# Petition for Writ of Certiorari — Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0148%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 - **Citation:** 350 U.S. 124 ## Text 3 é . a: rae a | its - & RY wilice, Super ue {| > rf |. 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 . ‘ No. . ts) ay . i : : ok ie S uals : : : | : ; Ryan STEVEDORING Cai 28C., og Petitioner, - Fr Rec | 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 es ie sf tis ‘ : : : . . > : i : 2 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 & a @ 4 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 e % Fs : . + ° { . | Patt | J ’ ’ o e » of . a poe ee eee .. | 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, « | his a0) 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 ee A ee te, op: SP A 98344) srs econd nani a ee Ror OD. tig SO 7 ae ere eee Se ee ge pt = | : i ce Miscellaneous : | | | 67 Cong: Record, 69th Cong, Ist Sess., p. 41 ee es $5) 68 Cong. Record, 69th Cong., 2d:Sess:, p. 5410 7 pe ee ‘ Restatement of Restitution -§76 :...:.:...00.2 sc ... 23 Restatement of Restitution §95 08.00.0000... oe ee Senate. Report, S. 976, 69th Cong., Ist Sess., p. 16 0. 15 . . ° : Oe me ‘ ~ . >" ~ / P ¥. ~ ae ’ R e . : > sip ' % - . « “ 3 i a e a > - * 3 ¢ . Gn. / fr — ; e} é ¥ “. | 3 . Ls THES | | 7 Siuprenw Court of ‘the Tuited 2 ‘Slates ro TOBER £ ERM 1995 ye ‘ Se 2 - ——_—~ asada Ryan S VEN 10 RI WG-40... ‘| Ns 7 9 | 7 7 i) ae ee Petitioner, | eae | a Pax-ATLAN1 iC STEA SHIP (CORPORATION, : Poe y | id ; Respondent. canine —— SEO See ———$ $ * 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. = t ‘ (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. s 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 cn + } 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 oe 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” : 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' ’ + 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, 3 .¥. Marra Bros., 2- Cir., 186 F. 2d 154; Mikkelsen, v. The Granville, > Cire 9. 7) 9 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 , 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. ee 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. by 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 ~~ ‘ “* v 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 7h 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. ) 44 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. lo » by 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 >. Ye lo 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> 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 2 « 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. e , ‘ ‘ : 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 "3 ‘ | 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: sd 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- e 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 : ©) sme | * 4 : . , ye * ; “Whether negligence. is passivé or active is, Senera!ly ae ~~ 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 ra 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 e. g) 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. 3 ae! 2 \ t “e F. In reversing: the ‘cage the Prial Court, which finding ig completely supported by the record, the Cotrt below has © j : 7 Me Rees WHEREPOR this ease, it is re spree ‘tially submitted, ‘nerits the deca o| this Court. | , Respectfully submitted, . . 2 . ° » RYAN STEVEDORING Co., ENC. a ee 3 — ‘By Sipney A. ScHWaRTzZ ; ee Counsel for Petitioner . ‘. a ; eA . ¢ ~ a of : , : & » ” ‘ ; "a ; % --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0148%3A03. Public record. Not legal advice.