Brief in Opposition to Petition for Writ of Certiorari — International Terminal Operating Co. v. N. v. Nederl. Amerik Stoomv. Maats

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IN THE _ JOHN F. DAViS, CLERK

Supreme Court of the United States.

OCTOBER TERM, 1968 |

No. 379

iy

INTERNATIONAL TERMINAL Operatine Co., INc.,

Petitioner,

v.

N. V. Nepert. AMERIK Stoomv. Maats.,

Respondent.

“tT

BRIEF IN OPPOSITION TO PETITION OF INTERNA-

TIONAL TERMINAL OPERATING CO., INC. FOR A

WRIT OF CERTIORARI TO THE UNITED STATES —

- _COURT OF APPEALS FOR THE SECOND CIRCUIT

Epmunp F. Lamps,

Attorney for Respondent,

Office and P. O. Address,

80 Broad Street,

New York, New York 10004.

JUVENAL. L. Marcuisto,.

On the Brief.

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ce er errr Tr Tree TT eT Ter yr aye ree ery PET r

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The Questions Presented

Restatement of the Case

Argument See eee i eaee kee cis Pee Cee rr ee ‘

- J—There is no Seventh Amendment Constitutional

~]

question involved in this CASE... ss 6s verere

II—The decision, below is not in conflict either with —

decisions of this Court, dr of other Courts of

Appeal ...,..ccescsceeees rere a eeveceevenees 15

a ET Cee ere EEE TTT TOPE TEE 19

TABLE OF AUTHORITIES ;

Cases:

Atlantic and Gulf Sietaitens v. Ellerman Lines, 369

SN a ck ae oe kh eee kaka tesa eas 11,15, 16

Baltimore & C. Line v. Redman, 295 U. S. 654 ...... 8

Caputo v. U. S. Lines Company, 311 F. 2d 413, cert,

den. sub nom., Imparato Stevedoring “ra Yo

United States Lines Company, 374 U. 8.833 ....10,12

Compania Anonima Venezolano de Navegacion -v.

Matthews, 371-F. 2d 971 .......... POR re ye ico

Crumady v. J. H. Fisser, 358 U. 8. 423 ............. 19

Fatovic v. N ederlandsche-Ameridaansche Stoomvaart,

ee re CT TTT ETT La eee eee 10

ssnchiise

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5 gatsabtns ia! Moda dia ua eat thee oe) 015

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| i ' TABLE OF CONTENTS .

PAGE

Herron v. Southern P. ne 283 U. | Peer aeeken 8

Hodgson y. Lloyd Brasileiro Patrimonio Nacional, 294

a OE adn ackewase pinteen Bry eee c eens or 17

Hudson Steamship Co. v. Colon, 3 OF, 2d.44........ 17

Hugev v. Dampskisaktieselskabet International, 170

F. Supp. 601, aff?d sub nom., Metropolitan

Stevedore Co. v. Dampskisaktieselskabet Interna-

tional (C, A. 9), 274 F. 2d 875, cert. den. 363 U.S.

ee ab ks bus akecieecuc ease cckhat conccsuuee rae 17

Italia Societa per Azioni di Navigazione vy. Oregon

Stevedoring Co., 8376 U. S. 315 ...........4. 13, 17, 19

Italia Societa. per. Azioni di Navigazione y. Oregon

Stevedoring Co. (C. A. 9), 336.F. 2d 124, cert.

Cs SOU Wes A UE ak ek ah ca CHEEK RRR eRe NRE 14

McNamara v. Weichsel Dampfschifffahrts AG Kiel,

Germany, SOD F. B0 476 nonce cisasccsscnncces 18

Montgomery Ward & Co. v. Duncan, 311 U. S.-243 . 8

Moore-MeCormack Lines, Ine. v. Maryland Ship Ceil- |

ing Co., 311 F. 2d 663 (cavchhseabas Vumbanen kan’ 16

Mosley v. Cia. Mar. Adra, S. A, 362 F. 2d 118, cert.

den. sub nom., Lipsett Steel Products v.. Samuel

Mosley et al., 385 U_S. 933 ..... Peery Te rere 9

Mosley v, Cia. Mar. Adra, S. A., 314 F. 2d 223, cert.

den, 375 U. S. 829°........ Pere rere Tey yer 10

New York, N. H. & H. R. Co. v. Henagan,,. 364 U. S.

DE AwAbeWkds 00 h5GsdaeenkaGRaaeelekaekenees 9

‘Ry an Stevedoring.Co. v. Pan-Atlantic S. S. Co., 350°

8 Pe er ee eer rrr ey Se aewes 13, 19

‘Thompson v. Trent Maritime Co., 353 F. 2d 632..... 17

United States v. Harrison, 245 F.2d 911 ........... 0 17

a ee

ee ver eee Ps Nedbdh.seeidel a es x ‘

x" TABLE OF OONTENTS lit

PAGE

Washington Gaslight Co. v. District of Columbia,

Ee Yee ka aeaaes 10, 12, 13

- Waterman Steamship weesels ene ¥. David, 353 F. 2d

| GP se nacinc 6caes seascape pesssbesccees \e tenses 15,17

Waterman 8.8. Corp. v. Dugan & scanned Ine, |

Pe CE 4 needa duspencnkecaneethcccsces ae

Weyerhaeuser 8.8. Co. v. Nacirema Qperating Co.,

ke RT Bee 11, 15, 16, 17, 19

_ OTHER AUTHORITIES *. “

Safety and Health ‘Regulations“for Longshoring, ,

See. 9.93 (29 C.F.R. Sec. %1, et seq., renumbered

as of January 1, 1964, Sec. 1504.1, et seq.) ...... ‘14

Corbin on Contracts, Sections 571, 947, 1264 ....... 16

Restatement of Contracts, Sections 295, 315 ........ 16

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PELOTON OTE ENE VR TRIO MES LS HE Seg ma SUT TRI ge pre Tes

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7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1968

No. 379

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INTERNATIONAL TERMINAL OpERATING Co., Inc., ~

Petitioner,

2,

N. V. Neperu. AMERIK Stoomv. Maats.,

Respondent.

4,

—

+.

BRIEF IN OPPOSITION TO PETITION OF INTERNA.

TIONAL TERMINAL OPERATING CO., INC. FOR A

WRIT OF CERTIORARI TO. THE. UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

Opinions

This is a petition by a stevedore from a decision of the

Court of Appeals for the Second Circuit reversing and

directing judgment n.o.v. in favor of the shipowner against

the stevedore upon retrial of a third-party action for in-

demnity.

The’original trial of this action resulted in a verdict in

favor of the injured longshoreman plaintiff against the

shipowner and in favor of the third-party defendant-

stevedore against the,shipowner on the shipowner’s claim

for indemnity. On appeal.to the Court of Appeals for the

Second Circuit, both verdicts were reversed and a new trial

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of the entire case was directed. The opinion of the Court

of Appeals on that appeal is reported officially at 346 F. 2d

481 and is printed in the Appendix to the Petition herein.

Upon petitions for certiorari filed both by plaintiff and

_ third-party defendant-stevedore, and a cross: petition by

third-party plaintiff-shipowner, this Court, in a per

curtam opinion, reinstated the verdict in favor of the

plaintiff but denied the petition for certiorari of the steve-

dore and the cross petition of the shipowner. The opinion

of this Court thereon is reported at 382 U. S. 283. A peti-

tion for reheating of the. stevedore’s certiorari petition

was denied, 382 U. S. 1030, and a subsequent motion of

the stevedore for leave to file a second petition for rehear-

ing was also denied, 384 U. S. 994.

The shipowner satisfied plajntiff ’s judgment on —

%, 1966 and thereupon moved in the Court of Appeals for”

recall of the mandate of that Court insofar as it directed

a new trial of the third-party complaint, to pass upon the

question presented on the shipowner’s original appeal

that it was entitled to judgment of indemnity as a matter

of law. The motion was denied on March 1, 1966 without

opinion. This motion, however, was not a motion, as stated

by Petitioner, for judgment as a matter of law, but merely

a motion to recall the mandate so that the Court of Ap-

peals might consider the question. |

A subsequent motion by the shipowner for summary

judgment on the third-party claim was denied by the Dis-

trict Court in an opinion which is unreported but which

is printed in the Appendix to the Petition.

The opinion of the District Court denying shipowner’s

post-trial motion for judgment n.o.v. or in the alternative |

for a new trial is reported at 279 F. onee 635 and is also

printed i in the Appendix.

The opinion of the Court of Appeals setting aside the

judgment and directing judgment in favor of the —

-

owner on its n.o.v. motion is reported at 392 F. 2d 763 and

is also printed in the Appendix. The denial of the subse-

quent petition of the stevedore in the Court of Appeals for

rehearing or rehearing im banc is unreported, but the order

thereon is printed in the Appendix to the petition herein.

Jurisdiction -

It is not disputed that jurisdiction exists under 28 U.S.C.

Section 1254 (1). However, the petition presents no new

or novel question but reiterates the same arguments and

urges the same questions as were originally presented in

the petition of the stevedore for certiorari to the first de-

cision of the Court of Appeals herein, and in its petition-

for rehearing and motion for leave to file a second peti-

tion for rehearing.

The petition, it is submitted, fails to set forth sufficient .

reason for the granting of certiorari under revised Rule

19 of this Court. |

The Questions Presented

There is no constitutional issue under the Seventh

Amendment involved. All: that is really involved is the

question; where a longshoreman is injured by carbon

monoxide fumes exhausted from hilos employed by a steve-

‘dore in performing loading operations aboard a vessel,

‘and the stevedore has in its own possession and under its

control means for detecting the carbon monoxide content

of the atmospliere and keeping the atmosphere in a safe

condition for work, can the stevedore be relieved of the

performance of its warranty of workmanlike service by ~

belatedly requesting through subordinate employees that

a vessel’s forced ventilation system be put into operation

after the longshoremen began to complain of the density

of fumes within the hold and within less than 15 minutes

SINR ci as esata onc wee a cece ate

4

of the happening of the injury. This question‘ has twice

been answered by the United States Court of Appeals for

the Second Circuit in the negative, and this Court has

already, on three applications of the Petitioner herein, 1 re-

fused to review the Court of Appeals decision.

Restatement of the Case

Petitioner seeks to state the case involved as if all rele-

vant events occurred between 11 a.m. and a few minutes

thereafter on the morning upon which plaintiff sustained

his injury, and thus to eliminate from the case all events

preceding that moment in time, as if the hazard to the

plaintiff for which the shipowner has been held liable sud-

denly came into being. -

The facts upon which the shipowner has been held liable

to the plaintiff are succinctly set forth in, the first decision

of the Court of Appeals herein (346 'F. 2d at pp. 482-483,

Appendix to Petition P. 4a) as follows: .

“Plaintiff was a member of a gang of longshoremen

working in the’ lower No. 2 hold of the Scuiepykx.

From 8:00 A.M. to' 10:45 A.M. on the ‘day of plain-

tiff’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 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 at about 10 or 15 minutes after the sec-

ond gang entered the hold, men complained of fumes

Seta. AL te Sait aA ie nba AT eA ARSE Aha tl AR IEE IRCA GAB LENS ett CLARE MVE

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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 sometime

between 11:15 and 11:30 -A. M., the blowers had not

been turned on and the men left the hatch.”’ ,

Upon retrial, the shipowner introduced into evidence the

complete record of the prior trial including the stenogra-

pher’s minutes to establish the basis upon which it had been

held liable to the plaintiff and read into the record from

testimony taken before trial of the stevedore’s pier superin-

tendent, Joseph Jerkovich, to evidence that the stevedore

was in complete control, and had complete supervision, of

all operations involved in the loading of the cargo on board

the shipowner’s vessel (Appellant’s Appendix, 46a-47a, -

49a-5la, 53a-60a, 66a). This testimony also established that

the hilos, one of which had been placed first in the lower

hold and the other later in the after half of the ’tween deck

of the vessel, were owned and controlled by the stevedore,

and that all of the persons engaged in the operation of

loading the vessel including the longshoremen, the hilo

drivers and all supervisory personnel were employees of

the stevedore, (Appellant’s Appendix 47a, 49a-52a, 136a).

It established also that the stevedore owned and controlled

a large number of portable blowers which were kept at the

pier where the vessel. was being loaded and that when hilos

were being used in the holds of vessels, these portable

blowers were supposed to be put on board to exhaust fumes ©

from the holds; and also that there was maintained in the

office of the stevedore’s superintendent instruments for

measuring the carbon monoxide content of the atmosphere

in the holds, which the stevedore’s supervisory employ ees,

specifically the ship’s superintendents who were in charge

. ;

isin haute past inne: “altar ata tsi lla sias Bass athe el ei amity

of the stevedore’s operations on the vessels, had been in-

structed to use where hilos were being employed, and if

the content in the atmosphere required, to put additional

blowers‘into operation (Appellant’s Appendix 54a-57a, 59a,

_ 60a). There was no dispute as to this evidence.

The third-party defendant-stevedore on its case read

from the deposition taken:before trial of the vessel’s chief

officer and called as a witness one Joseph P. Van Daalen, a

shoreside employee of the shipowner. The substance of all

of this testimony was merely that.the ship was equipped

with a cargocaire system which could have been used to

_ clear the atmosphere in the holds and, although primarily

designed for the care of cargo at sea, was sometimes used ©

when hilos operated in the holds, and that neither of them

had observed any ‘accumulation of smoke in the hold during’

the morning or had heard of any complaints from the long-

shoremen (Appellant’s Appendix 95a, 10la, 104a, 107a-

108a, llla, 114a, 141a, 142a). The only other testimony

introduced by the third-party defendant was that of Ru-

dolph Curko, the working hatch boss of the gang which

put the second hilo in operation in the after half of the

tween deck at 10:45 a.m.. He testified as to the request

to the mate to put the ship’s blowers in operation at ap-

proximately 11°a.m. after complaints were made by the

men of smoke and fumes in the hold (Appellant’s Appendix

129a-131a, 133a-136a). This testimony was substantially

identical with that given by him at the first trial. This is

all the testimony that was introduced at the retrial, and

there was no dispute as to any of it, except for some tes-

timony given by Jerkovich on-his ‘pretrial deposition as an ©

adverse party, which the third-party defendant was allowed

to read over objection by counsel for the shipowner, to the

effect that at some uncertain time during the morning of

_ the accident, he saw blowers in use at the No. 2 hold. This

testimony had been excluded at the first trial and was in-

- consistent with the uniform testimony at that trial upon

which the shipowner had been heid liable to the plaintiff .

as noted by the Court of Appeals in its decision below (392

F. 2d at p. 764-5, Appendix to Petition, 31a).

It is not true as said by Petitioner (p. 6 of the petition)

that there was undisputed testimony that up until approxi-

mately 11 a.m. the working conditions in the hold were

good. The only testimony was to the effect that there was .

no observable smoke in the hold prior to 10:45 when the

second hilo was put into operation. The injury producing

element here was not smoke but carbon monoxide whose

pernicious characteristic is that it is both colorless and;

odorless.

.. Itisa gross vlisatilaaions of the shipowner’s position

(as stated in the Petition at p. 8) that the basic. argu-

ment advanced by the shipowner at the trial was that the

stevedore breached its implied warranty of workmanlike

service in complying with the mate’s orders and continuing

to work in reliance on the mate’s assurances that he would

turn on the ship’s blowers. Per contra, it is, and it has

always been the shipowner’s contention, that the stevedore ©

. cannot be. exonerated from the breach of its implied war-

ranty in creating an unsafe condition in the hold by the-

use of its hilos and in continuing to work its men when ‘it

knew or should have known that conditions were unsafe

without taking any of the means available to it to keep

conditions in the hold safe, by the belated request to the

mate to put on the ship’s blowers only after.its workmen

had begun to complain of the smoke and fumes in the hold,

in reliance upon the shipowner to do what was its. own °

prime duty.

Argument >

There is no Seventh Amendment Constitutional —

"question involved in this case.

It has‘ long bins settled by this Court that the Federal

Courts have not only the power but the duty to direct judg-

ment in favor of one party or the other where the facts are |

- undisputed and there are no conflicting inferences, Herron

v. Southern P. Co., 283 U. S. 91.

In that case, this Court held that a provision of a State

Constitution providing that the defense of contributory

negligence or of assumption of risk shall in all cases be a

question of fact, and shall at all times he left to the jury,

could not impair the power of a Federal Court to direct a

verdict in favor of the defendant where plaintiff’s.contribu-

tory negligence was established as a matter of law, saying

that in such an instance ‘‘The judge has the right and duty

to direct a verdict for the defendant’’, citing a host of prior

cases.

In Baltimore & C. Line.v. Redman, 295 U. S. 654, the

Trial Court had reserved decision on a motion for directed

verdict and subsequently denied the motion. Upon. appeal

to the Circuit Court of Appeals, that Court held the evi-

dence insufficient to sustain the verdict and reversed the

judgment with -a direction for a new trial. -This Court

‘granted certiorari to pass upon the question whether under

the Seventh Amendment, the Circuit Court had the power

and duty because of insufficiency of the evidence to direct

judgment instead of remanding for a new trial, and specific-

ally held that the Seventh Amendment preserved the com-

mon law powers of an Appellate Court to set aside a ver-

dict not supported in law and required the Court to direct

a verdict where required by law instead of remanding for

‘ a new trial.

In Montgomery Ward & Co. v. Duncan, 311 U. S. 2438,

this Court pointed ‘out that Rule 50 (b) of the Federal

Rules of Civil Procedure was enacted:in conformity with

the Seventh Amendment and preserved ‘‘the right of either

party to have a question of law reserved upon the decision

of which the Court might enter judgment to one party in

spite of verdict in favor of the other’’.and merely rendered

9

unnecessary ‘fa request for sservition of a question of

law’? (p. 250).

As recently as 1960 in a F.E.L.A. case, this Court, per

curiam, reversed a decision of the Court of Appeals affirm-

ing a judgment in favor of a plaintiff agaihst a defendant,

and directed judgment on deféndant’s motion for a directed

verdict and for judgment n.o.v. because of insufficiency

of the proof to establish defendant’s negligence, New York,

N.H. & H.R. Co. v. Henagan, 364 U. S. 441.

In Mosley v. Cia. Mar. Adra, S.A., 362 F: 2d 118, the

Court of Appeals for the Second Circuit affirmed -e judg-.

ment n.o.v. in favor of the shipowner against the stevedore -

who ‘‘furnished and rigged’’ the injury producing instru-

mentality, ‘‘and controlled all other relevant aspects of the

loading’’, upon the ground that ‘‘the jury would have to

find that the stevedore company was liable for a breach of ©

its warranty of workmanlike service’’ (id. p..122). Cer-

tiorari was sought in that case upon the same ground as

here advanced that the judgment n.o.v. deprived the steve-

dore of the Seventh Amendment guarantee of jury trial.

This Court denied certiorari sub nom., Lipsett Steel Prod-

ucts v. Samuel Mosley et al, 385 U. S. 933, °

' The Court of Appeals in reversing the judgment in

favor of the stevedore in the case at bar, did not attempt

to reweigh the evidence, or to substitute its conclusions

or inferences from the facts for those of the jury, as sug:

gested by Petitioner. As is quite apparent from the

Opinion, the decision of the Court of Appeals -is based

specifically upon the ground that under the evidence and

under the law, no jury question was presented and ‘the

shipowner was entitled to judgment against the. stevedore

as a matter of law (Appendix to Petition, 30a-31a).

Petitioner appears to argue that since the Court of Ap-

peals did not direct judgment in favor of the shipowner

on the first appeal but remanded the third-party case for

10

a new trial, it thereby held that as a matter of law there

was a jury determinable issue as between the shipowner

and the stevedore. In so arguing, Petitioner fails to rec-

ognize that since the Court of Appeals on the first appeal

had also remanded the plaintiff’s case against the ship- —

owner for a new trial because of error in the charge, it

necessarily had to remand the third-party action for re-

trial since the question of the shipowner’s right to indem-

nity could only be determined within the context of any lia-

bility imposed upon tlie shipowner on retrial of plaintiff’s -

-ease. Washington Gaslight Co. v. ‘District of Columbia, .

161 U. S. 316, 331 et seg.; Fatovic v. Nederlandsche-

Ameridaansche Stoomvaart, 275 F. 2d 188; Mosley v.

Cia. Mar. Adra, S. A., 314 F.2d 223, cert. den: 375

U. S. 829; Caputo v. U. S. Lines Company, 311 F. 2d 413,

cert. den. sub nom., Imparato Stevedoring Corp. v. United —

States Lines Company, 374 U. &. 833.

- On the first appeal, the Court of Appeals had held

‘erroneous (346 F. 2d 484) the charge of the Trial Court

to the jury to the effect that if the jury should find that

" . complaints were made to the ship’s officer as soon as the

dangerous condition was known or should reasonably have

been known by the stevedore, and that the ship’s officer

directed the longshoremen to continue working, with the

added assurance that the dangerous condition would be

’ promptly eliminated, then the shipowner is not entitled to

recover indemnity (Appellant’s Appendix, 230a). Al- _

though this Court granted the plaintiff’s petition for certio-

rari and reinstated the verdict in favor of the plaintiff, it

denied the stevedore’s petition for certiorari, 382 U. S.

4 283. ‘Subsequent petitions by the stevedore for rehearing

+ _~of its petition for certiorari were also denied by this Court,

+ 382 U. S. 1030; 384 U. S. 994. Petitioner is now again

seeking a review on certiorari of a question which this

Court has already three times refused to review.

Be I ee eee eee

ih a et Neti AAA LIODE LAO ADL ELE AA RAE BLP ARR GC Bi) PTI

PRCT Se A eee

There was-no new or: additional evidence on this phase

of the case (Opinion below, Petitioner’s Appendix, 32a). -

o- - Jini pein th ya Desde i SA a yeh NE Bera ata a iene Namew'al 08

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The special interrogatories addressed by the Court to the

jury on the retrial related solely to these complaints to

the ship’s officer and his response thereto (Appendix to Ap-

pellant’s Brief, 235a). The issue as to the effect thereof

had already been precluded by the Court of Appeals’ deci-

‘ sion on the first appeal, certiorari to which has been denied

by this Court. On the general issue. as to the stevedore’s

breach of warranty of workmanlike service, only a general

verdict was taken. Petitioner’s heavy reliance upon At-

lantic and Gulf Stevedores v. Ellerman Lines, 369 U. S.

355, is entirely misplaced. In that case this Court did not

hold that under no circumstances could a judgment of |

directed verdict be given in favor of the shipowner against

the stevedore. There were two bases of liability upon

which the ship, under ‘the charge, might have been held

at fault either for unseaworthiness or negligence, in either

of which instance this Court indicated that the Circuit .

Court’s decision granting a directed verdict in favor of —

the shipowner against the stevedore would have been jus-

tified. It was only.the third possible ground of liability

for unseaworthiness, namely, the defective bands which ~

secured the bales of burlap, a condition not known to the

stevedore, which this Court held could reconcile the jury’s

verdicts in favor of the plaintiff against the shipowner,

and against ‘the shipowner in favor of the stevedore. Here

there is no question of reconciling the jury’s verdict.

Equally misplaced is Petitioner’s reliance ‘upon Weyer- —

haeuser S.S. Co. v. Nacirema Operatmg Co., 355 U. 8. 563.

In that case after the rendition by the jury of a verdict

in favor of the injured plaintiff against the shipowner, the

District Court had directed a verdict in favor of the third- .

party defendant stevedore against the - _pumuat on the

issue of indemnity upon the ground that the jury’s verdict

against the shipowner precluded a verdict in favor of the

shipowner against the stevedore. The plaintiff had been

injured by the falling of a timber from a winch shelter

‘ which had been erected on the vessel in New York and

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12

had been made available by the shipowner to the stevedore

during unloading of the vessel in Boston. This Court

‘merely held that the jury’s finding of negligence on the

part of the shipowner did not preclude the shipowner from

having indemnity from the stevedore, since under one

theory upon which the shipowner could have been held at

- fault under the Court’s charge, there was a fact issue on

the shipowner’ s right to indemnity under appropriate in-

structions. That is not the case here.

All that is involved here is whether under the undisputed

evidence in this case any verdict could properly have been

brought in by a jury other than one in favor of the ship-

owner since, as stated by the Court of Appeals in its opin-

ion herein, the stevedore not only knew of the dangerous

condition but had actually created it, and had means avail-

able to ascertain the condition and to correct it, but used

neither and allowed conditions to become unsafe while it

continued to work the men. ‘

Indemnity must be determined upon the bases upon which

the shipowner was originally held liable to the plaintiff,

and the verdict against the shipowner on the first trial is

- binding upon the stevedore as well as the shipowner to the

full extent of all facts necessarily found by the jury upon

which the shipowner’s liability depended, Washington Gas-

light Co. v. District of Columbia, supra; Caputo v. United

States Lines Company, supra.

"The bases upon which the jury was allowed to bring in a

verdict against the shipowner at the first trial were: 1)

. unseaworthiness of the hold, because the accumulation of

noxious fumes from the- exhaust of the hilos working in the

hold rendered the hold unfit and unsafe; 2) that the: ship-

owner was under an obligation to provide the plaintiff with

a safe place to work and, accordingly, would be liable in

negligence if the shipowner either knew or as ‘‘a reason-

ably prudent person should have known that an enclosed

work space was unsafe after a substantial work period with

wont Som Ay

13

gasoline powered engines in the absence of ventilation’’

(Appellant’s Appendix, 229a). The Court of Appeals on |

the first appeal had held that this was error (Appendix to

Petition, 5a), but this Court, on the petition for certiorari

of plaintiff, summarily reversed and directed the reinstate-

ment of plaintiff’s verdict, 382 U.S. 283.

Obviously, if the shipowner was chargeable with con-

structive knowledge under the charge in the principal case,

,80 also was the stevedore who was in charge of the work,

who owned the hilos, placed them in the hold, controlled

the men, had means for ascertaining the conditions of the

atmosphere which its supervisory personnel were charged

by it with employing for such purpose, and’who also had

the means for clearing the atmosphere, whieh means the

supervisory employees were ‘also charged by it to employ —

(Cf. Washington Gaslight Co. v. District of Columbia,

supra). Under such circumstances, having created the con-

dition and continued to work its men without correction of

the condition, the stevedore as a matter of law could not

escape liability under the principles of maritime indemnity

laid down by the decisions of this Court from Ryan Steve-

doring Co. v. Pan-Atlantic 8.8. Co., 350 U. S. 124 (1955)

through Italia Societa per Azioni di Navigazione v. Oregon:

Stevedoring Co., 376 U. S. 315 (1964), as said by the Court -

below in its opinion (Appendix to Petition, 32a-33a).

In Italia Societa, réviewing its earlier decisions, this

Court held that the stevedore is. liable for indemnity even

though it has no knowledge of the unsafe condition if it is

in fact created by the tools and appliances which it, the

stevedore, brings aboard and that the stevedore’s liability,

. being in warranty, does not depend upon negligence con-

cepts of the exercise of reasonable care. Thus, there could -

be no legal basis upon which a jury could find that the -

stevedore had not breached its warranty of workmanlike

performance,

ies °

e

\

\

Dy wanted Se aa paaabie

Pechiadellianlinbiatileenbe DOS AMADA RELA ibivnth aiaeN Diabet IS ROD ichonatire tay NN A EH

14

The verdict of the jury in favor of the stevedore on the

retrial was precipitated by unfortunate errors of the Dis-

trict Court: 1) in improperly admitting into evidence Sec-

tion 9.93 of the Safety and Health Regulations for Long-

shoring (29 C.F.R. Sec. 9.1 et seg., renumbered as of Janu-

ary 1, 1964, 1504.1 et seg.),* which are inapplicable as to

shipowners (Petitioner’s Appendix, 6a, 346 F. 2d 484, cert.

granted, 382 U. S. 283), and in charging that the jury could

take these regulations . into consideration as between the

shipowner and stevedore (Appellant’s Appendix, 182a);

2) in admitting into evidence the contract between the

shipowner and the stevedore and in charging the jury that

they could take into consideration a provision of that con-

tract requiring the stevedore to advise the shipowner imme-

diately of any hazardous conditions which require remedy

(189a), as if this could affect the stevedore’s law-implied

warranty (Cf. Italia Societa per Azioni di.Navigazione v.

Oregon Stevedoring Co., 336 F. 2d 124 (CA 9, 1964), cert.

den. 379 U. S. 973), which was the import given to the con-

tract in defendant-stevedore’s summation (Appellant’s Ap-

pendix, 172a); and 3) in charging the jury that if they

found the facts to be as testified to by Curko, they must

‘ bring in a verdict for the defendant-stevedore (Appellant’s

Appendix, 192a), which was contrary to the law of the case

_ as established on the first appeal ( 346 F. 2d 481, 484; cert.

den. 382 U. S. 283).

To all of these errors exception was taken at the trial

and urged on the appeal to the Court below. But these

*Section 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 con-

tent 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 screens.

ce On en CE RES oS OED ee

gs ait iin ~~ sxikes

15

errors, of course, became moot by reason of the decision

of the C of Appeals, properly so, that the verdict could

not stehd as being anne: to law.

II.

‘The decision below is not in conflict either with de-

cisions of this Court, or of other Courts of Appeal.

The contention of conflict with the decisions of this

Court in Weyerhaeuser SS Co. v. Nacirema Operating

Co., 355 U. 8. 563 and Atlantic and Gulf Stevedore v.

Ellerman Lines, 369 U. S. 355 and with the decisions of

the Courts of Appeals in other Circuits denying indemnity

in particular instances, was the subject of the stevedore’s

petition for certiorari from the first decision of the Court

of Appeals in this case, and was therein extensively

argued both by the Petitioner and the shipowner. That

petition was denied by this Court (382 U.S. 283). Subse-

quent to the granting by this Court of certiorari to the

plaintiff in fhis case and.the reinstatement of plaintiff’s

judgment, the Petitioner moved for rehearing of the order

denying its petition for a writ of certiorari upon the ground

that, having obtained a jury verdict in its favor on the

original trial, the petition for certiorari from the reversal

by the Court of Appeals of the judgment in its favor should

be granted by this Court for the reasons contained in its

original petition. This petition was also denied (382 U. S.

1030).

When a petition for writ of certiorari to the Court of

Appeals for the Fifth Circuit was filed in this Court in the

case of Waterman Steamship Corporation v. David, 353

F. 2d 660 (1965), a motion was made by the Petitioner

- herein for leave to file a second petition for rehearing

.of the order of this Court denying its original petition

herein upon the ground of conflict between the decision

of the Fifth Circuit in the Waterman case and the decision -

gh ce aa ep Nt eg ACA ela’ HD ke

.

Z .

a Pan times ani IR 0 8 nome totais en

16

of the Court of Appeals for the Second Circuit herein.

This motion was also denied by this Court (384-U. S. 994). .

This is now the fourth attempt to have this Court review

the decision ef the Court of Appeals herein as to what

constitutes indemnity precluding conduct upon the ground

of conflict with the decisions of this Court in Weyerhaeuser

and Atlantic and Gulf and the decisions of the Courts of

Appeal of the other circuits. The subject would seem to-

have been pretty well exhausted by this time. This Court’s

decision in Weyerhaeuser makes it eminently clear that

the only type of- conduct which can preclude indemnity

is such as prevents or hinders the performance by the

stevedore of his warranty of workmanlike service. Thus,

in that case, in holding that the shipowner would be en-

titled to indemnity even though the: shipowner was, itself,

negligent and had provided the unsafe equipment out of

which the injury arose unless it was chargeable with con-

duct ‘‘sufficient to preclude recovery’’ this Court cited in

‘footnote 6 at 355 U. S. page 567, Corbin on Contracts, Sec-

tions 571, 947 and 1264, and Restatement of Contracts,

Sections 295 and 315. These citations leave no doubt: that

the tyne of conduct to which reference was made was, as

held by the Court of Appeals on the first appeal herein,

such ‘‘That it must at least prevent or seriously handicap

the stevedore in his ability to do a workmanlike job’’ (346

FF, 2d at p. 484, Appendix to Petition p. 7a).

Petitioner fails to note that in not a single case cited as

being im conflict with the decision herein was the unsafe

condition ereated by the stevedore, as was the situation

~ here.

Petitioner’s analysis of the decision of the Court of

Appeals for the Fourth Cireuit in Moore-McCormack

Lines, Inc.-v. Maryland Ship, Ceiling Co., 311 F. 2d 663,

gives a completely distorted view of the case by eliminat-

ing the controlling factual elements upon which the deci-

sion in that case was based. In that case the jury found

that the presence of hydrogen cyanide gas in the cargo

a

ante nny E stebeiteg aC Isack: = ve

loaded at a prior port was such a latent or hidden danger

as is not usually encountered by an expert and experienced

ship ceiler, but was a condition of which the shipowner

knew, or by the exercise of ordimary care should have

known, and was not such a condition as the ship ceiling

company by the exercise of reasonable care should have

discovered. It was on the basis, and only on the basis

of these specific findings of the jury, that the Court in

_ that case sustained a verdict in favor of the ship ceiling’

company on the claim for indemnity. The principles ap-

plied by the Court in that case are in precise accord with

the principles governing indemnity defeating conduct stated

with a wealth of supporting authority in Hugev v. Damp-.

skisaktieselskabet International, 170 F. Supp. 601, 610-611,

aff’d sub nom. Metropolitan Stevedore Co. v. Dampskisak-.

tieselskabet International (C. A. 9), 274 F. 2d 875, cert.

den. 363 U. S. 803, cited by this Court in Italia Societa v.

Oregon Stevedoring Co., 376 U. S. 315, 323, footnote 9.

The other cases cited by Petitioner as being in conflict

with the decisions of the Court of Appeals herein, viz.,

Hudson Steamship Co. v. Colon, 314 F. 2d 44 (C. A. 1);

Thompson v. Trent Maritime Co., 353 F. 2d 632 (C. A. 3);

Hodgson v. Lloyd Brasileiro Patrimonio Nacional, 294

F. 2d 32 (C. A. 3); Compania Anonima Venezolano de

Navegacion v. Matthews, 371 F. 2d 971 (C. A. 5); Water-

man Steamship Corporation v. David, 353 F. 2d 660; United

States v. Harrison, 245 F. 2d 911 (C. A. 9), all involve de-

fects in the ship’ s hull or equipment where the stevedore

was either given express assurance by the ship that the

equipment was in a safe condition for use as in Hudson,

Hodgson and United States v. Harrison or implied assur-

ance thereof as in Waterman, or the shipowner neglected

or refused to correct a condition which was its responsi-

bility as in Thompson and Compama Anonima.

In all of ‘these cases as in Weyerhaeuser, the question

involved was whether the,stevedore was liable in indemnity

in continuing to work after a discovery of an unsafe con-

4

Pi ieeresie aie siti RCE Ala MAY reed ITNT AoA A eee te TA

.

ae

18

dition which had originally been created not by the steve-

dore but by the shipowner.

In the present case, we have on the contrary a condition

of the longshoremen’s work. area ‘created by instrumen-

' talities provided by the stevedore, the effects of which were

either known, or should have been known, to the stevedore,.

the testing of the harmful effects of which was a prescribed

obligation imposed by the stevedore upon its supervisory

personnel on board the ship, and for ‘the prevention of

which harmful effects the stevedore maintained preventive:

means in the way of portable blowers which, according to

its prescribed procedures, were always-and without varia-

tion supposed to have been placed at hatches every time a

hilo was employed in a hold. ,

To argue that a belated request by subordinate employees

to a mate to put on the ship’s forced ventilating system

within 15 minutes prior to the time that plaintiff was over-

come by the carbon monoxide fumes and after they must

already have had injurious effects, creates an issue of fact

as to whether the shipowner prevented or hindered the

stevedore in the performance of its warranty of workman-

like service, is manifestly unsound. If a stevedore could

so escape the effect of a clear breach of its warranty, the

warranty would be meaningless. It is submitted that as a

matter of.law, such evidence was insufficient to create a

jury question whether the shipowner was chargeable with

conduct. precluding indemnity.

The contention that the decision of the Court of Appeals

below is in conflict with its own earlier decision in Mc-

Namara v. Weichsel Dampfschifffahrts AG Kiel, Germany,

339 F. 2d 475, is completely fallacious. That case involved

numerous fact issues as to whether or not the persons who

were operating the winch, who were employees of the ship-

_ owner and had been borrowed by the stevedore, were. in-

competent for the performance of such service, and whether

or not they were, in the performance of the servicé, acting

19

és -

as the servants of the shipowner or of the stevedore, and

also whether the accident was due to faults on their part

or fault on the part of the chief mate of the ship who took

over the giving of signals to the winchman from the steve-

dore’s employee. All of these questions were sharply dis- —

puted as issues-of fact. The Circuit Court reversed a ver-

dict in favor of the shipowner against the stevedore be-

-eause of error in the instructions to the jury. On the re-

trial, these fact issues were submitted to a jury and again

resulted in a verdict in favor of the shipowner against the

stevedore, although the shipowner’s negligent conduct had.

on the first trial been held to be a proximate cause of the

injury. The Court had no difficulty whatever in affirming

the judgment in favor of the shipowner against the steve-

dore, holding that the shipowner’s negligence did not pre- .

clude indemnity, citing Italia Secieta and Weyerhaeuser

(339 F. 2d 475, 478). That was the issue of law involved

in that case, and the Court’s ultimate decision thereon is

entirely consistent with the decision below in the case sub

judice. :

Conclusion

What this petition really seeks, under false guises, is a

review and relaxation by this Court of the law of mari-

time indemnity as consistently enunciatéd by this Court

beginning ‘with Ryan v. Pan Atlantic S.S. Co., 350 U. S. 124

(1955), running through Weyerhaeuser S.S. Co. v. Nact-

rema Operating Co., 355 U. S. 563 (1958) ; Crumady v. J. H.

' Fisser, 358 U. S. 423 (1959); Waterman 8.8. Corp. v. Du- -

gan & McNamara Inc., 364 U. S. 421 (1960) and culminat-

ing in Italia Societa per Azioni di Navigazine: v. Oregon

Stevedoring Co., 376 U. S. 315 (1965), upon the plea that

the economic burden which has been placed upon stevedores

by thesé decisions has driven the majority of stevedoring

companies out of business, and ‘‘to leave surviving only

those few who possess an infallible degree of expertise, or .

a willingness, backed by -sufficient wealth, to become an

insurer’’ (Petition, p. 24). This is sheer nonsense. ~

iin iene niin Altea th nateiiialniiatied

A he hte an IIA NS EEE

oD nee OS

sovhen nase ste

ne duindls ee eA NET

. A

de 3 a Cb spas jten tak als hala ae EM,

pea : : A : tna elt bani caneinsinceeaiemianin

20

It is a known fact that it is the practice of the stevedoring

industry to add insurance charges for workmen’s compen-

sation and legal liability insurance on to the charges which

it imposes upon shipowners for its services. Ultimately, it

is the shipowner and not the stevedore who pays the mount-

ing insurance costs. The consolidation of stevedore compa-

nies into a fewer number of large companies possessing

greater competence and efficiency and the means to take

advantage of developing technological improvements has

_ been common within the past generation to all industries:

With particular reference to the maritime industry in the

‘Port of New York, the consolidation into fewer, iarger and

more efficient companies has occurred not only in the steve-

_doring industry, but also in the towboat industry and light-

erage industry. When, during the tugboat strike of 1946,

President Truman requisitioned all tugboats in New York |

harbor, the order of requisition went out to approximately

_100 companies. There are today in New York. harbor about

-sevén towboat companies of any responsible size, and only

about a handfull of independents. In the lighterage indus-

try, there are left remaining out of a score of companies

probably less than a half dozen.

To state that the consolidation of the stevedore industry

* in the Part of New York from a large number of small] in-

dependent companies into a fewer number of large respon-

sible companies is, as said by the Petitioner, ‘“responsive

to the death knell tocsin of the judiciary’’ is ag lacking in

_ good taste as it is in accuracy. ;

*

The petition should be denied.

Respectfully submitted,

Epmunp F. Lams,

Attorney for Respondent,

Office and P. O. Address,

80 Broad Street,

PA ‘New York, New York 10004.

JUVENAL L. MarcuiIsI0,

On the Brief.

=

oe ~

’

*