# Petition for Writ of Certiorari — Albanese v. N. v. Nederl. Amerik Stoomv. Maats. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0716%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 382 U.S. 283 ## Text : PER Ao es ar 2 a8 Pe as Ss ae se Sw aT F pao eB BR oe rae See ee ee ne Rei E EON SSE PERS PR DE RE RRS 1 RERRE Ca AOA SNES HR ERATED AE ERE = ; cy ae 5 . We as = i ete + Office $ ame Court,. US. Lie; ‘ * see Se its Bere AR —oeee . 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 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 \ ~ ’ = 7 ~~ P . 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0716%3A01. Public record. Not legal advice.