In re L. Boyer's Sons Co.

THACHER, District Judge (after stating the facts as above). The jurisdictional point has not been seriously pressed, and since the statute applies to lighters used on lakes or rivers, or in inland navigation -(R. S. 4289'; Act June 19, 1886, c. 421, § 4 [46 USCA § 188; Comp.' St. §’ 8027]), and the proceeding was commenced in the district in which the owner of the lighter was sued (United States admiralty rule-54), the point may be passed without further comment. At the outset the claimant is met by the assertion, as a bar to its claim, of the judgment in the suit brought by Miller in the state courts, where the petitioner was exonerated from liability to Miller and the claimant held liable-for his injuries. Upon this question the decisions are in conflict, it having been held in the Sixth Circuit that the judgment in the original suit exonerating a codefendant does not bar another defendant, held liable in the original suit and compelled to- pay the judgment from seeking indemnity from his codefendant, who was exonerated by the judgment. Citv of Owensboro v. Westinghouse (C. C. A.) 165 F. 385. The Circuit Court of Appeals for the Ninth "Circuit holds that the ■judgment of exoneration in the original suit bars the suit for indemnity. Town of Flagstaff v. Walsh, 9 F.(2d) 590. Notwithstanding this conflict of decision, the Supreme Court refused to review the decision in the Ninth Circuit. 273 U. S. 695, 47 S. Ct. 92, 71 L. Ed.-. I do not find the question authoritatively settled in this state, but see the recent decision of the Appellate Division for the Fourth Department, in Erie R. R. Co. v. Buffalo & Lackawanna Traction Co., 220 App. Div. 520, 221 N. Y. S. 680, where some support is found for the rule in the Sixth Circuit. In support of the rule of the Ninth Circuit, see Kansas City v. Mitchener, 85 Mo. App. 36; Seattle v. Erickson, 99 Wash. 543, 169. P: 985; C. & W. I. R. Co. v. C. & S. C Ry. Co., 223 Ill. App. 578. George Fuller Co. v. Otis Elevator Co., 245 U. S. 489, 38 S. Ct. 180, 62 L. Ed. 422, does not touch the point, because the defendant there sued for indemnity had been discussed from the original suit before the evidence of its eodefendant had been heard. The question may depend upon the proper construction of section 264 ,of the New York Civil Practice Act, which provides that, where it is sought to have the judgment in an ’ action determine the ultimate rights of two or more defendants, as between themselves, such determination must be demanded in the answer of the defendant seeking such determination, and the answer must be served upon the defendants to be affected by the determination before trial. Certainly this [203] court cannot give to a New York judgment wider scope than is given to it by local statute, and, since the question is one which does not appear to have been settled by any decision of the Now York Court of Appeals, I think it should not be decided here, unless necessary to a proper disposition of this ease. I do not think Fulton County C. & E. Co. v. Hudson River T. Co., 200 N. Y. 287, 93 N. E. 1052, determinative of the precise point here involved. Coming, then, to the merits, the principle upon which the liability here asserted must rest is that one who has been held liable for the personal neglect of another, in which he did not participate, is entitled to indemnity from' the primary wrongdoer, a principle which tempers the rigor of the rule forbidding recourse between wrongdoers. Washington Gas Co. v. District of Columbia, 161 U. S. 316, 16 S. Ct. 564, 40 L. Ed. 712; Oceanic Steam Navigation Co. v. Compania Transatlantic Espanola, 134 N. Y. 461, 31 N. E. 987, 30 Am. St. Rep. 685. The principle, although most often applied in favor of municipalities seeking indemnity for judgments recovered by persons injured on highways, is one of general application. George A. Fuller Co. v. Otis Elevator Co., supra. If, then, it was through the neglect of the petitioner that Miller was injured, the claim for indemnity is well founded, unless the plaintiff was a participant in petitioner’s wrongdoing. Háving had notice of the original suit, and having participated in the trial of it, the judgment rendered against the claimant concludes the petitioner as to the fact that Miller was injured, while using due care, by a fall from the ladder which was not sufficiently secure to bear his weight, and that he suffered damage to the amount for which recovery was had in the original suit. Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Boston v. Worthington, 10 Gray (Mass.) 496, 71 Am. Dec. 678. Inquiry is always open to determine the fault upon which indemnity must be predicated, and, unless it be shown that Miller’s injury resulted from the petitioner’s personal neglect of an obligation or duty owning either to him or to the claimant, the claim for indemnity must fail. The claimant endeavors to predicate an obligation to furnish safe means of access from the ship to the lighter upon the contract existing between the parties, pursuant to which the claimant undertook the work of stowing the sugar after it had been discharged from the ship onto the deck of the lighter. But the only agreement between the parties was a general understanding that, whenever« the claimant’s men .were engaged in the discharge of anyf vessel, they should properly stow all cargo discharged into lighters of the petitioner without special orders from the petitioner, and should receive the established price for such service. In this arrangement there was certainly no obligation expressed to furnish ladders for the claimant’s men to go from ships being discharged onto petitioner’s lighters. Nor can such an obligation bo implied in this case, because of the relations of the parties and the nature of the work with reference to which the contract was made, to wit, the discharge of the vessel’s cargo onto the lighter and its proper stowage thereon. In this work the claimant was performing the function of the ship in removing the cargo from her holds and placing it upon the dock or upon the deck of the lighter. For the- performance of this function all ships are equipped with the necessary rigging, tackle, and appliances, including ladders, by which the men engaged in the work may descend to the dock or the deck of the lighter alongside^ whenever it is necessary for them to do so. In this ease a perfectly safe and proper ladder was furnished by the ship, and used by the claimant’s men on the day before the accident, and it was at hand when the accident occurred. It is not customary for lighters to carry such equipment, and it would be quite absurd to require them to do so. The ladder in question here was not furnished by the petitioner as part of the lighter’s equipment. Without its knowledge or authority this ladder was used by the captain of the lighter for his own personal convenience in going ashore.- Nor can it bo said to have been an appliance used in the performance of the contract between the parties. Under the contract be-, tween the claimant and the owners of the ship, it was necessary for its employees to gw aboard the lighter in order to unsling the drafts of' sugar discharged by means of the ship’s tackle, and to place the sugar on the deck of the lighter. The service of these men, under the contract between the claimant and the petitioner, did not commence until all this had been done. So that the primary obligation to furnish a safe means of access from the ship to the lighter rested upon the claimant, not upon the petitioner. The result is clear, I think, that no obligation, express or implied, was imposed by the agreement between the parties upon [204] the owner of the lighter to furnish a safe means of access from the deck of the ship to the deck of the lighter. It seems equally clear that no such duty was owing to the injured man, independently of the contract with his employer. The ladder in question was not furnished for his use,' and under the circumstances of this ease, and in view of the general custom and practice pertaining to the work, the duty to furnish a safe ladder rested upon the claimant, not upon the petitioner. It was for the breach of this duty that he has had his recovery in the state court, and it cannot be said that his injuries resulted from any fault of the petitioner. Consequently the claim for indemnity fails, and the petitioner is entitled to a decree exonerating it from all liability.