Opinion
Civil Action No. 00-2634 SECTION "G" (1)
May 7, 2002
MEMORANDUM AND ORDER
MINUTE ENTRY
Defendants, Kimnak Kimyeui Maddeler Tasimacilik and Usuk ulusiarash Tasimacilik, have filed a motion for reconsideration of my order entered on March 28, 2002, in which I granted summary judgment in favor of third-party defendant, Boland Marine and Manufacturing, Inc. Defendants contend that my ruling was based solely on my determination that Boland has no independent liability to the plaintiff, and ignores defendants' allegation that Boland is liable to it on the basis on contractual indemnity. Defendants further contend that their claims should not have been dismissed with prejudice, since by doing so I left defendants "`holding the bag' if the evidence submitted at trial should demonstrate that Boland was, in fact, negligent to some degree." I find these contentions to be without merit, and accordingly deny the motion for reconsideration.
Defendants' Memorandum in Support of Defendants' Motion for Reconsideration, p. 1.
Defendants' Claim for contractual Indemnity
Defendants argue that even though I have ruled that they have failed to present a material issue of fact concerning Boland's negligence, Boland may still be liable to defendants for breach of a warranty of workmanlike performance. specifically, defendants submit that:
. . . contrary to the Court's determination that Boland is not independently liable for negligence in failing to secure the lifeboat in question, the evidence ultimately submitted at trial may, in fact, demonstrate that Boland was negligent. Should this be the case, then Boland would not only be liable to Plaintiff for its own negligence, but as a consequence of its own negligence, Boland would also be liable to Defendants for breach of the WWLP.
Id., at 5.
The fallacy in this argument is apparent. Defendants, despite ample time and opportunity, did not submit adequate evidence to support the existence of a material issue of fact as to whether Boland was negligent by failing to secure the lifeboat. Accordingly, I granted summary judgment in Boland's favor, pursuant to FRCP Rule 56. Defendants cannot, at trial, circumvent this ruling by attempting to introduce evidence of Boland's purported negligence. Boland was entitled to summary judgment under Rule 56, and cannot be held liable to a judgment against it in this case. Thus, since Boland's alleged negligence is no longer an issue in this litigation, there is no basis for a finding of liability against Boland for an alleged breach of a warranty of workmanlike performance.
The warranty of workmanlike performance, whether express or implied, is contractual. "It is the essence of the . . . stevedoring contract." Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133 (1956). Pursuant to this warranty, a vessel owner is "entitled to indemnity from a stevedoring contractor for its liability for personal injuries resulting from the contractor's negligence." Nathaniel Shipping, Inc. v. General Electric Co., Inc., 932 F.2d 366, 367 (5th Cir. 1991), (emphasis supplied). The duty of workmanlike performance "does not automatically imply that the [contractor] owes the owner indemnity against all liability under all circumstances." Agrico Chemical Company v. M/V Ben W. Martin, 664 F.2d 85, 93 (5th Cir. 1981). Thus, although the warranty is a contractual obligation, its breach requires, at the very least, a finding of fault on the part of the obligor.
In Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Company, 376 U.S. 315, 84 S.Ct. 748 (1964), the Supreme Court held, that the implied warranty of workmanlike performance was sufficiently broad to include the failure to furnish safe equipment required by the contract with the shipowner, even if there was no negligence on the part of the stevedore who furnished the defective equipment. However, this extension of the warranty appears to be limited to the specific circumstances of the providing of defective equipment, which circumstances are inapplicable to the case before me.
Defendants further submit that plaintiff's employer, Crescent City, may be determined at trial to be partially at fault in causing plaintiff's injuries, but would be immune from this tort liability under 33 U.S.C. § 905. Defendants' argument appears to be that Boland should be required to indemnify them for any portion of fault attributed to Crescent City. However, once again, no such apportionment can be required absent a finding of fault on behalf of Boland.
Dismissal with Prejudice
Finally, defendants request that if I dismiss Boland, that I do so without prejudice. They have offered no statutory or jurisprudential support for this request. Once again, this request is based upon the defendants' mistaken belief that they can attempt to demonstrate Boland's negligence at trial, after having failed to raise even one material issue of fact adequate to defeat Boland's motion for summary judgment. Boland will be dismissed with prejudice.
Conclusion
Defendants have not referred me to a single case or statute in support of any of their arguments for reconsideration of my ruling on Boland's motion for summary judgment. For the reasons set forth herein and in my order of March 28, 2002,
IT IS ORDERED, that the defendants' motion for reconsideration is DENIED.