Petitioners Brief — Atlantic Coast Line Railroad Co. v. Erie Lackawanna Railroad Co.

ATLANTIO Coast Louse Ramroap Company,

| 3 | Petitioner,

against ~ 2

En Lackawanwa RattRoaD Compan and

“THeopokE Buna,

2 Wall Street

New York, New Vork 10005,

Attorney for Petitioner

Atlantic Coast Line Rail-

road Company.

Opinions Below

Jurisdiction ...

Statutes and Rules Involved

Questions Presented

Statement of the Case

Summary of Argument

Argument

1. Court of Appeals’ application of Halcyon .....:..

. The Ryan line of cases

. Contribution in joint tort cases

* N go po

Q

S

5

8

8

.

8

5

8

—

>

@®

“

8

4

5

2

E

2.

>

i

6. The New Jersey statute

Conclusion

a

3

13

wee 5 5 N se PAGE

eGR 25 ? 8 TABLE oF AUTHORITIES : :

3 ccc. BEL 2D es

Adamson v. Jarvis, 4 Bing. 66, 130 Eng. Rep. R. 693

(R27) | 7 17

American Stevedores, Inc. v. Porello, 330 U. S. 446

(1947) b a:

Betts v. Gibbons, 2 Ad. & E. 57, 111 Eng. Rep. R. 22 of :

Bila — — — 7

Bilka Holding Corp. v. Consol. Iron & Metal Go, s

Ad. 344 (S. D. N. v., filed Aug. 17, 1971) 8

Tie City of Norwalk, 55 Fed. 98 (S DN I- 1893) 00

' Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423

© (1959) “tt . 7 12 vg

' Barren v. N. Turnpike Authority, 31 N.J. Super.

356, 106 A. 2d 752 (App. Div. 1954) a oe oe

Federal Maritime Terminals, Inc. v. Burnside Ship-

ping Co., 394 U.S. 404 (1968) nn

Frueh v. Kupper, 54 N. J. Super. 296, 148 A.2d 743

(1959) — me . _

ot 44

Haleyon Lines v. Haenn Ship Ceiling and Refitting -

Corp,, 342 U.S. 282 (1952) 56.7, 8, 9, 10, 11,

F : ; 1᷑12., 13, 18, 19

The Harrisburg, 119 U.S. 199 (1886) | 17, 18, 19

Hess v, U.S., 361 U.S. 314 (1960) 9,22

Horton c Horton; Inc. v. 2/8 J. E. Dyer, 428 F. 2d 1131

oe _ (Sth Cir. 1970), cert. denied sub. nom. Horton d Hor-

ton, Inc. v. Vaughan Marine, Inc., 400 U.S. 993

(1971) . : — ˙ů̈ 11, 13, 14

Italia Societa per Azioni di Navigazione v. Oregon

_ Stevedoring Co., 376 U.S. 315 (1964) %

Jackson v. Lykes Bros, 8.8, Oo, 386 U.S. Tai (1967) 8.10,

0 peste

Just v. Chambers, 312 U.S. 383 (1941) e be, 5

_ Kossick v. United Fruit Co, 365 U.S. 731 (1961). 20

McLaughiin v. Trelleborgs Angfartygs A/B, 408 F. 2d

1334 (2d Lir.), cert. denied, 395 U.S. 946 (1969) . 6

Merryweather v. Nixan, 8 T. R 186, 101 Eng. Rep. R. *

1337 (1799) e eo e

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(970) — . 17, 18, 19

New York & Porto Rico &. &. Co. Y. Lee’s Liqhters, 8

F. 2d 872 (E.D.N.Y. 1930) . gen’

Reed v. The Yaka, 373 US. 410 (1963) 10 15, 16

Ryan Stevedoring Co. v. Pan-Atlantic 8.8. Corp., 350

US. 124 (1986) — ur

The 8.8. Samovar, 72 F. Supp. 574 (N.D. Calif. 1947). 6

In re Seaboard Shipping Corp. and Moran Inland

Waterways Corp., N. V. L. J. Oct. 8, 1971 at p. 1 (2d

Cir. Sept. 29, 1971) Seas 10, 11, 18, 14

Standard Dredging Corp. v. Murphy, 319 U.S. 306

(1943) — * — 19

5 12 „

The Tampico, 45 F. Supp. 174 (W... V. 1942) 6

Tino v. Stout, 49 N. J. 289, 229 K. 2d 793 1967) . 20

=e N 25 Fuad

Waterman 8.8. Corp. v. Dugan & McNamara, Inc.,

364 U.S. 421 (1960) — 13

Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir,

1970) : 10, 11, 13, 14

enden Fuel Co. v. v. Garcia, 257 U.S. 233 (1921) 19, 22

Meyerhaeuser 8.8. Co. v. Nacirema n Co.,

355 U.S. 563 (1958) 12

_ Weyerhaeuser 8.8. Co. v. U.S., 372 US. 597 (1963) . 8, 16

‘White Oak Transp. Co. v. Boston, Cape Cod and New

Fork. Canal Co., 258 U.S. 341 (1922) — 10 11.

Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. -

* 310 (1955) ) i ) 19, 20

. Statutes:

Section 7b of the Federal Employees’ Compensation.

Act, 63 Stat. 861 (1949), as amended, 5 USC. §8116

(e) (1966) 2. 8,16

Harter Act, 27 Stat. 445, 46 U.S.C. §§190-195 .

Jones Act, 41 Stat. 1007, 46 U.S.C. 8688 f 7

limited Liability Act, R. S. 94281, as amended, 46

oo U.S.C. $181 et seg. 7

Longshoremen’ s and Harbor Workers’ Compensation:

Act, 44 Stat. 1424, 33 U.S.C. §901 et seg 2, 6, 7, 8, 9,

es 5 a 10, 11, 15, 16, 17, 21

Section 3, New J ersey Joint Tortfeasors Contribution

Law, N. J. Rev. Stat. 2A: 53 A- 3 4, 18, 19, 20, 21 ef

- Public Vessels Act, 43 Stat. 1112, 46 U.S.C. §§781-90 — 7

„

i]

Other Authorities:

_ “PAGE

Albritton, Division of ee in Admiralty—A Ris-

ing Tide of Cohfusion, 2 J. N Mar. L. & Com. 223

(1971) j ——

Brief for Halcyon Lines, H per Lines v. Haenn Ship

Ceiling & Refitting Corp. „342 U.S. 282° (1952)

Currie, Federalism and the Admiralty, “The Devil’s

-Own Mess“, The Supreme Court Rev. 158 ne

Gilmore & Black, The Law of Admiralty 1980) 83 5

Hart & cks, The Legal Process: Basic Problems in

the M ng and Application of Law (tentative ed.

1958) (J 7

Prosser, Torts (3d ed. 1964)

Proudfoot, “The Tar Baby”: Maritime Personal in.

jury Indemnity Actions, 20 Stan. L. Rev. 423 (1968)

Staring, Contribution and Division of Damages i in Ad-

S

*

17

8

miralty and Maritime Cases, 45 — L. ee 304 Be

(1957)

Tetreault, Seamen, Seaworthiness, and the Rights of

Harbor Workers, 39 a L. Rev. 381 (1954)

10

8 22

.

.

{-

Supreme Court of the Anited States

Ocronan Term, 1971

No. 71-107 tale

4 |

A Cc Coast Live RAO Company, ;

| Foster,

{ tot against

Err Lackawaxxa Ran no Company and

THEODORE Bewazer,

: Respondents.

*

BRIEF FOR PETITIONER

= —

Opinions Below

The opinion and order of the District Court (Cooper,

U.S.D.J.) (A. 79) are reported at 315 F. Supp. 357. The

decision of the Court of Appeals for the Second Cireuit

affirming the order of the District Court (A: 94) is re-

Ported at 442 F. 2d 694.

*

Jurisdiction

The decision of the Court of Appeals affirming the order

¢ of the District Court was filed and. entered on April 23,

1971. A Petition for Certiorari was filed with thie Court

on July 22, 1971. Certiorari was granted on October 26,

1971. The jurisdiction of this Court is conferred under

28 U.S. C. $1254(1). .

3 5 Suatutes Involved

New Jersey Joint Tortfeasors Contribution Law, §3 (N. J.

Rev. Stat. 2A :53A-3) which provides:

“Judgment against joint tortfeasor; contribution.

Where injury or damage is suffered by any person

as a result of the wrongful art, neglect or default of

joint tortfeasors, and the person so suffering injury or

damage recovers a money judgment or judgments for

such injury or damage against one or more of the joint

tortfeasors, either in one action or in separate actions,

an and any one of the joint tortfeasors pays such judg- .

ment in whole or in part, he shall be entitled to recover

contribution from the other joint tortfeasor or joint

tortfeasors for the excess so paid over his pro rata

share; but no person shall be entitled to recover con-

tribution under this act from any person entitled to bé |

indemnified by him in respect to the liability for which |

the contribution is sought.“ L.1952, ¢.335, p. 1075, §3. ‘|

The Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 65 (33 U.S.C. 6905) which provides:

— “The liability of an employer prescribed in section

904 of this title shall be exclusive and in place of all

other liability of such employer to the employee, his

legal representative, husband or wife, parents, depen-

dents, next of kin, and anyone otherwise entitled to

recover damages from such employer at law or in

admiralty on account of such injury or death, except

that if an employer fails to secure payment of com-

pensation as required by this chapter; an injured

employee, or his legal representative in case death

results from the injury, may elect to claim compensa-

tion under this chapter, or to maintain an action at

law or in admiralty for damages on account of such

injury or death. In such action the defendant may not

— —

plead as a defense that the-injury ‘was caused by the

ne of a fellow servant, nor that the employee

the risk of his employment, nor that the

injury was due to the contributory negligence of the

employee. March 4, 1927, c.509, 65, 44 Stat. 1426.”

1. Should this Court recognize a right to contribution

under maritime common law in non-collision cases?

2. Is contribution precluded by thé Longshoremen’s and

Harbor Workers’ Act? |

3. Should the court of appeals have applied a Bien ew

Jersey statute creating a right of contribution?

Statement of the Case

0

J urisdiction in the district eourt rested on diversity of -

citizenship of the parties.

The action was commenced on May 5, 1966 by Basset

a resident of New Jersey, against Atlantic, for injuries

sustained by him on July 30, 1964 when he fell while

working on a box ear owned by Atlantic, but in the custody

of Erie. Benazet was employed by Erie as a yard brake-

man. The box car was on Erie’s car float, floating on the

Hudson River. Benazet fell in the process of tightening

the handbrake because both the footboard’ on which he

was standing and the brake- wheel supports broke. The evi-

dence showed that fhe footboard was decayed and that

the brake-wheel supports had been damaged and improp-

mf.

rr òß .

4

through many railroad systems. The evidence further

showed that the defects should have been readily apparent

and that the damage to the footboard in particular was

easily observable from the ground (A. 34-37).. Erie failed

to discover the defects although it had a duty, to inspect’

the car on: receipt in ‘interchange from a connecting line.

Atlantic impleaded Erie on the grotnd that Erie was

negligent and liable to Atlantic for contribution or indem-

nity. Erie answered and participated as a third party

defendant in the trial. | |

The jury found that Atlantic was negligent. It also ä

found that Erie was negligent and that Erie’s negligence -

was a substantial factor in bringing about Benazet’s in.

juries. The jury awarded a verdict of $200,000 to Benazet

(A. 61-62). | ä

Erie moved for a post-trial order ‘dismissing Atlantic’s —

third party complaint as a matter of law on the ground

that no right of contribution existed under maritime law

or through supplementation of maritime law with state

law.

The opinion and order of Cooper, J. filed July 2, 1970

(315 F. Supp. 357) dismissed Atlantic's third party claim

against Erié for contribution as a matter of law (A. 79).

This order was affirmed by the Second Cireuit Court of

Appeals (Smith and Moore, C. J. J. and Timbers, D.J.) in

an order and judgment filed April 23, 1971 (A. 94).

Summary of Argument gk!

Deciding now the questions deferred in Haleyon v.

Haenn, this Court should recognize that two parties jointly

liable in tort for the injuries to an employee covered by

the Longshoremen’s and Harbor Workers’ Act should both

contribute to the judgment in his favor, and that the Act

is not a bar to such contribution. -Halcyon’s invitation to

congressional action has not been accepted, although two

decades have passed. Cases decided in the meantime have

held either party liable under theories of contract, despite

the Harbor Workers’ Act, and have required equal con-

tribution in tort cases where the Harbor Workers’ Act was

not present. No reason persists, or is required to make the

Harbor Workers’ Act effective, to justify the unfair result

of one party bearing sole responsibility for damages cre- |

ated by bot.

Alternatively, a right of contribution provided by a New

Jersey statute should be applied to this accident in New

Jersey waters. ; ;

95 6

ARGUMENT

1. Court of Appeals’ application of Haleyon |

The Court of Appeals stated that Atlantic's contribu-

tion claim, sp far as the equities are concerned, is appeal-

ing“ (A. 98). But it felt precluded from awarding con-

U

a

tribution by this Court’s decision in Halcyon Lines v.

Haeun Ship Ceiling d Refitting Corp., 342 U.S. 282

(1952); it quoted Judge Friendly’s admonishment that

“So long as Halcyon v. Haenn . remains on the books,

inferior federal courts will do better to abstain from

further adventures in this wonderland and leave

doctrinal development to the Supreme Court... .”

The Halcyon case presented questions of the existence

and extent’ of a duty of contribution among joint tort-

feasors whose negligence had injured a harbor worker

employed by one of them to repair a ship owned by the

other. Although lower courts had awarded contribution in

admiralty cases* as this Court had recognized,“ and al-

though contribution had been found proper by Mr. Justice

In McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334,

1338 (2d Cir.), cert. denied, 395 U.S. 946 (1969).

Whether the employer should contribute 75% (its proportion

of fault as found by the jury), or 50% (the “general rule govern-

ing maritime torts”), or no more than its employee could have -

obtained from it by compensation under the Longshoremen’s and

Harbor Workers’ Compensation Act, or nothing (342 U.S. at 283-4;

fn. 12 at 286-7). -

See ¢.g., The 8.8. Samovar, 72 F. Supp. 574 (N. D. Calif. 1947);

The Tampico, 45 F. Supp. 174 (W.D. N.Y. 1942) ; and New York &

‘Porto Rico 8.8. Co. v. Lee’s Lighters, Ine, 48 F.2d 372 (E.D. NY.

1930). a :

In American Stevedores, Inc. v. Porello, 330 U.S. 446 (1947)

(aietum). ova

7

Holmes thirty years before,’ the Halcyon Court stated

that the maritime doctrine of equal contribution had never

been expressly applied by the Supreme Court to non-colli-

sion cases (342 U.S. at 284). The Court ‘stated that it

“would feel free to do so here if wholly convinced that it

would best serve the ends of justice” but concluded it was

wiser to let the rules of contribution await congressional

action. Congress had enacted the Limited Liability Act,“

the Harter Act,’ the Jones Act, the Public Vessels Act,

and the Longshoremen’s and Harbor Workers’ Compensa-.

tion Act; its processes were peculiarly adapted to deter-

mine whether any right of contribution should be limited

by the Harbor Workers’ Act, or based on equal sharing of

damages, or apportioned according to fault; and because

Congress while acting in the field had not approved “the

rule of contribution here urged” it was inappropriate for

the Court to do so (342 U.S. at 285-7), .

In the two decades since the Halcyon decision, Congress

has not acted. To the extent Halcyon’s ratio decidendi was

based on anticipated legislative clarification, that reason

has failed. The concern whether the sole exposure to lia-

bility of.a harbor worker’s employer should be the Harbor

Workers’ Act has been substantially eliminated by: a

° White Oak Transp. Co. v. Boston, Cape Cod and New York

Canal Co., 258 U.S. 341 ( 1922) (not involving Longshoremen’s and

Harbor Workers’ Compensation Act).

R. S. §4281, as amended, 46 US.C. §181 et seq.

27 Stat. 445, 46 U.S.C. §§190-195.

* 41 Stat. 1007, 46 U.S.C. §688,

43 Stat. 1112, 46 U.S.C. §§781-790. .

10 44 Stat. 1424, 33 U.S.C. §901 et seq.

8

series of cases following Ryan Stevedoring. Co. v. Pan-

Atlantic 8.8. Corp. imposing obligations based upon con-

tractual concepts; this Court’s decision in Jackson v. Lykes

Bros. 8.8. Co.* that longshoremen can (notwithstanding: J.

the Harbor Workers’ Act) sue their employer for unsea-

worthiness if he is also the shipowner; this Court's adverse

construction in Weyerhaeuser 8.8. Co. v. U. 8. of similar

protective words in the Federal Employees’ Compensation

Aet;“ this Court’s observation in Federal Maritime Termi-

nals, Inc. v. Burnside Shipping Co.“ that there is no quid

pro quo blocking liability to third persons; and advances

in the direction of fairer rights to contribution and the

iil sharing of damages, made by other federal courts. g

During the same period the Halcyon decision has come

under steady criticism by both courts" and commentators.”

11 350 U.S. 124 (1956).

12 386 U.S. 731 (1967).

18 372 U.S. 597 (1963). |

“4 63 Stat. 861 (1949), as amended, 5 U.S.C. 58116 (e) (1966).

1 394 U.S. 404 (1968).

ä 16 See, ¢.9:, Bilkay Holding Corp. v. Consol. Iron & Metal Co., 66

Ad. 344 (S. D. N. V., filed * 17, 1971), which refers to be

instant case as “the most recent expression of post-Haleyon con-

sternation in this Second Circuit.”

un See Gilmore & Black, The Law of Admiralty 367 (1957) ; Hart ae

& Sacks, The Legal Process: Basic Problems in the Making nd

Application of Law 519 (tentative ed. 1958); Albritton, Division _ !

in Admiralty—A Rising Tide of Confusion, 2 J. Mar.

E & Com. 323 (1971); Proudfoot, The Tar Baby”: Maritime

Personal Injury Indemnity Actions, 20 Stan. L. Rev. 423, 425-26

and 445 (1968); Currie,. Federalism and the Admiralty, The

Devil's Own Mess”, The Supreme Court Rev. 158, 212-13 and

220-21 (1960); Tetreault, Seamen, Seaworthiness and the Rights

1988). kers, 39 Cornell L. Rev. 381 at 421-22 and 424

ae. rae, igs

Gi understood as prohibiting contribution ‘dink

where it is clear the employer is not by statute immune

from tort liability, Halcyon works manifest injustice.

In the present case although the jury found that Erie’s

negligence was a substantial factor in bringing about Bena-

zet’s injuries, the court of appeals’ opinion denies Atlantic

any contribution from Erie towards the $200, 000 judg- I

ment. Erie will recoup—from the judgment paid to Bena-

zet by Atlantic—its compensation payments, and will end

by paying nothing. Although ‘negligent and responsible,

Erie thus pays even less than it would have been required

to do if plaintiff had proceeded only under the Harbor

Workers“ Act—a strikingly anomalous and unfair result.

Although for different rensons, equally subject to the

charge of unfairness are the results of the Ryan line of

cases referred to above; in each, one party must bear alone

the impact of damages to which another party’s actions

contributed. After twenty years, this Court’s deference to

Congress should no longer impede its correction of the

situation. This Court should now decide the question which

it put aside in Halcyon and establish. a right of contribu-

tion so that consistency and rationality may prevail in

maritime personal injury actions, distributing the loss

among those responsible rather than arbitrarily imposing

the entire loss on one party. .

We deal below with advances made since H alcyon,. point-

ing towards solutions of the problems it presented.

5 = 10

A. The problems facing the Halcyon Court: (i) whether

to grant contribution, and (ii) if so, how much? |

(i) Contribution in maritime torts was the accepted prac-

tice, not only in colliston cases but, also in non-collision

gases where particular statutory difficulties were not in-

volved, e. g., White Oak Transp. Co. v. Boston, Cape Cod

and New York Canal Co, 258 U.S. 341 (1922). It is par-

ticularly appropriate as a characteristic of admiralty law, .

which recognizes the equity of the comparative-negligence

rule as between plaintiffs and defendants. See Staring,

Contribution and Division of Damages in Admiralty and

Maritime Cases, 45 Calif. L. Rev. 304 (1957). In a fatal

accident following (but unrelated to) a collision, the Fifth

Cireuit allowed contribution and restricted Halcyon to

cases where the tortfeasor from whom contribution was

sought had statutory tort immunization. Horton & Horton,

Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir. 1970),

cert. denied sub nom. Horton & Horton, Inc. v. Vaughan

Marine, Inc., 400 U.S. 993 (1971); followed in Watz v.

Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970). The

Second Cireuit concurs. In re Seaboard Shipping Corp.

and Moran Inland Waterways Corp., N.Y.L.J. Oct. 8, 1971,

P. 1 (2d Cir. Sept. 29, 1971). Two decisions of this Court

show that Erie is not protected by the Harbor Workers’

Aat from its liability as a shipowner to plaintiff who was

injured on its vessel. Reed v. The Yaka, 373 U.S. 410

(1963); Jackson v. Lykes Bros. 8:8. Co., 386 U.S. 731

(1967). No reason remains why it should not contribute

to the loss resulting from its substantial negligence.

(u) Haleyon’s brief in this Court (P. 10) in 1951 de-

. Seribed three separate views in four circuits regarding the

extent of liability for contribution in such cases. This

=

Court’s decision, of course, left that question open. Sines

Halcyon, every court allowing contribution has. divided the

damages equally. Horton d Horton, supra; Wate v.

Zapata, supra; Seaboard; supra. That was the general ad-

miralty rule. White Oak Transp.\ Co., supra; American

Stevedores, Inc. v. Porello, 330 U.S. (1947). Adopting

this practice would harmonize the ‘present dichotomy be-

tween collision and non-Lollision cases in admiralty, It

Was the preference of the two dissentin Justices in Hal-

con (342 U.S. at 287). It offers ‘simplicity upon the trial

of these third-party actions: although a comparative negli-

gence standard may be applied as between plaintiff and

the parties defendant, if there is eyidence of substantial

negligence on the part of each defendant the trial need not

be complicated by assessing refiried: degrees of their fault.

The damages will be borne eqtally by the two parties hav-

ing a commercial interest in the work during which plain-

tiff was injured. waco tis is |

These indicated answers to the Halcyon questions being

sufficiently clear, this Court should now recognize the jus-

tice of contribution in cases such as this. Such recognition

would be consonant with the developing trends in. the law

since Halcyon. | ; | US e

2. The Ryan line of cases

Shortly after Halcyon, this Court found an implied war-

* ranty of workmanlike performance running from the

stevedore to the shipowner, which shifted to the stevedore

the impact of the uncompensated loss. Ryan Stevedoring

Co. v. Pan-Atlantic 8.9. Corp., 350 U.S. 124 (1956). There,

the Court decided that (1) the Longshoremen’s Act does 4 901

not preclude assertion by a shipowner of a stevedoring

| 8 ae

- employer's liability to it, and (2) even absent an express

agreement of indemnity, the stevedore’s implied warranty

of workmanlike service obliged it to indemnify a ship-

owner for damages caused by the stevedore’s improper -

cargo. In some respects, the cure was as dis-

astrous as the disease. The responsibility for compensat-

ing the injured employee agaili fell entirely on the shoul-

ders of one af the parties causing the injury—here, the

one who went scot free in Haloyon. The decision of the

Count in Ryan was recognized by Mr. Justice Black in

his dissent as undercutting Halcyon. He said at 350 U.S.

124, 146:

Ther has bon comers ingrorent in hin Cont

r other courts about three of our recent

: Shipping Company v. Sieracki, 328 U.S.

85; 3 — Haenn Ship Ceiling and Refitting

Corp., 342 U.S. 282; and Pope d Talbot, Inc. v. Hawn,

346 US. 406. In each of these cases a worker in the

same position as Palazzolo sued a shipowner alleging

and unseaworthiness. Judgments were

. ‘the shipowners. We held in the

employers to —

shipowner Court’s opinion today

TMT

e

obligation to indemnify, arising out of the commercial

relationship, has been enlarged and loosened. See Weyer-

Meuser 8.8. Co. v. Nacirema Operating Co., 355 U.S. 563

———— —

handling) ; Crumady v. The Joachim Hendrik Fisser, 358

N N * . — ö

13

D U.S. 423 (1959) (extended to negligence which merely

brought latent condition of unseaworthiness into play;

and although stevedoring contract was with charterer.

rather than shipowner); Waterman 8.8. Corp. v. Dugan

4 McNamara, Inc., 364 U.S. 421 (1960) (shipowner re-

_ ceived benefit of implied warranty, although stevedoring

contract was with consignee of cargo); and Italia Societa

per Arioni de Navigazione v. Oregon Stevedoring-Co., 376

U.S. 315 (1964) (shipowner had indemnity even though

stevedore was not negligent; equipment stevedore supplied

was defective).

A compensating duty by the shipowner to the stevedore

was found in Federal Maritime Terminals, Inc. v. Burnside

Shipping Co., 394 U.S. 404 (1968), which discussed various

other theories of liability and cross-obligations running

between stevedoring contractors and shipowners. Their

rights of suit inter se in tort and contract (other than for

contribution) were left open “to place the liability where

it justly belongs”, 394 U.S. at 420, but without provision

for the case where the liability should justly be shared.

The application of an indemnity in favor of the ship-

owner shifted the burden once again, but it still was borne

by one party only.

3. Contribution in joint tort cases

Contribution in non-collision cases, has been allowed in

three decisions during the past two years, two in the Fifth

Circuit and one in the Second Circuit. Each of these held

that the decision in Haleyon that there is no right to

erte 4 Horton, Inc. ¥, 7/8 J. . , 428 F.2d 1131

(1970); Wate v. mn A Pee Mary ,, 24 100 (5th Cir.

1970) ; In re Seaboard W Inland Water.

ways Corp., N. V. L.. Oct. 8, p. 1 (2d Cir.) Sept. 29, 1971.

14

contribution in non-collision cases applies only where the

employer’s liability to his employee is by statute limited

to the compensation payments thereunder.

In Horton the court said at page 1134:

“Regardless of whether we consider the restrictive

language of Halcyon as dictum or determine that it

should be confined to its own particular facts, that is,

as barring division of damages amoug joint tort-

feasors, one of which is statutorily immune from tort

liability, we agree with the District Court that the

Halcyon doctrine is not applicable here.

In Wate, the court said at page 120:

4 e have a case of joint tortfeasors. This Court has

already held that the apparent prohibition of Halcyon

Lines v. Haenn Ship Ceiling & Refitting Corporation,

1952, 342 U.S. 282, 72-S.Ct. 277, 96 L.Ed. 318, against

contribution between jeint tortfeasors in admiralty

does not apply to a situation where Watz as plaintiff

could have proceeded against both Eaton and Camp-

bell and could haye recovered damages from both.

Horton & Horton, Ine. v. T/S J. E. Dyer, 5 Cir. 1970,

428 F.2d 1131 [No. 28,706]. Halcyon is distinguished

by the fact that there a statute precluded recovery by

3 ”

In Seaboard the court said:

—

—

1

2

1967). We believe Haleyon to be inapplicable in cases

where the joint tortfeasor against whom contribution

is sought is not immune from tort liability by statute.”

In this case, the joint tortfeasor against whom contribu-

tion is sought, Erie Railroad;-as the shipowner is not im-

mune from tort liability by reason of the Longshoremen’s

Act, on the authority of Reed v. The Yaka, 373 U.S. 410

(1963) and Jackson v. Lykes Bros, 8.8. Co., 386 U.S. 731

(1967). ‘ J

In Yaka petitioner, a 6 filed a libel in rem

against a ship for injuries sustained while engaged in

loading it as an employee of the corporation which

was operating it under a bareboat charter. The corporation

contended that it could not be held liable in damages to

petitioner for unseaworthiness, because it was petitioner's

employer, and the Longshoremef’s and Harbor Workers’

Compensation Act provides that the compensation liability

of an employer under that Act is exclusive and in place of

any other liability on his part. Mr. Justice Black, on behalf

of the Court, held that the petitioner was not barred by

that Act from relying on the corporation’s liability as a

shipowner for the ship’s unseaworthiness in order to sup-

port his libel in rem against the ship. |

In Jackson v. Lykes Bros. 8.8. Co. a longshoreman, em-

ployed on Lykes’ ship in navigable waters, died from in-

halation of noxious, gases. His widow claimed that death

was caused by Lykes’ negligence in operating the ship

or by the ship’s unseaworthiness. Speaking for the Court,

Mr. Justice Black held that a’ longshoreman employed

on a ship, whether by an independent stevedoring com-

pany or by the shipowner, is not limited to hisgpecovery

under the Longshoremen’s and Harbor Workers’ Com-

pensation Act but can recover in personam from the

owner-employer for the unseaworthiness of the ship, citing

Yaka. The Court stated that any other eee

“incongruous, absurd and unjust” (386 U.S. at 735).

4. Construction of the Harbor Worker?’ Act

Nothing in the actual wording of the Harbor Workers’

_ Act prohibits the contribution sought here. Section 5, 44

Stat. 1426, as set forth in 33 U.S.C. §905, reads as follows:

The liability of an employer prescribed in Section 904

of this title shall be exclusive and in place of all other

liability of such employer to the employee, his legal

representative, husband or wife, parents, dependents, .

next of kin, and anyone otherwise entitled to recover

danfages from such employer at law or in admiralty on

account of such injury or death .

In Weyerhaeuser 8.8. Co. v. U. S., 372 U.S. 597 (1963) oe

construing the “sister” Federal Employees’ Compensation 0

Act, 63 Stat. 861 (1949), as amended, 5 U.S.C. 68116 (e)

(1966), this Court cited the rule against giving to general

words a meaning unrelated to the specific terms of the

statute. Section 7(b) of that Act provided that the liability

of the United States under the Act for

.... cha Ue Soci, an

in place, of all other liability of the United States or

such instrumentality to the employee, his legal repre-

, sentative, spouse, dependents, next of kin, and anyone

Pe C

eee

employees, their representatives and dependents, but found

no “evidence whatsoever that Congress was concerned with

the rights of unrelated third parties.” Id. at 601. Similar

meaning should be given to the similar language in the

*

. ö 17

Harbor Workers’ Act. As this Court noted in Federal

Maritime Terminals, Inc. v. Burnside Shipping Co. :

“(T]he exclusivity of the statutory compensation

remedy against the employer was designed to counter-

balance the imposition of absolute liability; there is no

comparable quid pro quo in the relationship between

the employer and third persons”. 394 U.S, 404 at 413

(1968). 2 be Sly e

5. Stare decisis

In Moragne v. States Marine Lines, Inc., 398 U.S. 375

(1970), this Court overruled one of its prior decisions,

The Harrisburg, 119 U.S. 199 (1886) which had held that

maritime law did not afford a cause of action for wrongful

death. Considerations which led the Court to reach its

decision are present in this case: }

(a) There is no public policy against permitting con-

tribution in this case. Quite the opposite. Not to permit

contribution will work injustice. :

(b) American jurisdictions which hold that no contribu-

tion is available under common law cite Merryweather v.

Nizan, 8 T.R. 186, 101 Eng. Rep. R. 1337 (1799) as their

‘authority. Merryweather involved a wilful joint wrong,

and later English decisions allowed contribution among

non-intentional wrongdoers. Adamson v. Jarvis, 4 Bing.

66, 130 Eng. Rep. R. 693 (1827); Betts v. Gibbons, 2 Ad. &

E. 57, 111 Eng. Rep. R. 22 (1834). See Prosser, Torts 274-

75 (3d ed. 1964). .

In Moragne, the Court said at page 403:

“Very weighty considerations underlie the principle

that courts should not-lightly overrule past decisions.

Among these are the desirability that the law furnish

*

18

a clear guide for the conduct of individuals, to enable

them to plan their affairs with assurance against un-

toward surprise; the importance of furthering fair and

expeditious adjudication by eliminating the need to

relitigate every relevant proposition in every case;

and the necessity of maintaining public faith in the

judiciary as a source of impersonal and reasoned.

judgments. The reasons for rejecting any established

rule must always be weighed against these factors.”

As in Moragne, the first factor, the mainstay of stare

_ decisis is absent. A decision permitting contribution will

not threaten the confidence of people in their ability to pre-

dict the legal consequence of their actions. A division of

damages between the parties at fault will assure more

rather than less care. Like The Harrisburg, the Halcyon

rule has failed to prove its acceptability and has been

frequently either avoided or narrowly restricted. As the

Court said in Moragne at page 405:

Finally, a judicious reconsideration of precedent can-

not be as threatening to public faith in the judiciary

as continued adherence to a rule unjustified in reason,

which produces different results for breaches of duty

in situations that cannot be differentiated in policy.

Respect for the process of adjudication should be

enhanced, not diminished, by our ruling today.”

6. The New Jersey Joint Tortfeasors Act 9

Should this Court decide that it has no right to contribu-

tion under maritime law, Atlantic in the alternative sub-

mits that a New Jersey Joint Tortfeasors Contribution

Law, N.J. Rey. Stat. Chap. 2A:53A (1952). (“the Joint

Tortfeasors Act”), should be applied. ? }

Where no recognized maritime rule exists, this Court

has often applied a state statute or rule rather than shape

a

oe ae

19

a maritime rule on such a question. See, e.g., Hess v.

L. S., 361 U.S. 314 (1960) (state employers’ liability act),

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S.

310 (1955) (state rule on breach of warranty in insurance

contract), Standard Dredging Corp. v. Murphy, 319 U.S.

306 (1943) (state unemployment compensation law), Just

v. Chambers, 312 U.S. 383 (1941) (state survival statute), .

Western Fuel Co. v. Garcia, 257 U.S, 233 (1921) (state

wrongful death statute). °

Contrary to the court of appeals’ opinion, Halcyon did

not prevent it from applying the Joint Tortfeasors Act

to allow contribution between Atlantic and Erie. Nothing

in the briefs of the parties or this Court’s opinion in

Halcyon indicates that any consideration was given to the

application of a.state-created remedy.

State wrongful death statutes were long applied in mari-

time cases despite the far clearer ruling in The Harrisburg,

119 U.S. 199 (1886) that no such action existed under

maritime law. If The Harrisburg did not bar the applica-

tion of state statutes, then Halcyon, should not be said to do

‘80. Indeed, this Court cited Halcyon in support of its re-

_ fusal to shape a maritime rule concerning the breach of an

unrelated warranty in a maritime insurance policy, yet al.

lowed the application of a state rule instead. Wilburn

Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955).

In Just v. Chambers, 312 U.S. 383 (1941), respondents

contended that the use of state wrongful death acts to sup-

plement maritime law was justified because maritime law

left the matter “untouched”, whereas there was a positive“

maritime rule against the application of a state survival

statute. This Court termed the argument

“...a subtlety which we think does not merit judi-

cial adoption. . [T]he pith of the matter is that the

20

3 as we conceived it, did not permit re-

covery, and in the same sense, in substance, the mari-

time law denied the survival of causes of action against

a deceased tortfeasor. The maritime law would be

supplemented or modified by state. legislation in the

one case as truly as in the other, and either supplement

or modification is permissible in accordance with the

accepted criterion.” Id. at 391-92. :

This Court has likened the process of deciding whether

a state rule can be applied in a maritime case to the balane-

ing attempted in “the normal conflict of laws situation

where two sovereignties assert divergent interests in a.

‘transaction as to which both have some concern.” Kossick

v. United Fruit Co., 365 U.S. 731 at 739 (1961).

The use of such a “balancing test” here would compel the

application of the Joint Tortfeasors Act. No federally cre-

ated right would be abridged, Wilburn Boat Co. v. Fire- .

man’s Ins. Co., 348 U.S. 310 (1955), because the application

of the Joint Tortfeasors Act cannot be used to prevent a

plaintiff from making a full recovery. Tino v. Stout, 49

N.J. 289, 229°A.2d 793 (1967). Maritime commerce would

not be impeded in any way because the application of state-

. ereated contribution rights does not change any maritime

duty of care. n ü :

New Jersey has a strong interest in applying the Joint

Tortfeasors Act in the instant case. The tort took place in

New Jersey territorial waters, Benazet was a resident of

and worked in New Jersey, and New Jersey might well

have thought it improper for Erie to escape all liability for

its own negligence in failing to inspect the box car prop-

erly. As “one of the most effectual of all sanctions, . .. a

liability to pay a pecuniary indemnity”, The City of Nor-

walk, 55 Fed. 98, 108 (S.D.N.Y. 1893), the allowance of

contribution would thus further New Jersey’s interest in

5 4

‘ , .

—

aad s*

* 8

protecting the safety of its residents. As the record shows, .

Atlantio's box car was in almost continuous transit over the

lines of other railroads prior to Benazet’s injury (A. 26-27).

This is the norm for most railroad equipment, and it is easy

to see why it is imperative to impose a high duty of care on

a railroad such as Erie to inspect such rolling stock received

in interchange. This is the only way in which such readily

observable conditions as the rotten footboard in the instant

case Which develop during transit can be remedied quickly

enough to avert. the danger to railway men such as Benazet.

While the court of appeals indicated in dicta that a de-

cision of the Appellate Division. of the Superior Court of

New Jersey, Farren v. N. J. Turnpike Authority, 31 N.J.

Super. 356, 106 A.2d 752 (App. Div. 1954), might prevent

the application of the Joint Tortfeasors Act in the instant

case, it apparently did not appreciate that the basis for the

Farren decision was that the party from which contribution.

-was sought was not liable to the injured person in tort.

Here, Erie as the shipowner was liable to Bénazet in tort

as well as under the Longshoremen’s Act. Furthermore, it

is doubtful that Farren would apply in a situation such as

the instant one where Erie has breached a duty of inspec- «

tion owed to Atlantic under the Interchange Rules of the

Association of American Railroads. See Hagen v. Koerner,

64 N. J. Super. 580, 166 A.2d 784 (App. Div. 1960) ; and also

see Frueh v. Kupper, 54 N. J. Super. 296, 303, 148 A.2d 743,

747 (1959) (applying the state Joint Tortfeasors Act to a

maritime accident): .. the basic purpose of the statute is

to achieve a sharing of the common responsibility according

to equity and natural justice.”

22

CONCLUSION

The decision of the Court of a

eee should be reversed. ;

‘Respectfully submitted, .

: Devereux Mununxn,

3 . 2 Wall Street

os New York, New York 10005,

Attorney for Petitioner

Atlantic Coast Line Rail-

‘road Company.

Of Counsel

Lovis L. Sranron, Ja.

Jerome L. Getz 7

Canter, Lepyarp & Munvnn

n 0

*

8 °

Dossier 10, 1971