SMITH, Circuit Judge.
Third party defendant-appellant, a stevedore, appeals from a judgment over in favor of a shipowner held liable to a longshoreman employee of appellant, injured while working in the ship’s hold. The plaintiff and a fellow worker were operating gasoline powered hi-los in a hatch from which the covers had been only partially removed. There were two ship’s ventilating systems, one merely a vent opening some fifty feet up the kingpost, the other a blower system controlled from a deck house. The deck house was locked and the mate when requested to open it could not find the key. The stevedore had brought an auxiliary blower aboard but it was inoperative because electric power to the hold, controlled from the deck house, was not turned on, and because the wiring on the blower was in any case in need of repair. Plaintiff continued to work although his repeated requests for forced ventilation were not complied with. He suffered from monoxide poisoning, causing loss of wages and permanent physical impairment.
The United States District Court for the Southern District of New York, Edward Weinfeld, District Judge, found the shipowner negligent and its ship unseaworthy. It found the plaintiff had suffered damages of $18,355, which it reduced by 50% to $9,177.50 on a finding of contributory negligence on the part of the plaintiff. It further found the shipowner entitled to judgment of indemnity against third party- defendant-appellant in that amount, plus counsel fees and expenses, and costs. Counsel fees in the District Court are agreed to be $2,750.00. The stevedore appealed from the judgment of indemnity over and the shipowner from the primary judgment against it. We find no error and affirm the judgment.
There is no question as to the ship’s unseaworthiness or negligence. Even though sufficient blower capacity existed, the locked house rendering it inoperable and the hold unsafe for employment of the hi-los made the ship unseaworthy and the shipowner negligent. Clearly the findings of negligence and unseaworthiness are supported by the record, and the appeal of the shipowner is not pressed.
The important question posed by this appeal is whether the shipowner’s failure to act after notice from the stevedore should prevent indemnity. The Supreme Court has suggested in Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958) that there is some area in which the owner’s right to recover will be defeated by his own conduct. However, neither the Supreme Court nor this-court has attempted to define what constitutes “conduct on [the owner’s] part sufficient to preclude recovery.” See Pettus v. Grace Line, Inc., 305 F.2d 151, 154 (2 Cir. 1962);
Drago v. A/S Inger, 305 F.2d 139, 143 (2 Cir. 1962). See also, American Export Lines, Inc. v. Revel, 266 F.2d 82, 87 n. 6 (4 Cir. 1959). Appellant contends that the area includes not only eases where the owner required and directed continuance of work after knowledge of the defect, but also those where the owner prevented or hindered the fulfilment of the warranty of work-' manlike service. - It is plain from the Weyerhaeuser case and Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959) that not every fault of the owner will defeat his right of
recovery over. As Judge Weinfeld has indicated, the rules of tort liability do not apply. In the Weyerhaeuser case the Supreme Court pointed out “that in the area of contractual indemnity an application of the theories of ‘active’ or ‘passive’ as well as ‘primary’ or ‘secondary’ negligence is inappropriate.” 355 U.S. at 569, 78 S.Ct. at 442, 2 L.Ed.2d 491. Whether or not under contract rules the test will be framed in terms of “prevention. or hindrance” as appellant urges, Crumady seems to us