Louis Paul Nelson, Plaintiff-appellee, v. Jacksonville Shipyards, Inc., Defendant-third-partyplaintiff-appellant, v. Babcock & Wilcox Company,third-party Defendant-appellee.no. 30753 Summary Calendar.**rule 18, 5 Cir.; See Isbell Enterprises, Inc v. Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I, 440 F.2d 668 (5th Cir. 1971)

Jacksonville Shipyards, Inc., appeals from a judgment of the district court entered in favor of Louis Paul Nelson and Babcock & Wilcox Company. We affirm.

Nelson, an employee of Babcock & Wilcox, was injured during a hydrostatic test of a boiler on board a power barge that Jacksonville Shipyards had undertaken to repair. A 'blind nipple'¹  blew out and struck him in the leg.²  In Nelson's action against Jacksonville Shipyards, the district court found that the Shipyards had been negligent in installing the blind nipple on the boiler and that this negligence was the proximate cause of Nelson's injuries. The court further found that Nelson himself had not been guilty of any contributory negligence. In Jacksonville Shipyard's third party action against Babcock & Wilcox, the court found that Babcock & Wilcox had neither acted negligently nor breached any express or implied obligation owing to Jacksonville Shipyards. On these findings, the court concluded that Nelson was entitled to a judgment in the amount of $90,000 against Jacksonville Shipyards and that the Shipyards had no right of indemnity against Babock & Wilcox.

On appeal Jacksonville Shipyards makes four contentions: (1) Nelson was guilty of contributory negligence, which was the proximate cause of his injuries; (2) Babcock & Wilcox breached its warranty of workmanlike performance under the general maritime law and thus Jacksonville Shipyards is entitled to indemnity from that company; (3) Babcock & Wilcox breached its implied obligation under Florida law to perform its contract properly and thus should be required to indemnify the Shipyards; and (4) the district court improperly excluded from evidence a 1956 contract between Babcock & Wilcox and the City of Jacksonville. We have carefully considered each of these points and conclude that they are without merit.

The district court found as facts that Nelson had not been contributorily negligent, that no other employee of Babcock & Wilcox had been negligent, and that Babcock & Wilcox has breached no implied or contractual obligation owing to Jacksonville Shipyards. The resolution of disputed factual issues is of course a matter for the trier of fact, and we cannot set aside his findings of fact unless they are clearly erroneous. Rule 52, F.R.Civ.P.; Bethlehem Steel Corp. v. Yates, 5 Cir. 1971, 438 F.2d 798; Tidewater Marine Activities v. American Towing Co., 5 Cir. 1970, 437 F.2d 124 (No. 29,835, December 30, 1970); Drake v. E. I. DuPont de Nemours & Co., 5 Cir. 1970, 432 F.2d 276, 279; see McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20. There is ample evidence in the record to sustain the district court's findings of fact; in these circumstances we cannot say that those findings are clearly erroneous. Cf. Allison v. Cosmos Steamship Corp., 9 Cir. 1970, 433 F.2d 840.

Although the resolution of these factual issues effectively disposes of the case, we have serious doubts whether under the Ryan³  doctrine an actively negligent independent contractor can ever recover indemnity from another independent contractor. Cf. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318; Grigsby v. Coastal Marine Serv. of Texas, Inc., 5 Cir. 1969, 412 F.2d 1011, 1039; General Dynamics Corp. v. Adams, 5 Cir. 1965, 340 F.2d 271.

Finally, the district court did not err in excluding from evidence the 1956 contract between Babcock & Wilcox and the City of Jacksonville. Jacksonville Shipyards contends that the 1956 contract is relevant to the scope of Babcock & Wilcox's obligation to Jacksonville Shipyards in 1967. Citing Rogers v. United States Lines Co., 3 Cir. 1962, 303 F.2d 295, the Shipyards contends that prior dealings between the parties to a contract are admissible as bearing upon the scope of the present undertaking. The parties to the 1956 contract, however, and the parties to the contract here in dispute are not the same. Moreover, the probative value of the 1956 contract is in serious doubt in light of its remoteness in time from the instant undertaking.

Therefore, the judgment of the district court is affirmed.