235 F2d 457 Shannon v. United States
235 F.2d 457
John L. SHANNON, Libelant,
UNITED STATES of America, Respondent-Petitioner-Appellant,
and M. P. Smith& Sons, Inc., Respondent-Impleaded-Appellee.
No. 354, Docket 23999.
United States Court of Appeals Second Circuit.
Argued May 11, 1956.
Decided July 31, 1956.
Paul W. Williams, U.S. Atty., New York , U.S. Atty., New York City, Kirlin Campbell & Keating, James B. Magnor and Vernon S. Jones, New York City, of counsel, for appellant.
John P. Smith, New York City, John Nielsen, New York City, of counsel for appellee, M. P. Smith & Sons, Inc.
Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
FRANK, Circuit Judge.
The trial judge found that the cables supplied by the United States were 'kinky' when supplied to Smith, the stevedoring employer. As the oral testimony supports this finding, it is not 'clearly erroneous.' However, the testimony perhaps justifies an inference of fact that, despite the kinks, the cable was 'in good working order,' i.e., that stevedores regard the presence of kinks as a normal condition of a cable and consider it a part of the stevedore's ordinary function to remove such kinks.1
But we do not rest our decision on that ground, since we think Smith liable over to the owner even if, because of the kinks, the cable was not in 'good working order.' For Smith had expressly agreed with the owner to 'rig and unrig the ship's gear' which Smith used. That agreement, we think, included, as a promise implied in fact, the following: If Smith knew of a defect in any such gear, Smith would either remove the defect or notify the owner. This express undertaking constituted an agreement to indemnify the owner for any loss resulting from a breach by Smith. The express agreement distinguishes this case from American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322, 324-325. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232.
The government is therefore entitled to recover from Smith the amount it paid him, together with its reasonable attorneys' fees and reimbursements in preparing to defend against Shannon's claim.
1 One of Smith's employees testified that he had had dealings with many kinked cables and they had hurt no one. Smith's supervisor on the job testified that the hatch foreman had not complained of the condition of the cable, although it was his duty to report unsafe condition; that a brand new cable will develop kinks; and that kinks in a cable can be rather simply removed.