(dissenting).
I disagree with the majority for these reasons:
The jury’s verdict at the first trial, in which both Garcia (owner of the vessel) and Jarka (the stevedore) were pax-ties, established Garcia’s negligence. It is true that the jury, in its answer to the interrogatories submitted to it, did not disclose the specific premise of its finding of negligence, but on appeal we affirmed that finding on our determination that the evidence established that the vessel’s cargo had been negligently stowed so as to “create a danger to those who attempted its removal by the same method as had been previously employed on this vessel at this port.” Curtis v. A. Garcia Y Cia, 3 Cir., 1957, 241 F.2d 30, 34.
At the first trial, brought by the injured longshoremen against Garcia, and in which Jarka had been impleaded on the ground that it was liable to Garcia by way of contribution or indemnity, both Gax-cia and Jax-ka actively defended. *239Garcia’s defense was proper stowage, improper discharge of the cargo by Jarka, and absence of negligence on its part; Jarka’s position was that the cargo had been improperly stowed by others, its discharge of the cargo was in accordance with customary and established practice and there was no negligence on its part. Due to the fact that the trial judge, at the first trial, at the close of all of the evidence by all parties, granted jarka’s motion to dismiss as to it, there was no finding by the jury as to Jarka. Subsequently the trial judge granted Garcia’s motion to vacate, set aside the dismissal of its third-party complaint against Jarka and granted a new trial which resulted in a verdict for indemnity and this appeal.
What we said in Crawford v. Pope & Talbot, Inc., 3 Cir., 1953, 206 F.2d 784, requires reversal of the judgment in the indemnity action on the ground that the jury’s verdict in the first trial became res judicata.
We there said (At page 795):
“Where * * * the indem-nitee and the indemnitor are co-defendants actively participating in the defense of the original action * * * then in subsequent litigation between them both indemnitor and indemnitee are bound by the findings necessary to the judgment in the action.” 1
To the same effect see 30A Am.Jur., Judgments, § 424.2
Independent of the foregoing, I am of the opinion that Garcia cannot recover against Jarka because it had knowledge of and acquiesced in what the jury in the instant case found to be a negligent method of discharging the cargo. It was Garcia’s duty to see to it that the cargo was discharged in a proper manner and as counsel for Jarka has pointed out “If Jarka was at fault in the method used, Garcia was equally at fault with Jarka” and “was in pari delicto.”
What we said in Hagans v. Farrell Lines, Inc., 3 Cir., 1956, 237 F.2d 477, 482, is applicable here:
“Knowledge of and acquiescence in the existence of a defective appliance or condition may prevent the fruition of the right to indemnity. Restatement, Restitution, Sections 93 and 95, and Reporters’ Notes •X* •» *x*
“Where the parties have violated similar duties to the injured person, neither is entitled to relief against the other.”
The Supreme Court of the United States in Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 has indicated that negligence on the part of the indemnitee vessel precludes recovery from the indemnitor.
Said the Court (At page 567 of 355 U.S., at page 441 of 78 S.Ct.):
“If in that regard respondent [stevedore] rendered a substandard *240performance which led to forseeable liability of petitioner [vessel], the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery.” (emphasis supplied)
Here the evidence, earlier stated, established Garcia’s knowledge of the methods used in the discharge of the cargo by Jarka. Garcia’s captain noted in the ship’s log that:
“The discharge was carried out in the manner accustomed in the Port of Philadelphia on this ship in the many trips of the last four years and several times in the same pier 27 North on the north side * *
Moreover, the jury in the instant case found as a fact in answer to Interrogatory No. 7 that the method used by Jarka was known to Garcia in the early part of January, 1952 — about a month before the discharge of the cargo on February 14, 1952.
The fact that Garcia, a month in advance of the discharge of the cargo, was advised by Jarka that the discharge would, be accomplished in the precise method and manner used, makes the reliance of the majority on Ryan Stevedor-ing Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, misplaced. In the Ryan case, the vessel had failed to discover and correct the stevedore’s negligent stowage of the cargo and it was held that such failure could not excuse the breach of the stevedore’s contractual duty to the vessel to properly perform its duties. Here, on the other hand, Garcia “discovered” not only at the time of the actual discharge of the cargo, but a month in advance of it, the methods to be used by Jarka which the jury found to be negligent.
These principles are well-settled:
Indemnity actions are based on the violation of some contractual duty, expressed or implied.3
The cardinal rule in the interpretation of contracts is that the intention of the parties should be ascertained and enforced; in the absence of specific provision, or in the case of ambiguity, recourse may be had to circumstances surrounding the transaction, the conduct of the parties, and the practical construction given to the contract by the parties as evidenced by their course of dealing under it.4
In the instant case the parties concede that the written contract for the discharge of the cargo did not even mention the subject of indemnity as between Garcia and Jarka. It is also undisputed that the contract did not specify the method or manner of discharge of the cargo. That being so, in application of the principles stated, recourse must be had to the circumstances surrounding the negotiation of the contract and the practical construction given to it by the parties as evidenced by their conduct with respect to it.
As previously stated, the jury specifically found, in response to Interrogatory No. 7, that when the contract was entered into on January 17, 1952, both Garcia and Jarka knew of the “usages” followed by Jarka in the discharge of the cargo on February 14, 1952. Buttressing this fact finding is the undisputed evidence that Garcia’s captain noted in the ship’s log that “the discharge was carried out in the manner accustomed in the Port of Philadelphia on this ship in the many trips of the last four years and several times in the same pier 2,1 North on the north side.” (Emphasis supplied.)
In view of the foregoing it must be found that the contract contemplated the use by Jarka of the methods it applied in the discharge of the cargo. That being so, it cannot be said that Jarka violated a contractual duty which afforded Garcia a right to indemnity. The mere circumstance that the jury found, in answer to *241Interrogatory No. 2 that the “method of unloading * * * was unsafe and improper” and was the “primary and active cause of the accident” had no relation to, nor bearing on, the issue of indemnity as between Garcia and Jarka.
In sum, Garcia got what it bargained to get from Jarka and cannot recover indemnity for a breach which did not occur.
For the reasons stated I would reverse the judgment of the District Court.
. See also Moyer v. Aetna Life Insurance Co., 3 Cir., 19-12, 126 F.2d 141, 143, where we said:
“These contentions need not be discussed again. The law of the case with respect to them was settled by this court upon the first appeal.”
. “§ 424. Judgment as Conclusive Against Indemnitee in Action Against Indemnitor.—
“The authorities which have considered the distinct question hold unanimously that an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and that, if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained. The rule applies particularly where the indemnitee himself places the former judgment in evidence in his action against the in-demnitor. These rules have been ap-lied where the right to indemnity was based upon an express agreement, irrespective of whether the earlier action was founded on contract or on tort. The rules have also been applied where the right to indemnity was claimed to arise from operation of law.”
. Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 565, 78 S.Ct. 438; Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 130, 76 S.Ct. 232; Brown v. American-Hawaiian S.S. Co., 3 Cir., 1954, 211 F.2d 16, 18, rehearing denied.
. Restatement, Contracts, § 235; Chesapeake & Ohio Canal Company v. Hill, 1872, 15 Wall. 94, 99-100.