The plaintiff Employers' Surplus Lines Insurance Company (hereinafter designated by the name Employers' Surplus) sought a declaratory judgment as to its rights and duties and the respective rights and duties of other insurance companies under policies of insurance issued to the defendant Crescent Wharf & Warehouse Co. (hereinafter designated by the name Crescent Wharf), a corporation engaged in the business of stevedoring.
The nature of the controversy is readily made apparent by the findings of fact. Portions of such findings relating to the claims involved are as follows: (1) Since March 1, 1963, defendant Crescent Wharf has been sued in 30 different suits by means of third-party complaints or cross-complaints asserted against it by the owners of vessels whereon Crescent Wharf was employed for cargo handling and stevedoring services. In each of those suits an employee of Crescent Wharf who was working as a stevedore for Crescent Wharf during the period between March 1, 1963, and July 14, 1964, sued the owner of the vessel for damages for personal injuries sustained by the employee while performing cargo operations on board or about the vessel. Each cross-complaint or third-party complaint of the shipowner against Crescent Wharf was based upon the doctrine of Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124
Portions of the findings of fact relating to the insurance contracts issued by Stuyvesant and Employers' Surplus, respectively, are as follows: (1) On or about March 1, 1963, Stuyvesant issued to Crescent Wharf its public liability and property damage policy which was in effect from March 1, 1963, to and including July 14, 1964. Therein it is stated that the policy is "To cover the Legal and/or Assumed and/or contractual Liability of Assured for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting
With respect to the Fireman's Fund and Pacific Employers policies, respectively, portions of the findings of fact are as follows: (1) On or about August 1, 1962, Fireman's Fund issued to Crescent Wharf its policy entitled "Standard Workmen's Compensation and Employers' Liability Policy" and concurrently therewith Fireman's Fund issued to Crescent Wharf another policy covering the liability of Crescent Wharf under the Longshoremen's and Harbor Workers' Compensation Act. Both policies were in effect during the period of August 1, 1962, to August 1, 1963. The policy relating to the Longshoremen's and Harbor Workers' Compensation Act contains an endorsement in the following language: "It is mutually understood and agreed that except as this policy may be otherwise extended by endorsement, no other liability of any nature whatsoever, except as defined by the said Longshoremen's and Harbor Workers' Compensation Act, is covered hereunder." That policy contains no endorsement extending its coverage. Under "Coverage B" of the other Fireman's Fund policy it is provided that the insurer shall "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease... sustained ... by any employee of the insured arising out of and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declarations or in operations necessary or incidental thereto." Under the heading of "Exclusions" that policy contains the provision that it does not apply "under coverage B, to liability assumed by the insured under any contract or agreement." (2) On or about August 1, 1963, Pacific Employers issued to Crescent Wharf its policy entitled "Workmen's Compensation and Employers' Liability Policy," which was in effect during the period
Portions of the conclusions of law of the trial court are that, for the period of March 1, 1963, to July 14, 1964, the Stuyvesant policy covers every claim for indemnity made against Crescent Wharf by the owner of a ship for the liability of such owner for damages for injuries suffered by a stevedore employed by Crescent Wharf on or about the ship in the performance of a stevedoring contract between the owner of the ship and Crescent Wharf, whether the contract is oral or written, and that the Employers' Surplus policy constitutes excess insurance over and above the Stuyvesant policy limit of $25,000 for injury to one person with respect to the same risks and claims as are covered by the Stuyvesant policy, except as to costs of defense of any such claim. Other conclusions of law are that neither Fireman's Fund nor Pacific Employers are, as to their respective policies, under any obligation to furnish a defense for, or to pay, any claim that is covered by the Stuyvesant and Employers' Surplus policies. Judgment was entered accordingly.
As has been noted, the policy of Employers' Surplus contains a provision that the insurance afforded does not cover liability for bodily injury to employees of Crescent Wharf
The governing law is found in Indemnity Ins. Co. v. California Stevedore & Ballast Co. (9th Cir.1962) 307 F.2d 513, a case involving liability policies issued to contracting stevedores. The court stated (page 514): "And when longshoremen work aboard vessels they are maritime workers having the benefits of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.; hereinafter referred to as `the Act'). The Act gives longshoremen their exclusive remedy against their employers for any personal injury arising out of their employment. (33 U.S.C.A. § 905.) Therefore a longshoreman cannot sue his employer for personal injuries arising out of his employment. He can, however, sue the owner or operator of the vessel aboard which he was injured." In that case, as in the case presently before this court, in actions by the contracting stevedores' employees against shipowners for damages for bodily injuries sustained while performing stevedore services, the shipowners filed third-party complaints against the contracting stevedores. In each of those actions the employees had performed their services under a written contract between the shipowners and the contracting stevedores.
In the Indemnity Ins. Co. case the court pointed out that the contracts between the contracting stevedores and the shipowners are maritime contracts which are to be construed in accordance with federal law. The court then stated that, after the reviewing court first decides the terms of such contracts, the question presented is whether the claims asserted by the shipowners against the contracting stevedores are within the coverage of the insurance contracts, that is, whether the contracting stevedores' liabilities to the shipowners were assumed under a written contract. (307 F.2d, at pages 516-517.) After noting that under the federal law as set forth in Ryan (see footnote 2 of this opinion) the contracting stevedores' "warranties
Turning to the question of whether the liabilities imposed upon the contracting stevedores by the shipowners were within the coverage extended by the insurance policies, the court in the Indemnity Ins. Co. case held that they were, stating (307 F.2d, at pages 517-518): "Being liabilities assumed under written contracts, the clear and unambiguous language of appellant's insurance policies except these liabilities from Exclusion (c). This conclusion is consistent with California law.... Here there is no ambiguity. There is nothing to construe. Even if there were an ambiguity, then ... the circumstances of the case at bar would require appellant's insurance policies to be construed in the favor of appellees and against the insurance company. Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437 [296 P.2d 801, 57 A.L.R.2d 914]. The result in either case is coverage."
In the case presently before this court the Stuyvesant and Employers' Surplus policies do not restrict coverage to liabilities assumed under a written contract, the word "written" being omitted in the pertinent provision of each policy. The liability imposed upon Crescent Wharf by the shipowners is within the coverage afforded by those policies whether the contract between Crescent Wharf and a shipowner was oral or whether it was written. Obviously, coverage is afforded with respect to a written contract in which there was embodied an express "hold harmless" clause as to liability of the nature of that involved in the present case; such a clause relates to an obligation which, as stated in Ryan (see footnote 2 of this opinion), is "of the essence" of the stevedoring contract.
In Booth S.S. Co. v. Meier & Oelhaf Co. (2d Cir.1958) 262 F.2d 310, a shipowner filed a third-party complaint against Meier & Oelhaf Co., machinists, claiming indemnity with respect to whatever sum might be awarded against it in the main action on behalf of the plaintiff, an employee of Meier & Oelhaf Co., for injuries he sustained while engaged in engine
The judgment is affirmed.
Cobey, J., and Moss, J., concurred.