(dissenting).
I agree with the reasoning of Judge Wright as quoted in footnote 1 of the Court’s opinion. Daspit contracted with Shell to inspect and repair the underwater pipeline, and agreed to indemnify Shell and hold it harmless from all claims of and liability to third parties “including, without limitation, all employees” of Daspit, for injury arising out of the contract. As I understand, the Court now holds that Shell’s liability to Drewery, one of Daspit’s employees, comes within the exception to that broad indemnity contract, which exception reads: “except where such injury, death, loss or damage has resulted from the negligence of Shell without negligence or fault on the part of Contractor or any subcontractor.”
It is conceded that Drewery remained the employee of Daspit during the performance of the work under the contract, and that he was injured during the course of his employment. In answer to special interrogatories the jury found that both Shell and Drewery were negligent, and that the extent to which Drewery’s negligence contributed to the accident was eighty per cent. This Court holds, however, that Daspit is not responsible for Drewery’s negligence because Drewery himself was the employee injured by that negligence.
It seems to me that that holding overlooks the fact that Shell sues for its own •loss, not for Drewery’s injury; that as to Shell’s claim against Daspit, Shell is the injured party, not Drewery. If an*429other of Daspit’s employees swimming alongside of Drewery had been the “third party” injured, there could be no denial that Daspit was bound to indemnify Shell against any resulting liability. The loss to Shell is just as real when Daspit’s negligent employee, Drewery, is himself the “third party” who suffers the personal injury. When the contract of indemnity includes “without exception, all employees” of Daspit, it embraces Drewery, the negligent employee himself.
The expression in the exception to Drewery’s obligation of indemnity, “without negligence or fault on the part of Contractor or any subcontractor,” includes, of course, not only acts or omissions of Daspit himself, but also those of his employees acting in the course of their employment. We need go no further than the indemnity contract itself to find not the implied warranty of workmanlike service held sufficient in Ryan Co. v. Pan-Atlantic Corporation, 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Weyerhaeuser S.S. Co. v. Nacirema Co., 1958, 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491; and Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 428, 79 S.Ct. 445, 3 L.Ed.2d 413, but an express contract of Daspit to indemnify Shell against liability to Drewery.
That conclusion is strengthened when we observe that for the injury or loss to be within the exception to Daspit’s obligation of indemnity it must be “without negligence or fault on the part of Contractor.” Whether or not Drewery’s acts or omissions were “negligence” imputable to Daspit, they certainly constituted “fault” for which, under the contract, Daspit was responsible.
They were, I submit, also “negligence” imputable to Daspit, because Daspit owed a duty to Shell arising out of the contract to perform its part of the contract in such a manner as not to cause Shell to suffer loss. 38 Am.Jur., Negligence, Sec. 20. See also Prosser on Torts, 2d ed., Sec. 36. Drewery, an employee of Daspit, acting within the line and scope of his employment, has negligently caused Shell to incur liability and to suffer pecuniary loss. It is no answer to say that Drewery’s negligently injuring himself was the means by which that result was accomplished. Insofar as Shell is concerned, there was nonetheless “negligence or fault on the part of” Daspit, and hence Daspit is bound by its contract to indemnify Shell.
I respectfully dissent.
Rehearing denied; RIVES, Circuit Judge, dissents.