Reply Brief — Mascuilli v. United States

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SUPREME ‘COURT, u a.

‘Suprene Court of the Unite

ecu Term, 1966.

No. 274.

>

HELEN MASCUILLI, Administratrix of the Estate’

of Abert Mascuili, Deceaped,

? 3 _ Petitions,

; v..

UNITED STATES OF AMERICA.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit.

PETITIONER'S REPLY BRIEF.

Avsanau E. Fumapuan, | aM

Mittow M. Bonowsxy, <. \!

Masti J. Viepmamar, |

‘Famepmay, Bonowsxr axp Loar, ene

‘\ : aie Philadelphia, Pennsylvania. 19106

Leo cas Cownsel for Petitioner.

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TABLE OF CASES OITED.

‘Page

Boudoin v. Lykes Bros., 348 U. S. 336 (1955) ..........00. 4

Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 3 L. Ed. 2d

Ue I ne i 2

Grillea v. United States, 232 F.2d 919 ‘(Qnd Cir. 1956) ...... 3

Norfleet v. Isthmian Lines, Inc., 355 F. 2d 359 (2nd Cir. 1966) 3

Reid v. Quebec Paper Sales and Transportation Company, 340.

F. 2d 34 (2nd Gk ME neviidvbisnatowennen Pere 3

‘Supreme Court of the United States:

——— a. |

conan Tena, ‘1966.

¢ enemas

No. on,

‘ -

‘HELEN. MASCUILLI, himtnaaiaiine: OF THE, Eerars OF

ALBERT Masouri1, ‘Decrasen, |

ae eS Petitioner;

es v. | 3

» UNITED STATHS OF AMERICA.

_ seta. asks Coane s

-.Ow Perrmon ror a Warr or Cxrtioran To 1a Unrrep

Srares Court oy sapene FOR THE nae Crmovurr.

a

PETITIONER'S REPLY BRIEF. ° a

Respondent, in its reply to the Petition for Certiorari,

endeavors to make it appear that in one respect the issues.

_,involved a factual controversy and ir the other respect that

a fact finding by the Court below was ‘‘misread’’ by peti-

tionen A brief examination of the record’ demonstrates ,

that respondent is grossly in error in both respects. Peti-

tioner here does not and need not argue the facts. ‘Every

“fact assumed in thé Petition ‘is well .established and ‘not.

_. eontroverted_in the tecord.. The ‘‘fact findings’?

-\. which petition r-relies are not paraphrased or qualified

in any manner. The petitioner argues from the literal

phraseology of the fact, findings and ne the specific

: moaning, intended 9 ie the Court below.

Se _ Petitioner’ 8 Reply Brief

a in an effort td escape from this Court's decision in ..

Crumady ». Joachim Hendrik Fisser, 358 U. 8. 423, 3.1L. Ed. -

2d 413 (1959), respondent states that petitioner cited ‘no

evidence to support the theory that the winch cut-offs were

.. improperly: set and, therefore, failed to prevent excessive

“'. strain (Resp. Brief, p. 4). But, the evidence demonstrates

without any controversion whatever that while the electric

winch for each vang was rated at 183-amps, (50 horse-

“ae, power) (148a),- nevertheless, the overload circuit breaker

- on each-was-set to trip at 275 amps. (148a-149a, 15la), and

_ the overload relay in the controllér was set.to trip at. 550

- aps: (149a), Thus, the so-called ‘safety’? devices, as

_ they had been set, were wholly useless because this ‘‘safety’’

' setting of the. circuit breaker was far in excess of the

admitted safe working load, of the. equipment. Tiese de-

_. vices were examined after the accident and, of course, re-

_.. vealed that neither had operated to cut off the power,

. despite the fact that the strain was. irrefutably excesgive

- ” to\the point that the- shackle actually shattered under it

.(151a). Thus, this case falls squarely, under this Court’s

decision in Crumady.

‘ic ; Respondent argues also’ that the negligent. use e by the

longshoremen. of. ship 5 equipment, which caused the:

.., dangerous condition aboard the vessel, did not. render the

_* _Nessel unseaworthy. Respondent’s position on this is that

' _~ ‘the ship’s officer who, admittedly, was supervising the en-

. . tire. operation, had no time to warn the longshoremen of

the“existence of the dangerous ‘‘tightline’’ condition since ~

‘it happened so-‘‘snddenly’’ and was the result of the long- _

}

|

’

“—~""“ghoremen’ 8 ‘momentary’? mnenendling of the: on ereaaanae a [

(Resp: Brief, p. 6). | |

- Respondent obviously. confuses ‘Cineneiabiag!' sale mie

“or handling. with ‘momentary’? dangerous condition. The

ahi: dangerous’ condition which resulted from the mishandling 2

_ > .<wag. the unseaworthiness which caused ‘the accident, and

. “lasted as long as was necessary to ¢ause the shackle to "

ee orem, It takes. ee

Petitioner's Reply Brief Wey . 8-

; | wens inte de ameiiais (see Grilles ¢. Umited

States, 232 F. 2d 919, 922-23 (2nd Cir. 1956)); or to place

a ladder on an unsteady footing (see Reid v. Quebec Paper

Sales. and Tramsportation Company, 340 F. 2d 34, 35-36

(2nd Cir. _1965)). Indeed, most accidents occur from a *

‘‘momentary’’ misstep, and the dangerous condifion: which

results therefrom need only last sufficiently long to be the ©

cause of the injury. - Respondent’s argument would have

this Court place liability for unseaworthiness in the same

position as liability for negligence.

Of the cases cited by petitioner, all of which fully sup-

port her position, respondent has singled out Norfleet v..

Isthmian Lines, Inc.; 365 F. 2d 359 (2nd Cir. 1966), stating

. that, there, the court said that if injury resulted from

negligent mishandling of a seaworthy appurtenance and

‘if the injury occurred before any unseaworthy condition °

arose’, the shipowner would not be liable in an action —

based on. unseaworthiness. Obviously, this is the law

(stated as part of a discussion of the general proposition,

and after emphasizing the law as ‘we have stated it). But,

' clearly, that was not the circumstance in Norfleet, nor in.

the instant case. In Norfleet, the ‘‘tightline’’ Gondition

occurred (rendering the. vessel unseaworthy) and, then, |

the padeye broke, causing the injury. The ceurt reversed

the decision below, which had dismissed the case, and re-

thanded the case for new trial on plaintiff’s appeal. In

the instant case, the’ ‘‘tightline’’“condition occurred and,

_ thereupon, and as a result thereof, the shackle shattered.

Thus, the injury occurred after and as a direct result of

the ‘‘tightlining’’. - Indeed, physically, the deadly vang

line could have re-coiled only after both events, rendering

_the vessel unseaworthy, had occurred.

‘Significantly, respondent refrains from any reference

to the decisions from the. other circuits, precisely on the _

point and in direct conflict with the decision below on this

specific. issue. 3 | ‘oe

: ee ae SA OEE OPT Te ee

mc, Petitioner’s Reply Brief

-s In order to avoid. the decision of this Court in Boudom

v. Lykes Bros., 348 U. 8. 336 (1955), respondent argues

that petitioner had ‘‘misread”’ the specific finding by the

District Judge that the longshoremen were not “‘equal m

|. disposition and seamanship to the ordinary men in the

calling’’ (Resp. Brief, p. 7): The bare fact is that the.

court found just that, and in those words (Conclusion No.

17; 236a). The language of the District Judge was clear,

wnequivocal and withont doubt. Under that conclusion, as a

- matter of law, the vessel was unseaworthy under the

Boudoin decision. es ie

_ Itis respectfully subriitted that certiorari should be

granted to review and reverse the decision of the Court

below. . : . ;

Respectfully submitted,

'. Asranam EB. FaeepMan, .

Mruton M. Borowsky,

Mastin J. VIGDERMAN,

‘Fasepman, Borowsxy ayp Lorry, ©

~~ Counsel for Petitioner.

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SUPREME COURT OF THE UNITED STATES

| | OctToBerR TERM, 1966. |

- MASCUILLI v. UNITED STATES.

ON. PETITION FOR WRIT OF. CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

-

a

No. 274. Decided May 22, 1967. a

-

-Per CuRIAM.

The petition for a writ of certiorari is granted and the

judgment is reversed. Mahnich v. Southern S.-S. Co.,

321 U. S. 96; Crumady v. The Joachim Hendrik Fisser,

358 U. S. 423. |

Mr. Justice Haruan, Mr. Justice Stewart, and Mr.

Justice Wuite are of the opinion that certiorari should

be denied.