Griffin v. United States

¶5OPINION

¶6Before CHOY and GOODWIN, Circuit Judges, and BURNS,* District Judge.

¶7PER CURIAM:

¶8Matson Terminals appeals a judgment of liability under an indemnity contract with the United States, owner of a vessel on which a longshoreman was injured. We affirm.

¶9Gerald Griffin, a longshoreman employed by Matson, was loading lumber aboard the USNS “Lt. Robert Craig” on February 19, 1969. While climbing up a ladder from a ship hold, he sustained an eye injury when struck by an unidentified falling object. Griffin’s action' against the United States for unseaworthiness was dismissed by the district court. This court reversed, determined that the ship was unseaworthy, and remanded for computation of damages and resolution of the indemnity claim. Griffin v. United States, 469 F.2d 671 (9th Cir. 1972).

¶10The indemnity contract sets two conditions to Matson’s liability.1 First, a *1323Matson employee must have been negligent. Second, unseaworthiness of the ship must have been discoverable, or the injury otherwise avoidable, through the exercise of due diligence by Matson.2

¶11Taking no new testimony, relying instead on the trial transcript, the district court on remand held Matson liable under the indemnity agreement.3 The court concluded that one of Griffin’s fellow workers, Reihing, had negligently caused the object to fall, but made no formal finding of fact to this effect. No formal or informal finding on due diligence was made.

¶12Any error in the trial court’s failure to make a designated Rule 52 (F.R. Civ.P.) finding of fact that Reihing was negligent was harmless. Boutte v. M/V Malay Maru, 370 F.2d 906, 907 (5th Cir. 1967). The record discloses that critical determination in the judge’s explicit statement during the trial.4 See generally, Dann v. Studebaker-Packard Corp., 288 F.2d 201, 205-206 (6th Cir. 1961); Graham v. United States, 243 F.2d 919, 923 (9th Cir. 1957).

¶13Applying the clearly erroneous standard, we affirm the trial court’s informal finding of negligence. Reihing had a duty to exercise reasonable care for the safety of his fellow employees. See, Arista Cia. DeVapores, S.A. v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). Reihing did not look beneath his feet while climbing up the ladder, a failure that the trial court could plausibly conclude was a breach of his duty.

¶14Matson’s liability to the United States depends also on its failure to exercise due diligence. Although the trial court made no finding on this point, in an opinion or elsewhere in the record, reversal is not required. Since Reihing’s negligence sent the unidentified object falling and caused the injury, the accident would not have occurred if Matson, acting through its agent Reihing, had observed a proper standard of care. Conversely, Matson, again through its agent Reihing, could have prevented the accident by the exercise of due diligence, assuming that the agent’s and Matson’s standards of care are congruent.

¶15In Arista Cia., supra, this court held, in effect, that a longshoreman’s duty of care was equivalent to his employer stevedore’s implied warranty of workmanlike service. That equivalence is particularly appropriate here, where the longshoreman’s negligence was in failing to watch out for debris on the ladder, precisely the condition of unseaworthiness Matson should have discovered. In these circumstances, the trial court’s failure to make findings as to Matson’s due diligence is therefore harmless error.

¶16Affirmed.