Brief for the United States in Opposition — Selby v. United States

-INDEX

Opinions below. ___ peaks ae Amana oat

yoke ctecntas, syed EEE ROR ee eae

Question presented is ihascemaledcenee :

Rule involved... __ Bu see mas

Statement __ __ AE en pee, oye %.

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Argument _- Ree

Cone lusion.- eee aan

CIEATIONS

Cases:

*. Comstock v. Group of Investors; 335 Us S. 211

Corn Products ia: 4. © ommissioner, 350 U.S.

‘Hecht. ioc & Males. v. The SS. President -

.. Buchanan, 236 F: 2d 627__ : ar

Kelley v. Everglades Drainage District, 319 Us

i Newer peer ee ee es

BD Koehler vy. U nited States, IS? F: ‘2d 933. Spires

McAllister v.-United States, 348 ne S: 19...

Petterson. Lighterage & T. Corp. \ Me u York

Central R. Co., 196 F: 20002... .. eee oe:

United States v. Ladd, 193°¥. 24929...

, United States v. Oregon Med. Soc., 343 U.S.

a 8 es Shae ee ee re ae

Statutes:

Jones Act, 46U a. ES eens ete

46 U.S.C. et Se aaa

: Miscellaneous:

Admiratt\ Rule 4615, 28. U a6. sical apes emo

Sith 59>.

~J

Ow

an the Supreme Court of the wii States

Octonr R TERM, 1959

Xo. 92 <i

Hleupert. N. SeLBy, Jr, PETITIONER |

a be

Unirey Spares oF AMERICA

. ON PETITION FOR A WRIT OF CERTIORARI TO THE USITED -

STATES cou RT OF APPEALS FOR THE SECOND CIRCUIT

”

BRIEF FOR THE UNITED STATES | IN OPPOSITION |

OPINIONS BELOW 3

The opinion of the United St: ates District ee for

. the Eastern District of New Y ork (R.136a) is reported

‘at 161 F. Supp. 689.) The opinionsof the ( ‘ourt of Ap-

peals (R. 235a; Pet. App., p. 11) is reported at 264 F,

2d 632. | ee =a

ay | JURISDICTION

The Judgment of the Court of Appeals Was entered .

on-March 6, 1959. The petition for a writ of certiorari

was filed on June 4, 1959. The jurisdiction of this Court

is invaked under 28 U.S. oe 125 a

(1)

2

QUESTION PRESENTED . .

- Whether the decision of the District Court, whieh

was subsequently affirmed. by the Court of Appeals, :

failed to.make the findings of fact and conclusions

ye of law — by Admiralty Rule 4672.

" RULE INVOLVED .

xine Rule 4614, 28 U.S.C., provides:

Ruie 461/. “Findings of fact and conclusions

of law.

. ih deciding cases _ of sieaineliee and mari-. -

time jurisdiction the court of first instance shali |

find the facts specially and state separately its

conclusions: of law thereon; and _ its findings

and conclusions shall be entered of record and.

if an appeal is taken from. the decree, shall be

included by the clerk ‘in the record which is

certified to the —- court ‘under rule 49.

| STATEMENT

3 In. August 1946, while serving as.a seaman on the

S.S. Kyska, the petitioner began hemorrhaging ‘and

spitting blood. He was put ashore at Bremen, Ger-

many, and was diagnosed to be suffering from pul-

monary: tuberculosis. The’ petitioner was taken back

to the United States where he was hospitalized and

treated until he was ready to take up employment

ashore. 'He has subsequently married, is the father

of two children, and, today, ‘‘within obvious limits

his life can be thought of as normal, and he is able

to pursue a gainful occupation’”’ (R. 148a). :

~ On June 22, 1951, the petitioner brought this ad-

miralty,, action “against the United States in the Dis- -

ie trict Court for the Eastern District of- New York

.

to recover. damages under the Jones Act, 46 U. S.C.

688, claiming that he had been ‘‘unduly exposed to.

_ . contagion ‘arid illness’” “while serving as an ‘oiler dur-

ing two voyages on the S.S. Rockland - Victory.-in

1946. The libel alleged that the United States, the.

owner and operator of the vessel, had been negligent

‘in failing to provide him-with a safe ‘place to work ;

aid thatthe ship was unseaworthy as operated and

maintained (R. 136a). .

The petitioner had. signed on the Rockland at the~

. port of New York in January of 1946, knowing that

the ship was to carry a considerable cargo of horses

- from Houston, Texas, to Italy (R. 145a). ‘With re-

spect to this voyage, he testified that the horses’

stables were not cleaned, that dead horses were not

promptly thrown overboard, and that the live horses

coughed and sneezed into the air (R. 118a). In spite

of these allegedly intolerable conditions, on April 22,

1946, thé fetitioner signed on for a second eis

aboard: the Rockland, which was to carry mules and

mares: from Hoyiston to Greece (R. 121a). -As to this °

voyage, the petitioner testified that the'stalls were not

cleaned out (R. 125a). In complaining of the condi-

_ tions aboard the Rockland, the petitioner made no

claim that the horses had, in any way, infected him,

or transmitted a disease to him (R. 142a).. He relied

_fitirely on the theory that, as a result of these alleged: . —

conditions, he lost his appetite and became under-

' nourished, whereby his resistance was so lowered that

the tuberculosis germs which are dormant. in the

bodies of most persons succeeded in disabling him ( R.

Waa), :

Every major allegation made by the petitioner was

contested. The District Court found the petitioner's

testimony in general “so vague and indefinite that

it is not t be relied upon’ (R. 139a), one of his

allegations “wrong” (R. 146a), and another “rendered

suspeet’’ (R. 146a). On the question of, causation,

the court found that. the petitioner ‘had presented

only the “‘surmise’’ of “experts that tubercu!osis

could have arisen in the alleged manner GR. 50a).

The District Court concluded that the petitioner had

entirely failed to sustain his burden of proof and dis-

missed the libel, The Court of Appeals affirmed

unanimously. | ; |

\. ° ARGUMENT :

The petitioner’s claim: that the Distriet Court failed

tovomplearnith Admiralty Rule 46'. is wholly with-

cout merit. Compliance with the rule does not require

‘the making of separately itemized findings of faét and

conclusions of law. The requirement is only that

the opinion of the. trial judge clearly state the find-

ings and conclusions mpon which. the judgment. is

based. Hecht, Levis d& Kahn v. The S.S. President

‘Buchanan, 336 FL 2d 627 (CLA. 2): United States Vv. °

Ladd, 193 F. 2d 929+ (CLA. 4); Koehler vy. United

States, 187 F. 2d 933. (CLA. 7). ~ In an exhaustive

opinion which occupies I6 pages of the Record,

Judge Byers reviewed the evidence at length and

carefully disposed. of each contention which =.

tioner had raised (R. 136a-l5la).. The petitioner's

allegation that the: District Court. refused’ to” pass

“upon the material and. basic. issues involved”

r

et

is belied at the outset by the fact that the Court of

Appeals was able to conduct an intelligent review of

the lower court proceedings, and that it did so with-..

out .the slightest suggestion that: the Distriet Court

findmigs > were Inadequate (R. 235-2380). Indeed, |

° ateleast insefar - ats the epinion of the Court of ’

peals dise ‘loses, it app ‘ars that. the only. arcume nt .

seriously urged in that court hy the petitione 7 was that

the findings: of the District: Court were clearly er-

roneous (CR, 238a). fed

-The petitioner urges that both lower courts failed

to pass upon. the material issues litigated at the trial.

In listing these “material issues’ in his petition, he

makes reference tovissues which were either decided

squarely against him in the lower courts or whie h are

but ‘refined, almost Whisory, variations: on the theme

whith was rejected by these courts. The petitioner's

lain of. negligence and nseaworthiness predicated

pon aceeptance and transportation. of sick and dying

“horses is merely a rephrasing of his allegation that

he was compelled to. live in proximity with sick horses’

and with dead horses, whose bodies had not been dis-

charged. With r spect to this allegation, the District

Court. held that the. petitioner had utterly failed: to

sustain his ‘burden of proof, The court found, that

the petitioner's evidence was inadequate to establish ,

that horses had oce upied a significant area of the deck

for a significant period of time’ (R. 138a). It found

_ that, contrary to the petitioner's testimony’ dead

‘horses had been regularly dise charged on weekends,

as Well as weekdays (R. 146a). It found that the

petitioner had failed to prove that this degree of

ee

mortality. is not an n -expectable incident of the trans. |

portation of animals (R. 149a), and had not estab-

lished by the weight of credible. evidence the Jurid .

conditions aboard the Rockland. which he had alleged

SO graphically (KR. 151la). Since the petitioner failed

to. prove the existence of conditions dangerous to

human health, it follows inevitably that’ he failed to

prove negligence or aworthiness in respondént’s

' Aecepting the horses for tr: ansportation. The District

Court concluded; specifically, that. unseaworthiness _

had not been proven (R\ 149%) and that. negligence

had not been proven (R. 151a). bare

Although the District Court rejected the peti-

~~ tigner’s description of the \ conditions on board the

Rockland and thus was not compelled to consider the .

issue of proximate cause, it, ‘nevertheless, ruled that

~ the petitioner had not established his theory of causa-

“tion. The: court pointed. out that none of the peti-

tioner’s medical experts were familiar with the state *

of his physical condition before he had signed on the.

Rockland (R. 150a) and that the medical testimony

concerning the interpretation. of a pre-Rockland’

X-ray was conflic ‘ting (R. 142a). It found the tes

‘timony of the petitioner’s experts “at the most an

expression of a belief based upon the assumption of

his accurate statement of conditions on the ship, | that

his tuberculosis could have arisen on the first voy age”

~(R. 150a).’ Finally, the court concluded that the

‘ Indeed, thers “was no convincing proof that the petitioner

did not have tuberculosis before hg joined the S.S. Rockland

Victory and that what happened thereafter was not simply the

normal progress of the disease one would expect:to. occur 9

long as he continued working and cau from any course @ of

conduct other than rest.

petitioner’s proof had failed on several Issues, inchud-

ing that of causation (R. 15la). |

The Court of Appeals reviewed the. findings of

_ the District Court and held that they were not clearly

erroneous. “Of course, with the issue of liability de-

cided adversely to the petitioner, there | was no ‘need »

for findings'ba the issue of damages. :

Court rulessfroviding for findings of fact and con-

~ clusions of law. require only that findings be suffic rent

. to indicate the factual basis for the court’s. ultimate.

“conclusions, and do not impose. the requirement that

a finding be made on every issue. whieh is conceivably .

- relevant, ef. Kelley v. Ev erglades. Drainage Distriet,

319 U.S. 415. More specifically, coficlusions and find-_ ,

ings laid down pursuant to Admiralty Rule 46

must be Strictly limited to those upon w hieh the ita

ment is based and should not he discursive. Petter-

7. son ‘Lighte rage &° T: Corp. y. New York Central R.

Co., 126 F. 2d. 992 (C.A. 2); Hecht, Levis & K ahn Vv.

‘The N.S. President Buchanan, 236 F. 2d 627 (C.A. 2).

The opinion of ‘the District. Court in the’ instant case

complied with this- standard. It determined the basic

issues concisely and completely.

Although the :petition ostensibly compktins of the | | -

failure of the lower courts. to make adequate find-

ings, its thrust. seems. to be equally directed at advo-

cating the proposition that the findings of fact whic h

\

. were made were erroneous. © Such a contention clearly

¢antiot form a basis, for review of this’ case, In

+ Teviewing the-findings of a trial-court, sitting without

_ a jury in admiralty, the 1 view of the Supreme Court,

_ as well as. that of the Court. of Appeals, js limited to *

. 2 . |

the question of whether the findings are elvarly

erroneous. McAllister v. United States, 348 US. 19,

The trial court 8 findings are particularly Secure

where, ax in this case, determination of the crucial

issues hinges. largely on the credibility of Witnesses,

United States v. Oregon Med. Svc.y 343 U.S. 326.

332... The District. Court considered the petitioners

allegations, heard his ‘t testimony and that ‘of his wit-

_ NeSSeS, and coneluded: that such facts: had not been’ -

established &s would render the United States liable |

for the -petitioner’s unfortunate disease. The Court

of “Appeals upheld these findings. There remain: no

issues worthy of this Court’s consideration.

In the. event that certiorar should be granted here.”

the Government would argué, in addition, as it die

in the courts helow, that the petitioner's claim is.

barred by the statute of limitations 46 USC. T40.

We do’ not. develop. the point further here. SINCE We

believe that the Court should deny certiorari for the

other reasons he ‘rein set forth. ’ :

Tn addition, the two court rule is faliv applicable in the.

instant case. Comstock. v. (rroup of Investors, ong US. 2.

214; Corn Products Co. v. Commissioner, 350 US. 46, 51.

* This issue was tac tly. decided by the: District pond agalis

the United States. The Court of Appeals’ opinion did not

refer to it. The relevant. facts concerning this issue appedr «!

R. 142a-1#4a and 216a-229a. ;

9 = ey

| P , CONCLUSION

c °

Oe

For the foregoing reasons, we respectfully submit

_ that the petition for a writ of. certiorari should be

denied. <. ” .

ee Ler RANKIN, .

_ te ee ? Solicitor General. -

; GEorGE CocHRANE Dove,

Assistant Attorney Ge inal

. SAMUEL D. Swape, |

Mark R. JvELson,. sete

eras : Attorneys.

JULY 1959,

0.8, Covennmeay painting OFFICE, 1980

‘ ¥

:

IN THE

Supreme Court of the United States

October Term, 1959

No. 92

HUBERT N, SELBY, JR..

Petiteone r.

_ agaumst

UNITED STATES OF AMERICA,

. ‘ R Spondent,

PETITIONER’S REPLY BRIEF

Jacop Rassver and

Kuprer & Levine,

Proctors for, Ps fitione fy.

Jacon Rasswer, aCe

Thomas F, FRAWLEY,

Of Counsel, and on the Brief.

IN THE

Styreme Court of the United States

eae October Term, 1959 : > ? ;

. No, 92 |

O

Huperr N. Seusy, dr.,

2 Petitioner,

against

Unxirep Srates oF AMERICA,

ae Respondent. .

O

“PETITIONER’S REPLY BRIEF

The brief for the United States in opposition to the petl-

tion for a writ of certiorari states at page 7:

“The Court of ‘Appeals reviewed, the findings of the

District Court * * *,"" eS a |

This is not so. That is the Very purpose of the petition.

This writ of certiorari is prayed for because the Court ,

of Appeals did not review the findings of the District

Court.

The ‘petitioner did riot, in fact. have the benefit of an

-appral, = i ;

Furthermore, an unwarranted license has been assumed

by respondent in taking a part of a statement out of con-

text_on page 6 of its brief:

“It found the testimony. of the petitioner’s experts

“at the most an expression of a belief Baséd upen-the

assumption of his accurate statemént of conditions

on the’ ship, that his tubereulosis could have arisen

on the first voyage’.”’ “ 7

This is not what the. ev idduce showed. The uncontra- |

dicted evidence by petitioner’s doctors established the -

proximate causation, which ev idence, was misquoted by the

trial court. ;

The entdenne: was that the tuberculosis was eins ‘other

than as the trial court stated that it could have been vaused.

We are fully aware of ‘the fact that when.a litigant lias

had the benefit of a‘trial and an appeal, that he must pos-

sess compelling reasons for iatishtesd his application for

a writ.

We know .of no better reason than the fact. that a liti-

. gant was denied his rights toa trial on the merits.

. The District Court did not’ pass on the most important

basic ground of recov ery, the’ transportation of sick: and

dying horses, and the Court of Appeals for the Second Cir-

cuit did not review this _question and ignored it completely —

-in its decision. :

. Petitioner accepts the two court holdings mentioned on

page 8 of respondent’s brief, citing Comstock v. Group of

Investors, 335 U. S. 211; 214; Corn Products Co. v. Com-

missioner, 350 U.S. 46, 51. The decision of the lower court

and the decision of the Court of Appeals for the Second

Cireuit do not comply with these decisions’ because peti-

tioner did not have two trials, he was denied even one on

the merits.

Respectfully submitted |

Jacop Rasgner and

Kuprer & Levine,

Proctors for Petitioner.

_ JacosB Rassner,

_ Tuomas F. Fraw ey,

: of Counsel, and on th< Brief.