65 A.2d 304 | Md. | 1949
Ches Williams was hit by a grab bucket while working, in the hold of a vessel moored at the pier of Standard *23 Wholesale Phosphate Acid Works, Incorporated, in the employ of Rukert Terminals Corporation. He brought suit in the Baltimore City Court against Standard, alleging negligence on the part of its employees in the operation, upon the pier, of a power crane to which the grab bucket was attached. Standard filed a general issue plea and a motion for leave to join Rukert as a third party defendant, which was granted by order of court. Thereupon Standard filed a third party complaint against Rukert, alleging negligence on the part of Rukert in failing to provide Williams with a safe place to work and to instruct him as to a safe manner in which to perform his duties. The complaint denied Standard's negligence and demanded that Rukert make a defense to the complaint and to the plaintiff's claim for damages. Rukert filed a motion to vacate the court's order allowing the impleading, to quash the summons and dismiss the complaint, on the ground that the accident and injuries to the plaintiff occurred while he was performing stevedore services for Rukert aboard a ship in navigable waters; that Rukert had paid him compensation for injuries and provided medical expenses, through its insurance carrier, Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Company, in accordance with the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and that by making such provision for compensation to its employee, Rukert was thereby relieved of liability growing out of injuries to the plaintiff, not only to its employee, the plaintiff, but also to any third party. Upon hearing, this motion was granted, and judgment for costs entered in favor of Rukert. The appeal is from that judgment.
We may assume, for the purposes of this appeal, that the allegations of the declaration describe a maritime tort. There has been no demurrer to the declaration or complaint and the employer's motion to dismiss the third party complaint would seem to concede the point, since it relies upon the Longshoremen's and Harbor Workers' Compensation Act, which would be inapplicable to a non-maritime *24 tort. If the nature of the tort should become material in later stages of the case, we leave the question open.
The common law courts of a state have jurisdiction to entertain an action arising from a maritime tort, under that clause of the Judicial Code, 28 U.S.C.A. § 371,[1] "saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it * * *." From a procedural point of view, the Maryland courts afford an adequate remedy for the recovery of damages, and a comprehensive third party practice. General Rules of Practice and Procedure, part two, subd. III, Third Party Practice, Rule 4, Code 1947 Supp. p. 2042. It is unnecessary to decide to what extent the saving clause of the Judicial Code would permit the state courts to modify or supplement the maritime law by principles derived from the common law or state statutes. Here the question whether the appellee can be brought in as a third party defendant depends upon the construction of the Longshoremen's Act. In construing that act, we are bound by authoritative construction placed upon it by the federal courts.
The stevedore's remedy for compensation against his employer, 33 U.S.C.A. § 904, is not exclusive of remedies against others. He may elect to proceed against a negligent third party, or, in case he elects to receive compensation, the Longshoremen's Act provides for assignment of his rights against third persons to his employer, binding the latter to remit to him any excess over the compensation received, including medical expenses. 33 U.S.C.A. § 933; Seas Shipping Co. v. Sieracki,
The pertinent language of the Longshoremen's Act, 33 U.S.C.A. § 905, provides: "Exclusiveness of liability. *25
The liability of an employer prescribed in section 904 of this chapter 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 * * *." The appellant does not deny that an employee is prevented by this section from bringing suit against a negligent employer, but contends that the expression "anyone otherwise entitled to recover damages from such employer" should be limited to claimants standing in the shoes of the employee or deriving their rights through him. It contends that under the admiralty law the right of a third party complainant to contribution is not derivative, through substitution or subrogation, but an original right arising from the tort itself, citing Erie R.R. v. ErieTransportation Co.,
On the latter point, it is sufficient to say that although each defendant denies liability and seeks to put the blame upon the other, the pleadings would permit a finding of liability on the part of each. The motion to dismiss seems to assume that this is the case, for it is alleged that "neither the original plaintiff nor the original defendants have any cause of action against the third party defendant or any right of contribution from the third party defendant."
The only case in which the higher federal courts have had to consider the construction of sec. 905 is Porello v. *26 United States, 2 Cir.,
Upon certiorari to the Supreme Court, the case was remanded to the District Court, to permit the taking of evidence as to the intention of the parties, as an aid to construction of the indemnity clause in the contract, which the court found to be ambiguous. The Court said [
The appellant contends that the sentence last quoted recognizes that there could be a liability on the part of the employer to the third party complainant. We think the contention is unsound. A statement that the court is "free to adjudge * * * under applicable rules," does not determine what those rules are, as applied to the facts of the case, but simply leaves the question open, as it was left open by the Circuit Court of Appeals. The appellant contends that District Judge Kirkpatrick, in CoalOperators Casualty Co. v. United States, E.D.D.C. Pa.,
There are, however, a number of cases in the District Courts where indemnity or contribution has been allowed against an employer. See Rederii v. Jarka Corporation, D.C. Me., 26 F.S. 304; The Tampico, D.C.N.Y.,
The appellant stresses the fact that we were dealing, in theSchriefer case, with a right of contribution among joint tort-feasors, which was "a derivative right and not a new cause of action." The question we were considering was whether the Joint Tort Feasors' Act, adopted in 1941, Code Supp. 1947, art. 50, 21 et seq., modified the employer's immunity from suit under the Compensation Act. In the case at bar, the question is whether the Longshoremen's Act, setting up an employer's immunity from suit by an employee, or "anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury * * *," modified the preexisting right to indemnity or contribution under the admiralty law. We have found no controlling federal decision on the point. Cases construing the Harter Act, 46 U.S.C.A. § 192, are distinguishable. TheChattahoochee,
A different situation would be presented if the employer had undertaken, by agreement, to assume an obligation to indemnify apart from his legal obligation. That was the situation in thePorello case, and some of the other cases cited. Immunity is obviously not of such a character that it cannot be waived. In the absence of waiver, the employer's conformance with the statute, by providing compensation in all cases regardless of fault, prevents recovery against him on the ground of negligence. The *30 statute declares his liability for compensation to be exclusive. If it should be construed to preserve his liability, for the payment of a sum measured in whole or in part by the damages sustained by the employee, merely because the negligence of a third party concurred, or is claimed to have concurred, with his own in producing the injury, his liability for compensation would not be exclusive. It is probable that his liability would in most cases exceed the limits set up in the statute. We think it is immaterial whether his liability to a joint tort feasor stems from a statutory right to contribution or from general principles of the admiralty law. In either event it is essentially a liability to pay, or share in the payment of, damages for the injury to his employee, of which the statute relieves him. We think the appellant falls squarely within the definition of "anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury." It follows that his right to indemnity or contribution is foreclosed by the Act, and hence the employer cannot be impleaded.
In so holding, we do not decide as to the extent of the appellant's liability, if any. We leave open the question whether the appellant would be entitled to issues or instructions fixing or limiting recovery against it to a proportionate share of the damages, for which it may be found responsible, under the admiralty doctrine of comparative negligence, or otherwise. We also leave open the question as to the employer's right to reimbursement, if any, out of any damages recovered against appellant, and to what extent that right could be affected by the allowance of a credit for compensation paid. We think the action of the trial court in dismissing the third party complaint was correct.
Judgment affirmed, with costs. *31