpose.
Of course, it is true, as Dow argues, that there is evidence from which a jury could infer that rough handling caused the drums to leak. Transoceanic handled all the operations on the dock as well as the stowage and as already mentioned the first two or three drafts of drums were loaded into the vessel by
Plaintiff’s claim that Dow was further negligent in not giving proper or adequate warning of the risks or dangers involved in the handling or stowing of carbon tetrachloride is not before us inasmuch as the complaint rests solely on the inadequacy and defective nature of the containers and the failure of Dow to warn of the “ inadequate, defective, unsafe and dangerous condition of such containers or drums ”.
Turning to the case against Belgian Line:
Plaintiff does not assert that the vessel was unseaworthy. Hence, the doctrine of Seas Shipping Co. v. Sieracki (328 U. S. 85, 94-95) has no relevancy here. The claim made is that Belgian Line failed in its duty to exercise due care to provide plaintiff with a reasonably safe place to work.
In Riley v. Agwilines, Inc. (296 N. Y. 402, 405-406) we said: “ Since it is beyond the power of the State by legislation or judicial decision to mold or modify the maritime law (Knickerbocker Ice Co. v. Stewart, 253 U. S. 149), we must look to the decisions of the Federal courts to define the liabilities of ship
Under the maritime law a longshoreman who is employed by an independent .contractor engaged by the owner to load its ship, occupies the status of an invitee aboard the vessel. As such he is entitled to a reasonably safe place to work. The duty of exercising reasonable diligence to provide such a place and warn the longshoremen of hidden dangers devolves upon the owner of the ship. For a breach of that duty liability follows. (Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319, 320, affd. 159 F. 2d 795; The S.S. Anderson, 37 F. Supp. 695; The Dalhem, 41 F. Supp. 718, 720; Altamura v. United States, 78 F. Supp. 531, 532.)
That duty is nondelegable and the fact that there is a concurrent duty imposed upon the longshoreman’s employer to furnish him with a safe place to work does not alter the owner’s liability. (Anderson v. Lorentzen, 160 F. 2d 173; Vanderlinden v. Lorentzen, 139 F. 2d 995; Fodera v. Booth Amer. Shipping Corp., 66 F. Supp. 319, affd. 159 F. 2d 795, supra; Porello v. United States, 153 F. 2d 605, 608, revd. in part and affd. in part sub nom. American Stevedores v. Porello, 330 U. S. 446.)
Belgian Line concedes that it owed plaintiff such a duty.
Belgian Line also recognizes that the shipowner is charged with whatever knowledge it would have acquired as to the nature and characteristics of cargo carried on its ship had it exercised due care to acquaint itself with the facts (Anderson v. Lorentzen, 160 F. 2d 173, 175, supra; Williams S.S. Co. v. Wilbur, 9 F. 2d 622) and that there is imposed upon the master of a vessel a duty of seeing that cargo is stowed appropriately (The Etna, 43 F. Supp. 303, 305; Carter v. Brown, 212 F. 393).
The initial question for our consideration, then, is whether or not a jury could reasonably find that the decision to stow the drums in the deep tanks was, in and of itself, a negligent act causally related to plaintiff’s injuries.
United States Coast Guard regulations do not impose any restrictions with respect to the parts of a ship in which carbon tetrachloride may be stowed. Interstate Commerce regulations do not treat carbon tetrachloride as a dangerous article. The only testimony which tends to show that the mere act of stowing carbon tetrachloride in deep tanks was dangerous came from an inspector of the New York Board of Underwriters who testified that carbon tetrachloride should be stowed in a well-ventilated compartment which, obviously, a deep tank is not. However, that statement loses much of its impact when read in context. It is clear that in the opinion of the inspector the prime consideration was that carbon tetrachloride be stowed away from food and living quarters. The only warning which the drums themselves contained was that found on a blue sticker attached to each of the drums which read: “ Warning, volatile solvent. Use with adequate ventilation ”. A shipowner is not compelled to presume, at the time it stows drums containing liquids, that such drums are inadequate for the purpose intended. In the absence of such a presumption the label above quoted affords a warning only as to users and use.
Manifestly, if the drums in question had not been inadequate for the purpose or, if adequate, had not been handled in such a manner as to cause them to leak, the accident here would not have occurred even though the drums were stowed in the vessel’s deep tanks. It was the leaking of the drums which rendered the deep tanks unsafe and which was the proximate cause of plaintiff’s injuries. u One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm Avas not Avillful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.” (Palsgraf
However, plaintiff further claims that the drums were leaking when Belgian Line stowed them. Certainly, on the basis of the evidence adduced as to the properties of carbon tetrachloride, if leaking drums were loaded into the deep tanks by Belgian Line with knowledge of the fact that they were leaking, that would be a negligent act having possibilities of “ danger so many and apparent as to entitle "him [plaintiff] to be protected against the doing of it ”. The sole testimony tending to establish that any of the drums were leaking at the time they were loaded aboard the ship came from a longshoreman. He testified that he noticed several drums leaking at the rims as they were being put aboard the ship and that he remarked about the fact to a man passing by whose name and position he did not know but who “ had a sort of an officer’s cap on ” and whom he had seen “ [w]ell, sort of taking care of the crew members- on his ship.” Later, on cross-examination, he stated that he was unable to swear that there was more than one drum leaking. He also admitted that he did not know whether that drum contained carbon tetrachloride or lubricating oil. The testimony of that longshoreman is extremely Aveak evidence of the fact that he spoke to an authorized agent of Belgian Line or that any of the drums containing carbon tetrachloride was leaking when loaded into the vessel. Furthermore, other evidence tends to weaken his credibility. Although it Avas his job to report leaking drums of wet cargo to his hatch foreman he did not do so here. A checker employed by Transoceanic testified that it was he Avho checked the 110 drums as they were loaded into the vessel and he found no leaking drums. While it is true that the credibility of a witness and the weight of the evidence is for the jury, it is clear that the verdict here, when viewed in light of the Trial Judge’s charge, shows beyond all question that the jury rejected the longshoreman’s testimony, thereby concluding that Belgian Line did not have notice that the drums were leaking. The Trial Judge made it clear that, if the Belgian Line were found to have stowed the drums below
Though the jury rejected the testimony given by that longshoreman it was still possible for them to find Belgian Line negligent. The Judge charged that such a finding could be made if Belgian Line failed “ to warn these stevedores working about cargo of danger therefrom, if any, even though the stevedores ’ employer, as an independent contractor, may have been aware of the danger.” Belgian Line did not warn the longshoremen of the properties of carbon tetrachloride nor did it caution them to employ special care in the manner of loading or handling that substance. As mentioned earlier, the evidence tended to establish that the longshoremen, in fact, handled the drums in a rough fashion and that such handling helped to cause the drums to leak. While it cannot be stated with absolute certainty that a warning by the shipowner would have prevented such handling and the consequent leaks, still it is probable that the warning would have had its effect and since it was the duty of the shipowner to warn against that happening the jury could properly find that such failure played an important role in this accident. Hence, the verdict against Belgian Line was justified.
The remaining questions relate to the claims by Dow against Transoceanic and of Belgian Line against Dow and Transoceanic.
It is essential to note that neither Dow nor Belgian Line is claiming contribution — both are seeking indemnity — and there is a fundamental distinction between contribution and indemnity. The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution. In the absence of statutory provision one of several wrongdoers, who has been compelled to pay damages for the wrong committed, cannot obtain contribution from the others who participated in the commission of the wrong. Such is the rule recognized not only by the courts of this State (see, e.g., Fox v. Western New York Motor Lines, 257 N. Y. 305) but by the Federal courts (see
The common-law rule denying contribution to joint tortfeasors has been partially abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exist: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tort-feasor of more than his prorata share thereof. (Fox v. Western New York Motor Lines, 257 N. Y. 305, supra.)
The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought. Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act. Whether negligence is passive or active is, generally speaking, a question of fact for the jury.
Dow’s claim against Transoceanic was dismissed at the close of the case by the Trial Judge in the following words: “ Implicit in the fastening of liability on Dow must be a finding that the drums here involved were not reasonably safe for the purposes for which they were used and that Dow was affirmatively negligent. If this be so, then subsequent mishandling by Trans
We agree with that disposition of Dow’s claim against Transoceanic. The only evidence in the record which would permit a jury to find Dow negligent was that indicating that the carbon tetrachloride was shipped in drums which were inadequate for the purpose intended and the jury so found. That act was not a mere failure to perform a nondelegable duty imposed by law which, under the circumstances should have been performed by another — it was an act of affirmative negligence.
With respect to Belgian Line’s claims for indemnity, the Trial Judge charged the jury that before the shipowner might recover from any third party the jury must be satisfied, not only that the third-party defendant was “ negligent in accordance with ” the charge, but also that the third-party plaintiff (Belgian Line) “ did not by any affirmative act of [negligence] * * * of its own contribute to the happening of this accident.” Therefore, implicit in the jury’s verdict for Belgian Line against Dow and Transoceanic is the finding that the Belgian Line was only passively negligent whereas Dow and Transoceanic were actively negligent. Since there is evidence sufficient to support that verdict it must stand.
Transoceanic was negligent in failing to warn the longshoremen of the properties of carbon tetrachloride, in failing to caution them to employ special care in the manner of loading or handling that substance and in failing to otherwise properly supervise and perform the loading operations. Nevertheless, since the duty to furnish longshoremen with a safe place to work is a nondelegable duty imposed by law upon the shipowner and requires, inter alla, that the shipowner warn the longshoremen of possible dangers to be encountered, the failure of Belgian Line to thus warn plaintiff is a sufficient basis for holding Belgian Line liable to plaintiff. However, ‘ ‘ The mere fact that both parties may be guilty of negligence in law as to the person injured does not necessarily mean that the owner [Belgian Line] and general contractor [Transoceanic] are participes criminis or in pari delicto as to each other.” (Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 418, affd. 298
The evidence earlier outlined shows that Belgian Line was guilty of a fault of omission whereas Transoceanic, in negligently handling the drums, and Dow, in supplying inadequate drums, were guilty of faults of commission. (Cf. Standard Oil Co. v. Robins Dry Dock & Repair Co., 32 F. 2d 182, 184.) While that is not always determinative, since either a fault of omission or one of commission may constitute active negligence, it seems to us that the factual disparity between the delinquency of Transoceanic and Dow and that of Belgian Line is so great here that the jury was justified in concluding that Belgian Line’s fault of omission was only passive negligence.
The right of Belgian Line to a recovery over finds support in numerous cases among which are Washington Gas Co. v. District of Columbia (161 U. S. 316); George A. Fuller Co. v. Otis Elevator Co. (245 U. S. 489); Burris v. American Chicle Co. (120 F. 2d 218); Standard Oil Co. v. Robins Dry Dock & Repair Co. (32 F. 2d 182, 184, supra); Schwartz v. Merola Bros. Constr. Corp. (290 N. Y. 145), and Tipaldi v. Riverside Memorial Chapel (273 App. Div. 414, affd. 298 N. Y. 686, supra). None of those cases is vitally different from the present case. In all of them a plaintiff recovered against a person, such as Belgian Line, who was under a nondelegable duty to furnish a safe place to such plaintiff but in each case the primary and affirmative wrong was occasioned by the defendant against whom indemnity was sought and indemnity was
Belgian Line has not urged that the stevedoring contract with Transoceanic contained an express covenant of indemnity. Nevertheless, the cases above cited establish the principle that, even in the absence of an express covenant of indemnity Belgian Line has the right to a recovery over against Transoceanic if the evidence be sufficient to establish Transoceanic as the primary wrongdoer. Indeed, as we said in Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola (134 N. Y. 461, 467): “ one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not * * Therefore, even though Dow and Belgian Line were not parties to a contract the fact that Belgian Line has been cast in damages because of Dow’s active negligence is a sufficient basis for permitting Belgian Line a recovery over as against Dow.
Although it is not urged here, passing mention should be made of an affirmative defense raised by Transoceanic but dismissed by the Trial Judge as insufficient in law. The substance of that defense is that by virtue of section 905 of title 33 of the United States Code, plaintiff’s exclusive remedy against Transoceanic is under the Longshoremen’s and Harbor Workers’ Compensation Act and to permit Belgian Line or Dow a recovery over on an indemnity theory is to make the employer liable indirectly in an amount which could not be recovered directly. That same defense was argued before this court by an employer who had complied with the provisions of the New York Workmen’s Compensation Law (upon which the Federal act was modeled), and we concluded that it was insufficient in law since the defendant,in seeking a recovery over is not suing for the damage sustained by the employee but asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the employer as indemnitor. (Westchester Lighting Co. v. Westchester Co. Small Estates Corp., 278 N. Y. 175.) (See, also, Burris v. American Chicle Co., 120 F. 2d 218, 223, supra; Mirsky v. Seaich Realty Co., 256 App. Div. 658.)
The judgment of the Appellate Division should be modified in accordance with the opinion herein, with costs in this court and in the Appellate Division to Belgian Line against Dow and Transoceanic, and, as so modified, affirmed, with costs.
Loughran, Ch. J., Lewis, Desmond, Dye, Ftjld and Froessel, JJ., concur.
Judgment accordingly.
