### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 31, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_____________ No. 01-15975

_____________ D.C. Docket No. 99-07059 CV-WDF JOHN VIERLING, Plaintiff,

versus

CELEBRITY CRUISES, INC., Defendants–Cross-Claimaints– Cross-Defendant

s– Appellants-Cross-

Appellees,

versus

BROWARD COUNTY, Defendant–Cross- Claimant– Cross-Defendant

– Appellee-Cross-

Appellant, WOLLARD AIRPORT EQUIPMENT CO., INC., CRITON TECHNOLOGI ES, f.k.a. Wollard Airport Equipment Co., Inc. Defendants–Cross-Defe ndants.2 ____________ Appeal from the United States District Court for the Southern District of Florida

____________ (July 31, 2003) Before TJOFLAT and ANDERSON , Circuit Judges, and STAFFORD*, District Judge. TJOFLAT, Circuit Judge: Ryan Stevedori

ng Co. v. Pan-At

lantic Steams

hip Corp. , 350 U.S. 124, 132- 35, 76 S. Ct. 232,

236-38, 100 L. Ed.

133 (1956), held that a stevedore ow es a shipowner a duty

of workmanlik

e performance such that, if the d uty is breached, the ste vedore must ind emnify the shipo wner for damages i t is req uired t o pay a longshoreman who is injured aboard its vessel. The principal issue in this case, brought by the owner of a cruise ship against a port authority, is whether Ryan ’s holding (the “ Ryan

doctrine”) entitles the shipowner to indemnification for damages it paid to a passenger because the port authority failed to load passengers aboard the cruise ship in a workmanlike manner. We hold that the Ryan doctrine applies. We the

refore vacate th

e district court’ s summary judgment in fa

vor of the port authority and remand th e case for further proceed ings.

___________________________________________________ * Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.1 Since 1994, the Port Authority has officially been known as Port Eve rglades Department, a department of Broward County, Florida.

2 Port Everglades Tariff 11 evidences the contractual relationship between the Port Authority an

d all incoming vessels. The tariff provides the rule

s and regulation

s of the port; all users are bo und by its term s. The tarif f requires, among other t hings, that all vessel s desiring a birth at Port Everglades apply for certain services, including the furnishing and operation of passenger loading bridges. 3 I. In the early m

orning of Septem

ber 21, 1996, the M/

V Century cru

ise ship, owned by Celebr

ity Cruises, I

nc. (“Celeb

rity”), arr ived in Port Evergl

ades, Florida and was secured to t

he pier at Term

inal 19, which was

owned and operated by the Port Everglades Port Authority (the “Port Authority”), a department of Broward County, Florida. 1 The ship was prope rly moored

and remained so throughout the day. After the ship was moored, a Port Authority terminal lead service worker, Elaine Lyons – acting pursuant to a prearranged agreement in which the Port Authority agreed to provide Celebrity with certain services, including a passenger loading bridge and gangway, in exchange for a $5.35 per embarking passenger fee 2 – moved a passeng

er loading bridge into position on the M/V Ce ntury to prepare for boar

ding. Although the m

anufacturer of th

e passenger loading br

idge required the bridge

to be positioned two fe

et from the ship , Lyons positione d it by sight, which adm

ittedly ranged f

rom three to six

feet away f

rom the side of t

he3 The po siti oning of the passe nger l oadin g brid ge by sig ht was Lyons’s usual pract ice. It

was also how she was trained by her Port Authority supervisors. No specific guidelines or measurements regarding the correct distance from the ship were given. As Lyons described the positioning process: “I just have my own vision of where to stop.”

4 The gangway had a desig n length of nine feet. The manufacturer’s instructions stated that the passeng

er loading bridg

e should be positione

d two feet from the

side of the vessel

, leaving seven feet of reserve gangway in the vestibule of the passenger loading bridge. Since Lyons positioned the bridge from three to six feet from the vessel, the a mount of reserve gangway was reduced fr

om seven feet to anywhere between six and three feet, a 14.3% and 57. 1% r edu cti on, res pect ive ly. 4 ship. 3 Following the position ing of the bridge, L

yons extended a ga

ngway from the bridge over the r

emaining three

to six foot gap and atta

ched it to the M/V

centur y. 4 With the bridge a nd gangway in pla

ce, passenger boa

rding could

commence. Passengers began boarding the M/V Century later that afternoon. In order to board the ship, passengers walked from the terminal through the covered passenger loading bri

dge, crossed over t

he uncovered gangwa

y, and stepped on

to the ship. Once the

y crossed the ga

ngway, passen

gers were greet

ed by Celebrity social hostesses. A

s the passengers file

d through the loading bri dge and onto the ship, the weather

started to turn sour,

with light rain and 15-

20 knot winds. Due to the rain, passenge

rs traversed the e

xposed gangway on

e at a time. Celebrity continued to load passengers despit e the inclement weather. At approximate

ly 3:25 p.m. , with the rain now pouring and winds blow ing very hard, pa

ssenger John Vierli

ng and his wife proce

eded to the end of the5 The actual distance the M/V Century moved from the dock is disputed. Most witnesses

put the movement at four to six feet, while one witness recalls the vessel moving up to nine feet. If the jury finds t hat the vess el moved fou r to six fe et, then th e reserve gangwa y when the bridge was properly positioned (seven feet) would have sufficed to pre vent the separation of the gangway from the bridge . If, on the oth er hand, the jury

finds the distance

to have been nine

feet, then the movement of the vessel would have been too great even for a properly positioned bridge.

6 The complaint also named Wollard Airport Equipment Company, the manufacturer of the passenger loading bridge and gangwa y, as a defendant. Wollard is not a party in this appea l. 5 loading bridge and pre

pared to cross the ga

ngway. Vier

ling’s wife we

nt first and successfully ste

pped aboard the M/V Century. As Vierling walked a cross the gangway, how

ever, a sudden gust o f wind approaching f orty-five m

iles an hour pushed the ship away from the dock. The distance the ship moved from the dock exceeded the length of reserve gangwa y in the vestibule of the passenger loa ding bridge, 5 causin g the ga ngway to pull ou t of the end of t he brid ge. The g angway, with Vierling clin

ging to its hand-rails,

swang down and slam

med into the side of the ship. The im

pact severely

injured Vierlin

g’s face, knock

ed loose his grip of the hand-rails, and caused him to fall approximately forty- five feet into the water below. He was safely rescue d and taken to the hospita l where he rem

ained for several days. Vierling subsequentl

y filed suit agai

nst Celebrity a

nd the Port Authority

to recover dama

ges for his injurie s. 6 Celebrity answered the complaint and denied any wrongdoing. In addition, it filed a two-count cross-claim against the Port7 The first co unt was bas ed on a breach of duty owed to Vierling. C elebrity did n ot allege

a breach of duty owed to it. Consequently, Celebr ity could not have recovered from the Port Authority on its negligence claim. Regardless, the first count is not implicated in this appeal.

8 Celebrity a

lleged that the c

ontractual rela

tionship between th

e parties impliedl

y warranted a duty of workmanlike performance. 6 Authority, seeking indemnification for any damages it m ay be required to pay Vierling. The f

irst count, sounding in n

egligence, allege

d that the Port Author

ity failed to exercise

due care in severa

l respects, includi

ng the manner in which it positioned the passenge

r loading bridge and ga

ngway on the day

of the accident. 7 The second count, sounding in contract law , alleged that the Port Authority breached its im

plied warranty

of workmanlik

e performance when it failed to posit ion pro perly th e passe nger lo ading b ridge a nd gang way. 8 According to Celebrity, th e ship’s movemen t would hav e been well wi thin the g angway’s designed safety

margin had the l

oading bridge been posit

ioned properly.That is, had the passenger lo ading bridge been c orrectly positioned cl oser to the ship – t wo feet, rather tha

n three to six feet – the length of the exce ss gangway rem aining in the passenger loading

bridge would have been sufficient to cove r the distance the ship moved from

the dock, and the gan

gway would not ha

ve pulled out from

the end of the bridge. The Port Aut hority resp onded to b oth Vierli ng’s complai nt and Cele brity’s cross-claim b

y filing moti

ons to dismiss base

d on the doctrine of sov

ereign9 As explained infra , the Port Authority’s cross-claim was based on a contractual

indemnification provision contained in Port Everglades Tariff 11.

10 Many were

duplicative. The

only affir mative defense r

elevant here is t

hat set out in the text. 7 immunity. While the motions were pending , the Port Authority answered the complaint and cr

oss-claimed a

gainst Celebrity

for indemnification with respect to any damage s it may be r

equired to pay V

ierling. 9 As to the complaint, the Port Authority denie

d any wrongdoing a

nd put forth fourteen

affirmative

defenses, including that Vierl

ing’s injuries w

ere caused by parties (including Ce lebrity) not under the control or s

upervision of the Por

t Authority. A

s to Celebrity’ s crossclaim, the Po rt Aut horit y deni ed the alleg ation s of bo th cou nts o f the c ross- claim, except the allegation that it “owned, operated, and maintained the passenger loading bridge and portable brow or gangway.” The Port Authority also asserted twelve affirm

ative defenses aga

inst the counts. 10 The affirm ative defense rel

evant here is the allegatio n that the Port Autho rity enjoyed sovereign immunity. After the parties joined issue, the case went to mediation, the court denied the Port Authority ’s motions to dis miss based on sove

reign immu

nity, and Celebrity sett

led with Vierling.Celebrity also moved for sum mary jud gment on the second count of its

cross-claim,

based on the impli

ed warranty o f workmanlike performance. The Port Authority’s re sponse to Celebrity’s motion assumed that11 When the district court decided to base its decision on tort law rather than contract law,

it should have firs

t determined whet

her the second c

ount of Celebrity

’s cross-claim st

ated a claim for negligence against the Port Authority – spec ifically, whether that count alleged that the Authority owed Celebrity a duty to exercise due care in boarding M/V Century’s passeng ers. No such allegation was made; thus, the count failed to state a claim against the Port Authority. 8 an implied war

ranty existed a

nd argued that Celeb

rity could not re

cover because its “active negligence” caused Vierling’s injuries. As part of its response, therefore, the Port Authority m oved the court to gran

t it summar

y judgment

on the second count of Cel ebrity’s cross-claim. The district court accepted the Port Authority’s argument, denied Celebrity’ s motion for sum mary jud gment, and gra

nted the Port Author

ity summary judgment on the

second count of Cele

brity’s cros s-claim. T

he record, according to the cour

t, established that Celebrity wa s “actively

” negligent – namely, b y failing to keep

the M/V Century

properly docked

to Terminal 1 9, and by not responding to t

he worsening weat

her conditions. 11 With this ruling in hand, the Port Authority settled with Vierling and moved the court to grant it s

ummary judgment on its c

ross-claim ag

ainst Celebrity . The cross-cla im was based o n the theo ry that Celeb rity’s negli gence caus ed Vierlin g’s injuries and that Celebrity’s contract with the Port Authority, as evidenced in Port Everglades Tar

iff 11, expressly

provided that Celebr

ity would indem

nify the Authority for “

claims, char

ges, expenses, pe

nalties and dama

ges arising out of any12 By implication, in denying the Port Authority ’s motion for summary judgment on the Authority’s cross-claim against Celebrity , the court granted Celebrity summary judgment on that cross-claim.

13 The Port Authority

is not appealing t

he district court’ s decision gran ting Celebrity summary judgment on the Port Authority’s cross-cla im for indemnification. 9 accident or other occurrence causing injury to any persons.” The di stric t cour t deni ed the Port A utho rity’s motio n, tak ing t he same approach it had used in disposing of Celebrity’s motion for summary judgment. It found that the Port A

uthority was “

actively” negli

gent in the manne

r in which it had positioned the passenger loading bridge and gangway at the time Vierling was boarding the M/V Ce

ntury, and that such negligence was a proximate ca

use of Vierling’s inj uries. 12 Celebrity now appeals the district court’s decision granting the Port Autho rity su mmary jud gment o n the s econd coun t of Ce lebri ty’s cr oss-c laim, which sought indem

nification on the theo

ry that the Por

t Authority bre

ached its implied warr

anty of workm

anlike perform

ance. Celebrity

contends that had the district court applied contract law, which underpins the Ryan doctrine, instead o f tort law, it would have denied the Port Auth ority’s motion for summary judgment. The Port Authorit

y cross-appeals, contending that the district court err

ed in failing to find that it was prot ected fr om suit b y virtue of sove reign i mmunity. 13 We initially

address the issue of whether the Port A uthority is entitl

ed to14 The Port Authority begins its reply

brief by sta

ting that its “cla

im of immunity f

rom suit in the instant admir

alty action

is not based on the E

leventh Amendmen

t, but rather on sta

te sovereign immunity.” The remainder of its brief, however, indica tes that it is in fact asserting the sovereign immuni

ty the Eleve

nth Amendment prov

ides. The Port Autho

rity’s arg uments attempting to distinguish state sovereign immunity and Eleventh Amendment immunity a re undecipherable. When addressing the Port Authority’s cross-appea l, therefore, we focus on the Ele ven th A men dme nt i mmu nit y. 10 sovereign immunity. Concluding that it is not, we consider whether the Port Authority owed

Celebrity a dut

y of workm

anlike perform

ance and, if it did, whether the reco

rd contains evidence

(sufficient to wit

hstand a motion fo

r summary judgm

ent) that the Authority breached that duty and that such breach was a proximate cause of Vierli ng’s injuries.

II. The Eleventh Am

endment provides : The Judicial power

of the United State s shall not be constr ued to e xtend t o any sui t in law or equi ty, commenced or prosecuted against one of the United States by Citiz

ens of another Stat

e, or by Citiz

ens or Subjects of any Foreign State. 14 U.S. Const. am

end XI. It is we

ll settled that the r

eference to acti

ons “against one of the United State s” “encom passes not only ca

ses in which the Sta

te itself is named as a def

endant, but also cer

tain actions against s

tate agents and state instrumentalities.” Shands Teaching H osp. & Clinic, Inc . v. Beech Stre et Corp. ,15 The Port Authority points out that the Florida Supreme Court has determined that

counties are arms of the state, Keggin v. Hills borough County

, 71 So. 372, 373 (Fla. 1916), and, as such, argues it should enjoy the state’s right to sovereign immunity . We are not persuaded; our reading of

the relevant pro

visions of Florida

law indicates tha

t the Port Authority

(as a department of Broward County) is not a mere age nt of the State of Florida. First, a recent Florida Supreme Court decision casts doubt on the extent to which counties performing proprietary

functions – such a

s providing passe

nger loading s

ervices – are c

onsidered the sta

te for the purposes of immunity. See Canaveral Port Auth. v. Dep’t of Revenue , 690 So. 2d 1226, 11 208 F.3d 1308, 1311 (11t h Cir. 2000) (citin

g Regents of the Univ.of Cal. v. Doe , 519 U.S. 425, 429, 117 S. Ct. 900, 137 L. Ed. 2d 55 (1997)). In deciding whether a state agency

or instrumenta

lity may invoke the state’s

immunity

as an arm of th

e state, we have r

ecognized three fa

ctors: (1) how stat

e law defines the e

ntity; (2) what degree of co

ntrol the state m

aintains over the ent

ity; and (3) fr

om where the entity derives i

ts funds and who is res

ponsible for satisfy

ing the judgment

s against the entity. Id. Although no single factor is dispositive, the third factor, the source of the entity’ s funds and responsibili ty for satisfy

ing judgments,

is “of considerable importance.” Doe , 519 U.S. at 430, 117 S. Ct. at 904. “Thus, when an action is in essence one for the recov ery of mone

y from the

state, the state i s the real, substantial party in intere st and is entitled to invo ke its sovereign im

munity from suit.” Id. at 429, 117 S. Ct. at 903 -04 (internal quot ation marks omitted). In our view, all th

ree factors point a

way from Eleventh Ame

ndment immunity here. First, Florida law treats the Port Authority

as an entity of t

he county and not of the state. 15 See Mt. Healthy C ity Bd. of Educ . v. Doyle , 4291228 (Fla. 1996) (finding that “only the State and those entities which are expressly recognized in the Florida Constitution as performing a function of the state comprise ‘the state’ for purposes of immunity from ad valorem taxation”). Second, Florida law gives counties an independent status in operating port facilities. For example, (1) Florida law provides counties with the authority to

own, operate, a

nd manage port f

acilities, and the

authorization to ch

arge fees fo

r use of a port facility, Fla. Stat. ch. 125.012 ; (2) Florida law authorizes counties to issue bonds for the purpose of paying for all or part of the cost of opera ting the port facilities, Fla. Stat. ch. 125.013, 125.015; and (3) Florida law permits county commissioners to sue or be sued in their operation of a port facility, Fla. Stat. ch. 125.15. Each of these statutory provisions indicates that the Port Authority is independent of the State of Florida. See Moor v. Alameda Co unty , 411 U.S. 693, 719-20, 93 S. Ct. 1785, 1800-01, 36 L. Ed. 2d 596 (1973). Finally, the Port Authority ’s history highlights the Authority’s independent nature. Prior to 1994, the Port Authority was an independent, private entity. In 1994 – pursuant to the electora te of Broward County – the Port Authority was dissolved as an independent entity, and all of its prope rty was transferred to the county. As part of the dissolution and transfer, however, all money and revenues accruing from the operations of the port were to be used by the county “only for the purposes related to Port Everglades . . . for which such moneys and revenue s could have been used by the Port Everglades District and Port Everglades Authority had they not been dissolved and their assets and liabilities not been transferred to Broward County . . . .” Fla. L aws ch. 91-346. In other words, the Port Authority co

ntinued to operate

under the same str

ictures after th

e vote. The only

distinction post the 1994 vote is that the county owns the port. In our view, the fact that a ll else remained the same strongly suggests that the port has retained its independe nce from the State of Florida.

16 The Port Authority refers us to the fact that it is funded by the Florida Seaport Transportation and Economic Development Program (FSTEDP), and argues the rec eipt of funds from this entity indicates it is an arm of the State of Florida. There is no evidence, howeve r, 12 U.S. 274, 280, 9 7 S. Ct. 568, 572, 50 L. Ed. 2d 471 (1 977) (stating that E leventh Amendme

nt immunity

does not extend to counti es). Second, the

state has no control over the op eration of the Port Ever glades facilities. See e.g. , Fla. Stat. c h. 125.012 (providing the c

ounty, as the ow

ner of the Port Aut

hority’s fac

ility, with the authority to ow

n, operate, and m

anage the facility

, and the authoriza

tion to charge fees for i

ts use). Finally

, and most im

portantly, the Port Authority is a totally self-sufficient enterprise that receives no financial support from the state. 16regarding th e amount of funds,

if any, the Po

rt Authority

has received fr

om FSTEDP. What is clear is that desp

ite the amount rec

eived, the Author

ity does not r

ely on FSTED

P funds to operate or satisfy liabilities or claims. Regardless, it is not the receipt of money that affects the analysis, but whether the Port Authority acts independe ntly of the state. See Mt. Healthy , 429 U.S. at 280, 97 S. Ct. at 573 (noting that school board received “significant amount of money from the state,” yet concluding that school board acted like an indepe ndent local entity and not an arm of the state). Here, it is clear that the Port Authority acts independently of the state.

17 The Port Authority generated over $14.4 million in cruise-related reve nues in the fiscal year following the 1996 accident. I t has continued to grow since then.

13 All the money

that the Port Author

ity needs to run it

s operations com

es from revenues it genera

tes. 17 No tax money

goes to the Port Auth

ority, and any judgment or cl

aim against it is

paid by the Port A

uthority alone,

from a portion o f its funds dedicat ed, in its budget, to satisfying claims brought against it. Overall, there

is remarkably

little difference between the Por t Authority here, and the port authority in Hess v. Port Auth . Trans-Hudson Corp. , 513 U.S. 30, 115 S. Ct. 394,

130 L. Ed. 2d 245 ( 1994), which the Su preme Court f

ailed to cloak with Eleventh Amendment imm unity. The Port Authority has an anticipated and actual history of fin ancial and operatio nal independence. Id. at 49, 115 S. Ct. at 405. It is financ

ially self-suf

ficient, genera

tes its own revenues , and pays its own debts. Id. at 52, 115 S. Ct. at 406. Additionally , the state’s tr

easury is not affected in any way by the Authority’s actio ns. Id. at 51, 115 S. Ct. at 406. For these reasons, we affirm the district court’s ruling that the Port Authority is not an arm of the state, a nd, con sequen tly, is n ot enti tled to sovere ign immun ity.14 III. Every contract involving the rendering of services includes the implied promise to perform those servi ces with reasonable care , skill, and safety. See Williston on Contra

cts § 62:25 (4 th ed. 2002). The a pplicability of t

his hornbook rule to mariti

me service co

ntracts was first

enunciated in Ryan Stevedori ng Co. v. Pan-Atlantic Ste

amship Corp. , 350 U.S. 124, 132-35, 76 S. Ct. 2 32, 236-38, 100 L. Ed. 133 (1956), where the Supreme Court ruled that stevedores and other contractors give shi

powners an impl

icit warranty

that their service s will be performed in a

“workma nlike” manner.

The Court explaine

d that the “war

ranty of workmanlike se

rvice” compar

es “to a ma

nufacturer’s w

arranty of the

soundness of its manufactur

ed product,” and obli

gates stevedores an

d other contractors

to perform services with a reasonable level of “[c] ompetency and safety.” Id. The failure to do so consti

tutes a breach of contract and provides shipowners with a right to indemnificati on for foreseeable los s resulting therefro m. Id. Subsequent to Ryan , courts have concl uded that the warr

anty of workmanlike pe

rformance,

and the right to indem

nification for a co

rresponding breach, also runs from a wharfin ger, or dockowner, to a sh ipowner. See Oglebay Norton Co. v. CS

X Corp. , 788 F.2d 361, 365 (6 th Cir. 1986); Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc. , 354 F.2d 476 (4th Ci r. 1966) ;15

Ammesm aki v. Interlake S

teamship Co. , 342 F.2d 627 (7th Ci r. 1965). For example, the Sixth Circuit conclu ded that a wharfin

ger had breached it

s warranty of workmanlike

service when the d

ock was strewn w

ith wet coal and had no emergency lighting. Since the wharfinger controlled the dock, it “wa s under an obligation as to the shipo wner to cure the da

ngerous conditions of th

e dock,” and its failure to cure

the conditions entitle

d the shipowner to inde

mnity under the standards enunciate

d in Ryan

. Oglebay Nort on Co. , 788 F.2d at 366-67. Similarly, the Seventh Circuit held a dockowner liable to indemnify a shipowner for an injury

occurring on the dock since the dockowner had breached its w

arranty “to maintain its dock in a reasonably safe condition.” Ammesm aki , 342 F.2d at 631. We think it clear

that the warranty

of workmanlik

e performanc

e runs from wharfingers, suc

h as the Port Author

ity, to shipowne

rs, such as Celebr

ity, for whom it provides services. While the extent of the warranty is largely determined by the nature of

the services undert

aken by the whar

finger, the im

plied warranty relates to the condit

ions of the berths, t

he removal of d

angerous obstructions,

and the furnishing of

safe means of egress and ing ress to berthed shi ps. See Sims v. Chesapeake & Ohio Ry. Co. , 520 F.2d 556, 561 (6 th Cir. 1975). He

re, it is undisputed that the Port Authority contracted to provide the means by which16

passengers boarded a

nd deboarded the M/V

Century and othe

r cruise ships. Th

e Port Authority

had total control over

the operation of the passenger loading bri dge and gangway. A

s such, it owed a dut

y to Celebrity

and other vessel own

ers to ensure that the loadi

ng bridge and gangway

were properly

positioned. The Authority’s f

ailure to discharge

this duty would con

stitute a breach of

its warranty of workmanlike performance. Even if it is found to have breached its duty of workmanlike performance, the Port Authority

contends Celebrity

is not entitled to indem

nification for four reasons. We address these reasons in turn and conclude that non e are persuasive. First, the Port Authority contends that Celebrity’s retention of control over the M/V Century while it was b erthed precludes it from being reimbursed. See Groupe Chegaray/V. de Chalus v. P&O Containers , 251 F.3d 1359, 1371 ( 11th Cir. 2001) (noting “the key element” a shipowner m ust establish to prevail under the Ryan doctrine is the exer

cise of “exclu

sive control” by t

he contractor). While the Port Authority

admits that it ha

d exclusive control ove

r the positioning and operation of the pass enger bridge and gang way, it subm

its that “Cele

brity maintained control over the gangway by virtue of the attachment” of the gangw ay to the ship. In other

words, since the g

angway was a

ttached to the ship and Celebrity m

aintained control of

the ship, Celebrit

y exercised co

ntrol over the18 In Bonner v. City of Prichard, 661 F.2d 1206, 120 9 (11th Cir. 1981) (

en banc), this court adopted as

binding preced

ent all decisions o

f the former Fif

th Circuit handed d

own prior to October 1, 1981.

19 The Port Authority attempts to shore up its Celebrity-maintained-control arg ument by noting that Celebrity’s regulations required its crew members to maintain a w atch over the positioning and fastening of the gangway . The Supreme Court in Ryan , however, clearly rejected the notion that the shipowner’s authority to supervise and correct a contractor’ s performance defeats the shipowner’s claim for indemnity. Ryan Stevedoring Co. , 350 U.S. at 134-35, 76 S. Ct. at 238. Accordingly, the fact that Celebrity personnel observed the positioning does not defeat its right to indemnification. 17 gangway and cannot be hea rd to complain of the Port Authority’s conduct. We think the Port A

uthority’s ar

gument comp

letely misses the point. The Authority had the

exclusive control ove

r the positioning and ope ration of the passenger loading bri

dge and gangway.

It is the improp er positioning of the bridge and gangway that is at issue. Because there is absolutely no evidence suggesting that Celebr

ity hindered or i

mpeded the Port

Authority in per

forming its function, and discharging its responsibility, of positioning the bridge and gangway in a workmanlike manner, see Le Blanc v. Tw o-R Drilling Co. , 527 F.2d 1316, 1321 (5th Cir. 1976) (stating that to deny recovery courts must focus on “whether conduct or circumstances of the condition for which Shipowner has a legal responsibility se

riously impe

ded or prevented Cont

ractor from performing the job in a safe and workmanlike manner”), 18 the Port Authority ’s argument necessarily fails. 19 Second, the Port A uthority, like t

he district court,

asserts that a20 This is not to say that vessel negligence which seriously impedes the contractor’s performance cannot defeat an indemnity recove ry. See Gator Marine Service Towing, Inc. , 651 F.2d 1096, 1100 (5th Cir. Unit A 1981) (concluding that “intervening vessel negligence” was of 18 straight forward app lication of tort law d efeats Cele brity’s claim: C elebrity’s negligent failure to

monitor and prepare for bad weat her precludes it fr

om receiving indemnification. Celebrity’s negligence or non-negligence, however, has no bearing on its ri

ght to indemnification. Celebrity ’s recovery for indemnity is based upon an agreement between it and the Port Authority; tort principles are therefore inapplica ble. Italia Societa P er Azioini Di Na vigazione v. Oreg

on Stevedoring Co. , 376 U.S. 315, 321, 84 S. Ct. 748, 752, 11 L. Ed. 2d 732 (1964);

see also Parfait v. Jahncke Service, Inc. , 484 F.2d 296, 303 (5 th Cir. 1973) (comparing tort indemnity with the Ryan doctrine, and noting that “indem nity under the latter doe s not rest on the tort concepts implicit in the former

, but on a contractual war

ranty theory

”). As the Supre

me Court expla

ined, “in the a

rea of contractual indem

nity an applicat

ion of the theories of

‘active’ or ‘ passive’ as well as ‘primary’ or ‘ secondary’ negligence is inappropriate.” Weyerhaeu ser S.S. Co. v. Nacirem

a Operating Co. , 355 U.S. 563, 569, 78 S. Ct. 438, 442, 2 L. Ed. 2d 4 91 (1958). Consequentl

y, even if Cel

ebrity were found to be negligent in i ts monitoring of the

weather, such a

finding would not prec

lude recovery of indemnity from the Port Authority. See Parfait , 484 F.2d at 302-03. 20such “magnitude” to defeat a Ryan indemnity claim).

19 Third, the Port A

uthority claim

s that our decision in Smith & Kelly Co. v. S/S Concordia TADJ , 718 F.2d 1022 (11th C ir. 1983), precl

udes the expansion of Ryan indemnity to the factual situation in this case. To the contrary, we view Smith & Kelly

as supporting the application of Ryan indemnity he

re. In Smith & Kelly , a seamen w

as injured while a

t sea due to the neglige

nce of both the shipowner and the stevedore contractor. We refused to apply the Ryan doctrine by distinguishing accident

s at sea from t

ypical pierside

accidents, holding t

hat “the original justification for Ryan indemnity [does not apply] to controversies involving seamen injured at sea.” Id. at 1028. We expla ined that unlike acci

dents that occur at piers, where contractors are “better positioned to avoid injuries during cargo operat ions[,] . . . shipowners are bes t able to protect sea

men from injuries aboard ship ” while at sea. Id. The case at hand involves the typical pierside accident. It also involves negligent conduct by

a maritim

e contractor, an

area where cour

ts are especially

apt to appl y Ryan

indemnity. Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-19 (3d ed. 2001) (citing the first, third, and ninth circuits). The concerns expressed in Smith & Kelly on which the Port A

uthority heavily

relies – a hesitation to “extend[] the Ryan -type indemnity ‘beyond those controversies21 “A person is considered a passenger when she pay s fare or other consideration for travel on a public carrier under an express or implied contract.” Benedict on Admir alty § 10.04[A] (7th ed. 2002). A seaman, by contrast, is one “engaged or e mployed in any capacity

on board a vessel . . . .” Id. at § 7.01[C][1][d][ii] (citation omitted).

22 Under the gene

ral maritime law,

shipowners are h

eld to an implied wa

rranty tha t their vessel is reasona

bly fit for it

s intended purpose . Schoenbaum, supra at § 5-9. “The duty

to furnish a seaworthy vessel is absolute and nondelegable, and its brea ch gives rise to liability for unseaworthiness . . . .” Id. (footnote omitted). 20 involving the special rules governing the obligations and liability of shipowners which necessitated its formulation and justify its application.’ ” Smith & Kelly , 718 F.2d at 1028 (quotin g Thibodeaux v. Texa

s E. Transm

ission Corp. , 548 F.2d 581, 585 (5th Cir. 19 77)) – are therefore unwarr anted in this case. Finally, the Port Authority contends that indem nity based upon a br

each of an implied war

ranty of workm

anlike perform

ance is unavailable

where the shipowner is seeking indemnity for damages paid to an injured passenger, instead of an injured seam

an. 21 The Port Authority grounds its argument in the fact that indemnity based on a breach of workmanlike perform ance has historically been allowed where th

e shipowner is held a

bsolutely liable f

or a breach of the w

arranty of seaworthiness ow

ed to seamen. 22 Since passengers a re not covered by

the warranty of seaworthiness, Kornberg v. Carnival Cruise Lines, Inc. , 741 F.2d 1332, 1335 (11th Cir. 1984), a shipowner ’s liability to passengers is prem

ised on negligence and is n ot absolute. See id. at 1334-35. Given the fact tha t Celebrity is21

not absolutely lia

ble to Vierling, th

e Port Authority

submits, Cele

brity should be barred from indemnity. We acknowledge

that in most case s that have allowed shipowners a right to indemnity, the shipowner’s liability to the injured person was absolute (and based on a breach of the w

arranty of sea

worthiness). W

e also realize tha

t language in some of our opinio

ns suggests that Ryan

indemnity is only allowed where shipowners are subject to absolute liabi lity. See e.g. , Whisenant v. BrewsterBartle Offshore

Co. , 446 F.2d 394, 400,

403 n.31 (5th Cir. 19 71). Even so, ca se law and comm

on sense indicate tha

t a shipowner’s r

ight to indemnification should not turn on whether th

e shipowner’s lia

bility to the inj ured person is absolute or not. As for case law, this court and the Supreme Court have already concluded that indemnity will lie even though the shipowner’s liability to injured persons can be based on negligence rather than absolute liability: “even where the injured stevedore had recovered a verdict against the shipowner on grounds of negligence, not unseaworthiness,

. . . the stevedor

ing contractor is obli

ged to perform

with reasonable safety

and to discharge for

eseeable dama

ges resulting from

the contractor’s improper performance, m eaning indemnification of the shipowner.” Grace Lines, I

nc. v. Port Ever

glades Termi

nal Co. , 324 F.2d 699, 701 (5th Cir. 1963) (citing Weyerhaeu

ser S.S. Co. , 355 U.S. at 563 , 78 S. Ct. at 438 ).23 Lyons c ould sleep on the job

even though the P

ort Authority

was charging

Celebrity $5.35 for every passenger boarding the M/V Century.

22 As for common sense, if we were to adhere t o the Port Authority’s view, we would c ounten ance th e unten able pr oposi tion th at ship owners , such a s Celeb rity, are entitled to rei

mburseme

nt for money

paid to seamen b

ut not for money

paid to passengers, even t

hough both seamen a

nd passengers are hur

t as a result of the same accident. Posit a situation where both a seaman and a passenger are injured simultaneously. If we adopted the Port Authority’s rationale, we would require indemnificatio

n only for the dam

ages the shipowner paid the seaman . In that the skill required to place correctly the passenger loading bridge and gangway does not vary depending on the label we attach to the persons traversing them, and that the potential harm

to a person who falls as a result of a m isplaced bridge and gangway is the sa

me regardles s of the person’s la bel, it makes n

o sense to have different rules for di fferent people who are injured under the same circumstance s. Adopting the Authority’s position would mean that the care the wharfinger exercises at a give

n moment w

ould depend on who is tra versing the bridge an

d gangway. In s

hort, Lyons cou

ld sleep on the job as

long as a person to who

m Celebrity owe

d the duty of seaw

orthiness wasn’t

boarding the vessel. 23 Such a result would run directly afoul of the policy underpinning the Ryan doctrine that23

“liability should fall on the part y best situated to

adopt preventative m

easures and reduce the likelihood of injury.” Groupe Chegaray /V de Chalus , 251 F.3d at 1371 (internal quotati on marks and citations omitted). Thus, we see no reason why indemnity should not be awarded in proper

cases when t he shi powne r’s li abili ty to t he inj ured p erson was ba sed on some species of fault. See William B. Daly, Jr., Contribution and Indem nity: The Ques

t for Uniformi

ty , 68 Tul. L. Rev. 501, 527 (1994). A determination of whether a shipowner is entitled to indemnification should turn on whether its liability was foreseeable when the co ntractor performed in less than a workmanlike manner. As the Supreme Court has said, if a contractor renders a “substandard perform ance which led to forese

eable liability

of [the shipowner] , the latter was entitled to indemnity . . . .” Weyerhaeu ser S.S. Co. , 355 U.S. at 567, 78 S. Ct. at 44 1. There is little doub t that Celebrity’s liabili ty to Vierling was foreseeab le. A high degree of care is d emanded of common carriers toward thei r passengers. McCormick v.Shipping Co. , 322 F.2d 648 (5th Ci r. 1963); see also Kornberg , 741 F.2d at 1334 (“

A ship, as a com

mon carrier,

owes a special duty

to its passengers.”). Included in this high de gree of care is th

e duty to mai

ntain reasonable, safe means for pas sengers to board an d disembark. Tullis v. Fidelity and Casualty Co. of New York , 397 F.2d 22, 23-24 (1 1th Cir. 1968). This duty is24 Carriers are a lso forbidden, as a

matter of public po

licy, from u

sing contracts t

o limit their liability

for negligen

ce to their passe

ngers. 46 U.S.C. §

183c; Kornberg , 741 F.2d at 1335- 36. 24 nondelegable, see 14 Am. Jur. 2d Carriers § 861 (2000), and the f ailure of shipowners to provide

such a means re

nders them liable in damages. 24 Martin J. Norris, The Law of Maritime Personal Injuries , § 3:13 (4th ed. 1990) ; see Tullis , 397 F.2d at 23-24. Considering that “ [c]ourts sitting in admiralty

have long recognized an obliga

tion on the part of a carrier to furnish i ts passengers with a reasonably safe means of boarding and leaving the vessel,” Callahan v. Chera mie Boats, Inc. , 383 F. Supp. 1217, 1220 (E.D. La . 1974), that this obl igation is nondelegable, and that even the “slightest negligence” renders a carrier liable, Pennsylvania Co . v. Roy , 102 U.S. 451, 456, 26 L. Ed. 14 1 (1880), the Port Authority certainly foresaw that Celebrity would be liable to passengers injured as a result of an improperly position ed bridge and gangwa y. The hollow ness of th e Port Autho rity’s posit ion is abu ndantly cle ar. We reject it and conclude that Celebrity is entitled to indemnification if the trier of fact finds (1) that the Po

rt Authority br

eached its warra

nty of workm

anlike performance

by improper

ly positioning the pa

ssenger loading bridge

and gangway, and (2) that such breach was the cause of Vier ling’s injury.25 IV. The district court

judgment is accordingly VAC ATED, and the

case is REMANDED for further proceedin gs. SO ORDERED.