Rice v. Pennsylvania R. Co. The William R, 202 F.2d 861, 2d Cir. (1953)

202 F.
2d 861
RICE et al.
v.
PENNSYLVANIA R. CO. et al.
THE WILLIAM R.
No. 193.
Docket 22569.
United States Court of Appeals Second Circuit.

Argued March 4, 1953.
Decided March 20, 1953.
Myles J. Lane, U. S. Atty., New York City, Eugene Rheinfrank and Louis
E. Greco, Attorneys, Department of Justice, New York City, of counsel,
for appellant.
George A. Garvey, New York City, for appellee Luria Bros. & Company,
Inc.
Burlingham, Hupper & Kennedy, New York City, Benjamin E. Haller,
New York City, of counsel, for appellee Pennsylvania R. Co.
Macklin, Speer, Hanan & McKernan, New York City, Gerald J.
McKernan and John C. Hart, New York City of counsel, for libellantsappellees.
Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.
SWAN, Chief Judge.
This litigation was commenced by a libel brought by the owners of a scow to

recover damage sustained by it while under charter to the Pennsylvania
Railroad Company. The respondent railroad impleaded the United States whose
negligence in loading scrap iron on to the scow had caused the damage. The
United States impleaded Luria Bros. & Co., Inc. alleging a right to indemnity
under a contract by Luria to purchase from the United States the scrap iron
loaded upon the scow. From a decree awarding damages against the
respondent, with recovery over by it against the United States, and dismissing
the latter's petition to implead Luria, the United States has appealed. Its appeal
questions only so much of the decree as dismissed its petition to implead Luria.
The sole question presented is the proper construction of the so-called
indemnity clause in Luria's contract with the United States.
2
The facts are not in dispute and may be stated briefly. Pursuant to an invitation
for bids Luria submitted a bid to purchase scrap iron from the War Department
of the United States, and its bid was accepted. The contract specified a unit
price per gross ton "f. o. b. R.R. barges, Army Salvage Collection Center, Foot
of DuPont Street, Brooklyn, New York." It also provided that "All property
purchased hereunder will be loaded by the Government onto trucks or barges
furnished by the contractor." Pursuant to this provision Luria caused the
libellant's scow, which was under charter to the Pennsylvania Railroad, to be
brought to DuPont Street. While loading the scrap iron onto the scow by means
of a clamshell bucket, the appellant's employees operated the bucket so
negligently as to damage the scow. No employee of Luria had anything to do
with loading the scow. The contract provision under which the United States
asserts the right to be indemnified against liability caused by the negligence of
its own employees reads as follows:
"Claims. The contractor agrees to keep and hold the Government safe and
harmless from any and all claims of whatsoever nature or kind for damages for
injuries to person or property, occurring during the removal of the said
material."
The district judge was of opinion that the above quoted provision falls short of
evidencing a clear intent that Luria undertook to indemnify the United States
for the latter's own negligence. Upon the authority of The Zeller No. 14,
D.C.E.D.N.Y., 74 F.Supp. 538, he dismissed the petition of the United States to
implead Luria.
With the generally accepted rule that contracts will not be construed to
indemnify a person against his own negligence unless such intention is
expressed in unequivocal terms, we are in complete accord.1 The rule was
correctly applied in The Zeller No. 14 supra, but Judge Sugarman was in error
in treating that case as determinative of the case at bar. In both, the covenant
relates to damage resulting from loading the barge, but damage to The Zeller
No. 14 was caused not by reason of negligence in the way the loading was done
but by reason of putting the barge in a foul berth. The covenant did not express
in unequivocal terms the intention to indemnify the United States against
liability resulting from giving the vessel a foul berth. In the case at bar,
however, the damage was caused by negligence in the way the scrap iron was
dropped on the deck of the scow; and the covenantor agreed to save the
covenantee harmless from claims of damages "for injuries to person or property
occurring during the removal" of the scrap. The scrap was in the possession of
the United States and it had agreed to load it. No one else had anything to do
with the loading. It is impossible to conceive how any valid claim could arise
against the Government for injuries "occurring during the removal" unless its
employees were negligent. Consequently we see no way to interpret the
covenant otherwise than as an unequivocal expression of intent to indemnify
the United States against the negligence of its own employees. Where such is
the clear intention of the parties the agreement will be enforced.2 Accordingly
dismissal of the appellant's petition to implead Luria Bros. & Co. is reversed
with directions to enter a decree awarding the appellant recovery against Luria;
in other respects the decree is affirmed.
Notes:
1
Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35;
Southern Bell Tel. & Tel. Co. v. Mayor, 5 Cir., 74 F.2d 983; Mostyn v.
Delaware, L. & W. R. Co., 2 Cir., 160 F.2d 15, certiorari denied 332 U.S. 770,
68 S.Ct. 82, 92 L.Ed. 355; and 175 A.L.R. 30, are cited by the appellee for
statements of the general rule. In the Mostyn case, 160 F.2d at page 19, Judge
L. Hand declared that the intention must be expressed "beyond any
peradventure of a doubt."
J. V. McNicholas Transfer Co. v. Pennsylvania R. Co., 6 Cir., 154 F.2d 265;

Puleo v. H. E. Moss & Co., 2 Cir., 159 F.2d 842, certiorari denied 331 U.S.
847, 67 S.Ct. 1733, 91 L.Ed. 1857; Aluminum Co. of America v. Hully, 8 Cir.,
200 F.2d 257; Russell v. Shell Oil Co., 339 Ill. App. 168, 89 N.E.2d 415;
Southern Pacific Co. v. Fellows, 22 Cal.App.2d 87, 71 P.2d 75

Rice v. Pennsylvania R. Co. The William R, 202 F.2d 861, 2d Cir. (1953)

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Rice v. Pennsylvania R. Co. The William R, 202 F.2d 861, 2d Cir. (1953)

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202 F.

United States Court of Appeals Second Circuit.

This litigation was commenced by a libel brought by the owners of a scow to

J. V. McNicholas Transfer Co. v. Pennsylvania R. Co., 6 Cir., 154 F.2d 265;

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