Petition for Writ of Certiorari — Mascuilli v. United States

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1. The Finding of the Court Beli That ie Unsafe Con-

aden Resulting Fron: the Maries Ui the

Ship’s Gear Did Not Render the: Vessel Wnsea-

worthy and Liable for the Death: ofa Longshore-

man Is in Direct Conflict With the Decision of This:

Court in Crumady v. “Joachim Hendrik Fisser,”

358 U. S. 423 (1959), Wherein This Court Held

; hat s Dangervas: —— —é—ſ

Setting of the Ship's Safety Devices Which Was

Brought Into: Play by the Negligent Operation of

.the Stevedores Renders the. Vessel Unseaworthy

ant the Shippweer Reeponstls for: Gia Resetting:

. The Detision of the Court Below in Holding That an

; Unsafe Condition Resulting From the Negligent Use 55

* by the Longshoremen of the Ship's Equipment Does

Not Render the Vessel ‘Unseaworthy Is in Direct

_ Conflict With the Decisions of the Second: Circuit |

min Grilles v. United States, 222 F. 2d 919 (1956);

Kei v. Quebec Poper Sales ond Transportation Co,

300 F.2d 34 (1965); and Norfleet u. Isthmian

Lines; 385 F. 24 359 (1866); the Fourth Cirenit in

Scott v. Isbrandtsen Co., 327 F. 2d 113 (1964) ;

and the Ninth Circuit in Blassingill v. Waterman .

S. S. Corp., 336 F. 2d 367 (1964), Which Hold

‘That a Dangerous Condition Caused. by the ‘Steve:

dores Negligent Handling of Proper Equipment

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to the: Ordinary Men in the Calling”, the

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wee tor the Resulting Death Under the Decision of

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8 munen - Waterman Sunn Corp, vor 243% (9 Cit 8

5600 . ececen Cee ee *** ——— —— 2 8. 10

Boudoin v. Lykes Bros., 348 U. S. 336 (1955) ——— T7871 :

c v. “Joachim Hendrik Pre, 358 U. S. 423 (1959)

2.4, 5. 6,7. 8. 9

N Swedish American Lines, 331 F. 2d S71 (3 Cir,

6˙Vͤ .

Grillea v. United States, 232 F. 2d 919 ö (nd C. 1956) . +27, 8.9

Mahnich v. Southern S. S. Co., 321 U. S. 96, 88 L. Ed. 361 N

Morales v. eee 165. 8 L. Ka 24 412 88

K J SG AGN HS eee 10

Norfleet v. Isthmian Lines, 355 F. 2d 359 (1966) . a

Reid v. Quebec Pant Sates and eee Uo, 340 F. 2d

„„ cau oe 278,9

Scott v. Isbrandtsen Co., 327 F. 2d 113 (4 Cir, 1964) 2,8. 10

Seas Shipping Co. v. Sieracki, 328 LI. S. 85, 90 L. Ed 100 7

ith v. Lauritzen, 201 F. Supp. 663 (E. D. Pa. 1962) ; affd.

3 Cir, February 9, 1966, No. 140 „ 11

Thompeon¥. cn Steamthip Corp, $31 F. 24 657 (3 Gr,

1964) eee. 15 58 30

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Supieme Court d the United

kh the Hödeiubte the Chief a pe Associate dee.

of the Supreme Court of the United States:

Petitioner, Helen Mascuilli, A of te

Estate of Albert Masenilli, Deceased, respectfully: pray

that. Weil af Osrtiorsititaene to.review tie deal ietirmant

of the United States Court of Appeals for the Third Cir-

cuit, !!!!! ĩ⅛˙ sanitin: ty: aeaegh Bh.

; _ OPINIONS or m OOURTS eee oe

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1 Petition for a Writ of o

_ QUESTIONS PRESENTED.

5 Where the safety devices on a ship’s ben gear

are set at one and a half and three times in excess of the

safe working load of the ship’s gear and fail to arrest the

electric current when the strain exceeded the safe working

load of the gear, was the vessel not unseaworthy and the

. Owner liable for the death of a longshoreman resulting from

the fractured gear under the principle of law enunciated by

this Court in Crumady v. Joachim Hendrik Fisser’’, 358

VU. S. 423 (1959), wherein this Court held that where a

dangerous condition due to the, excess setting of the ship’s .

safety devices is brought into play by the negligent opera-

tion of the stevedores, the resulting injuries must be deemed

due to the unseaworthiness of the vessel! 1 ‘

; 2. Did the Court below err in failing to follow the prin’

ciplé of law enunciated by the Second Circuit,’ the Fourth

Circuit, and the Ninth Circuit, holding that a dangerous

condition caused by the stevedore’s negligent handling of

proper equipment renders the vessel un aworthy and its

owner liable for the nn injuries 8

3. Where the longshoremen. charged wits creating the

unseaworthy condition aboard the vessel are found by the

trial court’ to be ‘‘not equal.in disposition and seamanship

to the ordinary men in the calling“, should not the vessel

have been held to be unseaworthy and ipowner liakle

for the death resulting from that condition, Ander the deci-

— W e 348 U. S. 336

— Sa, BE Fa ip Sy 1

Transportation C 2 ;

ae 12 . Tae Lines 395 F. 24 389 (1966). : **

co, 327 F. 2d 11 (1864).

4 we Ware ker, 24 367 (1964).

~ fached to the cargo hook p

the heavy lift boom in a hori

| Petition for a Writ,of Certiorars Se... :

‘STATEMENT OF THE CASE. .

The undisputed facts show that petitioner’s decedent,

a longshoreman, was killed while employed by a stevedor-

ing eompany aboard the S/S Marine Fiddler’’, a cargo

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vessel owned by respondent. He left surviving him a widow

and four minor children. The vessel had been fitted with

special newly-developed heavy lift equipment, which fea-

tures a complicated sys of four guy lines, or vangs at-

dant, to move the cargo and

tal plane (14a, t5a, 40a, 56a,

104a, 190a). On other vessels, the boom is moved by two

guy lines attached to the boom itself (21a, 85a, 135a). None

of the longshoremen working aboard the vessel had ever

seen or used such heavy lift equipment previously (136a, °

15a, 21a, 52a), and this was known to the ship’s officers

(97a). Therefore, the equipment had been rigged by ship’ —

personnel (97a) and a ship's officer was present supervising

the longshoremen’s operations (108a, oe 140a-141a,

201a).

The n had started loading a cargo of

heavy military tanks at 11:00 A. M. At 5:00 P. M., the

ninth tank had been moved acress the deck, was stopped to.

permit the carpenters below to complete their preparations,

and was then lowered. Just as the bottom of the tank track

passed below the atch coaming, the port shackle suddenly

broke with a loud report, and the vang lines recoiled and

' whipped back, mortally striking decedent who was at his

position, near the after end bf the hatch (45a, 63a, 77a,

89a).

| “The electric winch for each vang was rated at fifty

- horsepower or 18% amperes (148a), but each had an over-

CCCEFEEEEC aanaeommetonn

t (148a-149a, 151a), and the overload relay

e r was set to trip at 560 amperes (49a). After

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4 a raus for a Writ of Cortioror

5 neben tind operated despite the excessive strain that

dad been: exerted sufficient to: actually break the shackle —

N

: “On the basis of pleadings and pre-trial admissions,

Ea Harold K. Wood granted petitioner's motion for

Judgment on admitted facts, and, upon stipulation, the issue

of damages was submitted to Judge John W. Lord, Jr.,

who awarded damages of $124,000.00. Respondent ap-

-pealed, and the Court of Appeals reversed and granted a

mae trial (313 F. 2d 764). The case was tried again before

Jaucdge Ralph C. Body (without jury), who found that the

d cocident / was oaused aby the failure of the longshoremen

to follow proper loading prooedures, in that they permitted

the forward and after vangs or guys to be simultaneously

taut (221a). This, he stated, caused a dangerous condition

known as’‘‘tightlining’’, upon which the exertion of any

a- 280 a). Judge. Body failed to take into consideration

the failure of the circuit breaker to shut off the power

when the strain exceeded the safety limit of the gear. This

» the in Crumady v. Joachim

„358 U. 8. 423, 3 I. Bd. 2a 413 (1959),

—. eneaniouitieg nit: the owner

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Petition for 4 4 e

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TP tes sesiats tie tebaiiigh ans

unseaworthy on the basis of this Court’s decision ‘in

Boudoin v. Lykes Bros., 348 U. S. 336 (1955).

that the negligence of thb ore contractor caused the

e ee Court’s

decision in Crumady, under identical facts, holding the chip-

owner liable. Notwithstanding his own order

award, which had been fixed y Judge Lord ae

in the earlier trial, presumably ‘upon the contingency that

his order of dismissal might be réversed. :

The Court of Appeals affirmed Judge Body's orde r of

anten without denon or anna of the prin

ciples involved. N

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ay Petition for 4 ‘eae of Cortiorari

"REASONS A5 on FOR ALLOWANCE OF WRIT.

— — co

— Oour Below That he Uasate Gon :

ar Did Not Render the Vessel Unseaworthy and

lin Near Pe, This Court in Orumady

I. Joachim rr alt Ta 0D 423 (1959),

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Tho undisputed: faote in is case reveal, just as in

—— v. Joachim Hendrik Fisser, 358 U.S. 423, 3

L. Ed. 2d 413 (4989), tat the ship’s loading gear was

equipped with. cut-off devices, or circuit breakers," whienk ,

had been improperly set to eut the power at a point of

| ‘strain which was much higher than the equipment ‘itself

was designed to take. In Crumady, the device had been

set twice the safe working load of the lifting gear; here,

there were two devices, one set at one and one-half times

| pp .

Further, as in Crumady, with this dangerous set-

e eee bee ee eee

ner as to create great and excessive strain on the gear, and,

when the safety device failed to out off the power the gear

In

2 . 7 es pa eve Te i * 7 1 1

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e . bp Erbe g of the Ship’s Safety Devioes

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how:

Petition for 0 was of Cotioras es ae

strain, until the shackle actually parted, and decedent was

: struck dead. Indeed, in the instant case, an ezamination —

3 of the gear afterward indicated that neither of the two

“it cirowit breakers connected with the Jift or the winches had

even operated.

In Crumady, the District Court had held the vessel

unseaworthy, but the Court of Appeals for the Third Cir-

~ euit held there, as it did hers, that the sole cause of the

injury was the negligence of the stevedores and that the *

vessel was not unseaworthy. This Court reversed, holding

7 tat, although the unsafe condition of the cut-off device

was brought into play by the negligent action of the steve-

~ dores, the vessel must nevertheless be deemed to be unsea-

worthy and her owner liable. for the consequences. | =

Mr. Justice Douglas, for the Court, empha-

sized that the loading and unl equipment, although

in inherently good condition, was rendered, nevertheless,

dangerous for its task because its ce u- off device was im-

— properly set to operate only after the load had expeeded the |

safe working load of the gear (H. S. at 425-26, L. Ed. at

416). This Court then reviewed the obligations of the ship-

owner to provide a seaworthy vessel to stevedores, which

ty ee, pointing out that unseaworthiness. -

f to thé crew,’ and to ship’s appliances, as well as

to the vessel itself, and that they must be maintained in a

seawo condition; * and that the shipowner is not relieved

of these responsibilities by turning controt” loadizig or

„ (U. S. at 426-27,

L. Ed. at 416-17). Citing Grillea v. United States, 232 F. 2d

919 (nd Cir. 1956), to note ‘‘stevedores themselves

- gould render a ship pro tanto uhseaworthy and make the

vessel owner liable for injuries to one of them“, the opinion

7 states that under the facts at hand (identical with the in-

“4. Seas Shipping Co. ©. Sum 328 N S. 85, , 5,90 . 1 5

1099, 1105 e

3. Bondoi v. Lykes Bros: S2S. Co., 348 U. 8.336 Ed. 354.

6. . Sober S. C. N Sat eee, i

8 Petition for a Writ of Certiorar

3 stant case), we need not go that far, sinee the facts demon-

: strate that the stevedotes ‘‘did no more than bring into

play the unseaworthy condition of the vessel“. The winch,

not inherently defective, was an appurtenance of

the vessel Which was adjusted by these acting for the owner

in a way that made it dangerous for the work at hand.

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t ve should ignore the existence of the underly.

ebnen due to’ the improperly set circuit.

Petition for a Writ of Certiorari

{se ener ins Cie tn: atin Sie This was spe-

cifically discussed in Crumady, where this Court cited ‘with

approval the decision of the Second Circuit in Grillen v.

United States, 232 F. 2d 919 (2 Cir. 1956). In stating that

the vessel’s equipment was seaworthy throughout the load- .

ing operations and that ‘‘the accident was caused solely by

the negligent operation of the stevedoring crew’ the Court

below stated a factual situation which demanded, as a mat-

ter of law, a holding that the vessel was thus unseaworthy

and the shipowner responsible therefor. . The Court’s fail-

ay ure so to hold not only conflicts with the statement by this a

Court in „but, also, with the consistent decisions

of other its, including the Second, Fourth and Ninth.

In Grillea v. United States, 232 F. 2d 919, 922-23 (2 Cir.,

1956), a vessel, otherwise safe, was held to have become -

unseaworthy solely by the action of the injured party.

There, the injured longshoreman had placed the wrong hatch

cover over a pad-eye shortly before he stepped on it and it

gave way. In Reid v. Quebec Paper Sales and Transporta-

tion Co., 340 F. 2d 34, 35-36 (2 Cir., 1965), the ship was held

unseaworthy and the shipowner liable, where a longshore-

man was injured by a falling ladder which had b inse-

curely placed by a fellow longshoreman. The C 2

out that, no matter who had placed the ladder, the

owner had the ‘‘nltimate obligation“ to see that it was prop-

erly placed (36).

More recently, in Norfleet v. Isthmian Lines, 355 F. 2d

359 (2 Cir., 1966), a pad-eye attached to the boom of the f

vessel broke during a loading operation, the testimony show- 5

ing that the longshoreman operated the winch improperly,

Aan u üg ning, ap in the instant cane, with Ps

- extreme pressure, breaking tle pad-eye and injuring adong

shoreman. The Court confirming the Grillea doctrine, then *

held that even if an unseaworthy condition had been ere-

c

n Boot v. Isbrandtsen Co., 327 F. 2d 113 (4 Cir., 1964),

5 a longshoréman was injured because of the negligent man-

10 Fettes for a Writ of Oer

Indeed, other panels of the Third Circuit have, contrary

to the instant ease, below, been in agreement with the other

Circuits’ In Ferrante v. Swedish American Lines, 331 F. 2d

571 (3 Cin. 1964 longshoremen negligently discharged ply-

Wood in a rope sling. which they overloaded, despite the

alee

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Petitionsfor a Writ of benen .

Pedllbes ber Müsch % wae aemhuen Wek take 2

the Judges u (who were also on the three-judge panel in

the instamt cage) dissented, refusing as in the instant case

to apply the now generally sbttled principle of operational

unseaworthiness (663).

Thus, we have singular cosifliet between the inst

: decision below and the other circuits, and a split within.

the Third Cirenit, itself, upon the principle involved, re-

‘quiring review by this Court upon this vital and extremely 7

W

mt Whace the bee Be N i e

Charged With Creating the Unseaworthy Condition |

Aboard the Vessel Were Found by the Trial Court to

. Be “Not Equal in Disposition and Seamanship to the

Ordinary Men in the „tho Court Below Should

— Have Concluded That the 7easel Was Unseaworthy and

the Shipowner Liable for the Resulting Death Under .

the of This Court in Boudoin v. Lykes Bros.

4 8. Corp, U. 8. 336 (1888 7 os

After tthe accident was cansed bysfailure of

the longsh Semen We abe eee eee

judge held that the longshoremen crew was not ‘equal in

disposition and seamanship to the ordinary men in the call-

_ ing’ at the time of the accident (Conclusion No. 17; 236a).

As a matter of law, this finding required’ the conclusion

that the vessel was, for this reason alone, unseaworthy.

Boudoin v. Lykes Bros. S. S. Corp., 348'U. S. 386, 99 L, Ed.

754. (1955). Since the incompetence of a seaman constitutes

unseaworthiness, the incompetence of a stevedore doing the

seaman’s work similarly tenders the vessel unseaworthy.”

Failure of the Court below to so, conclude, upon these find-

. —— in Boudin

5

11. Judges Hastie and Smith, | \

12. Smith v. Lauritsen, 201 F. 663 (ED. 1962);

a Scary Ne 8 r „

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: „12 Petition . Writ of Oertiorori

frequent occurrence, as witness the cases which have come 8

. . ¢hrongh the Circuits, The decision below, if not reversed,

a3 will, contrary to the mandates of this Court, seriously dilute

hes _ the rights of longshoremen in their daily routine and will

Boog, the uniform application of the decision of this

. : ede for'a Writ of

"Get hb na he a a i desi

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UNITED STATES COURT OF APPEALS” os

f _ Yes ran Temp’ Onoure e

No. 1542

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UNITED STATES or AMERICA,

Argued Deceinber AT, 1965- 3 |

Before McLavomax, E Hasria om Sucre, Oirouit Judges

OPINION OF THE COURT

(Filed Jasinary 31, 1966)

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242 °° Appendite A .

court that the vessel and its equipment were in a sea-

worthy condition at all times throughout the loading opera-

5 tions-and that the accident was caused solely by the negli-

er a

of fact +35, not clearly erroneous. We find that the

error, if any, is clearly not. substantial in the references

to the signal man, Majdowski in the trial findings: of fact

and conclusions of law. We have examined appellant’s

point. with reference t® the trial court’s reassessment of

There is no necessity or e of our passing upon’ |

argument. ＋ N )

The judgment of the district court will be affirmed. ;

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JUDGMENT

This ca came on to be heard on the record from

the United States District Court for the Eastern District_

of Pennsylvania ard was argued by counsel. ts

on consideration whereof, it is-now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed May 4, 1965, be, and the same is hereby

rok sting

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affirmed.

ake | In O. Cuzsxorr,

APPENDIX o.

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svn PETITION FOR REHEARING

Present: Karopyze, Chief Judge, and MoLavexnum, Srauzy,

Hasrm, Ganey, Swrrn and Frxspmax, Circuit Judges

! The petition for rehearing filed by the appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all the

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges —

of the circuit in regular active service not having voted for

rehearing by the court in bane, the petition for rehearing

is denied.

By THE COUBT, |

22 . MoLavenum,: J.

Date: March 24, 1966 0

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