Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines Ltd/Concurrence Harlan

Mr. Justice HARLAN concurs in the result.

Mr. Justice STEWART, whom Mr. Justice FRANKFURTER joins, dissenting.

In my view the Court of Appeals correctly ruled that the respondents were entitled to indemnity from the petitioner under principles first set forth by this Court in Ryan Stevedoring Co. v. PanAtlantic S. S.C.orp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and followed in Weyerhaeuser S. S.C.o. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, and Waterman S. S.C.orp. v. Dugan & McNamara, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169.

Beard's action was based upon both negligence and unseaworthiness. The respondents were alleged to have been negligent (1) in permitting the use of the bale hook method of discharging the bales, particularly in view of the chief officer's statement that he thought the method dangerous, and (2) in improperly stowing the New York cargo and thereby failing to use ordinary care to provide Beard with a safe place to work. The Court of Appeals properly determined that there was sufficient evidence on either ground to support the jury's general finding of negligence, a determination which I do not understand to be contested here. But a finding of negligence on either ground would necessarily carry with it the conclusion that the petitioner had breached its contractual obligation to the respondents.

As we said only last Term in Waterman S. S.C.orp. v. Dugan & McNamara, supra, at 423, 81 S.Ct. at 201, the stevedore's 'warranty of workmanlike service extends to the handling of cargo * *  * as well as to the use of equipment incidental to cargo handling *  *  * .' If the respondents were negligent in permitting the petitioner's use of a dangerous method of unloading cargo, the petitioner surely breached its 'warranty of workmanlike service' by using such a method in the first instance. Similarly, if the location of the so-called New York bales in the hold made the hold an unsafe place to work, the petitioner necessarily breached its warranty to the respondents by unloading the cargo before first moving those bales. The petitioner is in the business of handling cargo, and any danger created by the New York bales was at least as apparent to the petitioner as to the respondents. Under its warranty the petitioner had a duty to see that the danger was removed before proceeding to unload the Philadelphia cargo.

It is questionable whether the right to a jury trial under the Seventh Amendment is involved in this case, since the respondents' rights against the petitioner depend upon a maritime contract, not upon the common law. American Stevedores, Inc., v. Porello, 330 U.S. 446, 456, 67 S.Ct. 847, 852, 91 L.Ed. 1011. We need not pursue that inquiry, however, because in any event nothing in the Seventh Amendment removes the duty of a trial judge to give proper instructions to a jury, or the duty of a reviewing court to correct a trial judge's errors. Fed.Rules Civ.Proc., 50, 28 U.S.C.A. Here, each possible ground of the respondents' negligence vis-a -vis the original plaintiff involved a breach of the petitioner's warranty as a matter of law. The Court of Appeals correctly held that the trial judge was in error in not so instructing the jury.

I would affirm.