AINSWORTH, Circuit Judge:
In this admiralty case, plaintiff Robert Stevens brought suit for personal injuries sustained February 4, 1974, while he was working as a deckhand on the tugboat DELTA DAWN at the Westwego facility of Avondale Shipyards, Inc. (Avondale) on the Mississippi River. Stevens sued his employer, East-West Towing Company, Inc. (East-West), under the Jones Act, 46 U.S.C. § 688. He also sued Central Marine Services, Inc. (Central Marine), the owner of Barge W-102 (an appurtenance of which injured Stevens), and Avondale, the bareboat charterer of the barge, under general admiralty principles. East-West settled Stevens' suit for $200,000 and an assignment of his claim against the other defendants. The district judge tried the third party actions for contribution and indemnity among the defendants by the use of depositions and documents only, without oral argument or live testimony.
The district judge held that Central Marine was not liable to East-West, since Central Marine's bareboat charter made Avondale the owner pro hac vice of Barge W-102 for the term of the charter. No party appeals the district court's disposition of this issue. However, Avondale appeals from the trial court's decision that Barge W-102 was unseaworthy, that Avondale was negligent, and that it should contribute fifty percent, or $100,000 to East-West as its share of Stevens' damages. Likewise, East-West appeals from the district court judgment refusing East-West's request for contribution from Avondale for Stevens' maintenance and cure and for prejudgment interest. We hold that Barge W-102 was not unseaworthy, nor was Avondale negligent. Alternatively, even if Avondale was negligent or its barge unseaworthy, we hold that Avondale has asserted a complete defense against East-West: namely, that East-West breached its warranty of work-manlike performance that it owed Avondale. Accordingly, we reverse the district court's judgment holding Avondale liable for any contribution.
For several weeks before the accident, Barge W-102 had been used to assist in constructing the drilling rig ST. LOUIS in the Avondale shipyards. The barge had a cherry picker crane approximately amidships which was held in place by metal "saddles" resembling upside down U's welded to the deck over each of the crane's four legs. The barge worked around the three accessible sides of the ST. LOUIS, using the crane to remove material from the rig.
On February 4, 1974, the tugboat DELTA DAWN received a radio call to move Barge W-102 from the downstream side of the ST. LOUIS to the river side for the day's
II. Standard of Review
The district judge's findings concerning seaworthiness and negligence are normally considered findings of fact. Webb v. Dresser Industries, Inc., 536 F.2d 603, 606 (5th Cir. 1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157-58, 51 L.Ed.2d 572 (1977). Both parties agree that such findings of fact may not be set aside unless clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954); Webb v. Dresser Industries, Inc., supra at 606. Likewise, both parties agree with the Supreme Court's definition in McAllister of the clearly erroneous standard:
348 U.S. at 20, 75 S.Ct. at 8. Finally, we note that under this circuit's jurisprudence, when a case is tried on a "cold" record consisting entirely of depositions and documents, the burden of proving the district court's findings clearly erroneous is "to some extent ameliorated." McKensie v. Sea Land Service, Inc., 551 F.2d 91, 92 (5th Cir. 1977); Sicula Oceanica, S.A. v. Wilmar Marine Engineering & Sales Corp., 413 F.2d 1332, 1333 (5th Cir. 1969). With or without this reduced burden of proof, the evidence leaves us with a definite and firm conviction that a mistake has been committed and that the district court's findings were clearly erroneous.
III. The Unseaworthiness of Barge W-102
A. Missing Bitts and Cleats
The district court found that Barge W-102 was unseaworthy because it was missing bitts and cleats necessary to tie up and to tow the barge.
However, among the hundreds of pages of depositions and documents in the record, there are four exhibits which convince us that the crane operator's memory was incorrect and that the district court's finding was erroneous. Exhibit Eustis 8 is a copy of the blueprints for a barge similar to Barge W-102. They show that the barge is designed to have a double bitt at each corner and two cleats on each side, or a total of twelve cleats and bitts. On the blueprints are these words: BUILT IN ACCORDANCE WITH AMERICAN-BUREAU-OF-SHIPPING SPECIFICATIONS FOR CLASSIFICATION + A1 BARGE RIVERS, BAYS & SOUNDS. In addition, three different photographers took pictures of the scene within twenty-four hours of the accident. Lawrence Stepteaux, employed by Avondale, arrived very soon after the accident.
Thus, although the deposition testimony must be considered, what is so clearly shown by the three sets of photographs taken within twenty-four hours of the accident must prevail over the witnesses' admittedly unclear memory. The photographs prove that Barge W-102 had its full complement of bitts and cleats on the river side, and thus the premise upon which the district court based its finding of unseaworthiness was clearly erroneous.
B. Failure to Provide an Additional Bitt or Cleat
In its brief, East-West acknowledges the frailty of the unseaworthiness argument based on Barge W-102's missing bitts or cleats and instead suggests that the barge was unseaworthy because Avondale had failed to provide an additional bitt or cleat amidships. The captain of the DELTA DAWN had a preference for "hip-towing" the barge, or towing it sideways, and to do so he needed to tie up in the middle of the barge. East-West argues that failure to add a cleat or bitt to accommodate the captain made the barge unseaworthy.
A vessel is unseaworthy if it and its appurtenances are not "reasonably fit for their intended use. The standard is not perfection but reasonable fitness; not a ship that will weather every conceivable storm ... but a vessel reasonably suited for her intended service. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, , 75 S.Ct. 382,
IV. Negligence of Avondale
The district court found "Avondale's failure to remedy the situation [missing bitts and cleats] resulted in a continuing negligent act.... [T]he owner is also liable for continuing negligence when, once notified, he fails to remedy the condition which renders the vessel unseaworthy."
Since the photographic exhibits show that the bitts or cleats were in fact not missing, Avondale cannot be held to be negligent on the grounds that they were. The district court found that Stevens, the injured DELTA DAWN deckhand, told an Avondale employee, Douglas Adams, that "there were no other places on the barge to which he could secure the lines," and held that Avondale was thus on notice that the ship was unseaworthy and was negligent for failing to correct the situation. If Stevens made such a statement, he misstated the facts.
Again recognizing the tenuousness of its negligence argument based on missing cleats and bitts, East-West suggests in its brief that Barge W-102 was in a generally dilapidated condition — it had holes in its deck — and that Avondale was negligent in failing to repair the barge. This argument is meritless. No suggestion was made that the holes in the barge's deck were a proximate cause of Stevens' injuries, nor could any such suggestion be seriously advanced. Likewise, East-West's argument that the bitts and cleats on the barge were in unsound condition is conclusively refuted by the photographs in evidence showing the bitts and cleats in actual use.
V. East-West's Warranty of Workmanlike Performance
We find persuasive Avondale's alternative argument that even if the lack of a cleat or bitt directly amidships made Barge W-102 unseaworthy, or if Avondale's failure to add a cleat or bitt amidships was a negligent omission, Avondale may still successfully defend against any liability because East-West breached its warranty of workmanlike performance. In the usual case, the injured plaintiff (Stevens) would have recovered against the barge owner (Avondale) and the barge owner would be seeking indemnity from plaintiff's employer (East-West). In this case, since East-West is standing in Stevens' stead, Avondale is using its indemnity rights as a defense.
In summarizing development of the warranty of workmanlike performance, the Second Circuit stated:
Fairmont Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252, 1257-58 (2d Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975) (footnotes omitted).
The district court drew an erroneous conclusion from the fact that the DELTA DAWN did not yet have the barge in tow. The court failed to give proper consideration to the fact that at the time of the accident the tug was making fast to the barge. The DELTA DAWN's warranty of workmanlike performance extended to all towing operations including preparations necessary and incident to the actual moving of the barge. In Tebbs v. Baker-Whiteley Towing Co., 407 F.2d 1055 (4th Cir. 1969), a case with somewhat analogous facts, a tug contracted to provide towing services to a barge. As the tug was attempting to make fast to the barge, it bumped the vessel. The bump caused the barge's defective
Second, Stevens had been warned by an Avondale employee, his own boss, and the crane operator not to tie up to this obviously inadequate stop plate. The crane operator even explained why the stop plate was not adequate. Staunch bitts were available on the barge, as the photographs in evidence demonstrate. The barge had been successfully hip-towed by tying onto the crane leg and had been towed in other fashions. The accident occurred only by Stevens' insistence on using the inadequate stop plate.
East-West makes a final argument that breach of the warranty of workmanlike performance entitles shipowners to indemnity only if they are not themselves guilty of negligence. However, the Supreme Court and the circuit courts have recognized that a negligent shipowner may still be entitled to indemnity. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 567-68, 78 S.Ct. 438, 441, 2 L.Ed.2d 491 (1958); Commercial Union Insurance Co. v. M/V BILL ANDREWS, 624 F.2d 643, 647 (5th Cir. 1980); Fairmont Shipping Corp. v. Chevron International Oil Co., supra at 1260; Tebbs v. Baker-Whiteley Towing Co., supra at 1059. Avondale's failure to add a cleat or bitt not called for in the barge's blueprints did not prevent the contractor from doing a workmanlike job and thus does not bar indemnity.
The district court's finding that bitts and cleats on the river side of Barge W-102 were missing is clearly erroneous. A finding of unseaworthiness or negligence based on this finding must therefore be reversed. In addition, if the absence of an additional bitt or cleat directly amidships rendered Barge W-102 unseaworthy and Avondale negligent, the East-West tug crew's breach of their warranty of workmanlike performance nevertheless entitled Avondale to prevail in this case.
H.R.Rep.No.1441, 92d Cong., 2d Sess., reprinted in  U.S. Code Cong. & Ad. News 4698, 4704. However, the courts have extended the Ryan doctrine to marine contracts not covered by the LHWCA where the seaworthiness doctrine may still apply, as it would in the instant case. See Section III, supra. For cases extending the Ryan doctrine to other marine contracts, see Fairmont Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252 (2d Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975) (towage contract); Parfait v. Jahncke Service, Inc., 484 F.2d 296 (5th Cir. 1973), cert. denied, 415 U.S. 957, 94 S.Ct. 1485, 39 L.Ed.2d 572 (1974) (diesel dredge repair contract); Whisenant v. Brewster-Battle Offshore Co., 446 F.2d 394 (5th Cir. 1971) (drill pipe testing contract); Tebbs v. Baker-Whiteley, 407 F.2d 1055 (4th Cir. 1969) (towage contract); Lusich v. Bloomfield Steamship Co., 355 F.2d 770 (5th Cir. 1966) (ship repair contract); James McWilliams Blue Line, Inc. v. Esso Standard Oil Co., 245 F.2d 84 (2d Cir. 1957) (towage contract). Thus, the 1972 amendments do not affect the applicability of the warranty of workmanlike performance to contractors not covered by the LHWCA. See Aparicio v. Swan Lake, 643 F.2d 1109, 1118 (5th Cir. 1981); Fairmont Shipping Corp. v. Chevron International Oil Co., supra, at 1258 n.10; Leckelt v. Superior Oil Co., 608 F.2d 592, 593 n.1 (5th Cir. 1979). In addition, although the towage cases cited above involved property damage, the cases in general make no distinction between actions for indemnity against liability for personal injuries or for property damage. Actions for indemnity may be maintained when a towage contractor breaches its warranty of workmanlike performance resulting in personal injury. See Dunbar v. Henry DuBois' Sons Co., 275 F.2d 304 (2d Cir.), cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46 (1960) (shipowner may sue towage contractor under breach of warranty theory for indemnity in wrongful death action).