Italia Societa Per Azioni Di Navigazione v. Oregon Stevedoring Company, Inc.

310 F.2d 481 ITALIA SOCIETA PER AZIONI di NAVIGAZIONE, Appellant, v. OREGON STEVEDORING COMPANY, Inc., Appellee. No. 17616. United States Court of Appeals Ninth Circuit. October 25, 1962. Rehearing Denied December 6, 1962. Wood, Wood, Tatum, Mosser & Brooke, Erskine Wood, and Erskine B. Wood, Portland, Or., for appellant. Gray, Fredrickson & Heath, and Floyd A. Fredrickson, Portland, Or., for appellee. Before BARNES, HAMLIN and JERTBERG, Circuit Judges. HAMLIN, Circuit Judge. 1 Appellant, Italia Societa Per Azioni di Navigazione, a shipowner, contracted with the Oregon Stevedoring Company, Inc., appellee herein, for the performance of stevedoring services on appellant's ship, the M.S. Antonio Pacinotti. On or about November 19, 1958, during the course of stevedoring operations a longshoreman named Griffith, an employee of the stevedoring company, was injured due to a latently defective rope which had been brought onto the ship by the stevedoring company. Griffith recovered a judgment against appellant shipowner which it satisfied. Thereafter, in a separate action appellant shipowner brought suit against appellee stevedoring company claiming indemnity from appellee for the…

Appellant, Italia Societa Per Azioni di Navigazione, a shipowner, contracted with the Oregon Stevedoring Company, Inc., appellee herein, for the performance of stevedoring services on appellant’s ship, the M.S. Antonio Pacinotti. On or about November 19, 1958, during *482 the course of stevedoring operations a longshoreman named Griffith, an employee of the stevedoring company, was injured due to a latently defective rope which had been brought onto the ship by the stevedoring company. Griffith recovered a judgment against appellant shipowner which it satisfied. Thereafter, in a separate action appellant shipowner brought suit against appellee stevedor-ing company claiming indemnity from appellee for the amount of the judgment which it had been required to pay Griffith. Appellant based .its claim for indemnity on the ground that the stevedor-ing company had been negligent and had breached its warranty of workmanlike service in supplying the defective rope. The stevedoring contract contained an express warranty whereby the stevedor-ing company undertook to indemnify the shipowner for negligence in the performance of its services. 1 The district court found that the stevedoring…

I respectfully dissent. I do so only because of my view that the opinion of my brethren reaches a wrong result in an important and unsettled area of Admiralty law and one which will have far-reaching consequences.

The majority members of the panel conclude that the warranty of workmanlike service could not have been breached without some negligence on the part of the Stevedoring Company and found it unnecessary to decide whether the district court was correct in holding that the express contract clause indemnifying for negligence precluded any implied warranty.

Since I believe that the district court’s dismissal of appellant’s libel should be set aside and the cause remanded to the district court with instructions to enter judgment in its favor against appellee for the amount of the indemnity sought, it becomes necessary for me to first consider the issue not passed upon in the majority opinion.

The Seattle hatch tent and tent tie-down rope involved were owned, supplied, rigged and exclusively controlled by appellee. The rope in question was permanently spliced to an eye in the tent. At the time of the accident, Griffith and his work partner had passed the rope through a deck…