MESKILL, Circuit Judge:
The issues raised on this admiralty appeal stem not from the injured longshoreman's quest for damages but from the subsequent contest among four other parties to shift the burden of indemnification for his recovery.
On September 1, 1968, employees of Maher Stevedoring Company, Inc. ("Stevedore"), plaintiff Fernandez among them, were unloading a cargo of "pre-palletized" units of pineapples from the # 3 hold of the SS Chios. A "pre-palletized" unit is a single package consisting of a pallet and cartons glued together so that no bands or lashings are necessary to bind the unit when transporting it. The lightweight, disposable pallets
Fernandez sued Chios Shipping Co., Ltd. ("Shipowner") on theories of negligence and unseaworthiness.
The jury returned a special verdict for plaintiff, finding that the SS Chios was unseaworthy and that this unseaworthiness was a proximate cause of the injury. They also found that Fernandez was not contributorily negligent and awarded damages of $90,200
The jury found that the Stevedore breached its warranty of workmanlike performance by failing to supervise and direct its employees properly in the unloading operation and to provide for the safety of its employees; the jury also determined that the Stevedore's action was a proximate cause of plaintiff's injuries. As to the Shipper, the jury found that its negligence resulted
Based on these findings, the district court held that the Shipowner was entitled to indemnification from the Stevedore and the Shipper. As a matter of law, the court held that the Time Charterer was bound to indemnify the Shipowner from its liability to plaintiff, including costs and attorney's fees, because the Time Charterer warranted in Clause 8 of the charter that it would safely and properly assume control of cargo operations. The court also held that the Time Charterer was entitled to indemnification from the Stevedore and Shipper, in accordance with the jury's answers to the interrogatories. In sum, although the Shipowner was found to be liable to plaintiff, it was entitled to indemnification from all of the other parties. The Time Charterer, bound to indemnify Shipowner, was itself entitled to indemnity from the Stevedore and the Shipper. Thus, the burden of the longshoreman's recovery ultimately fell upon the Stevedore and the Shipper. Every participant held bound to indemnify another appeals from that determination. The Shipper also challenges the amount of the longshoreman's recovery as excessive. Finally, appellants raise numerous procedural and evidentiary claims of error. In an attempt to simplify the issues involved, we shall analyze each claim of error according to the relationship of the parties, presenting additional facts as necessary.
I. Stevedore's Warranty of Workmanlike Performance.
Both the Shipowner and the Time Charterer claimed indemnification from the Stevedore based on its warranty of workmanlike performance. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972). The jury found that the Stevedore breached this warranty by failing to properly supervise and direct its employees in the unloading and by failing to provide for the safety of its employees during this process;
Testimony by Edward Ponek, the Stevedore's safety manager, revealed that a superintendent from the Stevedore was assigned to supervise the discharge of the
In Fairmont Ship. Corp. v. Chevron Internat'l Oil Co., Inc., 511 F.2d 1252 (2d Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975), we noted that Ryan indemnity evolved to ameliorate the harshness of the shipowner's nondelegable duty to provide a seaworthy ship, a duty which imposes liability independent of fault.
The procedural defects alleged to constitute reversible error merit only brief discussion. Stevedore first complains that the district court failed to include an option in the indemnity interrogatories that the Shipowner did not meet its burden of proof. We disagree. Judge Motley's charge, the pertinent part of which is set out in the margin,
II. Time Charterer's Contractual Duty to Shipowner.
The Time Charterer appeals from the district court's ruling that it must indemnify the Shipowner under Clause 8 of the time charter. Clause 8, in pertinent part, provides that "the charterers are to load, stow, trim and discharge the cargo at their expense under the supervision of the Captain. . . ."
Nichimen involved damage to a cargo of steel coils negligently stowed and loaded by a specialist hired by the time charterer's port agent. Under the Carriage of Goods By Seas Act ("Cogsa"), both the time charterer and shipowner were held responsible for damages owed to the purchaser of the cargo.
Judge Friendly, speaking for this Court, noted that absent any special provision, the duty to care for cargo and the consequences for failing to do so properly would fall upon the ship and the shipowner. However, under Clause 8, the time charterer assumed the primary responsibility for the safety of stowage, insofar as cargo damage was concerned. Since the cause of the damage, improper stowage, was within the scope of responsibility which Clause 8 intended to shift from the shipowner to the time charterer, the shipowner was entitled to indemnification.
The Time Charterer in the instant case attempts to distinguish Nichimen by arguing that Nichimen involved cargo damage resulting from negligent conduct while the case at bar concerns personal injury without any showing of negligence by the Time Charterer. We can find no convincing basis to limit Nichimen to cargo damage situations. When Clause 8 shifts the responsibility of proper discharge of cargo to the charterer, that responsibility includes whatever damage results from improper discharge, whether to the cargo or to the personnel unloading it.
III. Shipper's Liability.
The district court submitted three interrogatories to the jury concerning the potential liability of the Shipper, which also manufactured the pallets. The jury concluded that the pre-palletized unit broke apart due to the negligence of the Shipper, that the pallet contained a latent or hidden defect, and that the Shipper's actions were a proximate cause of the longshoreman's injuries. On the basis of these findings, the district court held that the Shipowner and Time Charterer were entitled to full indemnification from the Shipper.
The Shipper argues that the district court abused its discretion in permitting Daniel Devaney to testify as an expert witness for the Shipowner because he was unqualified to testify about the pre-palletized units and because his testimony lacked any probative value. We disagree.
Rule 702 of the Federal Rules of Evidence permits a witness qualified by "knowledge, skill, experience, training, or education" to testify as an expert if his specialized knowledge would assist the trier of fact. The broad discretion of the trial court to determine the qualifications of witnesses will not be disturbed unless its ruling was "manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962). The witness Devaney had worked as a longshoreman for three years, had operated his own marine carpentry business for twenty-four years and was currently serving as a consultant in marine carpentry for a stevedoring company; he testified that he had built hundreds of thousands of stevedore's pallets. The court properly admitted his testimony about the differences between stevedore's pallets and the pre-palletized units used by fruit shippers; the fact that he had not examined the particular pallets used by the Shipper here does not require exclusion of his testimony since he clearly stated that he was familiar with this type of pre-palletized unit. See King v. Deutsche Dampfs-Ges, 523 F.2d 1042, 1045 n.2 (2d Cir. 1975) (witness who worked with stowed cargo for
The Shipper contends that the evidence is insufficient to support the jury's findings of a latent defect in the pallet or that the Shipper was negligent in manufacturing it. While the evidence in this case is less than overwhelming, we conclude that it is sufficient to support the jury's determinations.
As to the allegedly defective pallet, the Shipper claims that the record is barren of evidence that any defect existed, obvious or latent. In cases such as this, where the injury-causing instrument is not available for inspection at a trial occurring seven years after the accident, the courts have allowed circumstantial proof to raise permissible inferences of defective manufacture. Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631 (8th Cir. 1972) (proof of specific defect in construction or design not required in strict liability case); Nicklaus v. Hughes Tool Company, 417 F.2d 983 (8th Cir. 1969) (circumstantial evidence sufficient to support findings that manufacturer was not negligent); Franks v. National Dairy Products Corporation, 414 F.2d 682 (5th Cir. 1969) (defect can be inferred from unexplained occurrences in products liability case); North American Aviation v. Hughes, 247 F.2d 517 (9th Cir. 1957), cert. denied, 355 U.S. 914, 78 S.Ct. 341, 2 L.Ed.2d 273 (1958) (evidence supports theory of defective manufacture in negligence suit although cause of accident unclear). The trier of fact, of course, is not required to draw these inferences but can choose to accept or reject them, depending on its evaluation of the weight to be accorded to competing and perhaps conflicting evidence.
The appellee's expert, Mr. Devaney, testified that in his opinion, the probable cause of the accident might be excessive handling of the "fragile" disposable units or faulty materials used in manufacture. Much of appellee's evidence tended to show the lack of any apparent defect or any change in the pallets due to mishandling after leaving the Shipper's hands: clean mate's receipt, loading certificate and clean bill of lading to show that the cargo was received without
To support a claim for negligent manufacture, a preponderance of the evidence must show that the product was defectively designed or manufactured, that the defect was a proximate cause of the injury, that the defect existed when the manufacturer parted with possession and that the manufacturer failed to make any reasonable inspection or test to discover the defect. The manufacturer thus has the "affirmative duty to make such tests and inspections, during and after the process of manufacture, which are commensurate with the dangers involved in the intended use of the product." Nicklaus v. Hughes Tool Company, supra, 417 F.2d at 986. Pre-palletizing the cargo facilitates loading and unloading by obviating the need to shift and secure the goods to and from stevedore's pallets in transport; however, it also removes the added safeguards of lashings and ties and the extra sturdiness of the reusable pallets themselves. We have discussed above the sufficiency of the circumstantial evidence to show the defect in the pallet which broke and its existence when the manufacturer parted with possession. That a defect was a proximate cause of the longshoreman's injury cannot seriously be disputed. The remaining question is whether the Shipper failed to make any reasonable inspection or test to discover the defect. The Shipowner, in its interrogatories to Shipper, attempted to discover specifics about the design, construction, quality control, inspection and load testing of the pallets before use; it also sought from the Shipper a pre-palletized unit similar to the one which broke, for the purposes of inspection. Although the Shipper responded affirmatively to the latter request, the unit was not produced, forcing the Shipowner to obtain an order to show cause from the district court.
This Court has previously noted that, particularly in admiralty suits, the "non-production of material evidence which is in the control of a party raises an inference that the evidence is unfavorable to that party. . . . The inference raised has been said to be sufficient to decide a close case." Tupman Thurlow Co., Inc. v. S.S. Cap Castillo, 490 F.2d 302, 308 (2d Cir. 1974). The Shipper here offered no evidence in rebuttal to show any testing or examination of the pallets prior to use. While non-production alone may not be the determinative factor, Hellenic Lines Ltd. v. Life Ins. Corp. of India, 526 F.2d 830, 832 (2d Cir. 1975), here, in addition to the Shipper's failure to reveal any measures taken to discharge his affirmative duty to inspect and its failure to provide a unit like that which caused the injury, the evidence detailed above supported a finding of a defect in the materials used or in the construction of the pallet. The jury thus was entitled to conclude that the additional information in the possession of the Shipper would have been unfavorable to it.
Finally, although the jury's verdict for the longshoreman was generous, it was not so excessive as to shock the court's conscience, Williamson v. Compania Anonima Venezolana De Navigacion, 446 F.2d 1339, 1342 (2d Cir. 1971), cert. denied, 404 U.S. 1059, 92 S.Ct. 739, 30 L.Ed.2d 746 (1972), since plaintiff did suffer permanent