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Purnell v. Norned Shipping B.V. and Chesapeake Trading Corp.

argued: May 1, 1986.

PURNELL, ODESSA, AS THE ADMINISTRATRIX OF THE ESTATE OF WISE, LARRY MCKINLEY, DECEASED
v.
NORNED SHIPPING B.V. AND CHESAPEAKE TRADING CORPORATION V. WILMINGTON STEVEDORES AND CITY OF WILMINGTON (THIRD PARTY DEFENDANTS). WILMINGTON STEVEDORES, INC., APPELLANT IN NO. 85-1507. PURNELL, ODESSA, AS THE ADMINISTRATRIX OF THE ESTATE OF WISE, LARRY MCKINLEY, DECEASED V. WILMINGTON STEVEDORES, INC. CHESAPEAKE TRADING CORPORATION, V. CITY OF WILMINGTON AND NORNED SHIPPING B.V., (THIRD-PARTY DEFENDANTS) WILMINGTON STEVEDORES, INC., APPELLANT IN NO. 85-1508; GIST. BRENDA, AS THE ADMINISTRATRIX OF THE ESTATE OF WILLIAM MARTIN GIST, DECEASED V. NORNED SHIPPING B.V. V. WILMINGTON STEVEDORES AND CITY OF WILMINGTON WILMINGTON STEVEDORES, INC., APPELLANT IN NO. 85-1509. GIST BRENDA, AS THE ADMINISTRATRIX OF THE ESTATE OF GIST, WILLIAM MARTIN, DECEASED V. WILMINGTON STEVEDORES, INC. V. CITY OF WILMINGTON AND NORNED SHIPPING B.V. AND CHESAPEAKE TRADING CORPORATION. WILMINGTON STEVEDORES, INC. APPELLANT IN NO. 85-1510



On Appeal from the United States District Court For the Eastern District of Pennsylvania. Civil Action Nos. 82-5298, 83-1118, 83-0605, and 83-3084.

Author: Stapleton

BEFORE: SLOVITER and STAPLETON, Circuit Judges and MENCER, District Judge*fn*

STAPLETON, Circuit Judge :

On September 27, 1982, two crane operators employed by appellee, the City of Wilmington (the City), died in an accident at the Port of Wilmington. The crane was in the process of discharging a load of steel coils from the foreign vessel M/V NORNED THOR when the crane toppled into the ship's cargo hold, killing the operators and causing substantial damage to both the ship's cargo and the crane. At the time of the accident, the crane was owned by the City, operated by City employees, and leased by the City to appellant. Wilmington Stevedores, Inc. (the Stevedore), a company in the business of providing stevedoring services at the Port of Wilmington.

Representatives of the deceased crane operators brought wrongful death actions against the vessel's owner Norned Shipping B.V., and the Stevedore. Cross-claims were filed between the defendants and third-party claims were filed by defendants against the City and the charterer of the NORNED THOR, the Chesapeake Trading Corporation.

The district court bifurcated the liability and damage issues. In its April 25, 1985 Memorandum Opinion on liability, the district court concluded that the NORNED THOR's unseaworthiness was "a substantial factor" in causing the accident and that the unseaworthiness was not caused by Norned Shipping B.V. or Chesapeake Trading Corporation. Memorandum Opinion at 13. Rather, the district court found that the unseaworthiness of the NORNED THOR was caused by the negligence of the Stevedore:

(a) in failing to properly supervise its longshoremen working aboard the vessel to assure that they properly monitored the discharge operation; (b) in exceeding the weigh capacity of the crane as set by OSHA Regulations; (c) in increasing the weight of the lift beyond the limit imposed by the City of Wilmington; and (d) in failing to warn the operators of the crane that the load had been increased.

Memorandum Opinion at 7.

Accordingly, the district court held that the plaintiffs were entitled to recover against Norned Shipping, B.V. and the Stevedore and that Norned Shipping, B.V. was entitled to be indemnified by the Stevedore. In addition, the district court held that the Stevedore was "not entitled to indemnity from the City of Wilmington . . . because there was no express or implied warranty by the City that the crane was fit for the purpose of lifting a draft in excess of 12 coils." Memorandum Opinion at 14. Finally, the district court held that the Stevedore was not entitled to contribution from the City because Delaware's Workmen's Compensation Act foreclosed the imposition on the City of liability for the deaths of plaintiffs' decedents.

In its June 19, 1985 Memorandum Opinion denying the Stevedore's request for reconsideration, the district court assigned 99 percent of the fault for the accident to the Stevedore and one percent to the City for "failing to protect plaintiffs from negligence of the Stevedore in violating the express restrictions on the . . . crane." Memorandum Opinion at 4 n.2.

In its appeal from the final judgment entered on these rulings, the Stevedore asserts that the district court erred in denying it indemnity and contribution from the City as well as in apportioning fault. We will affirm on the indemnity and apportionment of fault issues and reverse on the contribution issue.

II.

The district court found that federal maritime law recognizes indemnity based upon an implied warranty of workmanlike service. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956).*fn1 The district court concluded, however, that the City was not liable to the Stevedore for indemnity on the basis of an implied warranty because the City had expressly limited any load capacity warranties. In particular, the district court found as a matter of fact that the City had authorized the Stevedore to use the crane to lift a maximum of twelve steel coils and that the accident had been caused by loading 15 1/2 coils. These findings ...


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