Rather, where working conditions create obvious risks of injury which might be lessened by a more careful method of discharge, the stevedore is required to do whatever it reasonably can to minimize the danger, whether by rearranging cargo or having supervisory personnel on hand to assess safety and oversee discharge.Cf. McNamara v. Weichsel Dampfschifffahrts Ag Kiel, Germany, 339 F.2d 475, 477-478 (2d Cir. 1964). The jury's findings that the Stevedore failed to provide adequately for the supervision and safety of its men and that this failure was a proximate cause of the injuries are supported by the evidence.
The Government analogizes an affreightment contract to a time charter, citing cases stating that covenants of workmanlike performance are not imposed on time charters. ( D/S Ove Skou v. Hebert (5th Cir. 1966) 365 F.2d 341; McNamara v. Weichel Dampfschiffahrts AG Kiel, Germany (2d Cir. 1964) 339 F.2d 475.) Affreightment contracts that give the shipper no operational control of the vessel are similar to time charters in which the charterer likewise has no operational control over the vessel. In addition to the affreightment contract, there was a course of dealing between the Navy and States which shows the symbiotic relationship between the two in respect of the launch service.
Generally, a time-charterer like Weyerhaeuser is not charged with a warranty for workmanlike service. McNamara v. Weichsel, etc., 339 F.2d 475 (2d Cir. 1964); D/S Ove Skou v. Hebert, 365 F.2d 341 (5th Cir. 1966), cert. denied sub nom. Southern Stevedoring Contracting Co. v. D/S Ove Skou, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970). However, such an obligation does arise when the time-charterer assumes operational control of loading his own cargo.
Cunard asserts that any Ryan implied warranty therefore must inhere in, i.e. "arise under," the time charter and fall within the scope of the arbitration clause. McNamara v. Weichsel Dampfschifffahrts A.G. Kiel Germany, 339 F.2d 475, 478 (2 Cir. 1964); D/S Ove Skou v. Hebert, 365 F.2d 341, 351 (5 Cir. 1966). In Ryan the stevedore had a contract with the shipowner; however, the Court was quick to apply Ryan where the stevedore's contract was with someone other than the shipowner.
We find nothing in the case before us to take it out of the general rule that negligence of the shipowner is not a bar to recovery. Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732; McNamara v. Weichsel Dampfschifffahrts, A G Kiel, Germany, 2nd Cir. 1964, 339 F.2d 475; Calmar Steamship Corporation v. Nacirema Operating Co., 4th Cir. 1959, 266 F.2d 79, cert. den. 361 U.S. 816, 80 S.Ct. 56, 4 L.Ed.2d 62. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L. Ed.2d 491.
Allison v. Cosmos Steamship Corp., 331 F.Supp. 1319, 1320 (W.D.Wash.1971). See also, McNamara v. Weichsel Dampfschifffahrts A. G. Kiel, Germany, 339 F.2d 475, 478 (2d Cir. 1964); Drago v. A/S Inger, 194 F.Supp. 398, 410-411 (E.D.N.Y.1961), aff'd 305 F.2d 139 (2d Cir. 1962). Moreover, when a party does not purport to be a professional stevedore, merely because it agrees to assume the responsibility for the removal of its own cargo from a vessel likewise does not give rise to any warranty of workmanlike service.