Petition for Writ of Certiorari — Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp.

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| its - & RY wilice, Super ue {|

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|. JUN 2 1 1954

ee ee Tt wR EB WHLEY, Clerk.

; nies IN THE |

4 Supe enti Court uf the United States |

| yD Oct robER TERM, LIT

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. i : : ok ie S uals : : :

| : ; Ryan STEVEDORING Cai 28C.,

og Petitioner,

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Pax-A ELAN ic STEAMSHIP Corpor ATION,

. Bsc | : | ene Re esponden nt...

y ts eee eee see :

meio PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS:

FOR THE SECOND CIRCUIT

SipNeY A. SCHWARTZ

aoe nots | Counsel for Retitioner.

Muteiions Presented .

Statute Involved ee Uwe see ie eee eoialed eek ace few he soi 3

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nensons' for Grantme the Writ 2.03. ok.

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PUPIMGIOIION Ne ee ieee ee Cece a Oe

Coase eae

Statement of the CN lena ait. We ees 4

‘pea ee pee danas Pe ee me Oe ee 14

Conclusion ae ee Ie retots WE fares sos Ee eee pre ene

CETATIONS':

Adier v. Tiiliv & pnanels, Inc. Sere ABD: . Div. 1001, |

R att'd B00, NX. ¥. 662 raider lle Meee Cae ean ae cei aiak ae:

Alas kal Stes unship Con i any ve P ette Eon, i4 S. Ct. 601 “10 os

Annie riean Mutual Liability Ins. Col v. Matthe ws, 2 Cir., |

Isl M.. 24-322. . ‘ ni 8, 16; 17, LS

Q@uwi@m “ «ce cee nn eee eevee eseaeseseeeesecnesacaseseceanssstcsseacestéounse

b — v. MeShain, Ine., LUS F. Sapp. HF 22.1.8, 9, 19

Bb arher SS Lines v. “Quinn Bros., 104 F. Supp. (8 _..,.... “8

1 rown | Aime rican Hlaw: an SS Ca, 3 Cr. 2H F.

vd 3% bt eter owe Seater ae Pn Lie: Fe See ceaacnne .8, 19°.

Coates vy. Potomac lHlectrie - ids ower ¢ 0. 95 FL -Suppe yo

ic! 4, fb I, Supp. 101g. Poesai ges ieee (el ecg ea te Cec ee oo &

Liberty Mutual Ins. ie v.V allendinghain, O4 F, “Supp.

es ae : ae es :

os) PAG

Crawford v. Rape & TalBoty Ine. 3 tin. 206 FL 2a

PE, Si Rae as RS OIE S19

| r yeu

Dolnick v. Ledward Donner Lumber Corp., 275 App.

Diy::954, aff'd 300 N. ¥: 660.2 2 24

Dubetz v. North American Shipping (o., 19: YI Al M. es

ao. Ee ie Ce Bees SEES NEGA Mh EG ERS EN aOR Oe LE i \

‘Edwards. y. Sophkirsh Holding: Corp., 280 App. Div. ?

i ee oe et ee

Xrie R. Co. v. Erie & W. 1 ransp. Co./204. U.S, 220. aca

--FPalk v. Crystal, Hall, Inc., 200 Mise.-979, aff'd 279 :

ea wr GN os a. ot es wine Ste en ek

F. E. Grauwiller eae oe Ine. . Gallagher Bros.

~Sand & Gravel Corporation, Is i) , 2d oS4, 3S) . 12, 13, 26.- -

Gill v. U. 8., 2 Cir, Ist F. 2b AD intr ce ao oe

_Haleyon Lines v. H aenn Ship Ceiling & Ret fitting re orp, re

342. S. 282; 74 S. ot. TOE ica ce eee

-Tagone v. Cardillo, 208 F. 2d 606 erent as 2

Johnson v. U nited States, 7 79 F. Supp. 48. ee yO ae

cee ea ee ee neareee ® 8, 19

‘Lo: Bue: v, ae S., I88 E. 96 800. PEE AN foe a pee 1s

or) eke Brsantee yee Prcdauetbe Bie pt ud ies k eases ek: oe ger teal os , S-

“115 Recess ee 2 es Sew sr eee w eee eec ccc ceaeteesececccs wereesesssocceses “ j U S

e y .

McAllister Peed States,,207 = 2d aaa | 13

McFall v. Cakapaains Maritime Belge, U4 N, ¥. pete:

- 328 ee ee ae he

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M fis S<CIseH.- Vv. yg Cire ile, on PI's. bp). [at qd QOS ‘ - 18,

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.. | Miranda y. Cits eee ws I Supp, 245 siete oe

am ft hoe i 4 yr ide ve 0, it ree, é App. Div. pd, Fo,

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att “d, TS) N: 'S 0 PRA co ttee EEE ay OR VE WUE PG ee | Pesce slosh eet an

Pate a Tatbot Ine: v. Hawn, B46 U.S. 406 ta Pipra te 10, 1]

' sells , ‘ -= . . s

hederi'y. Jarka ( orporation, 26 EF, Supp Od SE: seit

Seas Miipping Go. +. Sieracki, 328 on S. 35 i ee we

Slattery, v. Marra Bros., 2 Cir:, 186 F.2d 184-...02....... ..8,.B1,

x. : ¢ ; : te =~ a

. 2 re . : ; a i )*)

Standard Wholesate Po & Aww. Rucke rt. Terminals Cor:

poration, 1949 ve i oie ee Be Me

States SS Co, 1 een International Steve, Ge,

9 Cit. 205. 2d ee 3, 19,

lonton Sulphur ¢ & Oil Corp.-¥: W: J. Jones & Son, % Cir,

Pe Zee ei be ee ceeeeameren 2

Valerio ve Aimerrcan-President ‘Lines, 112. F.Supp. 202

: ss Si zs ” ens 4 =

Westchester LL. Co. v. Westthester C. SK. Corp., 278

pratwtes; 6 . Be RNS Ho oe

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op: SP A 98344) srs econd nani a ee Ror

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Miscellaneous : | | |

67 Cong: Record, 69th Cong, Ist Sess., p. 41 ee es $5)

68 Cong. Record, 69th Cong., 2d:Sess:, p. 5410 7 pe ee

‘ Restatement of Restitution -§76 :...:.:...00.2 sc ... 23

Restatement of Restitution §95 08.00.0000... oe ee

Senate. Report, S. 976, 69th Cong., Ist Sess., p. 16 0. 15

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Ryan S VEN 10 RI WG-40... ‘| Ns 7

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a Pax-ATLAN1 iC STEA SHIP (CORPORATION,

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PETITION FOR WRIT OF CERTIORARI TO. THE

UNITED STATES COURT OF APPEALS

FOR THE.SECOND CIRCUIT > *

ale

Rvan Stevedoring Co. Inc, brays that a writ of cer-

oforaricissue ta review. the judgment of the’ United States.

Court Gk Nypeals for the ee -entered in the

ahove-entitied action-on Mareh.2 1954 (R,. 372).

Petitionerherein seeks a review by this Court ‘of only

SO cnnch Of thie judgment, entered upon: the decision of.

the United Stites Court of Appeals for the Second Cireuit-

(RL 369-372)¢ whiel granted indemnity in favor of Pan-

Atlantic Steamship Corporation against the petitioner

herem, ; | | | as

Opinions Below

The opinion of the United States District Peat is offi-

rally reported in MH F Supp. 005. The opimion of the °

United States Court of Appeals for. the Second Cirenit is |

' ,

officially. reported in 211 BF. 2d 277 and appears at page

“

B69 of the Pranseript of Record.

Jurisdiction ae

The judgment of ‘the United States Court .of: Appeals —

was entered on March 25, 1954. The jurisdictien Of this.

Court is invoked under Title 2S of the Pnited States Code,

Section 1254(1). Aa

— Questions Presented .

(1) Isa contracting- stevedore, who complies «with the

| provisions of the U.S. Loneshoremen’ s and Harbor.

Yorkers’ Compensation Act, Tithe 33, United States

Code, $901 ef seq., insulated under the very word-

ing of the Act ($905) from.any claim or action in

whieh full ‘indemnity (there’ being no express con:

tract of indemnity ) is sought against haa by a ship-

owner who has been held liabie to an employee o°

the contracting stevedore, |

(2) If the aforesaid Act. as worded, does not furnish

—. complete immunity toa contracting ste vedore against

a claim of indemnity, implied i Jaw, .of a ship.

owner who lias been liable ‘to an minted einphovee -

of the contracting stevedore, can there, he indenmity

implied in the maritime law (there be Ing NO express .

contract of indemnity) between joint tortfeasors in

‘a non-collision case, ie. a personal-injury action.

‘

(3) After the jury had rendered a verdict in favor of

the injured Jongshoreman against the shipowner

herein, Pan-Atlantic Steamship eon, the

; Trial: Judge, sitting “without a jury, pursuant to

stipulation of the parties, decided. all questions of.

fact-and law respecting the sInpownets right of in-

demnity. W here the Trial Judge.as the trier of the

facts in a non- jury action has found that the ship-

owner anc the contracting stevedore were joint tort

fensors, Which ts equivalent to a deters mation that

the Negligence of ea Hocatsed or contgibuted. to the

accident, can an Appellate Court on review of the:

Triad Judges tindings Mm i nonsjury case ‘disregard.

his indings%o ( causation and draw its own conclu-

| SPONnS ws to enusation where it could not lo sO. had

Ss jy been the trier of the facts.

Siatute Involved

The provision of the Bus, Longshoresien’s and Harbor.

Workers’ Compensation Act, Title 32, United States Code,

OL efeseq, Which is involved is (905 thereof which reads

as follows: — | ben ae

. a ; i 3 , act ¢

. bxclusiveness’of liability. The lability of an employer

prescribed in section 904 of this chapter shall he exclu-

sive and in place of all other the abiffty of such emplover

‘to the employee, his low al ave prese ntative, hushand or

wife, parents.’ de spendents, next of kin, and. anyone |

otherwise entitled to recover damages from such em-

plover at law or in adiniralty on account of such imjury

orteath, except. that. if an employer: fajls to secure

pavinent of caiseeeation as required by this chapter, ;

an injured enmloyee, or his legal representative in’

case death results froin the injary, inay elect to claim.

compensation under: this’ chapter, or to maintain ‘an.

‘action at law or in adinigalty for damages on account —

of such injury or death. In sueh action the defendant

nav not plead as a defense that the Injury Was caused

hy the neelgenee of o fellow servant. nor that the

- employee assumed the risk of his emplovmernt, nor

| oe it the myUEVy. was dae to the contr ibutory neglivenaé

. Gan

}

the emplovee, (Ma JS i 7 ea 509. “5 44 Stat a

Sot

— .

employed » by tives Stevedoring Co., Inc., hereimatter re-

ferred to as’ Ryan. o1 - petitioner, Was injured aboard the’

S.S. Canton V ictory, lving ie navigable wate rs ite the port.

of New York, When he was struck by a roth of paper pulp

Statenuent of the Case

t .

On July : +1949 -ene- tT ‘Tank | ‘alazzolo, a ‘Yongshiore an

Jn July 20

during said vessel’s discharge -at Brooklyn, New York.

~The 8.8. Canton Victory was operated, managed and

controlled by Pan-. Atlantic Ste: ayiship ( Sf peTAtOn, hevein-

after. referred to as. Pan- Atlantic or responde | SNe aed

The ‘loading of the c: urge of paper. pulp was “performed

at Georgetown, BU, bY ees as w as the discharge

of the vessel at Brooklyn, N. Y.

To. recover pecuniary ‘dainages for-the pe ‘rsonal inJULIC S$:

sustained bv: him, Palazzolo instituted an action” against

Pan-Atlantic. in the. Supreme Court. of the State of New

York, County of Kings, and’ Pan- Atlantic - “removed said -

action to the. United States District Court for the Hastern

District of New York. | |

In his complaint against Pane. tlantic (R. 9-10) Palazzolo

alleged that Pan- Atlantie had negligently caused, suffered

and permitted rolls of paper pulp to be loaded ‘and. trans.

ported negligently and had failed to furnish a seaworthy

vessel, The theory of Palazzolo’s casé was that a ‘roll of

paper pulp, Which had not been “choeke dq” eee had

“jumped out of its tier during the discharge of the rolls -

of paper pulp and had crushed ke, ee sae

After the action -had~ been removed, Pan- Atlantic im-

» pleaded Ryan (R. 17) ) and squght indemnity on allegations

that Ryan was-exclusivelwin control of the portion of the

vessel where Palazzolo was hurt (R. 14,15) and that if

the rolis of Paper ep were loaded | properly on the SS.

Canton Victory and if the Vessel we re Unseaworthiy then,

said condition head ie eaused “ss alely by Ryan.

Se etiee iet e e

one

At the fie ning of trial be fore Senior” Judge Inch of

the Pedal Court in Brooklyn it) Was conceded that Ryan.

had complied With tise provisions ol the U. 'S. Longshore.

men’s and Plarbor. W orkers” < ‘Oh pensation Act, oo US.

CLA. $901-ef seq.; and that in. 1 addition to. compensation

hone fits there: had been t iy Ry vans compensation

i om.

carrier PUSo06 repres®uiting iedical: expenses im treat--

ing: Palazzolo, (R. 60, 61),

It was also stipulated between -Pan-. \thantie and Ryan

that alt proof dealing witht the: Claimed right of: indemnity

of Pan-Atlantic against Rvan was: to Sy adduced before -

the Trial Court at the same time that Palazzolo. tried

Hix Jury ‘action against’ Pan-Athantic and that the Trial

-€ ourt, Without he neiit OF Jury \, would Hete rinine as a matter

of faet and law | nn nee Claimed rigut of indemnity

or recovery over,

‘In paesoes with the allegations of Palazzoto’s com-

plaint: and-in line ‘witli the theory upon which Palazzolo’s -

action liad ne tried, the pene: charged as to unsea-

ry’

Worthiness and neglicence, Jury rendered a ceneral

verdict of $70,000 against. P ade At! antic (R. 336) upon. |

Which judgmen was’ ente reds |

Vlie Trial. Court, in aceordance With the stipulation

between Prune. \tlantie and jivan, having heard ‘all of the

Witnesses mm open court (the ‘re beime no testimony adduced

by way of de position), han led down ifs’ decision (R, 355-

399; 111 F:- Supp. 505). denving any right of indemnity

Timtavor—et Pan Atlantic and ‘erantine. judement to Ryan

disivissing Pan- Atlantic's urd party complaint.

\lthough Ravan urged t f

plianee with the U.S.-Lones norenen’s and Harbor Work-

he Trial Court that ‘its com

ers’ Compensation Act, 33° US.eé SIT et —xe q. and par-

ticularhy 905 tlefeor,. hasulated Van eompletely from

amy ela oF cadeaeioy the Trial Cor urd preferred to place

oe eee,

its dismissal of Pan-Ailantic’s third party complamt pon.

‘the findings of fact. which: it Set. forth in its opinion (RR.

308-399 ; PP. D306 and .507 of 114 BL Supp.). They revolve

around the uncontradicted testimony of Pan-Atlantie’s

own cargo mate, Captain Fisher, ae eae tes

This. uncontradicted testimony shows .that although it

was Ryan’s s job. to load the S.S._¢ ‘anton Viet ory at George-

town it. had: to be done “howe ver to the veneral satisfac-

tion of the mate in charge of the vessel, thie master, and

| the chief officer and Ins under officers” (1. 236). - ¢ ‘aptain

Fisher’s Job was to-go in and out of the five holds to

_ check to. see that Ryan was loading’ the. ca Ingo property

and chocking it for his ‘ “primary job, of course, was watch

ing the cargo, this is in port, and to see-that it.is loaded

~ and stowed. properly for the safety of thre vessel and the

cargo and the crew. that sails the vessel” (R, 299).. He -

recognized that his joh of sugervision was important in

so far as it also involved the safety of the longshgremen

who came on board to dise harge the vessel (R. 276). The

Trial. ty coinpletely, — by the ree ord, found

as a fact’ (R. 398) that finches ory ahem Ware pec es

. ig . a é

“the cargo mate was in hold No. 3, Where-the -aeciilen:

occurred, both at the tite of loading and unloading

to see that everything was properly done and that

he was. ‘primarily eoncerned to check the dauiage or.

the pilferage or- any unsafe method or practice.” 7

{Single quoted matter and italies so indicated in

original opinion.) We ae | | 7 ee

According to.the cargo mate everything w as done prop:

erly by Ryan. ain 10 complaints: were ynade | \ him @R.

re : ee

The ultimate fifiding of the ‘Trial Court. which) suns

up appropriately alf of the uncontradicted testimeny given

by the cargo mate, is this (R. 399) : :

. / ° -—

P he , . :

ee x , he

“Captain Fischer's (sic) own testimony show: his ¢om-

plete knowled ge of the toadinge and unloading oper-

" ation, the Gpportunity and ability: on his: ‘part | to.

“discover the defect in stowage at either the loading»

-. or unloadjne port, and. liis authority to remedy the ee

| condition or halt the work.” eae eee

“The Prial Court in, dénying indemnity to Pan-Atlantic

concluded that Pan-Atlantic and Ryan. Were joint tort-

a feasors. we 1 : ; ae, ie

Pan-Atlhamtic appeaied. from, the indgments entel red in

Palazzolo!s any Ryan s favor: es, > :

The U. 8. £ yurt pl Appeals for the. Second Cireuit’

affirmed the judgment in favor ef Palazzolo but ‘reversed °

the scp in Ryan's favor. and directed [judginent in

favor o > Pan-z Atlantic: sagainst Ryan CR, 369- 373; 211 ¥.

2d 2 13. a aay isos Se

ar cane aver for a writ of orion then followed. |

¢ 5 ce

Reasons for Granting the" Writ

l. The first question that petitioner | oheneete: to” this,

Court. is the juiicial construction to be accorded to the’

\ “exelusive remedy” provision ‘af the UB: Longshoremen’s

and .tarhor Workers’ at payee Act, {905 of Title

33 of the United, States Code, iIn-so faras it bears upon

and controls Glaims of indemnity (it ais in law) by ship-

owndlrs against stevedores in personal injury actions aris-

oo :

‘ing out of HiLrid ne torts, The question of the ‘judicial

construefion to ne act ‘orded. 00 of Title 33, United States

Code, is: singulariy huportant to the shipping ‘industry'

’ <s

‘

4 . By 5 Ry drs ‘ . gf te — : ;

@1 Peritionereuuderstands.that the Nationtl Association of: Stevedores, an

. ° . r

; : ow. 4 * P ' ‘ -

rennivation that represerts stevedoring firms in all the major ports of the _

ech States, will seek leave to file a briet ainieus curiae in support of Rvan’s--

~~"

F.Supp. -78.

: e- ty 4

‘ . 8 = : er a

3 ‘ xe :

for in every port of thre. United States whe: re stevedoring

of vessels takes place and accidents arise therefrom it: ix

‘a foregone conclusion. that an injured -longshoretiran wall

bring action against. theaplupowner. Who in’ turn will jin-

plead the stevedore- employer and seek inde amity nal ieed

in. law. 3 PSs ;

This type’ of livdra-he: aded litigati mM 1s. oluniprese nt and —

all courts which have been confronted? i In recent times With

- the problem of the judi¢ ial construction ‘to be plac ‘ol Upon .

‘this federal. statute, whether if be in contribution oindem-

nity actigns,. have e gone in all directions. | :

“This Court‘in, Halcyon Lines-v. Haevn Ship ¢ ‘eiling A

Refitting. Corp.,, decided January 14, 1952, 342.1% S. 282,

74 S. Cte. 203, ‘found it unnecessary: to determine: whether

$905 ( Section 5 of the Act) was a bar toa claim of contri-.

buiion for-it based its decision. on other grounds, Researe ‘he

has disclosed no case where this Court. has, even by wav

of dicta, pointed the way out of ‘the morass and w elter of

: : <4

— —— —— a

‘ey — —

petition so that the stevedoring industry may obtaifi a de termination got ae

perplexing problem presented by §805-of Title 32. of the United States Code,

Which is exemplified ‘by the authorities which are Ser torth in footifete 2

of this decid :

. 2+ Thus,. we find. the problem decided sor discussed, within rathe¥ recent

times in the following opinicrs: “American Mutual Liahility Insurance Co. v

Matthews, 2 Cir., 182 F. 2d 322; Gill v. U.S., 2 Cir., 184 F. 2d 49; Slattery

191 F.2d S38} States SS Co’ v.. ‘Rothschild ‘International Steve. Co., # Cir,

205: F, 2d 253; Crawford x. Fone S- Talbot Inc., 3 Cir., 26 F.. vd S43; Brown. a

_ American: Hawaiian. SS Co,, 3 Cir. 211 -F. 24 16; Waion Sulphuvy- O11 > +

Sori, ve WJ. Jones. § Son, 9 Cir., 195 I. 2d 93; Standard Wholesale P & 4.

v. Kuckert Terminals: Corporation, 1949 A. M. C. 818, 193 Md. 20; Liberty

Mutual Ins. Co, v. Vallendingham,..94 F. Supp. 17; Baird v..MeShain Ine.,

108 F. Supp. 553;° Coates v. Potomac Electric Power Co... 95 F, Supyi. 779,

06 F. Supp. ‘O19; Aivanda vy. City of Galveston, Usk. Supp. 2452 Lundberg

v. Prud@itial Steamship Corp.. 102 F. Supp. 115: Falerio v. American Py Si-

dent Lines, 112 F. Supp. 202: "Dubete v. North Ame rican Ship pig? Co, not.

. Officially reported, ‘reported mm 1951 AL Me C. 492; Lukasiewicr vy. Sitov ‘

LO+4 Fis ‘Supp. vie; barber SS Lines vo Qainn be sup FO4-

McCormack Lines,

.¥. Marra Bros., 2- Cir., 186 F. 2d 154; Mikkelsen, v. The Granville, > Cire

ALG, Vol. Os, 1). BALL) :

confuston whielr results fremoa, reading @f: the decisions.

Lofthe lower cour: 3 whic Hh are-se { forth in footnote 2 » hereof,

‘Where the -Cimgress , has. 1 1 clenr and. explicit language ,

<tated on ite O41 ihe Agt (3 “G05 of Tithe} ed >of the” nited-

States Code) that the liability ofan einployer er, as prescribed>

“in Seetion of the Act, to’wit, compensation, “shall be, ex-

‘chusive and in .place of vill other liability "of such’ Lniployet

Svea cwrplouer at law cor in-admiralty on account of suc ‘h

injurv’ it would ujpear that a -stevedore- employer should. spas

Pa}

lo” * * anyone viherwise entitled to re cover damages from >

‘be entitled: “to vest On the clear, unainbiguous words of the

statitey Bair Iv Joh M: Mie i, Inc., 108 F. Supp. 553):

les precially | sould this he | SO where there has never heen

evide need ly hearings; reports, ete, Was other than that

whieh ‘thre Congress mirrored in the: explicit language it.

employed it ‘Section 5 of the. ae ager Cie. oe .

noe

The bean refit whe +h. Nie (' ongress: ‘creates are tun: mes

any evidence in any dee ‘ision ‘that the legislative intent, ax,

wired hy the inh e pee tn lon placed u On them by the. oe:

7 } | ;

Clary, The benefits that the Congress has created under

the Act in question. are, ( (l) a suaraniéee d compensation to.

Mover for every injury arising out of and in the

of enaplovment, with fault or negligence playing no

C ribe Lodi Urility on (he part of the employer. As 'Congress-

nae. Geahar sid. in peaking on the floor of the House of

aed (2) an&rbsolutes. certain, exclusive and circtm- ian

icprefontativis in favor of the adoption. ofthe Act (Cow -

eresstonal Recotd, oNth Congress, Sev ‘ond Session, Mareh 2,

“Hear nes Neat Te erated, conferences were held and

2 ever ohdenvor niadé to secure a hill that would. be

beneficial to the workman and not oppressive to the

elu plover sind that would nat be a destructive hurde 1

or tirdiiste yp nil | P think we have accomplished th: it."

. ?

a 0. Mita ae

Minifestly,-Cougressional intent in part was. that the

Act should and would “not be eee to the eh iployet 4

ora “destructive birden on industry.’ ;

And vet, if impleader by shipowners of (stevederina

companies: continues in actions W vherein the stavedove

employees have sued the shipowner y which impleader is iho

highly fashionable trend and ee today in the various

ports of the United. States, the stevedore will lie constant!

forced to defend such actions even though he has: complied

with the: provisions of the Act—this, In complete nullifi

‘cation of the clear and explicit language of the ongress

that there shall be no other liability on the®part of the ste:

vedore: to “anyone othe ‘rwise entitled to regover dain: Lwes

from @ic ‘h employer at law or in admiralty on account of

such injurv.” To allow the continuance of the: impleade

of stevedores-employers is to sanction Qyhat actualle

anounts to law suits against then by their own -emplovees,

—this, in contravention to the Act.’: The shipowner, the

primary defendant and third party plaintiff, has heeome

and will become a mere conduit through: whom the injure:

einployee-longshoreman recovers. from his stevedore-em

plover. The result destroys the basic principle of compen-

sation.” (See, Joluison y. U nited States; 79 F.Supp. - L488.)

Further, this Court in recent denialons: (Seas Shippin

Co: ¥. Sieracki, B38 US. So; Pope & Talbot Luc. M Hawn,

346 TLS. WO; Alaska Stceamshep Company v. Petterson.

decided April 5, 1904, 4 8. Ct. 601) has determined -the

rights of injured ma citime workers against shipowne rs and

has: crystallized the federal law applic able the reto. From:

the recent deci ision in the Petterson case, supra, it certainty

is to be anti “pated. that shipowners, now held liable to’

independent contractgr’s cimployees for. gear which is si i

plied by'the stevedore-c mplover, Wil implead the indepen

dent contractors-cuiployers and seek gadeonuiiig roi: shia

ail

‘he

; ‘ j “ : | . se | L

elploave ~~ PRere Hetne no deersiom from this Gee deter-

miming the sight: and -gbligations of ! shipowne, ‘and steve-_

dore-enipicves vfer sese, in/the light of the Act here.

involved, settlement Of the judicial construction of. this

dlesal sifoue, itssproper functioning and administration,.

tate: wil aliways be involved where the parties.

are aligned gs they have been an- this litigation, ‘should, it >

is res pect{ully - ub tt ed, emanate from this Court.

2. This Conrthas never d termined, inso far as research

has dis —_— fiat In a tuaritime tort non- collision case the

! nariti none taw whiclr is here applicable (Pope & Talbot Inc.

\ as 246 ELS. 406) iuplics indemmity, in favor of one

et tortieas nv oagainst another joint tortfeaser. It would

appear that tivs Court and. the U.S. Court of. Appeals for

the Second Circuit have looked at contribution and indein-

ity: ee brajeeting a) question: of the quantum of

recovery: || 1 Br te . Erie ac WwW. Transp. Co., 204

U.S, 220, this: Court i Lracte ized re sth) of\dainages,

| ee ant

mo. contribution, as “partial indemnity.” - i

The CS. Court pi Appe ‘als. for the Second Cirent, per

“Chief Jude L. Thand, bore ‘ofuthy characterized this princi-

ple rat Slattery \. Marra Bros,, 186 F..2d 134.. as-toHows——

(p. dos): ie hes .

ye 8 Sach cases. (dealing with. indemnity. on the «

basis of gictive-passive negligence ) may perhaps be

nevounted. [yr as donient exceptions ¢o) the doctrine

that dhere oan be ne contrinution between jomt tort-

‘feasors. heah Feel Vis WHE af is: Cite ay (Lil erlrenbe form at

contribution \( Pare nthetical matter and italics sup-

plied. )

\: bisa boeeees ti ‘ cS | vy if ry ery / ‘es ‘¥. Tlae lat Ships ("+ ling

J } Ptr (00) Pas | ‘ SBS. US2, dowsenot reieh othe question hetre presented .

{ UX. ert oan Tootnoty i2 cof its decision |

; ® ; os - ‘ :

Seh ar. o4c 74 . that ats Was unnecessary ote construe the Act chere

Rp o

Tf there is no difference in theory he tween: conmiribution

and indemnity then it would appear that the decision of

the U. S. Court of Appeals in this Inatte 1S In onitiet,

with the “principle” enunciated by this bean an Haleiyon

Lines ve Haenn Ship Ceiling & Refliting viata p42: USS.

282. Such conflict “in principle” should, it is respect lulls

submitted, commend itself to this ae s erantine’ the

writ respectfully pray ed for in order to resolve said: cons.

fet.

3. If the action of Pan- Atlantic against Rvan diad been - >

tried by a‘ jury a federal Appellate Court, upon review.

would. be bound to ascertain whether there was any

evidence -in support-of the findings fhade- bv, or verdict.

of, the _Jury and onee it had found that the jury’ = determi-

‘nation was supported by" the evidence it cou! ld not substi

tute its own inferences for that of the jury. Had the rieht

~ over in this matter been tried. by Jury it: would seen that >

the’ question of who was ‘actively-on "passively negligen’

would bea question of fact for the jury. For, as the New

York -Court of Appeals: recently said in Melall yo Cow

— pagnie Maritime Belge, 304 N.Y: 314, 328: |

“Whether negligence is passive or active ix, wenerally

speaking , a question of fact. for the jury.”

In the. instant matter the Trial, Court In. its” opinion

held that Pan-Atlantic and the petitioner were joint tort-

feasors and denied any revove rv for the inhe ‘rent, reason

_that the finding of a joint tortfeasor relationship necessi-

‘tated the corollary. finding that-the negligence of each

was of such a quality that it caused or contributed: to. the

‘happening of the aceident. In se far as causation: is con-

cerned the U.S. Court of Appeats for the Second Circuit.

has held that causation, Is’ a question of fact. F, Ky Grau

* bt

‘®

—a

1 ae

‘

“*

willer Trausp. Co., Ine. ¥. (alBagher | Pros, Sand & ‘rravel

Corporation, 193 F.2d: 4, Oe),

Despite the foregone the Ul 8. Court of Appeals in

this matter determined that the “sole” “active” ¢ or “pri-

mara” cause of the accident to Pals LzZ010 was the negli-

vence of Ryancin the loading of th® vessel, "Completely,

ove loakeé dana, indeed, not mentioned was the Trial C ourt? s

finding, supported. by the dicontradicted testiinony set

forth in. its opinions that | ‘an-Atlantic iffirimatively . and

-actively caused the accident and participated in bringing

the same about.

"In reversing the findinw oY the Trial C ourt, wie ‘h lind-

Ing is completely supported by. the resord., the U.S. Court |

of — has projected uncertainty as to the se ope of

appeals in inaritime or non-jury actions.

This inatter commends, itself to a consideration ‘by this

Court of the SCOPE of appenis. in non-jury eases of the

type here Involved hecause of its Nyportance to the proper

ope ration of the fe ‘deral svstéim of ‘appellate review in

maritime. Mon-jury inatters, 0Cf, Me Alister, v. United

States, 207 Fy 2d’ ND certipkari granted, Apr ys 195-4.

No. -566. U.S. Law Week: April ¢ 1954. 99 AL Ww 250. )

ARGUMENT |

Ryan’s compliance with the U. S. Longshoremten’ s and

Harbor Workers’ Compensation het, 33 U.S.C. A. 8901

et seq., is a complete bar to any claim of indemnity

. by Pan-Atlantic against. Ryan. .

* Upon the trial of this matter it was conceded (Rh. GO-61):

“that Ryan Stevedoring Co., Inc, in compliance with

the terms of U.S. Longshoremenms and Harbor Work-

ers’ Compensation Act, in pursuance thereto-there were

paid by the com; ensation carrier for Ryan Stevedor- °

ing Company. contain suis for compensation. and -

‘$9857.36 as ‘me dical expenses, *the reasonabteness of

» which medical expenses is conceded by all concerned.”

Having therefore complied with the provisions of the |

statute dealing with compensation, 30 US.CLAL $904, and

with medical services, 83 U.S,C.A. S907, Ryan invoked as

-a defense (R: 26-21)}-and presented to the Trial Court for

determination the effect of S905 of oo US.CLA. whieh reads

as follows |

“The liability ot an employer preseribed in section O04

of ‘this chapter shall be exclusive and in place of all

other liability of such employer to the employee, | his -

legal representative, husband or wife, parents, depen-

dents, next of kin, and anyone otherwise entitled: to °

recover damages from: such employer at paw’ or in

. admiralty on account of such imjury * * * *'(Ttalies |

supplied. ) |

These werds are clear, unambiguous an uvequivocal and

no aids to legislative-intent need be‘sought ir this instance.

lf any were sought, they would aie Rvan’s contention, if --

at all.’ ,

The Trial Court did not place its’ exonel ration of Ryan

pales the language ofthis federal enactment but dée ided

the ali lim of indetunity in raver of Rvan and against: Pan-.

tlantic upon the proof which had: heen adduced..

Upon Pan-Atlantie’ svappeal, ‘Ryan presen sted. to the U, _S:

Court of Appeals. for the Seeond Circuit the same. argu-

miegt With respect to the. st: tute here ‘involved. It. ¢alled

‘the C ourt’s attention to the e mire line of cases which had

been decided by that Court in which it had-taken the posi-,

tion either.in direct holding oe in dicta that the Act meant

~exactly what it said, to wit,.a comple ‘te immunity of the

cmiployer (where it tiad’ covered its employee. with the

benefits of the Act) from “all other liability: fF" any-

one étherwise: entitled to: reeover damages from such as

ployer au law orin adiniralty on account of such. Injury.’

~~. s

t The words sre somewhat illumined liv the ievislative history, however

briet and meager its. Thus, when the Aet, as a bill CS. 3170) was introduced — -

on February’ 17, 126 by Mr. Cummins it, was referred to the Senate .Com-

oittee ton the fudielary (Cone. -Ree,, OSth Congress, Ist Session, Vol. 67, pe

Hi. dt held hearings on March “16, 1926 and on April 2, 1926 (Hearings

before oa sub-committee ‘of the Committee @a the Judiciary, United States

Senate, 69th Congress, Ist Session). In Senate Report S. 973,, it is stated

that (p. 16): Ef aha ee

“Sections (4) 05) and (6) of the bill eontain the “‘Appropuiate . provisions

‘for making’ certain that \compensation sill be: paid, abolishing lability

on the pari of the emplouer cxcept for the payment’ of the prescribed

compe nsalioi. and fixing the time at which compensation begins.” ( Italies

supplied.)

: S, 2170, us amendect, said) nivendn out itart being liaterial to the question "lie

") |. puased Tie ~, ware nn, June - LQ26 (Cong, Ree: tor June 3, 1926, p.

OOTE) ame was ‘later referred to the Touse Committee on: the Judiciary (p.

luszeof Cong. Record for dune 7, 1920). H.:Rept: 1767, dated January 14,

Lee? avemded S. 0170, which amendment, although wot gcermane. was elimi

nated when Gehated- (Cong: Ree. Vol. 6s, poder): The. meager debates in

Conoress ’ the sri of the HHovuse varie Sennte Committees are vompletely

ewoid at en. a s cestie 7 tha gio of of UU, Ss. C.- A. (Seetion 5 of the :

“Sot! Hows Te een enaetly “what the expliert language suvs. oo

4 >.

Thus » tt was argued. LO hes C our ‘be low: ‘that rn of aes Ficdit

“Miiint Liability lusurance Co, v. Matthews, 182 F. 2d 322,

in dealing with a claim: of saaictinii (there being no

: written | contract ) and the statute as a defense the ereto it

had said Ap. 324):

“To impose a non-contractual ‘dut® of contribution On

the emplover is pro-tanto to deprive: him of, the im-

— munity which the. statute grants him in exchange for

his absolute, though: limited liability to secure’ come -

pensation to his employees.” |:

— \

In dealing with the effect of $90) of 33 UIS.CLAL as a

_release*from-a claim of recovery, LL. Hand, Ch.J., ina con:

curring opinion in the cited case said, (p. 325):

be & * *

and the reason why i-think it shor uld be so con-

strued is that it (the -Act) has imposed upon employe rs

an alisolute, though -limited, lability, inw ‘xchange tor

a release from the preceding untimited liability, con-

‘-¢ ditional upon negligence.” _(Parenthetical ma tter sup

| plied.) es |

Having disallowed’ contr bution on- the ‘basis of the

statute here involved, the Court be low nad also disallowed

indemmity—and es also by. reason of the statute, 5

In Gill v. ie , 184 F. 2d 49, where the United. States

: (shipowner) soaak indemnity from the employer, Turner

_& Blanchard, Ine, (Record on Appeal in cited eaxe—tolio .

45), the question was dispose d ofin the opinion as follows’

(p. 00): 3 : Seay, |

“The dismissal of the cross libel against Turner ‘and

Blanchard, Inc., which paid |: ibellant under the provi-

sions of the Longshoremen’s and Harbor Workers’

~ Compensation Act was without error 733 USCA.

—< % : . \o

—

| ie vs.

° ‘ *-9

4905 ; Ane rican Mutu: Laas bility: tas! Co. v. Matthews,

*) 339 . PN ae ‘2d ; ; Pe ’ \

‘

ge ak ¢ ’

ight months watter ie American Mutudt ¢ ase, Supra,

the € ouyt he low eeuin had- OECASION to. express\its vie Ws as

toa OMpe nsation Act (this time, New Jei'sey’s) being a

defense to a claim: of ind winity, The € ourt, in anh opinion -

by L . Hand, Chi: in Slattery v. Marra Bros., 186 F spt

154, after reviewing cases dealing with “active * snaskive”

lies oH Lence sosaid Cp. i 8 2 Beas nen es } ys Nee

ro one

r ; ane

Such, ¢ ases (dealing with activeSfassive negli

“Swenee) may pe vhaps be accounted tor as lenient excep- x

. Ps 5 ’

-tions to the doctrine that there can be no contribution x

between joint tortreasors, for mdemnity is only an ex- Ne

freme form of contrivution.” (Parenthetical matter fi x

rand eres supplied. ) ae

; 2 ~ * ie A :

“rf Court in helding that cadementty vas not: rationally

possible. where the putative inde mnitet was the employer

of -the plaintitt.. (ind therefore not hable to the injured

-oofintiff, his: employee) said: (p: 1 1) :

“We cannot, however, agree that that result (indemnity.

is rationally possible except upon the assumption that

hoth parties: ate liable to the. same ‘person for the-

jot wrone.”. i Parenshetical matter sons ccna OE ne Ae

Following this theme the Court then significantly said-

{p. 139): 7 . : : : ee ee

"So. faras we caw see the refore the re is : nobodiy of Sure |

authority hor sedyi WY that diffe re CE S iW the de qrees ; f

ah ftaabli qealt qwitivo ral Hore strip One ¢ ia jt theng, if h®@is «

an em} yf er, Py fhe protection of ad ae acts

and we areat acloss 16 see any tenable principle whieh»

can support seh a result.” (Italies supplied.) ~ ys

The reasoning 0 f the foregoing Was veaffirmed Dy sail”

Court in passing Lo the actual qtestion for dis} POSTION TD

Pas

LoBue v. U.S., 188 I. 2d S00, where Judge Frank,- wring

for a unanimous ( ourt in overruling the contention raixed

by the ship that indemnity could be oliaimed. from ayteve-

‘dore for-an alleged breach of a stevedore’s duty to. the:

shipowner to do.the work in a careful and ¢fticient manner:

said mere a ee OE he see

‘ ; s ore : : 5 or

“And we do. not ink that there ean be any recover

over. of indemnity under the ngaritime law for Jarka’ ae

breach of its duty to the U nited. States to do. its work

ina caretul, efficient manner, The Cases which : ANC.

tion such, a liability over onan. indenntty theory are

fae inapplicable here, for in those cases, the Serer *

negligence. was the ‘sole,’ ‘active’ or ‘primary’ catise

of; the libellant’s injury. And to permit a partial re-

e ‘@ ss

covery over on an. indemnity theory, ‘here would’ be. to

- sanction ah e\ ‘asion of the Tule and the rationale of

* the Matthews case, supra, by a mere change in nomen-

ee from ‘contribution’ to. “indenmity.’

| “On June 28,°1951, Seis: Abruzzo in Mikki ln rr TM

Granv ille, 101 F. Supp. 566, dismissed. a petition of a ship-

owner. seeking indemnity. from. the injured person's ele

ployer. Judge Abruzzo, not finding any contract. of indem-.

nity (which i is the fact in tlie case-at bar) and relying upon:

American Mutual Liability kis: Co. vMatthews, 182 F.2d

322, dismissed the sha he found that (p. 569):

valid defense ‘to that: petition.”

2 ee : ° . ,

‘The’ petition alleged inter aia th: if ‘the employer failed

to properly use the gear ‘and to avoid creation of dangtrous.

a . ae »

. at

“the Longshoremen’s and’ Harbor Workers’ Act. is ‘a

eg eee,

conelitions *(p. 966 of LOL. Suni. bottom: of Ciel and |

column). * 2+ Se op ia ka en id :

Remenibertiny then the dismiss

of the petition for in-.

demure res sulted Tor ON: ‘CODtLve allegations (p. 068 of 101 3 |

I. Suppe-tem of left hand colusun) whieh: posed solely as ox

ut defense the Comping the emptoxgr with the U.S. _ a

‘Longshorenen’s and hee ictke rs” ¢ ompe nsation Act, ‘

ewe find that the Court below affirmed: ‘the distnissalvof the

‘ netition, WOT fs 2d Sas, inoa Per Curiam opinion which .

tersely said: | |

ee. : at Race

“Affirmed on the authority of American, Mutual Liability

Ins. Co, v. Matthews, 2 Cir., 182" FL 2d 322.”

é °

4 : i

Rehearing: was denied in 192 F. 24.80% 9.

Other conrts have understood the. foregoing. cases, de-

cided by tye Court below, to stand hor ‘the’ proposition —

that the Act is a complete har to any claim of -recoyery:

over under the daw, absent a contract, by the shipowner’,

algpinst the, injured workman's cmploy er Ty this eonnec-

70K, 2065 . | | |

ia Siandar A Wholesale P. & | Ruckert Terminals

Corporation, M49 AMC en 195 Md. 20° ee out

ot Nppeals of ara Biter Be | .

“Liberty. Mat; Ins. Co. -v. Foiealintiea. 94 Cae

ree Supp. 17; eet ee ee

| Baird ve John MeShain lnc., V8 FL Supp. 553.

Then, of course, there are decisions suchas States SS PI

Ca WF; Rothschild lnternational: Sfere-Co,., q Cis. DO) KF

ad a. yt. ( raw ford Vv. Pope C Talbot. Jne. ie 5 Cir., P06 KF. 2d e

784; and Brows Asnerican- Haw auan SS Ca., 8-Cir.,-213

Kd 16, whic ‘hh nee held that the statutests not a bar.

| ln the ease bar, thee ‘ourt. helow hv passed the inter-

pretation of the. Net and granted indemmity-on its oien-

age Sa 20

finding “as fo proximate cause, contrary’ te that of

Trial Court. !n arriving’ at the result’ it «lich, it “infer

tially, without any reference to its own decisions, ereto

fore set forth, overruled ‘said decisions for imantfesth

had it adhered to them it would have degidvil this"matter

As’ one of law and never beached tlic question of fact upon

whieh it placed its -holding. | : ; | c

~ The constructian to be aceorded this | Act and the peur

ticular section. the reot which ‘ix here mvolved has: plague)

~ the Courts below and litig rants. gencraitiy, Reference is

merely made to the host wt ‘decisions in footnote’ 2 hereo!

‘as indicative of the difficulty projected by. the Act.

Ryan’s position ix that it is imewmbent upon tlre hes pon-

dent herein and all shipowners who -seck inde sanity froin

an employer of an injured plaiaiti tf to shiow hy cConvinting

proof that the Congress did not mean What it said. in the

explicit language “it used in 90, OL =<. Ul See. As:

‘In’ no! deciston: hearing upon the. point, whether. it be

in support | or in refutation of Ryan's contention, Has cit

been shown that. Congress intended anything at variance

with the plain and. explicit wording -of O05, Certainly,

Pan-Atlantie has-not done so here. |

The plain and obyious fact Is that the Congress

ever

contemplated and therefore had ono: intention in. either

direction respecting third party indemnity situations

this, prior to’ the -paxsage of -the Aet, here involyedl.

| March 4, 1927.2) Congress simply intended that the liabibit:

> @

= ; ’ . ?

o> It was not until 11 veurs thereafter that the N.Y. Court of Yppenls

held thar the N.Y. Workmen’s Compensation Aet’ did not. furnish “1

to a chain of inde mmty bv oa thind person against anvemprover ( Westcheste)

(fe Co. : Westcheste (: BD. ts Corp, 278-N. ¥; 373). Similarly, . t

until 12 years ufter the Passage of the U. S. Loneshorer ey *s and Merry

Workgrs’ Conypensa th }} Act thai 7. Pistriet Court place ‘ “ Ss 1p ty

the federal Act, influenced: bv the. Pestehister ease. senie. Read J

C'anr fron, “2b i. Saatp sod

Corporation 0 -, eed | })- a

provided for oan thie .Net stroitdd MM pinnae exclusive

sand: expressed that intention im 6905 ef 33 0 .€, a (See-,

Hon 5 af the Net), | |

That would be herons Srachical conelusion, irrespective

bt the. explicit eae at S905, in der to riake the See-

tions of the At Aid dHIBONIONS well mtegrated. wlhiole.

df (905 were const fued contraks to its plain wording it

would resuet ma stevedore and “or its. compensation carrier

controverting every @ladni of compensation, with a pos:

sible resivivnt penalty therefor, in order -that a formal

award coutd be iat The fornia! award would then

assign to the stevedore or iis apie Heati¢m carrier ($ 933

li] ) {ithe ta-tin third scaled net] ON. Ys O23 (1) of 338. > OF A.

‘These meehanies would fly in the very, teeth of 914 of

23 USCA. which provides for the poop. .paxinent lof

COMpPeNsation Withont aneaw ord. Nonetheless, a stevedore

or compensation carrier wold bave to. : ontrovert every

chaimeso. that upon the POoriial award atnd the resulting °

assigninent Of title to the thyrd oaets actron if would have

control over any third®party action. Only by obtaining title

mosuch a auatter wovla its babilitw’ become absolute and

eXSCHISIVE, Dee : . .

Stinely, Ommaress did’not intend that such mechanies be

cused. in oodes that the stevedore obtain the “exelusive”

Hability of we Se MoopTe spoke in explicit lancuage,

if the scheme of things ts to¢ ‘hange, then Cangress should

”

lewiskite further to , inedif I'v its explicit language.

‘

‘ : sh cme -

he \ { P 442 i] “a9 4 ¢ + \ ayers un byy aNpilient Inmoaunge, cannot the

Pecirta tice. bs ms Wheel boom-bamded down Tbamd b2 vents afte:

hel : ‘ X pote / s‘fipiee \ Clarditlo, vusS r. vi Hifi,

‘ e bine ty (COoneress nh intention which 7

. it eXPe Lest rth Dick sea tte iiMmeriploved, - » Sie, us

a3)

If there is no difference in theory iti ae maritime

law between coniribution and indermity and if said

terms ‘merely connoie a diftrence in the quantum of | ~

recovery, then there can be no indemnity in ‘the absence ’

of any legislation by the Congress authorizing jhe same

in this, a maritime non-collision tort action. This Court

has never determined in & maritime non-collision tort

case that.a shipowner who is held liable to an injured

“maritime worker can obtain indemnity under the matri-

time law from. said worker’ ~ employer. we

Research has disclosed no case whe ‘re this Court has held

that there can, be indemnity, as nmphied in the marifinite law.

Ina pe sonal injury case, i.e., non-collision, where the puta.

tive indemnitee has heen held lable to the putative indem-

nitor’s employee. ig ; | |

Indemmity has heen characterized ,ax “an extreme for:

of contribution.” . Slattery y. Marra Bros., 186 ‘FP. 2d° 134

138. Similarly contribution has been characterized as “par

tial indemnity.” Avie R. Co. ve Erie A We Transp. ('0,, 204.

U.S. 220. Preliminarily -it would’ therefore appear thi

the re is no difference in the omHetween-contribution ‘anc

indemnity and-that such ter ras connote a di tte renee in the

quanti of rec overy, ic., indemnity in part or full ane

ment. } | | |

If there is'no diffe ‘rence in. theory hetween contribution

and indenmity, then the result arrived at by this Court: in

Hal fon Lines v. Huenn Ship Ceiling & Refitling Corp,

349 [FS 289. is the touchstone in this matters Since this...

Courthhas not determined whether there can be indemnity

in aomaritime personal injury action in favor of a ship:

owned against the employer of the injured maritime worker

there would seem tobe, a& the law stands at. present writ-

ing, a. conthet “in principle’ between the holding of: the

Court: belo and the Fal fone decision, Sipe

“5 See ence \ a

Palazzolo’s witnesses déseribed how the rolls of paper

malo were seeped hy ine reNpie ces of scrap dumnage and

how. the custonary wedges had. not been supplied nor used

ov the stip because Pan-Atlantic didn’t believe in wedges: |

The uncantradicted, testimony of Captain Fisher, who

wits the cargo mate im charge ‘of the loading and unloading

Operation, Has heen here ‘orore set farth and the same dic-

tated the ‘Prau Courts. finding that Captain Fisher had,

“complete knowledge of the loading. and~ unloading

opevation, fhe opportunity and ability on his part toe

discon ror the defect in stowage at either the loading —

or unfoadine port. and: his authority to remedy the —

condition er halt the work \CR.-359 ).

; 0 i : ae, B.S

ln view of the foregone testimony and wunder the charge

of the Trial Court deafing with negligence and unseawer-

thiness, tt is indispital Ne that inherent in the. jury's, verdict

“as the Saas that Pan-Atlantie: had been neghgent . hy

~virtne of Captain Misher’s active conduct.

Hothere can be indeimity, imphed by the maritime law

between joint: tortBeasors, tlie nn fufidamental principles ré-

spoecting “indemnity, found in-the common law, must or.

shhoutd ts ane hy thre Rae law. One of the funda-

aie ae me ia IX. iat A putative indemnitee is barred

chy the w roneful hature of his conduct from obtaining

indemnity fas hetweer. the putative indenimitee and the |

cuative indeumito? it- was the latter's — to dis-

en tceertain: duty. Restatement of Restitution, S76:

Jfurther, there an“he no indemnity Fb re after discovery -

OF tunes thes putative indeinnitee acquiesces In the con-

tind an of the condition. festetement, vf Restitutiqn..

oS Ty the absence of ans‘ sha Dacia hadi Gian’ Troi this

4 ayy thie- decisions at the Stite and ederh] Courts deals ;

\ E ° . : Pa wm *s

ing With elaine of indemnity have enpfoved various qihrase-

24 Sem miiey sw

olegy in disposing of said claims, Djxposition, At times —

has revolved around “active and PASSIVE negligence, Y Wha,

tive dnd passive ciéiuse,” “priinary and second: Ly ner

— gence,” “primary and secondary duty,” “primary and-xce

_ ohidary cause,” “joint tort feasors” and “particeps crime

29 06

‘inis.” Nomenclature has been imprecise at times:

However, one’ thread binds up val! these decisions, The

thread conimon to all or the principle by which conten

tions for indemnity are parsed is that one who hes par

ticipated by active conduct in a tort.can have no recovers

over. Mikkelsen vy. The (rranville, 192 F.2d S00; sea exe

. cellent discussion in Fall vy. Crystal Hall, line. 200 Mise.

979, aff'd 279 App. Div. 100L; Phoenix Bridge C6. v. Creen,

‘102 App, Div. .354, 356, aff'd 185 N.Y. 580; Edwards vo

| Sophkirsh Holding bad se IS) App., tryiys 168. afta oo

N. Y. B50 ; Adler v. Tully & DiNapoli, Ine. 274 App. Div.

- 1001, aff’ d 300 N.Y. 662; Dolnick vo Edicard Donner Lum-

__ber Corp., 275 App. Div. Jo, aff'd 300 N.Y: 660; - .

— Since it’ is Tundaime ntal learning that) indemnity, as

implied by the common law jin ¢ certaim circumstances, js

an equitable doctrine and_ that the deling juencies of the

parties are to be we ‘ighed on the basis of, the ethieai qual

ity of their tortious aAs_it was, it--is acanisettadly subs.

mitted, gross ineqinty for the .C ourt betow vo Have reversed

the Trial Court and to have’ eranted mademmity im havor

of Pan- -Atlantic’ (assuming: arqgucndo that indent: eX-

ists in the maritime law in a bie ‘sonal injury aefion ) where

Pan-Atlantia the putative Indenimitee, iad. heen round:

“by the jury by virtue of its general vérdict to hiwe par

nished improper gear and ta have been in con iplete con:

trol of the operation of 16: ding and discharging thé vessel.

If indemnity exists under the maritime law where the

parties are aligned as they are in the insti mt matter then

to allow a-reeovery aver-by Pan: Ath intic: ‘against te.

petitioner herem weuld also plaee a promi on. inaction

‘ | a za @ re a ee

: "(Falk C: Crystal ffall, 20 Mise, “979 , 985, ait “dep 79, App.

- DIV, 1624) and sesh ~ ees to point his. finger at

Ja stevedorime’ iirm and & S ; yo

fe : : ee eA ils ice if

“Loan furnishing vou with defective equipment but L

“have ‘ night over against vou cin the event that one

of your — is injured the repy, “also’ observe

your loading and) dise har: ving’ Operations and they are

all. he oi hi ee ee but if a court ol jury should

hereafter hold. that (1 cuessed wrong then the court

Well allow: ine to -get indeimity from. vou although at

this time Tam tolding% hiv artns and telling vou that:

you are properly. performing Sour stevedoring seL-

ane:

In determining that the *‘sele” “active” or “‘primary”’

cause of the accident was ‘the negligencé of petitioner,

_the Court below has rey ersed a a finding of fact respecting

proximate eause made. by ihe Trial Court. whose exclu-

sive province il was to make such a finding. In reversing

_ the Trial Court’s finding of fact respecting proximate

cause. the Court below has ruled contrary to Rule 52a)

of the Federal Rules of Civil Procedure and has injected

uncertainty with respect to the [fmits or scope of appel-

late review in non-jury cases.

1k see ‘Hinity exists Fi the naritipe law. in favor of ae

shipowner against the’ emplover of an injured maritime —

worker Inia pe ronal injury action, then admiralty has.

“adopted, although never ¥o. held by this Court, that there

are ditferentdoerees of fault Or nes gligence. hetween tof't-

feasors. Which ditfenent degrees ae eli; ire nce const! ‘tute

tortieasgrs either “active” or une

As has been said dw the New. York Court of Appeals

: in Mela (0) wn pate? Vaated rhe Leelge Og N: -- .314,.

an IR: j ce viens 3 :

;

“Whether negligence. is passivé or active is, Senera!ly

speaking,.a question of fact for the pay

If Pan-Atlantic ‘and: Rvan had. not. stipulated that all

questions | “of fact and law were to lie tried and to be

determined exclusively by the Tral Court, without’ bene

fit ‘of a jury, then in the normal course of procedure the

entire” case would have.gone to the jury. for dete aetnie

tion in contrast. to mnerely Palazzolo’s fight of recovery

against Pan- Atlantic. Had the jury dec aided, as the Trial

. Courf acigally did in this “Re. that aR. \tlantie and. Ryan

were joint tortfeasors and that Pan- Ath antic Was not C1)-

titled to recover indémnity from Ryan, we think it could

‘not be. gainsaid ‘that the Court below weuld have been. -

liniited. on its Fev iew to dete TMMINg ‘whether there was ;

evidence to support the finding « of the jutv. - Where the

Trial Court has become, arenge to- the stipulation of

-Pan- Atlantic: and R¥an, the trier-of the facts respecting

the right ,of f indemnity, does not. s same, rule or vard-

stick apply —— ting the scope. oF 1 unit. of review by the

Court below? - ae | ies

Micrifegtlv: in order to have arrived at the conclusion i

did the Trial Court must have inherently found that. the

negligence of Pan- Atlantic “and Ryan caused or contributed

‘to the happe ning of ‘the accident. Such a question of can

sation.is 2 — of fact. Pek, lle se iller Pransporta-

tion. Co., Inc. -\ . Gallagher: Sand « ( Gravel Corporation,

153° F. 2d 384, 395,

Without any justific ation except its own views or the

inferences which it drew "from the record, where all of

the witnesses were heard in open court by ae v rial ae Hurt,

993

sole’ act ive 4oy"

«.

| the Court below deteriiined that the

““orimary” CUUSE of the accident: to Palanzoto was neg-

a ligence of Ryan. C ompletély overlooked and, ande ed no!

sa even. mentioned. Hy the Court below, was the Tia: Court's

soe

ee °

Sos .

« +

°. . i. he s

finding, as: yeflect ed hy the testimony: which the Tr ial C ‘ourt a

set forth 7 caleuso in its opinion, that ‘Pan-Atlantic aflirin-

ativelw ahd- active ad oss its Capthin isher, caused

cand participated | ) bringing the accident alout.

ae!

“e

In reversing: the ‘cage the Prial Court, which finding

ig completely supported by the record, the Cotrt below has

p My zoe ted uncertainty as. to the _ scope ‘of ‘appeals in admi-

palty o} Ron: jt ary actions, the resolution of which Guestion

thy ppt oper f 7 ration of the federal systen) of nyrpellate

eV OW 3] ghey, Is earn ey submitged, he considered

hy this Court. ee

/ A

a 3 , >

j : 7

Me Rees

WHEREPOR this ease, it is re spree ‘tially submitted, ‘nerits

the deca o| this Court. |

, Respectfully submitted,

. .

. °

» RYAN STEVEDORING Co., ENC.

a ee 3 — ‘By Sipney A. ScHWaRTzZ

; ee Counsel for Petitioner

. ‘. a ; eA

. ¢

~ a of

: & »

”

‘ ; "a ; %

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