Petition for Writ of Certiorari — Albanese v. N. v. Nederl. Amerik Stoomv. Maats.

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Rei E EON SSE PERS PR DE RE RRS 1 RERRE Ca AOA SNES HR ERATED AE ERE = ;

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si SE Ag "Core NO25 23 2 : SEP_ 9 1965

JOHN F. DAVIS, CLERK

Supreme Court of the ited States | | +

October Term, 1965 -

ANTHONY ALBANESE, s

| | Petitioner, aS

ae. ces iat P cae \

.N.V. NEpERL. AMERIK Stoow. Maars., | |

ps me Respondent, | : ;

—against— . we ona

INTERNATIONAL TERMINAL OpeEratTine Co., Inc.,

>. eee oe | | ‘ Co-Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE : La ee

UNITED STATES. COURT OF. APPEALS FOR ae

THE SECOND ‘CIRCUIT ON BEHALF Sees,

_ OF ANTHONY ALBANESE

* Pump F. DrCostanzo —

: Attorney for Petitioner

_ Office & P. O: Address’ | a

( 66 Courg Street ce :

bg Brooklyn,-New York 11201

Rosert Kionsky -

On Petition

a Vs

INDEX

; bs PAGE

. Jurisdiction © eee eenanicn sky ween : _— ; .

Questions Prostate for Review ada aes Lcaaiabnatica . &

Statute sehen? Sipe siaaluleceieiantioiety aces Fiteeensceo eae oul ee 4

\ |

i oa Statement oh ti Cure — cain ares

Reasons for Granting the Writ diclasicebste cesses <a

NIN ai cciedicennne SES ELEY We = NSeen arr on mn

Aprenpix A— | | .

Safety and Health Regalations for ‘Sein

(29 C. F. R. See. 9.1 et seq.), promulgated ‘by the

‘Secretary of Labor under the authority of Public

Law 85-742, 72 Stat. 835, 33 U. S. as A See. _ fase

(OE SCG. nnneneencee nen sisiiaepionednsieeliaa Bicrerteeanewnacenteeicstien 16.

=<

‘Aprunnex B-—: | |

Revised Opinion of June 15, 1965 2... ieee a.

APPENDIX C—

- Original en ‘of sctiee 9, 1965 aad EAA Rl oe ae ie

Judgment of Court of Appeals een 34

\

cS

il

TaBLE oF AUTHORITIES:

Cases: ase . PAGE

¢ ee < ee ‘ ‘ a oe

Amador.v. A/S J. Ludwig Mowinckels, 224 F. 2d 437, '

MED, CAL 8 19D at ny DM

Berti v Vv. Cncinialin aé — ete., 213 F. 2d 397,

C. A. 3 1954 wiglatnictenaniniesagensainenetnsecnaasmpteengnianasnseia 9p 11, 12

°

: Crumady v.. The Fisser, 358 U. S. 428 .......... wormed, 12

3 “Filipek v. Moore-MeCormack and Inc., 258 F, 2d 734,

C. A; 2 1958, cert. den. 359 U.S. 927 Ret eee 9, 11,12

‘Gutierren v. ‘Waterman S.S. ‘Corp., 373-U. Sz 206 een “hi

-Hallecki v. United New: York and: ‘New hie Sandy a.

¢ Hook-Pilots Association, 251 F. 2d 708, 358 U.S. 618,

.282 F. 2d 1387,-302 F. 2d 840. ........... ‘netic aa ae ig :

Holley: v. The Manfred Stansfield, 186 F. ‘Supp, 212, ao

a8; remanded by 269 F. 2d 317 . Fora neeyeenie an

Kernan “ ian Dr vluiee Co., 355° U. S. ID acinsens 7,14

Myers v: ‘Deaton Co. 381 U.S. 477° Siac Lee ieee 14 |

| Palermo v.' Luckenbach Steamship Co., ~ 246 F. 2d ‘

557, 561, C. A. 2; revd. 35&U. S. 20, 78 S. Ct. 1 ........ 10

Pioneer S.S. Co. v. Hill, 227 F. 2d 264, C. A. 6.1955 0. 11 |

Provenza v. American Export Lines, 324 .. 2d 660... 4, 7, 14 -

| Sieracki v. Seas Shipping Co., 328 U. S. 85

. 3 >

iii

f ae a . PAGE

Other Authorities : epee 4

' Safety and "Health. Regulations ‘for Longshoring

( promulgated by the Secretary of Labor pursuant~~

sto Public Law 85-742, Stat. 835, 33 U. S. C~A. 941

ato g) nana Sovsessvsssseeeeeneeeeeeeereeectecnnnneesteceececcnsteneceat 4,5, 7, 14

Supreme Court of the United ‘States Rules 19(1, >)

OT et Et RNs Se NS 2.

28D. sc. “1254 (1) and OI i cds isvntecciastcbieis 2

é

| Scien 4 Court of the ited States

— October Term, 1965

~

ANTHONY, ALBANESE, _

*

joa” it Petitioner,

—against— - |

: ” “a ’

= N.V: Nepert. Amertk Stoomv. .Maats.,

| Respondent,

—against— a -

INTERNATIONAL TERMINAL OpeErRaTING Co., INc.,

eee esid

PETITION FOR A WRIT OF CERTIORARI TO _—

UNITED STATES COURT OF APPEALS FOR |

THE SECOND CIRCUIT ON BEHALF

OF ANTHONY ALBANESE

To the Honorable the Chief Justice and Associate Justices

of the Supremé Court of the United States:

Petitioner, Anthony Albanese, prays that a Writ of

Certiorari be issued to review the ‘revised decision and

judgment of the United States Court of Appeals for the.

Second Circuit, filed June 15, 1965, and the denial of a .

petition for rehearing and rehearing im banc, filed June .

15, 1965 with the revised opinion; reversing a final judg-

ment entered in the United States District Court for the

Southern District of New York on April 17, 1964, after a

‘general jury verdict based on a longshoreman’s personal

‘injury action for maritime negligence and breach of respon-

dent’s warranty of seaworthiness.

.

yey, ee

a

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~~

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The initial opinion of the Court of Appeals, decided

on April 9; 1965 after argument on December 3, 1964, and

*the revised opinion of the Court:of Appeals on June 15, . .

1965, filed with the denial of. petitions for rehearing, are

in the appendix to this petition as B and ©. The revised

‘opinion of June 15, 1965 is officially reported at 346 F.2d

481. There was no written option by the trial Judge,

Arving: Ben Cooper, D.J. ;

Jurisdiction

= Jui. was initially’ nti in the United States

Court of Appeals on April 9, 1965, and withdrawn on June .

, 2 15, 1965 for the entry of a new judgment on June 15, 1965 |

| together with the revised Spinion. Both judgments, of the

Court of Appeals reversed the Judgment of the District

“Court .on both the complaint and the claim over and re-

manded them for a new trial.

e

. Jurisdiction to. review the judgment by: writ ae cer-

tiorari is found in 28 U.-S. C. 1254 (1) and 2101, as well

as Rules 19.(1, b) and 20 of the Rules ‘of this Court. |

Questions Presented for Review

‘oe

Béesuse the trial Court’s Chniets to the jury defined

- maritime negligence to include constructive notice as a

basis for finding lack of due care, was it not error for

the Court of Appeals to reverse a longshoreman’s judgment

-_ on the ground that he may only recover for maritime negli-

gence if there be actual. notice to the shipowner of a

patently dangerous condition? om

<

3

Fairly comprised in ‘this question are the idlouine:

| 1.. Is there not retrogression in maritime law, in obvious

\disregard of clear and definitive holdings by this Court,

for the Court of Appeals to dilute and reduce a longshore-

man’s remedy in negligence for. injuries suffered aboard a

. merchant vessel on navigable waters, to less than he would —

» expect in a common-law Charge on shore-based negligence?

2: Does” ‘te shipowner have a neh ae duty to.

provide longshoremen with a reasonably safe place to work,

sounding in negligence as well as unseaworthiness, to

which it may, respond in negligence on the trial Court’s

- instruction, as follows:

“And apart from the actual notice you may find a con-

dition which reridered the hold an unsafe area had existed

for sufficient time to charge the defendant with construc-

tive notice. . . the shipowner. had a duty to the plaintiff

to remedy those defects of which it knew or in the exercise

of reasonable care should have known .. .”? (Vol. 1, ‘App. ~ :

- to Def. ee brief, p. 16a.) j

3. Though the Court of Appeals agrees there was suffi-

cient evidence that “an unsafe condition in fact existed”,

‘and that. there was no contributory negligence by peti- _

tioner, was reversal on the negligence cause of action justi-

fied on the basis that without control of the impact zone by ©

active supervision of the stevedore’s work the shipowner

need not take “available. steps to rectify a dangerous con-

dition created by the stevedore which he does not know to

exist”? ?

This question is asked in the context of admitted knowl-

edge by officers of the shipowner that gasoline powered -

hilo machines were in use in the partly enclosed hatch,’

4

that the parties agreed the hilos were not defective in

any way so-as to render the ship unseaworthy, and that

the shipowner alone could have turned on the adequate

ship’s ventilating system, which it failed to do, thereby

causing petitioner to suffer total and permanent. brain

' damage by. carbon monoxide: poisoning. 7

il ;

On the sécond ground for reversing petitioner’s - judg-

ment, in direct conflict with the 4th Circuit’s Provenza v.

American Export Lines, 324 F. 2d 660, was it error for

' the trial-Court to instruct the jury that the pertinent pro-

visions of the. Safety and Health Regulations for Long-

shoring (promulgated by the Secretary of Labor pursuant

- to Public Law 85-742; Stat. 835, 33.U..S. C. A. 941 a to g,

in effect before February 25, 1961, the date of the acci-

dent to pétitioner), established generally accepted stand-

ards of safety equally binding on the a and the —

stevedore? oe

ll. -

Is there not a violation of petitioner’s rights under the

Seventh Amendment to the Constitution? |

Statute Involved,

Safety and Health Regulations for Longshoring, Public

Law 85-742 (72 Stat. 835), 33 U. S. C. A. Section 941,

of which the pertinent parts are Sections 9.1 (a and b)

‘on Purpose and Authority, with references to compensa-

tion not read to jury; 9.2 (a and b) on Scope and Respon-:

sibility, also set forth in the footnote to the opinion below;

9)

- 9.3 (¢ and d) on two definitions; 9.93(a) on the use of

ventilation to reduce the carbon monoxide content of the

hold, are.all set forth in ‘Appendix A to this petition. Also

‘ set forth in Appendix A is Section 9.93 (c, d and e) which

petitioner’s counsel offered but was not allowed in evidence. -

‘Statement of the Cane. big

In this maritime tort case. the basis for fidaeni juris-

- diction in the Court of first instance was diversity of

citizenship between petitioner, a citizen of the State of

' New Jersey, .and respondent, a foreign corporation’ and

citizen of The Netherlands, and damages in excess of the

jurisdictional amount of. $10,000.00 exclusive of interest :

and costs.

On ‘February 25, 1961 the 51 year old petitioner, em- .

ployed by the impleaded stevedore, was assigned to. the

No. 2 lower hold-of respondent?s M.S. SCHIEDYK for the

purpose of loading steel sheets and tinplate.. It was known

to respondent and the stevedore that a gasoline powered .

hilo machine was required to mové the heavy cargo,in the ‘

hold. A second hilo in the upper ’tween deck was also

used when another stevedore gang came at 10:45 A:M. to

load similar cargo. The upper ’tween deck was partly

covered with hatch boards to serve as a platform for the

second gang. The hold was further confined by the place-

ment of a rain tent over the square on the main deck.

Though the hilos were in good condition, they necessarily

~ emitted carbon monoxide fumes which affected the air

in. the lower hold. The ship was equipped with an adequate

and operable air ventilating system, which could ‘only be

turned on by a a s officer. :

At no time prior ‘to petitioner’s jill at about 11 :20

A.M. had the ventilating ‘system been turned on.

a

6

. There was testimony by two longshoremen that they

had requested the ship’s mate on duty to turn‘on the

ventilating system, that he assured them it would be done,

_ and in the words of the opinion below “...that the

ship’s officer said to keep on working, that he would turn

the blowers on. When Albanese. collapsed some time be-

tween 11-:15.and 11:30 a.m. the blowers had‘ not been

turned on and the men left the hatch”.. The Court of Ap-

peals does not refer to or acknowledge the following state-

ment by respondent on page 5 of its brief on appeal:

“For the purposes of ‘this appeal it is, of course, as-

sumed that the request to a mate to put on tHe ship’s

‘ventilating system, his promise to do so and request

that the men keep working, is an established fact”.

There is unequivocal: testimony from the ship’s mates,

however, that they knew two hilo machines were in use

in the partially covered hatch, that it was a good custom

with these machines in’ the hold to turn on .the ship’s

ventilating system, even when not requested to do so, and

“they were well aware of the toxic property of carbon

_ monoxide fumes. (Vol. II, App. ‘to Pl. -Appellee’s brief, ~_ eee

- pp. 21a, 24a, 26a, 27a, 28a, 29a; Vol. I, App. to Def.-Appel-

‘lant’s brief, pp. 209a, 221a, 227a.) ‘

-. Petitioner collapsed on part of the cargo. aera he and

the other holdmen attempted to leave the air-contaminated

lower hold. Respondent did not’call a single expert witness

to deny the proof of petitioner’s total and permanent brain

damage caused by exposure to carbon monoxide poisoning.

‘The trial Court’s instruction: that petitioner was free of’

any contributory negligence as a matter of law was affirmed

by the Court of Appeals, stating “ ... evidence was lacking

that. Albanesé knew of the complaints or appreciated the

7

danger on the aie of nie injury, or indeed had any real

“choice of action if he had”. -

Though thé opinion. below finds wailidind evidence for

the jury to conclude an unsafe condition .in' fact existed,

. which “might well have supported a verdict based on un-

seaworthiness”, additional to the purported error of in-

struction on constructive notice, it finds error in the in-

struction that was not repeated in the jury Charge, to the

_ effect that the Safety and Health Regulations were binding

on the shipowner. The reasoning of the Court of Appeals

which is not supported by the record as a whole is three-

fold;—that Section 9.2(b) is an excluding clause meant

_ to absolve a shipowner from the standards of safety ex- ;

pressed in the regulations—that there was no testimony

- as'to what the actual concentration of carbon monoxide

in the hold was with ,respect to the level having been

‘reached at which the stevedore was forbidden to work

without blowers—that such regulations are not relevant

to the issues between the petitioner. and the shipowner and

would tend to confuse the. jury.

There is no reference th the opinion to ‘the directly « con-

trary 4th Circuit opinion of Provenza v. American Export

‘Lines, 324 F. 24 660, frequently mentioned and briefed on -

' appeal by all parties. Respondent’s brief. on appeal at

page 16 candidly’. refers to the regulations in light of.

Provenza, supra, as “ .-. . establishing a generally accepted

standard of safety”. ‘Bespondent itself first referred to.

- these regulations, and offered portions thereof in evidence

before the same jury that was algo to decide the claim over.

The trial Court allowed certain sections to be read ‘to the

_ jury, and denied admission of others offered by petitioner’ 8

counsel, all set forth in Appendix A to this petition. This

Court’s Kernan v. “American Dredging Co., 355 U. S.. 426

\ ~

was ‘in a basis of the trial Court’s instruction that a vio-

lation of a safety regulation binds the shipowner.

The opinion below does not discuss the portion of Sec-

tior 9.2 on Scope and Responsibility that reads “nor is ©

--it the intent of these regulations to relieve such owners,

operators, agents or masters of vessels from respon-

sibilities or duties now placed upon them by law, regula-

tion or custom”. Also overlooked was the uncontradicted

proof of substantial air-contamination in the lower hold

before and during petitioner’s collapse, for which the ship-.

owner cannot contefid a new responsibiJity or duty. Though

no one scientifically measured the level of gas conceutra-

tion when petitioner was caused to suffer permanent brain

damage, all being otherwise occupied at the time, partic-

ularly the mate on duty who was away from his post when

the men came out of the hold shortly before police came

to the scene, there is uncontradicted testimony and proof

_as to the dangerous level that exceeded the limits of safety.

Even after the men had left and the hilos ceased operating,

a police officer looked into the hold and observed its “hazy” .

condition.. Petitioner’s medical expert, uncontradicted by

any other expert, testified that from the effect on peti-

tionier one must assume an adequate concentration to cause _

-. intoxication by. this odorless and colorless gas; that 2 per

cent of carbon monoxide is sufficient to kill a person in a

- few minutes because hemoglobin has an affinity to it; that

the effect varies with individuals, older persons suffering

more because of thei slower circulation time. At the time

of the accident petitioner was 51 years of age.

The revised opinion cites Halecki v. United Sine York

| ‘and New Jersey Sandy Hook Pilots Association, 282 F. 2d

137, C.A. 2 1960, 302 F. 2d 840, C.A. 2 1962, without

' reference to this Court’s fulerum opinion at 358 U. S. 613

: 9

which reversed the first Court of Appeals opinion at 251

F. 2d 708. There is no proof that the carbon ‘tetrachloride.

the shipowner required as a cleaning agent in Halecki,

supra, was more deadly than the carbon monoxide fumes

from hilo machines that were. required to be used in the

hold for the placement of respondent's cargo of steel and

tinplate. Halecki, supra, is cited in the opinion below for

negligence only; “where the shipowners required the use

of the deadly cleaning agent and were held under a duty

of care in selecting competent contractors to work with-it,

a

or supervising its use”. ; a en

~ Ona general verdiet,-10 party. viesiiiiiaas inated inter-_

08 tories, the unanimous federal jury. assessed damages

e amount of $145,000.00 for petitioner’s total and

a tie disability and exonerated the stevedore on the

shipowner’s claim over. Both verdicts were reversed on |

“appeal by an opinion dated April 9, 1965. When petitioner

- moved for a rehearing the Court revised its opinion on

June 15, 1965, but concluded as before. The difference be- |

tween the two opinions relates to the instruction on mari-

time negligence, holding in the first opinion that construc-

tive notice must be excised on the authority of Filipek ‘v.

Moore-McCormack Lines, Inc:, 258 F. 2d 734, C.A. 2 1958,

cert. den. 359 U. S. 927 (on personal injuries of a boom

tester held to be in the category of a repairman, not a

longshoreman), and in the second opinion adding the au-

thority of Berti v. Compagnie de Navigation, etc., 213

F. 2d 397, C.A. 2 1954 (on personal i injuries. to a longshore-

man caused by the negligent manner in which the steve- -

dore did its work while in control of the ‘operation: and:

equipment), and H aleckt, supra.

10

-*Reasons for Granting the -W rit

The significance of the opinion below in the sensitive

field of maritime law, written with apparent disregard of |

the paramount authority of well defined principles. enun-

ciated by this Court, is.that it seeks to establish a novel

and retrogressive principle of law exonerating a ship-

owner from. ‘its historic and non-delegable obligation of

due diligencé and care when it knew or should have known

that ‘a longshoreman ‘was working in an unsafe place

aboard its merchant vessel in navigable waters. By this .

- decision a remedy in negligenee for maritime workers do- .

ing the work of seamen is diluted to less than any other

common-law personal injury litigant would expect. Error

is compounded where the opinion would refuse a jury to

_ hear and weigh the. standards of safety promulgated by

the Secretary of Labor, which in this case do not #dd new

responsibilities or duties on shipowners, and where the

instant respondent sought to introduce them ‘before the

same jury solely against the stevedore in its claim over. .

The dissent by the late Chief Judge Clark in Palermo v.

Luckenbach Steamship Co., Inc., 246 F. 2d 557, 561 C.A. 2,

reversed summarily by this Court at 355 U. S: 20,-78'S. Ct.

1, is applicable a where he wrote: —

“I have had ocgasion recently to express my concern

ata ~~ in this court to upset awards

in jury cases . . . To-day’s decision continues that

trend, adding: ‘some new curiosities”. ;

2

The instant opinion’ s “new curiosities” that. adversely af-

fect the uniform fabric of the maritime law, are as follows:

1. On removing constructive notice as part of the de-

finition of maritime negligence, by citing inapposite and

11.

long oneiedad cases on ‘concepts of control and supervi-

sion, the Court of ‘Appeals ignores the fundamental de-

' finition of maritime negligence, contrasted with the sepa-

rate and distinct cause of action for unseaworthiness. In

Gutierrez v. Waterman § iS. Corp., 373 U. S. 206, this Court

recently defined shipowner negligence to mean “when. it

knew or should have known that injury was likely to re-

‘sult: . .” (p. 210 of 373 U.S. ); and “control of the impact —

- zone is not essential for negligence”, and “it had an ab-..

solute and non- délegable duty of care toward petitioner

not to create this risk to him, which it failed to meet”

(pp. 211, 212 of 373 U. S.).

2. ‘Adding Berti. v. iieiiateca de iiiedii etc., 213

F. 2d 397, C.A. 2 1954, and Halecki v. United New. ¥ ork and

-New Jersey Sandy Hook Pilots Assoc., supra, the revised

opinion: below still.is without decisional authority to sup-

port the excision of constructive notice that the Court be-

low initially sought in Filipek v. Moore-McCormack Lines,

_ Ine., 258.F. 2d 734, C:A. 2 1958, cert. den. 359 U. S. 927.

Berti, supra, of doubtful authority even in its most nar- -

row construction té deny liability “only upon, the negligent

_ manner in which the independent contractor did the work”,

Pioneer S.S. Co. v. Hull, 227 F. 2d 264, C.A. 6 1955, opinion

by Potter Stewart, C.J., was also restricted by Learned

: Hand, C.J. in Amador v. A/S J. Ludwig Mowinckels,’ 224

F. 2d 437, 441, C.A. 2 1955, holding that Berti “.. . decided

no more than that in spite of the defects—in that case of

gear—the ship was ‘reasonably’ fit for her service, which

is the accepted test”. After this Court in Crumady v. The

Fisser, 358 U. S. 423 (1959), held negligence may cast the -

shipowner into initial liability, Hoffman, D.J. in Holley v.

The. Manfred Stansfield, 186 F. Supp. \212, 215 observed

the Berti rule to be of “questionable vitality in the light of

12

-Crumady”.. As in Crumady, and unlike Berti, the instant

' . ease is not concerned with the negligence of the stevedore,

but relatés to proof of neglect of the, shipowner, particu- |

larly the shipowner’s affirmative failure of. obligation to

*. turn on the ship’s’ adequate ventilation system, contrary

to its assurances and its direction to the longshoremen to

continue work. a ar ke

“In exonerating the stevedore, the jury obviously be- .

lieved that after receiving complaints from the longshore-

men, the ship’s mate assured them he would turn on the

ventilating system and directed them to continue the work.

This fact constitutes actual notice to the shipowner and

renders academic any question of constructive notice.

Reference in both opinions below to Filipek, supra, con-

cerning a ship’s rigger injured while testing booms and

so in the category of a shoreside specialist not entitled to

a seaman’s rights as established by this Court in Sieracki v.

Seas Shipping Co., 328 U. S. 85, points up the error below

in relating longshoremen to the limited rights and remedies

of repairmen rather than to the extended rights of seamen.

This error was referred to in the petitions for rehearing,

resulting in the revised opinion citing Berti and Halecki,

- supra, in support of the same erroneous conclusion against

petitioner.

Of course Halecki, supra, finding liability on the failure

of the shipowner to provide adequate ventilation for a ship-

cleaner, in the lesser maritime category than a longshore-

man, supports petitioner's position. As. with carbon.

tetrachloride in Halecki, swpra, it was for the jury in the

instant case on carbon monoxide poisoning to determine

whether the shipowner failed in an affirmative duty to

prevent or. reduce a condition of air contamination caused .

by the known use of hilos in a partially covered hold. This

13

affirmative duty arises as much from constructive notice.

as actual notice. To hold otherwise would encourage ship-

_ Owners ‘to ignore dangerous conditions, to liniit their

' safety inspections during cargo operations, and #mpose on ~

the injured longshoreman the heavier burden of proving

- actual notice, wiiich was denied here, though the danger

was clearly foreseeable and extended for ‘a substantial time

after the second hilo commenced operation. ee

- 38 Itis apparent that the “new curieditiog” j in the instant

"ease include strained reasons to support an underlying

premise against jury verdicts for longshoremen. There is -

an unjustified concern that in determining questions of

. ’ negligence juries will-fall short of a fair. performance of

their Constitutional function. It is for the jury to deter-

mine the shipowner’s breach of duty to exertise reasonable

care. To limit the jury’s consideration of negligence by

excluding an instruction ‘on constructive notice, a cancept

engrained in our law and never before’ so challénged, is

to preclude the assertion of. the community’s sense of

values. Issues on lack of care and due diligence, sounding

in negligence, are better understood and more forcefully

applied than the separate ‘and strict’ warranty of seaworthi-

ness where tHere is no need to — due diligence, notice

or fault.

Inconsistently the opinion bhow concedes substantial

proof in the record of an unsafe: place to work overlapping

| unseaworthiness, and i ignores the multiple stipulations and

concessions by respondents counsel during the trial and in

" its brief on appeal, to reverse a unanimous ksnen jury’s

verdict sought by the parties.

an Again underestimating the jury’s siieiine to under-

stand, the Court of Appeals states there would be a con-

14 j

a ,

-@

fusion of the issue between petitioner and the shipowner

.to instruct on, the pertinent standards of safety promul-

gated by the Secretary of Labor, pursuant to Congressional

authority and set forth in the Safety and Health Regula- .

tions for Longshoring. It cénnot.be proper for the same

jurors to blindfold themselves and narrowly consider these -

regulations as offered by respondent on its claim over

against the stevedore. As the 4th Circuit Court of Appeals

stated in. Provenza, supra, at page 665 of 324 F. 2d,

“Nevertheless, if the violation of the regulations by the -

stevedore créated a dangerous condition then the law is

- clear that the shipowner i is in turn also liable.:. . .”

There is obvious conflict on the use of safety regulations

during trial between the Court of Appeals for the 2nd Cir-

- guit and the 4th Circuit ourt of Appeals in Provenea,

sypra.

This learned Court _ not yet passed on ah , Safety and

Health Regulations for Longshoring as: they may. apply to

maritime cases. The safety regulations ‘are pertinent to

all future maritime trials, and a definitive ruling by this:

Court to establish uniformity is required and needed by all

Courts passing on maritime negligence cases. The con-

tinued sid of Kernan v. American Dredging Co., 355 —

' Ue8.4 nd the analogous Federal Safety. Appliance Act,

45 U. sX . A. 1-16, in their application to this issue, should

_ also be considered. Cf. Myers y. Reading Co., 331 U. S. 477.

i

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15

oo

‘s “| CONCLUSION

Reason and the cases cited unequivocally support peti-

tioner’s contention that here is a compelling need for this . -

learned Coirt to express the law as it should be on maritime

negligence and the use of. safety regulations during trial,

so that all future maritime cases will be resolved on the

law expressed’ by the Supreme Court and not by the

“curiosities” in the epinion below.

Respectfully submitted,

_ Pama F. DrCostanzo

_ Attorney for Petitioner

Dated: Brooklyn, New York }

7 : -o*, 688.

Rosert Kionsky

On Petition

16

APPENDIX A ;

* Safety and Health Regulations for Longshoring (29

C. F. R. Sec. 9.1 et seq.), promulgated by the Secre-

tary of Labor under the authority of Public Law 85-

742, 72 Stat. 835, 33 U. S. C. A. Sec. 941 et seq.

§ 9.1 Purpose anp. AUTHORITY

(a) The Longshoremen’s and Harbor Workers’ Compen-

sation Act (44 Stat. 1424; 33 U.S.C. 901 et seq.) provides

compensation for injuries suffered by employees when they

are working for private employers within the Federal mari-

time jurisdiction on the navigable waters of the United

States, including dry docks. Public Law 85-742, 72 Stat.

' 835, approved August 23, 1958, which amends section 41

of the Longshoremen’s and Harbor Workers’ Compensa-

tion Act, as amended: (44 Stat. 1444; 33 U.S.C. 941) re- —

quires, among other things, that every employer of the |

aforementioned employees “shall install, furnish, maintain,

and use such devices ‘and safeguards with particular re-

ference to equipment used by and working conditions

established by such employers as the Secretary may deter-

mine by regulation or order to be reasonably necessary

_ to protect the life, health, and safety of such employees,

and to rendér‘safe such employment and places of employ-

. ‘ment, and to prevent injury to his employees.” It is-the

purpose of the regulations of this part. to —s out the

intent of Public Law 85-742.

(b) Pursuant to Public Law 85-742 the regulations of

_ this: part do not make determinations with respect to

matters under the control of the United States Coast Guard

within the scope of Title 52 of the Revised Statutes and

/

POR MCR SS is

y 5 Appendiz A ;

Acts supplementary or. améitdatory thereto (46 U.S.C.

1-1388, passim), including, but not restricted to, the master, -

ship’s: officers, crew members, ‘design, construction, and

‘maintenance of the vessel, ‘its gear and equipment; to

matters within the regulatory authority of the United |

States Coast-Guard to safeguard vessels, harbors,. ports, .

and waterfront facilities under. the provisions of the

Espionage Act of. June 15, 1917, as amended (40 Stat.

220; 50 U.S.C. 191 et seq.; 22 U.S.C..et seq.) or to matters’.

within the regulatory authority of the United States Coast.

Guard with respect to lights, warning idevices, safety

equipment and other matters relating to the promotion of

safety of lives and’ property under section 4(e) of the

Outer Continental Shelf Lands Act of August 7, 1953 (67

Stat. 462; 43 U.S.C. 1333).

§ 9.2 Scope anp REsPoNsIBILITY _ |

(a) The responsibility for compliance with the regula-

tions of this part is placed upon “employers” as defined —

in section 9.3(¢) of this part.

(b) It is not the intent of the regulations of this part

to place additional responsibilities or duties on owners,

- operators, agents or masters of vessels unless such persons

are acting as employers, nor is it the intent of these regula-

tions to relieve such owners, operators; agents or masters

of vessels from reponsibilities or duties now placed upon

them by law, regulation or custom. ;

* -_ *

§ 9.3 DrFinITIONS

(c) The term “employer” means an employer any of

whose employees are employed, in whole or‘in part, in _

longshoring operations or related employments as defined

‘18

Appendia .A

herein. within the Federal maritime jurisdiction on the

navigable waters of the United States.

(d) The term “employee” means any loigshoreman, or

‘other person engaged in longshoring operations or related

employments, within the federal maritime jurisdiction on

the navigable waters of the United States, other than tlie

master, ship’s officers, crew of the vessel, or any person

engaged by the master to load or unload any vessel under

18 net. tons. 6

ed

A . *

—

$ 9.93 VENTILATION AND ATMOSPHERIC ConDITIONS.

(a) When internal combustion engines exhaust into the

hold or intermediate deck, and neither natural ventilation

nor the ship’s ventilating system is adequate to keep the ©

carbon monoxide content of the atmosphere in the hold

or intermediate deck below 100 parts. per million, .the

- employer shall use blowers. sufficient in size and number.

and so arranged as to do so. The intakes of blowers shall :

be adequately guarded by scréens.

(c) Before e ployees are permitted to enter or work

in stowage spaces or tanks in which explosive, poisonous,

noxious or gaseous cargoes have been carried or are

stowed, or in which dry ice has been used as a refrigerant,

or which have been fumigated, or in which there is a pos-

sibility of oxygen deficiency, the employer shall ascertain

from the officer in charge of the vessel the conditions of

the work place with respect to atmospheric contaminants.

(d) When it is ascertained from the officer in charge of

the vessel that the atmosphere in which employees would

be working is immediately, dangerous to life, or ‘if\the

19

Appendix A

atmosphere becomes immediatély dangerous to life during

cargo handling operations, no employee shall be permitted

to enter or remain in the work place until the atmospheric

condition has been made safe. Atmospheres immediately

dangerous: fo life are those which contain less than 16.5

percent oxygen, or which by reason of the high toxicity

of the contaminant, as in fumigation, or the high concentra-

tion of contaminants, as with carbon dioxide, would en-

danger the life of a person breathing them for -even a.

short period of time. |

(e) When it is ascertained from the officer in charge of

the vessel that the atmosphere in which employees would

be working contains gaseous contaminants not immediately

dangerous to life, or if the atmosphere becomes so con-

taminated during cargo handling operations, no employee

‘shall be permitted to enter or remain in the work place

until the atmosphere is made safe, or the employees are

protected by suitable respiratory protective equipment in

accordance with the requirements of §9.102 (a) and (b).

Gaseous contaminants not immediately dangerous to life

are gases present in concentrations that could be breathed

for a short period without endangering the life of a person’

breathing them, but which might produce discomfort and

possible injury after a prolonged single exposure or fe-

peated short exposures.

20

APPENDIX B

re of Juné 15, 1965 -

For THE Szconp Crecurr,

No. 219—epeesbar a 1964.

“(Argued December 3,. 1964

Revised opinion filed June 15, 1965.)

Docket No. 29155

Awtnony ALBANESE,

Plaintiff-Appellee,

—V.—

N. V. — AMERIK Sroomv. Maats.,

Defendant-Appellant and

Third-Party Plaintiff-Appellant,

SE a : re : s

es a - ; ane enie

INTERNATIONAL TERMINAL OpeERaTING Co., INc., ©

Before:

Frienpiy and Smiru, Circuit Judges, and

_. Buumenrenp, District Judge:*

°* Sitting by designation.

. —5a—

UNITED: STATES" COURT “OF APPEALS =~ >

Third-Party Defendant-Appellee.

~~ SN tn ET

(21

cui Bo

Revised Opinion

Appeal by shipowner, defendant and third — plain-

tiff, from judgment entered on verdict after trial to the

— —I6a—

jury in the United States District Court for the Southern

District of New York, Irving Ben- Cooper, Judge, in. favor

_ of plaintiff longshoreman to recover $145,000 damages, and

in favor of stevedore, third party defendant.

Reversed and remanded.

RoBERtT Kuonsky, New York, N. Y. (Philip F.

DiCostanzo, New York, N. Y., on the brief )

for plaintiff-appellee. —

Epmunp F. Lams, New York, N. Y. (Purdy,

Lamb & Catoggio, of counsel to Schaffner

& Furey,- on the brief), for defendant-

appellant and thi rd-party plaintiff-appellant.

JOSEPH ARTHUR Couen, New York, N. Y. (Alex-

ander, Ash & Schwartz and Sidney A.

_ Schwartz, New York, N. Y., on the brief),

for third-party befiniliad-anadiies:

SmitH, Circutt Judge:

Albanese, a longehoreman in the employ of stevedore

International Terminal Operating Co., Inc.,. injured by:

monoxide gas fumes while working in the hold of.the vessel

M.S. Schiedyk, owned by N,V. Nederl., brought action for

damages against the shipowner, which impleaded I. T. O.

as third party defendant. After trial.to the jury in the

~ United States District Court for the Southern District of

22

? Appendia B

New York, Irving Ben Cooper, Judge, judgment ‘was en-

tered on verdict in favor of plaintiff against N.V. Neder.

and in favor of’the stevedore dismissing the third party ~

‘complaint, and N.V. Nederl. appeals. We find error in the

charge on the principal action and on the claim over, and

reverse and remand for new trial. |

ene / of +t

“Plaintiff was a member of a gang of longshoremen work-

ing in the lower No. 2 hold of the Schiedyk. From 8:00 a.m.

to 10:45 a.m. on the day of plaintiff's injury a gasoline

powered hilo owned by I. T. O. was working in this hold.

About: 10:45 a.m. a second gang began to work in the after

half of-the upper ‘tween deck of No. 2 hold, employing a-

second hilo. The ship had a ventilating system often used |

when hilos were working in the holds, which was not turned

on the day in question prior to plaintiff’s injury. It was

raining anda hatch tent partly covered the upper hatch

opening. The hatch between thé ’tween deck and the lower -

hold was party covered with hatch boards. I. T. O. had

portable blowers at the pier, none of which were. in use

at. No. 2 hold. There was evidence that about 10 or 15

minutes after the second gang entered the hold, men com-

plained of fumes from the hilos and the winch operator

and signalman at the hatch asked a ship’s officer to turn the

blowers on. There was evidence that a few moments later

the hatch boss told the ship’s officer to turn the blowers

on or the men would walk out, and that the ship’s officer

_ said to keep on working, that he would turn the blowers on.

When .Albanese collapsed some time between 11:15 and

11:30 a.m. the blowers had not been turned on and the men

left the hatch. et | i

“If the hatch bosses some time between 10:55 a.m. and

aoe | ‘05 a.m. asked a ship’s officer to turn on the ship’s ven-.

23

Appendia B-

tilating system and he agreed to do so, a finding of defen-

dant’s negligence would be justified. The charge, however,

allowed the jury also to find against the defendant on the

basis of negligence (as distinguished from unseaworthi-

- ness) even if it did not have actual knowledge of an unsafe

condition in the hold, if the = determined that such a

— =

condition existed for a suficienit Lngth of time to charge

the shipowner Wwithgnotice of it and the shipowner did not

act to prevent injury. This was erroneous, for when a ship-

owner hires a qualified stevedore to load the vessel the

standard of due care \does«not require that the actively

supervise the stevedore’s work or that he take available

steps to rectify a dangerous condition created by the steve-

« dore which he does not know to exist. As pointed out in

_ Berti v. Compagnie de Navigation, etc., 213 F. 2d 397, 2.

_ Cir. 1954, to lay down a contrary rule, which on the facts,

here would mean that mere knowledge of. the use of hilos —

would create a duty on the part of the owner to turn-on:

the ventilators even though he had no knéwledge that the

hold‘had become an unsafe place to work, would'be to con-~

fuse the concept of unseaworthiness with that of negligence. —

Cf. Filipek v. Moore-McCormack Lines, Inc., 258 F. 2d . >

734, 737, 2 Cir. 1958, cert. den. 359 U. S. 927. Contrast .

_ Halecki v. United New York and New Jersey Sandy Hook —

Pilots Association, 282 F. 2d 137, 2 Cir. 1960, 302 F. 2d 840,

‘2 Cir. 1962, where the shipowners erent required the

use of the deadly cleaning agent and* were held under a

duty of care ‘in selecting competent contractors to work

with it, or supervising its use.

- The jury had been instructed that the owner. onne be ~

_ liable, with or without knowledge, if the ship had become

unseaworthy because of a dangerous condition created by

24

Appendia B-

noxious fumes in the hold. This was correct, and if the

verdict was reached on this theory, the verdict against

the owner would be sustained, if the trial was otherwise

free from error. However, the erroneous charge on negli-

" gence may have been the basis of the verdict. The jury’s’

attention was directed in the charge to negligence in the

? —99a—

sheunes of actual notice. Liability, if present in the ab-' “

sence of knowledge .in this case, is based not on a duty of

care, but on absolute liability for unseaworthiness, actual

unfitness of the vessel for the /use to which it is being put.

Unfortunately, we cannot tell from the general verdict

whether it was based on a finding of unseaworthiness, on

a finding of failure to turn on the ventilators after agree- '

ing to do so, or on the erroneous charge on constructive

notice as a basis for a finding of lack of care. On the issue

of whether ‘an unsafe.condition in fact existed, there was

evidence of the men’s complaints, and of course of plain-

tiffs injury. This might well have supported a verdict

based on unseaworthiness.. However, we do not find this

evidence so plainly detérminative of the issue that it re-

quired such a verdict. We cannot, therefore, ignore the

. instructions on negligence and direct a verdict for plaintiff

_on the ground of unseaworthiness. In view of the alterna-

tive claims here, special interrogatories to the jury might

have been helpful in determining the basis of the verdict

* and the court may well consider their use on retrial.

Another claimed error is the charge that no contributory

negligence on the part of the plaintiff had been shown. -

While the better practice is to let this question go to the

jury, LaGuerra v. Brasileiro, 124°F. 2d 553, 2 Cir. 1942, we -

cannot say that the ruling was error in the circumstances

of this case where evidence was lacking that Albanese knew *

25

Appendia B

of the complaints or appreeiated the danger on the day of

his injury, or indeed had any real choice of action if he

had. There is, however, one other ruling which was errone-

ous on the proof here. That is the instruction that the

Safety and Health Regulations for Longshoring were bind-

, ing on the shipowner, in = of the excluding clause of

; —100a—

§9. 2(b)" and the lack of any testimony as to what the con-.

centration of carbon monoxide in. -the, hold in. fact was.

Ordinarily, such regulations -of stevedoring practices are

not relevant to the issues involved in the claim against the

shipowner, and clearly,could only confuse the issue here,

-- where, although it was stipulated that the ‘ship’s blowers

were adequate if used, there was no evidence from which

the jury could determine whether the level of gas concen- .

tration at which the stevedore was forbidden to work with-

‘out blowers had in fact been reached.

We ‘find error also in the instructions on the claim over.

The jury could certainly find that the stevedore did not ful-

fill his duty of workmanlike service under his warranty to

- ‘the owner in permitting the men to continue work in the

hold after the stevedore had notice of the conditions in the

hold, had requested the blowers to be turned on and the

request was not promptly complied with. Nicroli v. Den

1 §9.2 Score AND ‘Resrosemuurre

(a). The responsibility for compliance with the suntiiiens of this

_— is placed upon ee as defined in section 9.3(c) of this

part.

(b) It is not the intent of the siguindionn of this part to place addi-°

tional responsibilities or duties on owners, operators, agents or masters

of vessels ,unless such persons are acting as employers, nor is it the

intent of-these regulations to relieve such owners, operators, agents or

masters of vessels from responsibilities or duties now Ese upon them

by law, —— or custom.

26

Appendia B :

Norske, 332 F. 2d 651, 656, 2 Cir. 1964. The instruction that

the request to the ship’s officer was sufficient to absolve the

stevedore was error. Misurella v. Isthmian Lines, 328 F.

| 2d 40, 2.Cir-1964. Whatever fault of a shipowner may be

_* Haid to alin the stevedore of his duty under the war-

ranty,. it seems plain that it. must at the least prevent or

seriously handicap the stevedore in his ability to do a work-

manlike job. Merely, concurrent fault is not enough..

Misurella, ‘supra. Weyerhaeuser SS Co. v. Nactrema Oper-

‘, , 10la—

ating ¥o., Inc., 355 U. S. 563, 567. There was 0 evidence

of active..“hindrance” by the ship. I. T. O. could either ©

have ordered the men out of the hold when-it discovered

that conditions were becoming dangerous and the ship’s

blowers were not turned on, or it could have used its own

portable blowers. ° ,

The judgment is > aside, on both the complaint and the.

claim over, and the case is Temanded to the District Court ‘

for trial. ! cw

¢ .

i

ote: : APPENM@X C ao

Original Opinion of April 9, 1965 } |

UNITED STATES COURT OF APPEALS

For tHe Seconp Crecurr

No. 212—September Term, 1964.

(Argued December 3, 1964 Decided April 9, 1965.)

Docket No. 29155

7]

AnTHony ALBANESE, |

Plaintiff-A ppellee,

—T— pone

s N. -V. Nepert. Amerrx Sroomv. Maats.,

| Defendant-Appellant and

‘Third-Party Plaintiff-Appellant,

_-—

_ InrernationaL TerminaL Operatye Co., Lye.,

Third-Party Defendant-Appellee.

Before:

FRIENDLY and SmitH, Circuit Judges, and

BLUMENFELD, District Judge.*

28

* Appendia C

Appeal by shipowner, defendant and third party plaintiff,

from.judgment entered on verdict after trial to the jury in

the United States District Court for the Southern District -

. " , : 4 pone :

of New York, Irving Ben Cooper, Judge, in favor of plain-

tiff longshoreman to recover $145,000 damages, and in

favor of stevedore, third party defendant.

Reversed and remanded.

Rosrert Kuonsky, New York, N.Y. (Philip F.

DiCostanzo, New York, N. Y., on the brief), ©”

"for plaintiff-appellee. be

Epmunp F. Lams, New York, N. Y. (Purdy, Lamb

ty

Furey, on the brief), for defendant-appel-

‘lant and third-party plaintiff-appellant.

_JosepH ArtHurR CoueEn, New York, N. Y: (Alex-.

ander, Ash & Schwartz, and Sidney A.

Schwartz, New York, N. Y., on the brief),

for third-party defendant-appellee.

Situ, Circuit Judge:

Albanese, a longshoreman in the employ of stevedore

International Terminal Operating Co., Inc., injured by |

monoxide gas fumes while working in the hold of the vessel

M. S. Schiedyk, owned by N. V. Nederl., brought action for

damages against the shipowner, which impleaded I. T. O. |

as third party defendant. After trial to the jury in the.

United States District. Court for the Southern District of

New York, Irving Ben Cooper, Judge, judgment was entered .

on verdict in favor of cians against N, V. Nederl. and

'--& Catoggio, of counsel to Schaffner and —

_

ed

29

Appendiz C

F ° fs

in favor. of the ‘stevedore dismissing the third party com-.

plaint, and N. V. Nederl. appeals. We find error in the

charge on the. principal action and on the claim over, .and

reverse and remand for new trial. :

| | to onsite

Plaintiff was a member of a gang of longshoremen work-

ing in the lower No. 2 hold of the Schiedyk. From 8:00

a.m. to 10:45.a.m. on the day of plaintiff’s injury a gasoline

powered hilo owned by I. T. O. was workihg in this hold.

About 10:45 a.m. a second gang began to work in the after

half of the upper ’tween deck of No. 2 hold, employing a

second hilo. The ship had a ventilating system often used

when hilos were working in the holds, which was not turned —

on on the day in question prior to plaintiff’s injury. It was

raining and a hatch tent partly covered the upper hatch

opening. The hatch between the ’tween deck and the lower

hold. was partly covered with hatch boards. I. T. O. had

‘portable blowers at the pier, none of which were in use

at No. 2 hold. There was evidence that about 10 or 15 min-

utes after the second gang entered the hold, men complained - -

of fumes from the hilos and the winch operator and signal-

man at the hatch asked a ship’s officer to turn the blowers

on. There was evidence that a few moments later the hatch

boss told the ship’s officer. to turn the blowers on or

the men would walk out, and that the ship’s officer said

to keep on working, that he would turn:the blowers on.

When Albanese collapsed sometime between 11:15 and

11:30 a.m. the blowers had not been turned on and the men

left the hatch.

On this state of the proof -we should have no difficulty

in upholding the verdict for the plaintiff had the charge

properly placed the issues before the jury, for if the hatch

a a ee eee ee ee ee ee OX ee

30

Appendiz C

bosses sometime between 10:55 a.m. and 11:05 a.m. asked a

ship’s officer to. turn on the ship’s ventilating system and

he agreed-to do so, a finding of defendant’s negligence

would be justified. The charge, however, allowed the jury

also to find the defendant negligent even if it did not have

actual: knowledge of an unsafe condition i in the hold, if the ~

7 —45a—

jury determined that such a condition existed for a suffi-

cient length of time to charge the shipowner with notice

of it and the shipowner did not act to prevent injury. This

was erroneous, for a shipowner who hires a qualified

‘' stevedore to load the vessel is not-bound to any duty of

active supervision of the stevedore’s work. Filipek v.

Moore-McCormack Lines, Inc., 258 F. 2d 734, 737, 2 Cir.

1958, cert. den. 359 U. S. 927, and if the owner had no actual

notice that hilos were in use in the holds it would have no

' duty to turn on the ventilating equipment if the request

to do so had not in fact been made. If the owner had

such a duty of supervision, the mere use of the hilos in

the hold might require his turning on the ventilators,. to

prevent a dangerous accumulation, even though the hold

had not yet become an unfit place to work.

The jury had been instructed: that the owner would be |

liable, with or without knowledge, if the ship had become

- unseaworthy because of a dangerous condition created by

noxious fumes in the hold. This was correct, and if the

verdict was reached on this’ theory, the verdict against the _

owner would be sustained, if the trial was otherwise free

from error.’ However, the erroneous charge on negligence .

may have been the basis of the verdict. The jury’s atten-

tion was directed in the charge to negligence in the ab- .

sence of actual notice. Liability, if present in the absence

y

>

lett

ae I A. eo BEA ng Bm EE me EE ni Ce me A ME MR ee Bc aT mt I teil NIG

Ree nS?

31

Appendix 14

of knowledge in this case, is based not on a duty of care,

but on absolute liability for unseaworthiness, actual un-

fitness of the vessel for the use to which it is being put.

Unfortunately, we cannot tell from the general verdict

whether it was based on a finding of unseaworthiness, on

a finding of failure to turn on the ventilators after agree-

ing to do so, or on the erroneous charge on constructive’

notice as a basis for a finding of lack of care. On the i issue

° —46a—

of whether an unsafe enniiitien in fact existed, there was

evidence of the men’s complaints, and of couse of plain-

tiff’s injury. This might well have supported a verdict

based on unseaworthiness. However, we do not find this

evidence so plainly determinative of the issue that it re-

quired such a verdict. We cannot, therefore,-ignore the

instructions ‘on negligence and direct a verdict for plain-

tiff on the ground of unseaworthiness. In view of the

alternative claims here, special interrogatories to the jury

might have been helpful in deterniining the basis of the

verdict and the court may well consider their‘use on retrial.

Another claimed error is the charge that no contributory

negligence on the part of the plaintiff had been ‘shown.

While the better practice is to let this question go to the

jury, LaGuerra v. Brasileiro, 124 F. 2d: ‘553, 2 Cir. 1942,

we cannot say that the ruling was error in the circum-

stances of this case where evidence was lacking that

*

S Men AR

Albanese knew of the complaints or appreciated the dan-_

_ ger on the day. of his injury, or indeed had any real choice

of action if he had.. There is, however, one other ruling

which was erroneous on the proof here. That is the in-

struction that the Safety and Health Regulations for Long-

shoring were binding on the shipowner, in spite. of the |

«

seated dita

32

Appendia C

excluding clause of §9.2(b)! and the lack of any. testimony

as to what the concentration of carbon monoxide in the

; —47a—

hold i in-fact: was. Ordinarily, such regulations of stevedor-

‘ing practices are not relevant to the issties involved in the

claim against the shipowner, and clearly could only con-

fuse the issue here, where, although it was stipulated that ©

the ship’s blowers were adequate if used, there was no

evidence from which the -jury. could determine whether

the level of gas concentration at which the stevedore was

forbidden to work without blowers had in fact been reached.

We find error also in -the instructions on the claim over.

The jury could certainly find that the stevedore did not

' fulfill his duty of workmanlike service under his warranty

to the owner in permitting the men to continue work in

the hold after the stevedore had notice of the conditions

in the hold, had requested the blowers to be turned on and

the request was not promptly complied with. Nicroli v.

Den Norske, 332 F'. 2d 651, 656, 2 Cir: 1964. The instruc-

tion that the request to the ship’s officer was sufficient to

absolve the stevedore was error. Misurella v. Isthmian

Lines, 328 F. 2d 40, 2 Cir. 1964. Whatever fault of a ship-—

owner may be said to relieve the stevedore of his duty

under the warranty, it seems plain that it must at the

1 $9.2 Score AND RESPONSIBILITY

(a).The responsibility for compliance with the : ial of this .

‘part is placed upon “employers” as defined in section 9.3(¢)' of this

part.

(b) It is not the intent of the regulations of this part to place addi-

tional responsibilities or duties on owners, operators, agents or masters

of vessels unless such persons are acting as employers, nor is it the

intent of these regulations to relieve such owners, operators, agents or

masters of vessels from responsibilities or duties now placed upon them

by law, regulation or custo.

-

Ey ee t— — AornJ gc? . $ oe 2 pe = *

AAD SORE IIT MINE RE AEE LIE IO LD LOL IN GSD:

Cn

33

Appendix C

least. prevent or seriously handicap the stevedore in his

ability to do a ‘workmanlike job. Merely concurrent fault _

is not enough. Misurella, supra. Weyerhaeuser S.S. Co.

v. Nacirema Operating Co.; Inc., 355 U. 8. 563, 567. There

was no evidence of active “hindrance” by the ship. I. T. O.

could either have ordered the men out of the hold when

it discovered that conditions were ‘becoming dangerous and

the ship’s blowers. were not turned on, or it could. have

used its own portable blowers.

The judgment is set aside, on both the cnaiilaies and

the claim over, and the case is remanded to the District

Court for trial.

34

APPENDIX D

UNITED STATES COURT OF APPEALS

For tHE Seconp CrircuIt

At ‘a Stated Term of’ the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the fifteenth day

of June one thousand nine hundred ot baa sixty-five.

Present:

Hon. Henry J.; FRIENDLY,

Hon. J. JosepH Situ, oor eee

ae Circuit Judges.

Hor. M, JosePH Sissies, |

; District paren

ANTHONY ALBANESE,

1 - Plaintiff-A ppellee,

> —vV ec.

N.V. Neperyt. AMERIK Stoomv. Maars.,

Defendant and

Third-Party Plaintiff-Appellant,

—V.—

*

-*

©

INTERNATIONAL “TERMINAL OPERATING Co., Inc>

Third-Party Defendant-A ppellee.

_ Appeal from the United States District Court for the

Southern District of New York.

35°

_ Appendia D

| This cause eame on to be heard on the transcript of rec-

- ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

On ConsweratioN Wueeor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is reversed on both the complaint

and the claim over and that the action be and it hereby is

remanded to said District’ Court for a new trial in ac-

cordance with the opinion of this Court with costs. to de-

fendant-appellant.

A. Danret Fusaro -

Clerk