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November 8, 1977

JAMES R. PADGETT and JOYCE PADGETT, his wife, Plaintiffs,
MOORE-McCORMACK LINES, INC., a Foreign Corporation, Defendant and Third-Party Plaintiff, v. UNITED STATES OF AMERICA, Third-Party Defendant

The opinion of the court was delivered by: BEEKS

This dispute arises from a personal injury sustained during a stevedoring operation. Plaintiff was a civil service employee of the United States (a "blocker and bracer") at the Naval Ammunition Depot at Bangor, Washington. On August 30, 1972 he injured his left leg while engaged in loading the S.S. MOOREMAC CAPE (CAPE), owned by defendant and third party plaintiff Moore-McCormack (MooreMac) and time chartered to third party defendant United States (U.S.). At the time of the injury the U.S. was engaged in loading its own cargo aboard the CAPE pursuant to the terms of the time charter. The injury occurred in No. 1 hold when a fork lift operator, also a civil service employee of the U.S., as were all involved in the loading operation, backed a fork lift into a plank which Padgett was sawing in the course of his duties as a blocker and bracer. The plank struck Padgett's left leg behind the knee and pinned it against a cargo pallet.

 As a result of this accident Padgett sued MooreMac who, in turn, sought indemnity from the U.S., Padgett's employer. At trial a settlement was negotiated between Padgett and MooreMac. The U.S. and MooreMac agreed to submit memoranda on the issues in the third party action to this Court for decision.

 To maintain this action for indemnity, MooreMac must establish preliminarily (1) potential liability to Padgett and (2) that the settlement was reasonable. *fn1"

 It appears that the direct and immediate cause of Padgett's injury was the operation of a lift truck by a fellow longshoreman. Assuming the operator to have been negligent, this is an insufficient basis upon which to establish potential unseaworthiness of CAPE and, thus, potential liability of MooreMac. *fn2" I am of the view, however, that the cramped condition in No. 1 hold in which both Padgett and the lift truck were working potentially rendered the vessel unseaworthy. The working space was inadequate to carry on both operations simultaneously and created an unsafe place to work, which was a contributory cause of plaintiff's injury. Furthermore, I find MooreMac's settlement with plaintiff to be reasonable.

 Having found potential liability and a reasonable settlement, there remain two further questions: 1) Did the Government owe a warranty of workmanlike performance to MooreMac within the purview of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp.,3 and 2) Is the exclusive remedy provision of the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8116(c), a bar to this action. The considered weight of authority dictates that the former must be answered in the affirmative and the latter in the negative.

 The rationale and holding of Ryan are well known and need no extended explication here. Suffice it to say that in recognizing the existence of an implied warranty of workmanlike performance between the stevedore and the shipowner, the Ryan Court held that the exclusive remedy provision of the Longshoremens' and Harbor Workers' Compensation Act (LHWCA) § 5, *fn4" applied only to the employee and his dependents. The Court stated that the shipowner's indemnity action was not an action by or on behalf of the employee nor was it one to recover damages "on account of" an employee's death or injury. *fn5" Rather, it was "grounded upon the contractor's breach of its purely consensual obligation owing to the shipowner to stow cargo in a reasonably safe manner." *fn6"

 The Court used similar reasoning in Weyerhaeuser Steamship Co. v. United States7 in holding that the exclusivity provision of FECA did not affect the application of the divided damages rule in mutual fault collision cases. Noting that the exclusivity provision of FECA was nearly identical to the analogous provision of LHWCA, *fn8" the Court stated:

The purpose of § 7(b), added in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties. . . . *fn9"

 This decision allowed Weyerhaeuser to include in its total damage claim, to be divided equally with the U.S., the damages Weyerhaeuser paid to a civil servant injured aboard its vessel in the collision between the S.S.F.E. WEYERHAEUSER and the U.S. Army Dredge PACIFIC.

 Weyerhaeuser S.S. was first interpreted by the Ninth Circuit in United Air Lines v. Weiner.10 There it was held that United Air Lines was entitled to be indemnified by the U.S. for all damages arising from the deaths of non-government employee passengers of its airliner which collided with an Air Force jet fighter. Indemnity for the deaths of government employee passengers was denied because United Air Lines failed to meet the Weyerhaeuser S.S. requirements of showing that the U.S. owed them a duty of indemnity "by virtue of a contract, attenuated or otherwise, or by operation of a rule of law such as the divided damage rule of admiralty." *fn11" United Air Lines could not succeed on the basis of tort indemnity since "the exclusive liability provision [of FECA] removed the underlying [tort] liability necessary for indemnity." *fn12"

 It is therefore clear that the exclusive remedy provision of FECA does not per se bar an indemnity action by an independent third party such as MooreMac. MooreMac may surmount the exclusivity provision by establishing under Weiner that the Government owed it a consensual duty of indemnity. *fn13"

 The Government contends that it did not warrant workmanlike performance to MooreMac because it did not agree to perform "professional" stevedoring services. It argues that under Matson Navigation Co. v. United States14 the terms of the charter did not provide an adequate basis from which could be implied a contractual obligation of indemnity.

 In Matson a longshoreman employed by the U.S. was killed when he fell while unloading cargo belonging to the U.S. The longshoreman's widow and children received compensation benefits under FECA. They also sued Matson who owned and operated the vessel at the time of the accident, who, in turn, sued the Government for indemnity. The jury found for Matson. Matson then sought to recover attorneys' fees and expenses incurred in successfully defending the lawsuit. The Court granted summary judgment in favor of the Government:

[The] United States did not offer its services to Matson as a professional stevedore. It merely contracted to assume the responsibility for the removal of its own cargo from Matson's vessel. This is too flimsy a predicate for a warranty of professional competence from which could be implied a contractual obligation to indemnify Matson for any damages it might be required to pay another as a result of improper handling by the United States of its cargo. A fortiori, the agreement by the United States to unload its own cargo is an inadequate basis for an implied contractual obligation to indemnify Matson for ...

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