Petition — Mascuilli v. American Export Isbrandtsen Lines, Inc.
Supreme Court brief1975
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OO2K, JR_CLEN
IN THE MIBHAEL RGE..A, dR ik |
Supreme Court of the United States —
October Term, 1974.
No. 74-1507
CHARLES MASCUILLI,
Petitioner,
v.
AMERICAN EXPORT ISBRANDTSEN LINES, INC.
v.
ATLANTIC & GULF STEVEDORES, INC.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
Arnotp LeEvIN,
FREEDMAN, Borowsky AnD Lorry,
8th Floor, Lafayette Building,
Fifth and Chestnut Streets,
Philadelphia, Pennsylvania. 19106
Counsel for Petitioner.
International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
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REASONS FOR GRANTING THE WRIT ..................-...
1. Wherein a Longshoreman Is Injured in a Pierside Acci-
dent Involving an Appurtenance of the Vessel, and a
Jury Finds an Improper Method of Operation, and the
Vessel Owner’s Negligence in Allowing the Improper
Method of Operation to Occur, Does Not Gutierrez
v. Waterman Steamship Co., 373 U. S. 206 (1963)
Dictate Maritime Jurisdiction and a Verdict for the
Longshoreman on the Breach of the Warranty as
Well as the Maritime Negligence Count? ..........
2. Wherein a Longshoreman Sues a Vessel Owner Under
28 U. S. C. § 1332 and Establishes Diversity of Citi-
zenship, Is He Not Entitled to a Verdict on a Finding
of Negligence Under the Common Law of the State
in Which the Tort Occurs Wherein His Injuries
Occur on a Pier During the Course of His Employ-
DUET asa oeecbensivusbnsestcecnduueeoet scene
3. The Determination of the Issues of Negligence and
Unseaworthiness Are in the Paramount Province of
the Jury and It Was Error for the Court to Disturb
ME -aGincusahenndcuakeadbicencutecndenurcuss
SD cc vdebuckapach bees dsauee obs dees duadusdee
INDEX (Continued).
Page
AppenpIx A—Opinion and Order ot the United States District
Court for the Eastern District of Pennsylvania ......... Al
ApPpENDIX B—Judgment Order of the United States Court of
Rapes Car Ge TG GE ince ccckdscnsicivccscn A25
ApPpENDIxX C—United States Constitution, Articie II], Section
ED iddedstcenokesanenstactnkessensseriatencivamedes A26
Aowmnnen Daa VU. B.C. BERD ci ccccesccsvcsccccscces A27
Rees Tees Te. Be Gs Be 400 bv scccedcckscdecesccs A29
TABLE OF CASES CITED.
Page
Agwidale, 61 F. Supp. 191 (S. D. N. Y. 1945) ........... 19
American Export Lines, Inc. v. Revel, 266 F. 2d 82 (4th Cir.
DD 1+ landGumiduausdnsdecensanwcerereeses eacnoae 15
Arthur v. Flota Mercante Gran Centro Americana S. A., 487
ee CS OPTED. x50 onckccdésnwsrececscsevscce 14
Ballwanz v. Isthmian Lines, Inc., 319 F. 2d 457 (4th Cir.
i? eer sekeauahauteddacebwakadcleveeeddedecns 14
Born v. Osendorf, 329 F. 2d 669 (8th Cir. 1964) ........... 25
Burns v. Anchor-Wate Co., 469 F. 2d 730 (5th Cir. 1973) ..16, 18
Candado Stevedoring Corp. v. Lowe (2nd Cir. 1936), 85 F. 2d
Sal SKAuINAS REE EUNEAW eda ten ubERe seer eo dbe hose cies 7
Chagois v. Lykes Bros. Steamship Co., 457 F. 2d 343 (5th
Se SUED Ache venasnwoucnseuscéedechvddncoccicoks 20
Earle v. Union Barge Line Corp., 486 F. 2d 1097 (3rd Cir.
SED) WHRAS5S 0000 60h keh eSedoeun kd nko Uienceeccees 12
Edward McGrath v. M/V_ Reederij ‘“Nautiek” and W.
Buhmer’s Scheepvaarbedrijf v. Stockard Shipping Termi-
nal Company, C. A. No. 70-3361 ..............ccceees 8
Executive Jet Aviation Inc. y. City of Cleveland, 409 U. S.
SE: Sucteus Gide keuneutabeds éasiuedeceoeaes 8
Fisher v. VU. S. Lines Co., 198 F. Supp. 815 (E. D. Pa. 1961) 14
Foster v. Sol Greisler, Inc., 150 Pa. Super. 509 (1941) ..... 25, 26
Frank Cooper v. Australian Coastal Shipping Commission and
the Australian National Lines v. J. A. McCarthy, Inc. and
Rainbow Terminal Corp., C. A. No. 68-2676 ........... 8
Fueh v. Kupper, 1960 A. M. C. 2161, Superior Ct., N. J. ..... 19-
Garrett v. Gutzeit O/Y, 491 F. 2d 228 (4th Cir. 1974) ....11,17
Gebhard v. S. S. Hawaiian Legislator, 425 F. 2d 1303 (9th
Tt Mn SiRENAeeCRebUEREebue ak keedd pues kkedcc ces 16
Giddens v. Isbrandtsen Co., Inc., 355 F. 2d 125 (4th Cir. 1966) 16
Griffin v. U. S., 469 F. 2d 671 (9th Cir. 1972) ............ 16
Guinones v. Township of Upper Moreland, 293 F. 2d 237 (3rd
Se ME SG W066:5000059 5054000 nese6eeesutevcucc. 25
——— ee a ee een eee
=—-w -_— <<
TABLE OF CASES CITED (Continued).
Page
Gutierrez v. Waterman Steamship Corp., 373 U. S. 206 (1963)
6, 7,8, 9, 10, 11, 17, 26
Hagans y. Ellerman and Bucknall Steamship Co., 318 F. 2d
563 (3rd Cie. 1963) .nccccccscccccssesussecvaseceses 17
Halecki v. United New York and New Jersey Sandy Hook
Pilots Assn., 302 F. 2d 840 (2nd Cir. 1962) ......... 23
In Re Dearborn Marine Service, Inc., 499 F. 2d 63 (1974) 10
Lascovich v. S. S. Samovar, 1947 A. M. C. 1046 (N. D. Ca.
S. Bi) cccccccsvccsceccceedceuneunsewenneeeeeee 19
Leach v. Mon River Towing, Inc., et al. v. Campbell Barge
Lines, Inc., 363 F. Supp. 637 (W. D. Pa. 1973) ...... 19
Lee vy. Pennsylvania Railroad Co., 192 F. 2d 226 (2nd Cir.
ROBE) cccceccessdéseceesseseeseeeeeueneeeeee 25
Lobianco v. Valley Forge Military Academy, 224 F. Supp.
305 (BE. D. Fe. BGR) .ccccccccecusteusucesseeauee 26
Lopez v. Delta Steamship Lines, Inc., et al., 387 F. Supp. 955
(D. Passte Blew, TPS). ...ccccccsdsvacsesneceseuue 21
Lusich v. Bloomfield Steamship Co., 355 F. 2d 770 (Sth Cir.
PGB) cc wc vcucucecencvetseessuceee sense 7,12
McCarthy v. American Eastern Corp., 175 F. 2d 724 (3rd
Cle. TRGB) nccccvcvcceecscesutveenameeeeneeaee 7
McCown v. Humble Oil and Refining Co., 405 F. 2d 596 (4th
Civ, TGP) ..ccvcsccccconscdesccensseeeneeneee 16
McDonough v. U. S. Steel Corp., 228 Pa. Super. 268 (1974) 21
McNeil v. A/S Havtor v. Independent Pier Co., 326 F. Supp.
206 (E. D. Pa. W508)... ccccvicnsccusdeanueuaueeneeeee 14, 26
Morales v. City of Galveston, 370 U. S. 165, 8 L. Ed. 2d
GiB (IER) «nccccscosecesséueeunenuaennanneee 14
O’Donnell v. Great Lakes Dredge and Dock Co., 318 U. S.
SD (IDS) .cccscvcccccucsdevesncuess seen 6
Pennsylvania Railroad Co. v. Peters, 116 Pa. 206 (1887) .... 26
Philadelphia Electric Co. v. Julian, 425 Pa. 217, 228 A. 2d 669
(TRE) ccccccecesescteedeteennaaneaee 23
Pope and Talbot Inc. v. Hawn, 346 U. S. 406 (1953)
a. | a bn an aa
ante de ea
TABLE OF CASES CITED (Continued).
Page
Prudential Insurance Co. of America v. Morrow (5th Cir.
i i cectcckgdaeenseveceocecsccsces 12
Ruggiero v. Rederiet for M/S Marion (D. C. N. Y. 1970),
St PE ME ccbeeucdnaddececocccccescceeccoce 7
Scroggins v. Sea-Land Service, Inc., 340 F. Supp. 1100 (E. D.
EE A ee ee 20
Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946) ........ 6
Snydor v. Villian and Fassio Et Compania Internazionale de
Genova Society Reunite Di Naviagaione S. P. A., 459
nC, MED ccccecccousveccececccces 9, 10, 11
Spinozzi v. E. J. Lavino & Co., 243 F. 2d 80 (3rd Cir. 1957) 24
Streatch v. Ass. Container, et al., 388 F. Supp. 935 (C. D.
CEC eeee eases sesiteceeseccccoccccece 19
Swanson v. Marra Bros., Inc., 328 U. S. 1 (1949) ......... 6
The Cyrus, 7 Federal Cases 755 (D. Pa. 1789) ...........4.. 6
re eM CD . cvs scceeeecesccesces 6
The Plymouth, 70 U. S. 20 (3 Wall. 1886) ............... 6
Thompson v. Calmar Steamship Corp., 331 F. 2d 657 (3rd
Cir. 1964), cert. den. 13 L. ed. 2d 184 .............. 15
Trottie v. United Philippine Lines, Inc. v. Atlantic and Gulf
ee eC ccc geccecceees 13
Tucker v. Calmar Steamship Corp., 457 F. 2d 440 (4th Cir.
ALE SEES P COPE TTT TTTILETETET TTT E ETT 17,18
U. S. Steel Co. v. Olewinski, 235 F. 2d 326 (6th Cir. 1956) 25
Venable v. A/S Det Forenede Dampskibsselskab, 399 F. 2d
EEE OOTP PPTTTTT TTT TTT 14
Victory Carriers, Inc. v. Law, 404 U. S. 202 (1971) ..7,8,9, 10, 11,
13, 14, 15, 16, 17, 18, 20
Virgilia v. Walker, 254 Pa. 241 (1916) ..............0.5. 26
Weyerhaueuser v. Nacirema Operating Co., 355 U. S. 563
Tere easeseeeecesesceeccceccecess 12
MISCELLANEOUS.
Page
Admiralty Extension of Jurisdiction Act, 46 U. S. C. § 740 ..2,6, 17
Restatement of Torts 2d, §416, Comment E ..............22, 23
United States Constitution, Article III] .................... 2,6
ie Ein Wk GA EEUEED Obcdddsescdeeeeansebedsasacioesaes l
ae We Ge Ge IU Senwdddnccdsedcecdeueseesbdeensau 2,19
oP We Was Ges ls Cs OO EL, co Cd ce cchensuasdnedeouesna 12
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
To the Honorable, the Chief Justice and Associate Justices
of the Supreme Court of the United States:
Petitioner, Charles Mascuilli, prays that a Writ of Cer-
tiorari issued to review the judgment order of the United
States Court of Appeals for the Third Circuit, entered in
the above case on March 24, 1975.
OPINIONS BELOW.
The decision and order of the District Court for the
Eastern District of Pennsylvania, printed in Appendix A,
is reported at 381 F. Supp. 770 (E. D. Pa. 1974). The
judgment order of the United States Court of Appeals for
the Third Circuit was entered in March 24, 1975 is printed
at Appendix B hereto and is unreported.
JURISDICTION.
The jurisdiction of this Court is invoked under 28
U.S. C. § 1254(1).
to
Petition for Wiit of Certiorari
QUESTIONS PRESENTED.
1. Was it not error to deny a longshoreman a claim
for breach of the warranty of seaworthiness and a claim
based on maritime negligence, wherein his injuries occur
on the pier as a result of an appurtenance of a vessel
wherein the jury found said vessel to be unseaworthy by
reason of an improper method of operation involving an
appurtenance and wherein the jury found said shipowner
to be negligent by reason of their conduct in failing to
remedy the improper method of operation.
2. Was it not error to deny plaintiff longshoreman a
verdict on a finding of negligence by a jury wherein the
locus of the accident was on the pier, but nevertheless in-
volved an appurtenance of the vessel and the finding would
be consistent and mandated by the common law of the
place of the tort.
STATUTES INVOLVED.
The statutory provisions involved are Article III of
the United States Constitution (Appendix C); the statu-
tory provisions of 28 U. S. C. 41332 (Appendix D); the
statutory provisions of the Admiralty Extention of Juris-
diction Act, 46 U. S. C. § 740 (Appendix E).
‘
:
:
'
-——e
Petition for Writ of Certiorari 3
STATEMENT OF THE CASE.
On July 8, 1970 and at all times applicable hereto,
Charles Mascuilli, age 35, was employed by Atlantic & Gulf
Stevedores as a longshoreman, assisting in loading and
discharging cargo from the S. S. Executor, a vessel owned
and operated by American Export Isbrandtsen Lines, Ine.
On the morning of July 8 at approximately 8:00 to 9:00
a.m., piles of unbanded dunnage of varying lengths and
sizes (21a, 24a) were removed from that vessel by holdmen
at hatch no. 1 (17a, 20a, 28a) and placed on pier 40, south
wharves, Philadelphia. The term ‘‘dunnage’’ refers to
lumber owned by the shipowner and used to construct floor
supports for cargo. The dunnage had been loose while
on board the vessel (17a) and likewise when it was placed
on the pier it was in an unbanded condition (25a, 28a). It
was removed bound only by lumber bridles (28a, 29a, 30a),
straps which pull tight when the load is lifted and slacken
when the load is placed down.
The dunnage was to be used later in the day in the aft
part of the vessel to make a floor on the ship’s bottom to
store a cargo of drums (22a, 24a). At approximately
2:00 o’clock in the afternoon, Elton Grogans, a chisel (fork-
lift) operator from a gang operating in the aft part of the
vessel, was instructed by his gang boss to pick up the dun-
nage in front of hatch no. 1 (27a) and bring it aft (32a).
He placed the dunnage on the forks of his truck, and pro-
ceeded to drive with it. In the course of transportation,
his truck hit a one-inch switch (26a) and because the dun-
nage was not secured (22a), several boards fell off and
struck the plaintiff, causing him serious and disabling in-
jury, in the nature of a herniated disc, as a result of which
he has been unable to return to work since the accident,
and is permanently disabled.
Action was brought by plaintiff alleging unseaworthi-
nes and negligence on the part of the vessel owners.
4 Petition for Writ of Certiorari
Jurisdiction was based upon diversity of citizenship and/or
the general admiralty powers of the court. The vessel
owners joined the stevedore-employer as third party de-
fendants. Captain Ash, plaintiff’s expert, provided testi-
mony regarding the contro] the ship retains over dunnage
throughout the entire cargo operations, and discussed the
relevant longshore regulations as they provided a duty of
care owned by the shipowner (33-34a, 36-38a, 40-41a).
The action was presented to a jury. At the conclusion
of the trial, the trial judge submitted a series of special
interrogatories to the jury (45a) which established the
following (Appendix A, 381 F. Supp. at 780-2):
(1) The dunnage was the property of the ship-
owner ;
(2) the shoreside method of operation by the
stevedore was improper;
(3) The shipowner was negligent in failing to
eliminate the improper pierside method of operation
by the stevedore;
(4) Plaintiff was not guilty of contributory negli-
gence;
(5) The stevedore’s shipside method of operation
in discharging the dunnage from the vessel to the pier
was not negligent;
(6) The shipowner was not negligent in failing to
eliminate an improper shipside method of operation by
the stevedore;
(7) Elton Grogans (chisel operator), plaintiff’s
co-employee, was not negligent;
(8) The stevedore breached its warranty to per-
form its job in a workmanlike manner.
> e o
a
Petition for Writ of Certiorari 5)
On the basis of these findings, the court molded a verdict
for the defendant on the basis that the law did not sustain
plaintiff’s theories that (1) the improper pierside method
of operation of the stevedore in handling the dunnage on
the pier rendered the ship unseaworthy, and (2) the ship-
owner’s failure to eliminate the stevedore’s improper pier-
side method of operation constituted negligence under both
maritime and common law principles. Plaintiff submitted
a post-trial motion to remold the verdict in his favor. The
motion was denied on August 23, 1974.
An appeal was taken to the United States Court of
Appeals for the Third Circuit and the District Court’s find-
ings sustained (Appendix B). It is from that Order that
petitioner seeks this Writ.
6 Petition for Writ of Certiorari
REASONS FOR GRANTING THE WRIT.
1. Wherein a Longshoreman Is Injured in a Pierside Acci-
dent Involving an Appurtenance of the Vessel, and a
Jury Finds an Improper Method of Operation, and the
Vessel Owner’s Negligence in Allowing the Improper
Method of Operation to Occur, Does Not Guticrrez v.
Waterman Steamship Co., 373 U. &. 206 (1963) Dictate
Maritime Jurisdiction and a Verdict for the Longshore-
man on the Breach of the Warranty as Well as the
Maritime Negligence Count?
It has long been recognized that the laws of admiralty '
are to be liberally construed to efiectuate their beneficient
1. The Constitution of the United States, Article III, Section 2
(Appendix C), empowers the courts to decide “all cases of
admiralty and maritime jurisdiction”, and vests in the courts the
wer to define the scope of that jurisdiction. Initially, the courts
adhered strictly to a test of situs, requiring an injury to have occurred
on navigable waters for maritime jurisdiction to attach. The Ply-
mouth, 70 U. S. 20 (3 Wall. 1886). This view remained virtually
unaltered until 1943, when the Supreme Court permitted an injured
seaman the right to maintenance and cure based solely upon the
status of seamen, and not the situs of his injury. O'Donnell v.
Great Lakes Dredge and Dock Co., 318 U. S. 36 (1943). Soon
afterwards, in 1948, the 80th Congress acted to bring admiralty
jurisdiction ashore with the passage of the Extension of Admiralty
Jurisdiction Act, 46 U. S. C. §740 (Appendix E), which granted
to the federal district courts the jurisdiction to decide “all cases of
damage or injury to persons or property caused by a vessel on
navigable waters, notwithstanding that such damage or injury be
done or consummated on land.”
As the concept of maritime jurisdiction was evolving, so too
was the doctrine of seaworthiness, which had its historic beginnings
in the recognized duty of a shipowner to supply a vessel fit for its
intended purpose. The Cyrus, 7 Federal Cases 755 (D. Pa. 1789).
The modern doctrine derives from a Supreme Court decision in
The Osceola, 189 U. S. 158 (1903), wherein a seaman could recover
for injuries sustained as a result of his employer’s supplying him
with an unseaworthy vessel. In 1946, the Supreme Court ‘held that
the warranty of unseaworthiness extended to longshoremen. Seas
Shipping Co. v. Sieracki, 328 U. S. 85 (1946) and Swanson v.
Marra Bros., Inc., 328 U. S. 1 (1949).
In addition to the doctrine of seaworthiness, an alternative mari-
time theory of recovery in negligence has been recognized to impose
Petition for Writ of Certiorari 7
purposes. Ruggiero v. Rederiet for M/S Marion (D. C.
N. Y. 1970), 308 F. Supp. 798; Candado Stevedoring Corp.
v. Lowe (2nd Cir. 1936), 85 F. 2d 119. The applicability
of maritime principles in a given case is limited by juris-
dictional requirements. This relationship between ad-
miralty jurisdiction and the maritime substantive law was
not clearly defined until Gutierrez v. Waterman Steamship
Corp., 373 U. S. 206 (1963), and clarified in Victory Car-
riers, Inc. v. Law, 404 U. S. 202 (1971). In Gutierrez, re-
covery was allowed under both unseaworthiness and negli-
gence theories for a longshoreman injured on the pier as the
result of the spillage of beans which were part of the de-
fective stow of the vessel. This court stated at p. 210:
‘‘The case is within the maritime jurisdiction under
46 U. S. C., § 740 when as here, it is alleged that the
shipowner commits a tort while or before the ship is
being unloaded, and the impact of which is felt ashore
at a time and a place not remote from the wrongful
act.’’
In Victory Carriers, supra, recovery was denied for the
specialized circumstance of an injury suffered pierside dur-
ing cargo operations which was caused by defective steve-
dore’s equipment found not to be an appurtenance of the
vessel. Plaintiff was therein injured by a defective fork-
lift truck which had been supplied by his employer for his
pierside use. The action was predicated only upon unsea-
worthiness, based upon the fact that plaintiff was engaged
1. (Cont’d.)
a duty upon a shipowner to provide the crew of a vessel and shore-
side workers with a reasonably safe place to work. Pope and Talbot
Inc. v. Hawn, 346 U. S. 406 (1953). Seamen were given the right
to plead simultaneously counts of unseaworthiness and negligence
since the remedies were held not to be mutually exclusive in
McCarthy v. American Eastern Corp., 175 F. 2d 724 (3rd Cir.
1949). Longshoremen likewise have been permitted to plead them
separately. Lusich v. Bloomfield Steamship Co., 355 F. 2d 770
(5th Cir. 1966).
8 Petition for Writ of Certiorart
in the maritime task of unloading cargo on board a ship on
navigable waters at the time of the injury. The court, in
rejecting plaintiff’s plea for admiralty jurisdiction, applied
the situs test and emphasized the plaintiff’s injury was not
caused by an appurtenance of the vessel so as to bring it
within the purview of the Admiralty Extension of Juris-
diction Act2 The Court reaffirmed the Gutierrez holding
by stating:
‘‘The decision in Gutierrez turned not on the ‘func-
tion’ the stevedore was performing at the time of his
injury, but, rather upon the fact that his injury was
caused by an appurtenance of the ship, the defective
cargo containers, which the Court held to be ‘an injury
to person . . . caused by a vessel on navigable waters’
which was consummated ashore under 46 U. S. C.,
§ 740.’ 30 L. ed. 2d at p. 390. (Emphasis supplied.)
It is upon this basis that cases subsequent to Victory
Carriers have denied admiralty jurisdiction where injuries
suffered pierside were caused by an instrumentality not
part of the ship’s gear, not under its control, or not aboard
or stored on the vessel. See Edward McGrath v. M/V
Reederij ‘‘Nautiek’’ and W. Buhmer’s Scheepvaarbedrijf
v. Stockard Shipping Terminal Company, C. A. No. 70-
3361 (75a); Frank Cooper v. Australian Coastal Shipping
Commission and the Australian National Line v. J. A.
McCarthy, Inc. and Rainbow Terminal Corp., C. A. No.
68-2676 (85a).
In the instant case the jury specifically found in inter-
rogatory no. 1 that the instrumentality of the injury, the
dunnage, was an appurtenance of the vessel and that it had
2. This jurisdictional requirement should be considered in con-
junction with the more recent Supreme Court decision which dis-
couraged exclusive reliance on the locality rule in determining ad-
miralty jurisdiction. Executive Jet Aviation Inc. v. City of Cleve-
land, 409 U. S. 249 (1972).
I SEES
Petition for Writ of Certiorart 9
left the ship’s hold that morning and would be returned to
the ship’s hold later in the day.’ Admiralty jurisdiction is
thereby established. Assuming the District Court’s inter-
pretation of Victory Carriers is correct, a view plaintiff
contests, plaintiff submits the District Court judge below
confused the concepts of jurisdiction with the merits of
plaintiff’s negligence and unseaworthiness claims. The
District Court distinguishes Gutierrez and the line of cases
after it by finding that there a defective appurtenance
possessed such defect while on board the vessel itself and
held:
‘‘This fact is crucial to the decision in that case.’’
(381 F. Supp. at 774) (Appendix A)
The District Court then goes on to state ‘‘the plaintiff here
has not cited to us, and we have been unable to find, a single
case applying the law of the sea to a longshoreman injured
while working on the pier by an appurtenance of the vessel
which was removed from the vessel and which was wholly
fit when removed but rendered unfit by the stevedore after
it was placed on the pier and detached from the ship’s
tackle.’’ (381 F. Supp. at 774) (Appendix A). Though
plaintiff’s factual situation is unique, there is no language
in Victory Carriers, supra to intimate that a defect of an
appurtenance must exist on board the ship itself; rather,
the court has established the character of the instru-
mentality of the injury to be determinative of the juris-
diction issue without further qualification, i.e., solely upon
whether it is or is not an appurtenance of the vessel. The
court then cites Snydor v. Villian and Fassio Et Compania
Internazionale de Genova Society Reunite Di Naviagatone
S. P. A., 459 F. 2d 365 (4th Cir. 1972) for approval of its
3. The Lower Court specifically found the dunnage to be an
appurtenance of the vessel and so instructed the jury. See opinion
of lower court (Appendix A) (381 F. Supp. at 372).
10 Petition for Writ of Certiorart
conclusion. Plaintiff there was injured in the second floor
of a pier shed while spotting palletized cargo. Plaintiff al-
leged but failed to prove that the cargo, admittedly an ap-
purtenance, was defective while on board ship. That court
stated:
‘We are unpersuaded by this theory advanced for the
first time in the appellant’s brief in this court’? (499
F. 2d at 368).
It was held that plaintiff failed to prove such a shipboard
defect. Though the court holds such proof essential to sus-
tain maritime jurisdiction, it cites no authority, merely rely-
ing on the fact that in Gutierrez such a defect was present.‘
However, Gutierrez in no way mandated such a prerequisite
to jurisdiction, and no subsequent case has so held. Fac-
tually, the case is easily distinguishable. In Snydor, plain-
tiff was not involved in a longshore gang which was en-
gaged in loading or unloading operations; Charles
Mascuilli had that status. Negligence of the forklift
operator was found in Snydor; it was found specifically
not to have existed in the case at bar. No testimony was
introduced in Snydor regarding the control retained by the
shipowner and likewise there was no jury finding support-
ing the vessel’s involvement, unlike the instant case. Addi-
tionally, in Snydor the pallet involved was not going to be
placed back aboard the ship and thus was no longer an
appurtenance of the vessel. Finally, plaintiff failed to
raise the issue in the trial court. Because Mascuilli has
demonstrated his injury was caused by an appurtenance of
the vessel during unloading operations, he is entitled to
invoke maritime law in seeking his remedy.®
+. The court does not cite I’ictory Carriers, supra.
5. In approval is the language in Jn Re Dearborn Marine
Service, Inc., 499 F. 2d 63, 274 (1974) referring to the Admiralty
Extension of Jurisdiction Act:
“This statute applies to give admiralty jurisdiction over pierside
injuries caused by the vessel’s hull, gear or cargo. See Gutierrez
———
Petition for Writ of Certiorart 11
It was plaintiff’s right therefore to invoke the remedies
provided by the doctrine of unseaworthiness and maritime
negligence.
In the special interrogatories 3(b) nos. 1 and 2 which
were answered affirmatively by the jury, the shipowners
were found specifically to have been negligent in failing to
eliminate an improper pierside method of operation by the
stevedores in their handling of the unbridled dunnage,
which in turn was found to proximately cause plaintiff’s
injury. A duty of due care has long been recognized in the
5. (Cont’d.)
v. Waterman Steamship Corp., 373 U. S. 206, 83 Supr. Ct.
1185, 10 Lawyers Edition 2d, 297 (1963), explained in Victory
Carriers v. Law, 404 U. S. 202, 209-10, 92 Supr. Ct. 418,
423-24." (Emphasis supplied. )
Likewise, the Fourth Circuit in Garrett v. Gutzeit O/Y, 491 F. 2d
228 (4th Cir. 1974) applied admiralty jurisdiction to an action by a
longshoreman injured on the dock when, while using hand hooks to
handle bails that had come from the vessel, a band broke. In recon-
ciling Gutierrez and Victory Carriers, the Court stated:
“Naturally, Gutierrez had an expansive effect on the scope of
the jurisdiction in admiralty cases. In Victory Carriers the
court clarified the scope of this jurisdiction as broadened by
Gutierres in its application of the act .. . In denying recovery
against the shipowner, the court stressed that the plaintiff was
not injured by an appurtenance of the ship, an essential element
if admiralty jurisdiction is to be invoked under the act .. . The
court stated that reliance upon the ‘gangplank line’ as the pre-
sumptive boundary of admiralty jurisdiction is best, except for
cases where ship’s appurtenances cause damage ashore. Thus,
Victory Carriers and Gutierrez read and considered together,
combine to formulate the following rule: Admiralty jurisdiction
extends to shorebased workers who are injured by an appur-
tenance of the ship at a time and place not remote from the
wrongful act of the shipowner. It must be remembered, how-
ever, that the court in /’ictory Carriers addresses itself only to
jurisdiction. We do not interpret /’ictory Carriers to affect in
any way the limits of warranty coverage.” 491 F. 2d at 232.
(Emphasis supplied. )
Snydor, supra, can thus be further distinguished from the instant
case in that in Snydor, the accident occurred at a time and place
remote from the shipowner’s wrongful act.
12 Petition for Writ of Certiorart
maritime law as a concept severed from unseaworthiness,®
which requires reasonable supervision by the shipowner
during unloading to correct or prevent discoverable im-
proper operations. Its nature is described in Earle v.
Union Barge Line Corp., 486 F. 2d 1097 (3rd Cir. 1973).
‘The language used by the Supreme Court in cases
which discuss the negligence of the vessel owner and
the stevedore employer are illustrative of the fact that
the duty to use reasonable care to provide a safe place
to work is found in the law of negligence and not in
the law of the warranty of unseaworthiness.’’ (Em-
phasis supplied) (486 F. 2d at 1104)
Assuming arguendo, the plaintiff’s negligence claim
must rest upon maritime jurisdiction for the plaintiff to
recover, by virtue of the court’s interrogatory at issue,
such maritime jurisdiction was clearly met in the instant
case."
6. In Lusich v. Bloomfield Steamship Co., 355 F. 2d 770 (Sth
Cir. 1966), there was an erroneous withdrawal of the negligence
theory from the jury and the court found this to be reversible error.
The court further stated the following: “While it has been accepted
that unseaworthiness and negligence overlap to a great extent in this
kind of case, they are recognized as independent grounds of recovery ;
and a party relying upon both of them as support for his claim has
a right to an independent submission of the negligence theory to
the jury. Prudential Insurance Co. of America v. Morrow (5th Cir.
1965), 339 F.2d 411. Otherwise, such a party’s right of action
based on negligence could always be ‘blotted out’ by charging the
jury only on seaworthiness. Weyerhaeuser v. Nacirema Operating
Co., 355 U. S. 563 (1958), is an exainple of a recent case where
the plaintiff recovered on the theory of negligence when the jury
found against him on the issue of unseaworthiness.” 355 F. 2d at
744.
7. Even the recent Amendment to the Longshoreman and Har-
bor Worker’s Act which limited a shore-based maritime employee
right to recovery on unseaworthiness recognized this cause of action
for negligence. 33 U.S. C. A. $901, et seq.
In a case closely akin to the instant case wherein injuries were
sustained by a longshoreman working on the pier as the result of
Petition for Writ of Certiorari 13
At trial in the present case, there was manifold testi-
mony indicating that the dunnage was an appurtenance and
the defendant was negligent in not correcting an unsafe
pierside method of operation.*
It was error for the trial judge to mold the defendant’s
verdict in favor of American Export Lines, Inc. in light of
7. (Cont’d.)
allegedly defective pallets of the ship, Judge Charles R. Weiner of
the Eastern District of Pennsylvania, stated:
“The defendant argues that as this was a pierside accident,
maritime jurisdiction is wanting . . . We disagree and believe
that since this accident was attributed to the negligence of the
shipowner, and may have been caused by the use of defective
equipment, we find admiralty jurisdiction exists and maritime
law controls.” Trottie v. United Philippine Lines, Inc. v.
Atlantic and Gulf Stevedores, Inc., C. A. No. 72-1767 (87a).
8. It was testified that the dunnage was originally scattered on
the floor of the hold of the ship (17a) including dunnage of several
different dimensions (18a). It was bound only with lumber bridles
for removal (19a) when made up into drafts, though rope had been
asked for to bind it by longshoreman Rutter (20a). Deckman
Fitzmaurice testified the holdmen had requested rope slings for the
unbanded dunnage which he relayed to his foreman, Mickey Coyle,
who told him to remove the remaining dunnage drafts from the
hatch despite the lack of banding (28a). Fitzmaurice further testi-
fied that it was the usual practice to use rope slings when removing
dunnage draft (29a). Melko concurred in stating that banding was
the safest way to handle the draft (30a). Grogans, the chisel oper-
ator, testified that the dunnage was removed to be used in the aft
part of the vessel to make a floor on the ship’s bottom to store drums
(24a). Rutter also testified that the lumber was brought back on
board at the end of the day (22a). Captain Ash, plaintiff’s maritime
expert, explained the myriad uses of dunnage and stated that dun-
nage is possessed by every steamship company. He also stated that
the type and manner of use of dunnage is determined by the master
and officers of the vessel (3la, 32a). He explained further that
without rope slings dunnage held tight by lumber bridles would tend
to loosen and untie once it comes to rest on the pier when the load
slackens (42a). He explained that it is the master and ship's
officers who are in charge of cargo operations on a merchant vessel
(41a) and stated that the method of discharging and reloading the
dunnage in this case was not a safe and proper method (4la). In
essence, therefore, the jury’s holding that the dunnage was an appur-
tenance established maritime jurisdiction under Victory Carriers and
they could properly have held the defendant was liable in negligence.
14 Petition for Writ of Certioran
the often repeated theory, restated in WcNeil v. A/S Havtor
v. Independent Pier Co., 326 F. Supp. 226 (E. D. Pa. 1971),
where a longshoreman was injured on the pier when his
lift truck struck an object on the pier shed floor:
‘“‘The shipowner owes a non-delegable duty to long-
shoremen working in the service of his vessel to pro-
vide them with a reasonably safe place to work, re-
gardless of whether the shipowner has control over the
pier. Gutierrez, supra; Thompson v. Calmar Steam-
ship Corp., 331 F. 2d 657, 661 (3rd Cir. 1964). Failure
to provide a reasonably safe place to work would con-
stitute negligence. Beard v. Ellerman Lines, Ltd., 289
F. 2d 201 (3rd Cir. 1961) . . . The failure to forbid
the use of loading and unloading methods by the steve-
dore which did not comply with the standard of reason-
able care may constitute negligence. Beard, supra.
Whether defendant breached its duty as aforemen-
tioned is not for the court to decide, but rather is a
question of reasonableness appropriate for the jury’s
determination.’’ (326 F. Supp. at 230).°
9. McNeil is being herein cited for its statement of the law of
negligence. It has been overruled in part by Victory Carriers, supra.
See also Ballwanz v. Isthmian Lines, Inc., 319 F. 2d 457 (4th Cir.
1963): Morales v. City of Galveston, 370 U. S. 165, 8 L. Ed. 2d
412 (1962); Venable v. A/S Det Forenede Dampskibsselskab, 399
F. 2d 347 (4th Cir. 1968): and Fisher v. U. S. Lines Co., 198
F. Supp. 815 (E. D. Pa. 1961), where drafts which were being
unloaded from the ship were swinging at least ten feet inside the
pier shed, and one load struck and injured plaintiff. The winches
and booms of the ship were being used in the unloading process.
The court upheld, on post-trial motions, a plaintiff's verdict, stating :
“The shipowner has a duty not to permit its ship’s unloading
activities which can affect people on the pier to be carried on
in a way that subjects those people in the area of these activities
to an unreasonably risk of harm, see § 371 of the Restatement
of Torts; Robillard v. A. L. Burbank & Co., Ltd., D. C. S.,
D. N. Y. 1960, 186 F. Supp. 193, 196-197.”
In Arthur v. Flota Mercante Gran Centro Americana S. A.
487 F. 2d 561 (5th Cir. 1973), the court held that breach of long-
shore regulations constituted negligence per se. In the instant case,
Petition for Writ of Certiorari 15
Having satisfied the requisites of Victory Carriers,
supra, by proving the dunnage was an appurtenance of the
vessel, plaintiff has also established an unseaworthiness
claim under the doctrine described in Thompson v. Calmar
Steamship Corp., 331 F. 2d 657 (3rd Cir. 1964), cert. den.
13 L. ed. 2d 184.’” In that case, plaintiff was injured when
the vessel’s engines and lines were used to move freight
cars on the pier to position them for loading operations and
plaintiff was thrown from one of the moving cars. The
court stated:
sé
. it is necessary that the owner of the ship is
hable to indemnify a seaman for an injury caused by
the unseaworthiness of the vessel and its appurtenant
appliances and equipment and it has been settled law
in the country ever since The Osceola . . . there can
be no dispute also, that longshoremen engaged in the
services of the ship are entitled to the same protection
against unseaworthiness which members of the ship’s
crew would enjoy. . . . Further, the unseaworthiness
of the vessel and its equipment may arise from acts of
a longshoreman, crew or indeed of the injured long-
shoreman himself. Grillea v. United States, 232 F. 2d
919 (2nd Cir. 1956); Knox v. United States Lines, Co.,
294 F. 2d 354 (3rd Cir. 1961); Smith v. Lauritzen, 201
F. Supp. 663 (E. D. Pa. 1962) (331 F, 2d at 659).
If the longshoreman is actually engaged in the service
of the ship, it is immaterial whether the accident caused
9. (Cont’d.)
the applicable regulations were submitted to the jury and could have
formed the basis for their findings of negligence (37a-39a). Plaintiff
was therefore entitled to a judgment in his favor on the issue of
maritime negligence.
10. See American Export Lines, Inc. v. Revel, 266 F. 2d 82
(4th Cir. 1959) which indicates that plaintiff's lacking of federal
unseaworthiness claim may have one under the laws of Virginia.
16 Petition for Writ of Certiorart
by the vessel’s unseaworthiness occurs away from the
ship or on the pier. Gutierrez v. Waterman Steam-
ship Corp.”’ (331 F. 2d at 659).
In Burns v. Anchor-Wate Co., 469 F. 2d 730 (5th Cir.
1973) in which a pipe company employee was injured while
assisting in the loading of pipes, due to the unsafe use of
the crane as the result of poor visibility and the absence of
flagmen, the court found unseaworthiness based upon the
failure to correct an unsafe method of loading and unload-
ing in a decision which was subsequent to Victory Carriers.
‘‘But insofar as the characteristics of the shore based
crane presented hazards which ought reasonably to be
foreseen in the loading/unloading of the heavy pipe,
the absence of such safeguards could render the barge
unseaworthy because of the continued employment of
the unsafe method of loading/unloading. D/S Ove
Skou v. Hebert, 5th Cir. 1966, 365 F. 2d 341, 1966
A. M. C. 447; Mills v. Mitsubishi Shipping Co., Sth Cir.
1966, 358 F. 2d 609, 1966 A. M. C. 1318; Price v. S. S.
Yaracuy, 5th Cir. 1967, 378 F. 2d 156. . . [and] the
result would depend on a number of variables and
would ordinarily call for a resolution by the trier of
fact. ..’’ 459 F. 2d at 733-34.
See also Giddens v. Isbrandtsen Co., Inc. 355 F. 2d 125, 127
(4th Cir. 1966); McCown v. Humble Oil and Refining Co.,
405 F. 2d 596 (4th Cir. 1969); Gebhard v. S. S. Hawaiian
Legislator, 425 F. 2d 1303 (9th Cir. 1970).
In Griffin v. U. S., 469 F. 2d 671 (9th Cir. 1972) a long-
shoreman sued for an eye injury sustained when he was
struck by an unidentified falling object dislodged near the
top of a ladder he was climbing behind a fellow worker, and
the court stated:
Petition for Writ of Certiorari 17
oe . an unseaworthy condition that causes no
damage until brought into play by the negligence of a
longshoreman employed by the stevedore is nonethe-
less an unseaworthy condition in the workman’s action
against the shipowner. E.g. Alaska Steamship Co. v.
Garcia, 378 F. 2d 153 (9th Cir. 1967).’’ 469 F. 2d at
672.
Also see Tucker v. Calmar Steamship Corp., 457 F. 2d
440 (4th Cir. 1972), in which Judge Sobeloff in footnote
no. 1 attempted to resolve Gutierrez and Victory Carriers,
and held that plaintiff-longshoreman’s pier sustained in-
jury due to the unreasonable use of ship’s gear in loading
operations brought the case within the purview of the Ad-
miralty Extension Jurisdiction Act.
‘¢. . . The Supreme Court defined the outer limits of
§ 740 in Victory Carriers v. Law, 404 U. S. 202...
Victory Carriers held that a longshoreman working on
the pier, when injured by shore-based equipment could
look only to state law for recompense. Gutierrez’s use
of 4740 was again specifically approved, but the two
cases were distinguished. In Gutierrez, the injury was
traceable to defects in appurtenances of the ship and
its unfitness for unloading, while in Victory Carriers
the defect was shore based machinery. As will appear
infra, the proximate cause of Tucker’s injuries was the
unreasonable use of the ship’s gear in loading opera-
tions, bringing the case within the rule of Gutierrez
and the purview of §40.’’ 457 F. 2d at 452.
In Garrett v. Gutzeit O/Y, supra, the court stressed that the
decision in Victory Carriers only applied to jurisdiction and
did not in any way affect the scope of the unseaworthiness
warranty coverage. The Garrett court further cites with
approval Hagans v. Ellerman and Bucknall Steamship Co.,
18 Petition for Writ of Certtorant
318 F. 2d 563 (3rd Cir. 1963), in which a longshoreman’s
claim was upheld prior to the Victory Carriers’ decision
when a longshoreman was injured by slipping on sand in
a piershed, and states in reference to that case:
‘*In Hagans v. Ellerman & Bucknall Steamship Co.,318
F’, 2d 563 (3rd Cir. 1963), the court upheld the recovery
by the claimant-longshoreman for injuries sustained
while stacking cargo at a pier building after the cargo
was just discharged from the ship’s hold and carried
by truck to the building. The court found the work
was ‘an integral part of the unloading of the vessel’,
since the pier apron could not accommodate the cargo.
318 F. 2d at 571. Thus, the court concluded that ‘as a
matter of law he was in the ship’s service’ and was en-
titled to the ‘protection of the doctrine of unseaworthi-
ness.’ 318 F. 2d at 571, see also Huff v. Matson Navi-
gation Co., 338 F. 2d 205 (9th Cir. 1964) and Spann v.
Lauritzen, 344 F. 2d 204 (3rd Cir. 1965). Chagois v.
Lykes Bros. Steamship Co., 432 F. 2d 388 (5th Cir.
1970) upheld an award of damages to a longshoreman
on the pier adjacent to a ship while transferring grain
from a box car to the ship; Chagois was engaged in ‘an
essential part of the unbroken sequence of moving the
. . . [eargo] from the pier to the ship.’ 432 F. 2d at
391 (footnote omitted).’’ 491 F. 2d at 235.
The jury’s answer to interrogatory 2(b)(1) and (2)
indicates the stevedore’s use and improper method of
operation in handling the dunnage on the pier. It is ap-
parent in light of Tucker, supra, and Burns, supra, that
liability on the basis of the warranty of unseaworthiness
is applicable for failure to correct the improper method,
and it was therefore error for the trial judge to mold the
defendant’s verdict on that issue.
Petition for Writ of Certiorari 19
2. Wherein a Longshoreman Sues a Vessel Owner Under
28 U.S. C. § 1332 and Establishes Diversity of Citizen-
ship, Is He Not Entitled to a Verdict on a Finding of
Negligence Under the Common Law of the State in
Which the Tort Occurs Wherein His Injuries Occur on
a Pier During the Course of His Employment?
Plaintiff established an alternative basis for federal
jurisdiction under 28 U. S. C. § 1332, diversity of citizen-
ship (Appendix D). Even if the lower court was correct
therefore in finding that maritime jurisdiction and/or mari-
time substantive law is inapplicable, plaintiff should have
been granted judgment under state eencepts of common
law negligence.’ Unlike the seaman wuo is suing his em-
ployer and had no remedy for negligence until the Jones
Act, the longshoreman always had his state created negli-
gence count since he, in essence, was always suing a third
party for injuries sustained when he brought suit against
the vessel.’*
11. Although the court made a limited common law negligence
charge, there was enough to support the jury findings.
12. Plaintiff longshoremen do not lose state rights as against
third parties merely because of the liberal maritime concepts. Ad-
miralty counts have in fact traditionally applied state law. See
Agwidale, 61 F. Supp. 191 (S. D. N. Y. 1945), wherein the law
of the port where an injury occurred was applied to a longshore-
man’s action. Also see Fueh v. Kupper, 1960 A. M. C. 2161, 2168,
Superior Ct., N. J.; Lascovich v. S. S. Samovar, 1947 A. M. C.
1046, 1057 (N. D. Ca. S. D.): Streatch v. Ass. Container, et al.,
388 F. Supp. 935 (C. D. Cal. 1975).
The applicability of common law negligence principles to a sea-
man’s personal injury actions was sustained in Leach v. Mon River
Towing, Inc., et al. v. Campbell Barge Lines, Inc., 363 F. Supp.
637 (W. D. Pa. 1973). Plaintiff was a towboat employee and was
injured while he was working as a deckhand when he was thrown
to the bottom of an empty barge. The court denied summary judg-
ment based on defendant charterers’ and owners’ claim that a release
signed by plaintiff and in favor of the towboat operator released
them from liability. The complaint was framed in both negligence
and unseaworthiness. The court states:
“If the plaintiff proved liability solely on the theory of negli-
gence, then the parties are all entitled to look to the law of the
20 Petition for Writ of Certiorar
In Chagois v. Lykes Bros. Steamship Co., 457 F. 2d 348
(5th Cir. 1972), plaintiff longshoreman was injured while
working on the pier during loading operations as a result
of defective equipment supplied by his stevedore-employer.
The Fifth Circuit originally held that the doctrine of sea-
worthiness applied and sustained that lower court’s finding
in favor of the plaintiff (432 F. 2d 388, 1970). The de-
fendant appealed and on January 10, 1972, the Supreme
Court vacated the original decision and remanded for fur-
ther consideration in light of Victory Carriers, Inc., supra.
On remand, the Fifth Cireuit did not dismiss the complaint
through recognizing plaintiff no longer had a maritime cause
of action. The court intimated plaintiff could still proceed
under diversity jurisdiction if he could present a claim
under state law. The court stated:
‘‘Chagois, may, however, have another cause of action
cognizable in Federal Court or may be able to sue in
Federal Court based upon jurisdiction independent of
12. (Cont’d.)
state in which the action is being tried—here, the law of Penn-
sylvania.” (363 F. Supp. at 641)
Likewise in Scoggins v. Sea-Land Service, Inc., 340 F. Supp.
1100 (E. D. Va. 1972) wherein an accident occurred thirty miles
from defendant's vessel, the court granted summary judgment on an
unseaworthiness claim but denied it as to plaintiff's negligence claim,
stating :
“Under the reasoning of Victory Carriers, Inc. v. Law we grant
the defendant’s motion for summary judgment as it applies to
the unseaworthiness contention, because it appears from the
pleadings, depositions and affidavit that maritime jurisdiction is
not applicable to this case, and Sea Land is entitled to judgment
on that issue as a matter of law.
The second contention of the plaintiff is that Sea Land was
negligent in not providing him with a safe place to work. This
issue involves a number of factual determinations that could
only be borne out through evidence introduced in a trial pro-
ceeding. Consequently, the defendant’s motion for summary
— ‘on the issue of negligence is denied.” 340 F. Supp.
at 1102. °
Petition for Writ of Certiorari 21
28 U.S. C. 1333. We leave this determination to the
District Court in the first instance.’’ (457 F. 2d at 345)
In the case at bar, the court further erred in molding a
defendant’s verdict when the facts of the case and the
judge’s charge included a common law negligence standard
compatible with the jury’s findings (43a, 44a), wherein the
court’s charge stated in essence:
‘«. . . negligence is the want of due care under all the
circumstances.’’ ™*
In a most recent decision, Lopez v. Delta Steamship
Lines, Inc., et al., 387 F. Supp. 955 (D. Puerto Rico, 1974),
Chief Judge Toledo held that a longshoreman injured on
a pier, working for an independent stevedore, transporting
cargo to a warehouse, was engaged in inherently dangerous
work and, as such, was entitled to a verdict as against the
steamship company since under the law of the Common-
wealth of Puerto Rico, said steamship company was liable
since a steamship company under said state law, has a
primary non-delegable liability in case of the negligent acts
of its independent contractors (387 F. Supp. at 957). Inter-
estingly enough, this is the very law of the Commonwealth
of Pennsylvania applicable to the instant case.
The applicability of the negligence concept to em-
ployers of independent contractors under Pennsylvania
State Law is described in the recent decision of McDonough
v. U. S. Steel Corp., 228 Pa. Super. 268 (1974). In that
case, plaintiff’s decedent was employed by Langenfelder Co.
which was in turn an independent contractor of U. S. Steel.
Plaintiff’s decedent was killed while piling defendant’s iron
13. The charge also included the following: “Negligence mem-
bers of the jury, is the doing of some act which a reasonably prudent
person would not do, or the failure to do something which a reason-
ably prudent person would do, when prompted by considerations
which ordinarily regulate the conduct of human affairs.” (43a).
22 Petition for Writ of Certiorart
ore when the machine he was using went over an edge of
the pile, allegedly because the lighting was insufficient for
plaintiff’s decedent to judge the distance. The trial court
found for plaintiff and the Appellate Court affirmed. The
court reasoned:
‘‘Normally, an employer of an independent contractor
is not responsible for the negligent acts or omissions
of the contractor or its employees . . . an employer,
however, must use reasonable care to make the
premises safe, or warn the contractor of any dangerous
conditions thereon.
There are however, exceptions to this general rule of
non-liability and the instant case falls within one of
these exceptions. The exception does not rest upon any
personal negligence of the employer, but is a rule of
vicarious liability. The rule is stated in $416 of the
Restatement of Torts, 2d: ‘One who employs an inde-
pendent contractor to do work which the employer
should recognize as likely to create during its progress
a peculiar risk of physical harm to others unless special
precautions are taken, is subject to liability for
physical harm caused to them by the failure of the
contractor to exercise reasonable care to take such
precautions, even though the employer has provided
for such precautions in the contract or otherwise.’ ’’
(228 Pa. Super. at 273-4)
Footnote 4 on page 274 of that opinion states the sec-
tion renders irrelevant contract provisions placing the re-
sponsibility for all necessary safety precautions on the
independent contractor.
Comment E to 4416 of the Restatement of Torts 2d,
clarified the term ‘‘peculiar risk’’ stating:
Petition for Writ of Certiorari 23
‘It is not essential that the peculiar nisk be one
which will necessarily and inevitably arise in the
course of the work, no matter how it is done. It is
sufficient that it is a risk which the employer should
recognize as likely to arise in the course of the ordinary
and usual method of doing the work, or the particular
method which the employer knows that the contractor
will adopt.’’
In Halecki v. United New York and New Jersey Sandy
Hook Pilots Assn., 302 F. 2d 840 (2nd Cir. 1962), the court
permitted a recovery in negligence despite the fact that due
to the nature of the services plaintiff was rendering, he was
not entitled to invocation of the unseaworthiness doctrine.
Plaintiff was a third party contractor’s employee who met
his death on defendant’s vessel as a result of chemical
poisoning. The trial court was directed to an earlier de-
cision by the Supreme Court of the United States, 258 U. S.
613, holding the warranty of unseaworthiness inapplicable
but directing that the case could proceed on defendant’s
failure to provide a safe place to work. The court stated:
‘**The defendant didn’t know how to do this work.
They brought it to a shipyard. Rodermond didn’t feel
competent to do it so they engaged K & S, Halecki’s
employer. The defendant was the one that ordered
this work to be done by means of the carbon tetra-
chloride and I charge you as a matter of law that the
defendant thereafter had a duty to ascertain whether
14. The Pennsylvania Supreme Court applied §416 in Phila-
delphia Electric Co. v. Julian, 425 Pa. 217, 228 A. 2d 669 (1967),
where the independent contractor was held liable for the negligence
of its sub-contractor in failing to take safety precautions to avoid
damage to underground gas mains during installation of guard rails.
Liability was imposed despite the fact that the employer may have
relied upon the sub-contractor’s knowledge of the danger, since he
failed to further warn the sub-contractor.
24 Petition for Writ of Certiorart
the sub-contractor or Rodermond was competent to do
this work and they were further charged with the duty
to ascertain and take reasonable steps to be sure in-
sofar as they could that the manner and the method
employed by either Rodermond or K & S was reason-
ably proper to keep the place in which this man had to
work, reasonably safe under all the circumstances.’
The main thrust of the instructions, and the context in
which this portion thereof must be read, is that Halecki
was a business invitee, that the shipowners owed him a
duty to exercise reasonable care to furnish him with a
reasonably safe place in which to work.
The directions given by the Supreme Court in this case
are simple and clear. ‘The defendants owed a duty of
exercising reasonable care for the safety of the de-
cedent.’ 358 U. S. at pp. 618-619, 79 Supr. Ct. at p.
520: ‘It was for the triers of fact to determine whether
the defendants were responsibly negligent in permit-
ting or authorizing the method or manner of its
[carbon tetrachloride] use.’’’ 302 F. 2d at 841.
In the case at bar, the jury specifically found the ex-
istence of a duty, and its breach. That finding should not
be disturbed. See Spinozei v. E. J. Lavino & Co., 243 F. 2d
80 (3rd Cir. 1957), wherein an earth wall of a construction
trench collapsed and suit was brought against the corpora-
tion which had contracted with the decedent’s employer to
perform this excavation work at defendant’s premises.
Decedent’s employer was to furnish equipment and perform
excavation work to the specifications provided by the de-
fendant. The court stated:
‘Tt is apparent that where the employer has retained
some element of control of the job, he should be re-
sponsible for the harmful consequences of its perform-
Petition for Writ of Certiorari 25
ance as a concomitant of the control retained . . . it is
the jury’s function to determine whether the employer
retained control so as to make him liable.’’ 243 F. 2d
at 83. (Emphasis supplied.) ™
By virtue of the jury’s finding of shipowner pierside negli-
gence in interrogatory 3(b)(1) and (2), a verdict for the
plaintiff should have been instituted under state law.
3. The Determination of the Issues of Negligence and Un-
seaworthiness Are in the Paramount Province of the
Jury and It Was Error for the Court to Disturb Them.
The existence of negligence is consistently viewed as
a question of fact to be determined preeminently by a jury.
U.S. Steel Co. v. Olewinski, 235 F. 2d 326 (6th Cir. 1956) ;
Lee v. Pennsylvania Railroad Co., 192 F, 2d 226 (2nd Cir.
1951) ; Born v. Osendorf, 329 F. 2d 669 (8th Cir. 1964).
‘‘In a negligence case the function of a jury is not
merely to determine the basic facts upon conflicting
evidence; it is the jury’s function to determine the
appropriate rule of conduct for the particular circum-
stances found to have existed.’’ Foster v. Sol Greisler,
15. See also Guinones v. Township of Upper Moreland, 293
F. 2d 237, 239 (3rd Cir. 1961) where plaintiff's decedent was killed
while excavating a trench which caved in. The township was author-
ized to make inspections to insure compliance with Pennsylvania
law and regulations. The court thus stated:
“In finding against Township with respect to plaintiff's verdict,
the trial judge held that there was sufficient evidence to sustain
the jury’s finding ‘that township had retained sufficient control
{with respect to the contractor’s performance] to make it liable
for the absence of shoring.’ In doing so he pointed to the fact
that the failure to provide shoring was in violation of a Penn-
sylvania statute and regulations of the Pennsylvania Department
of Labor and Industry.” (293 F. 2d at 239).
See also the portion of Captain Ash’s testimony regarding the
longshore regulations introduced (33a-41a).
26 Petition for Writ of Certiorart
Inc., 150 Pa. Super. 509, 511 (1941) ; Lobianco v. Valley
Forge Military Academy, 224 F. Supp. 395 (E. D. Pa.
1963).
The ability to make such determination has been held
to be within the province of the jury even when mixed
questions of law and fact are involved. Lobianco, supra;
Pennsylvania Railroad Co. v. Peters, 116 Pa. 206, 215-16
(1887). Once the determination is so made, it can only
be set aside if patently and blatantly erroneous. Virgilia
v. Walker, 254 Pa. 241 (1916). The jury in the instant
ease found negligence and unseaworthiness counts based
upon substantial evidence in the record and consistent with
the court’s charge. See McNeil v. A/S Hauter v. Inde-
pendent Pier Co., supra, where the court states:
‘‘Whether defendant breached its duty (to forbid im-
proper unloading methods of the stevedore) is not for
the court to decide, but rather is a question of reason-
ableness appropriate for the jury’s determination.’’
326 F. Supp. at 230.
In light of these circumstances, it was error for the court
to usurp the jury’s basic fact finding function and mold
the defendant’s verdict.
CONCLUSION.
This Court is requested to review this matter in order
to clarify the distinctions in the maritime law between
Victory Carriers v. Law, supra, and Gutierrez v. Water-
man Steamship Corp., supra, and also to clarify the ap-
plication of the common law of the state for a maritime tort
where said common law is not repugnant to the maritime
laws.
_———e ee «=
Petition for Writ of Certiorari 27
It is respectfully submitted that the issue herein is of
great importance since Victory Carriers v. Law placed a
limitation on the maritime law, and never intended to
defeat admiralty jurisdiction, wherein an appurtenance of
the vessel was involved in a pierside injury.
Respectfully submitted,
ArNotp LEvIN,
FREEDMAN, Borowsky aNnp Lorry,
Attorneys for Petitioner.
APPENDIX A.
OPINION AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA.
Epwarp R. Becker, District Judge.
This is an action for damages for personal injuries
suffered by a longshoreman when he was struck by ship’s
dunnage which was alleged to be improperly banded and
which slid off a forklift truck which was being driven along
the pier during cargo operations. After a lengthy trial
on the issue of liability, the jury returned answers to 18
special interrogatories. From those answers we molded
a verdict for the defendant, and it is that decision
which is challenged in plaintiff’s post-trial motion.! The
case requires that we further refine, in a novel factual
situation, and in the wake of the decision in Victory Car-
riers v. Law, 404 U. S. 202, 92 S. Ct. 418, 30 L. Ed. 2d 383
(1971), the shoreside limits of the maritime jurisdiction,
which by Act of Congress, 46 U. 8S. C. $740 (the Admiralty
Extension Act of 1948), ‘‘shall extend to and inelude all
eases of damage or injury, to person or property, caused
by a vessel on navigable water, notwithstanding that such
damage or injury be done or consummated on land.’’
I. The Facts.
The facts surrounding the plaintiff’s aécident were
developed at length at trial. They may be briefly sum-
marized as follows. Plaintiff was a longshoreman em-
1. The plaintiff also moved for a new trial on the grounds that
the verdict was against the weight of the evidence and the law. After
reviewing the transcript, we believe that the evidence, which was
basically not in dispute, overwhelmingly supports the verdict. In-
deed, plaintiff did not press this aspect of the motion in his briefs.
(Al)
A2 District Court Opinion and Order
ployed by the third party defendant Atlantic & Gulf Steve-
dores, Inc. (‘‘Atlantic & Gulf’’), and on the day of the
accident was working in connection with the cargo opera-
tions of the defendant’s vessel, the S. S. Executor. Be-
tween 8:00 and 9:00 a.m., several hours before the accident,
the plaintiff’s co-employees discharged from the ship sev-
eral drafts or loads of dunnage, that is, assorted lumber
which every ship has in its hold and which is used, inter
alia, to separate cargo or make a floor to support it. Dun-
nage used on a ship is the property of a shipowner. The
drafts of dunnage were lifted out of the hold and onto the
pier by means of lumber bridles, which are two straps each
having a choker device which pulls the strap tight when
the load is lifted. When the dunnage was landed on the
pier the lumber bridles were removed and the dunnage sat
unbanded on the pier.
That afternoon it became necessary to move some of
the dunnage to another place on the pier. To accomplish
this, the plaintiff’s co-employee, Elton Grogans, lifted a
stack of dunnage on the forks of a chisel (a forklift truck)
and drove the chisel along the pier. The stack of dunnage
being moved by the chisel was approximately three or three
and a half feet high, consisting of perhaps a few hundred
sticks of lumber each about an inch thick, four to eight
inches wide, and six to ten feet long. As the chisel passed
near the plaintiff, a few sticks of dunnage slid off the un-
banded stack to the side, striking the plaintiff and causing
his injuries. The cargo operations were being performed
by Atlantic & Gulf under the direction of its foremen and
gang bosses. While there was testimony by plaintiff’s ex-
pert, Captain William Ash, that the Master of the vessel
‘fis in charge of cargo operations on a merchant vessel,’’
there was no evidence that any of the vessel’s personnel
exercised any such control or that they were even present
or in any way involved in the cargo operations in question.
District Court Opinion and Order A3
Because of the complexity of the legal issues involved
in the case and the variety of theories of recovery, we sub-
mitted to the jury 18 special interrogatories which ad-
dressed all of the critical facts which might affect the out-
come. In this way we would be able to mold a verdict
regardless of what legal principle might ultimately control.
In its answers to those special interrogatories, which are
attached to this Opinion as an appendix, the jury found
facts which may be summarized as follows:
1. The dunnage striking the plaintiff was the prop-
erty of the vessel and was the same dunnage that had
been removed from the vessel earlier in the day by the
third-party defendant’s employees and placed upon
the pier.”
2. The stevedore did not employ an improper ship-
side method of operation in discharging the dunnage
from the ship. ‘‘Shipside’’ means up until the time
the dunnage was released from the ship’s tackle onto
the pier. (The interrogatory from which this finding
stems was captioned ‘*Unseaworthiness—Shipside
method of operation.’’)
3. The shipowner was not negligent in failing to
supply proper equipment to the stevedore or in failing
to eliminate an improper shipside method of operation
by the stevedore in connection with the discharge of
the dunnage from the ship. (The interrogatory from
which this finding results was captioned ‘‘ Negligence—
Shipside.’’)
4. The method of operation used by the stevedore
in handling the dunnage on the pier after it left the
2. By this finding the jury rejected the shipowner’s contention
that the dunnage which injured the plaintiff had never been on the
ship.
A4 District Court Opinion and Order
ship’s tackle was improper, i.e., negligent or unsafe,
because the stevedore did not secure the dunnage or
make it fast, and this improper method of operation
was a proximate cause of the plaintiff’s injury. (The
interrogatory from which this finding emanates was
captioned ‘‘Shoreside—Method of Operation.’’)
5. The shipowner was negligent in failing to elimi-
nate the stevedore’s improper method of handling the
dunnage on the pier after it left the ship’s tackle and
this negligence was a proxiiate cause of the plaintiff’s
injury. (The interrogatory from which this finding
stems was captioned ‘‘ Negligence—Pierside.’’)
6. The driver of the chisel was not negligent,
either in picking up too much dunnage on his forks or
in his method of driving the chisel on the pier.
7. The plaintiff was not contributorily negligent.
8. The stevedore breached its warranty to the
shipowner to perform its job in a reasonably safe, com-
petent, and workmanlike manner, or it was negligent
in the manner in which it performed its job.’
We did not submit to the jury the question of whether
the dunnage was an appurtenance of the ship. The evi-
dence was uncontradicted that the dunnage had been re-
moved from the ship to facilitate cargo operations and that
it was destined to return to the ship at the end of the day.
Accordingly, we informed counsel that it was our ruling
that the dunnage was and remained an appurtenance of
the ship while it was on the pier. Nor was there any dis-
pute about the fact that the dunnage was fit for its intended
purpose until the time it left the ship’s tackle when it landed
3. This finding would have required that the shipowner be
granted indemnity had the verdict been molded for the plaintiff.
0g
District Court Opinion and Order AS
on the pier. Until that time the dunnage was securely
banded by the lumber bridles—indeed, plaintiff’s witness
Rutter testified that the dunnage was ‘‘tight and beautiful’’
when it left the ship. And the jury found that there was
no improper handling of the dunnage until after it was re-
leased from the ship’s tackle on the pier.
As the special findings of the jury indicate, we could
have molded the verdict in favor of the plaintiff on only
two theories; first, that the improper pierside method of
operation by the stevedore in handling the dunnage on the
pier rendered the ship unseaworthy; and second, that the
shipowner’s negligent failure to eliminate the stevedore’s
improper pierside method of operation breached a duty of
care owed by the shipowner to the plaintiff.‘ For the
reasons expressed in this Opinion, the law does not sustain
either of plaintiff’s theories, and we will deny the plain-
tiff’s motion to remold the verdict in his favor.
Il. Did the Stevedore’s Improper Pierside Method of
Operation Render the Ship Unseaworthy?
Plaintiff’s first claim against the shipowner is that this
accident is governed by federal maritime law, which in-
cludes the shipowner’s warranty of seaworthiness, That
doctrine is in essence ‘‘that things about a ship, whether
the hull, the decks, the machinery, the tools furnished, the
stowage, or the cargo containers, must be reasonably fit for
4. The jury’s finding that there was no unseaworthy condition
or any negligence respecting the shipside method of operation elimi-
nated any possibility of molding a verdict for plaintiff on these aspects
of the case. Thus, plaintiff's post trial argument that the failure of
the shipowner to supply, and the stevedore to use, rope slings before
the dunnage was lifted out of the hold rendered the ship unseaworthy
is disposed of by the jury's findings of no negligence or unseaworthi-
ness in the shipside methods of operation. We note too that this
was purely a “method of operation” case; there was no contention
by plaintiff of any unseaworthiness or negligence other than by an
improper method of operation.
A6 District Court Opinion and Order
the purpose for which they are to ke used.’’ Gutierrez v.
Waterman Steamship Corp., 373 U. %, 206, 213, 83 S. Ct.
1185, 1190, 10 L. Ed. 2d 297 (1963). This warranty of sea-
worthiness runs to longshoremen engageG.in cargo opera-
tions, as well as to seamen, Seas Shipping Co. v. Sieracki,
328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). By virtue
of the Admiralty Extension Act of 1948, supra, maritime
law governs not only accidents occurring on navigable
waters, but also injuries ‘‘caused by a vessel on navigable
water, notwithstanding that such damage or injury be done
or consummated on land.’’
However, maritime law, including the warranty of sea-
worthiness, does not apply to all accidents occurring during
cargo operations. In Victory Carriers, Inc. v. Law, 404
U. S. 202, 92 S. Ct. 418, 30 L. Ed. 2d 382 (1971), the
Supreme Court held that maritime law did not apply to an
accident on the pier in which a longshoreman driving a
cargo-laden forklift, owned by the stevedore, was injured
by a defective protection rack on the forklift which came
loose and fell on him. On the other hand, the Victory Car-
riers decision reaffirmed the Court’s holding in Gutierrez
v. Waterman Steamship Corp., 373 U. S. 206, 83 S. Ct. 1185,
10 L. Ed. 2d 297 (1963), that maritime law does apply when
a longshoreman is injured on the pier by defective cargo
containers, which are appurtenances of the ship, that were
defective before they left the ship. The issue before us is
whether this case is controlled by Victory Carriers or by
Gutierrez. We have concluded that Victory Carriers con-
trols.°
_ _5. The notion of the “applicability of maritime law” has three
distinct aspects. In our reading of the caselaw we find various cases
addressing different aspects of the notion without articulation. Ac-
cordingly, in the interest of clarity and precision of analysis, it will
be — to discuss these three aspects and note which are before
us here.
The first aspect is the issue whether the federal court has subject-
matter jurisdiction, by virtue of the maritime nature of the case, under
——
District Court Opinion and Order AZT
As we have noted above, we are satisfied that the dun-
nage was an appurtenance of the ship, and remained so
even after it was unloaded from the hold and stacked on
the pier. In this respect the case before us is more akin to
Gutierrez than to Victory Carriers. However, in Gutierrez
the leaking cargo containers were defective and were leak-
ing even before they were removed from the ship, and we
regard this fact as crucial to the decision in that case. The
dunnage here was not defective until after it left the ship’s
tackle, and then only because it was rnbanded on the pier.
It is not in the nature of dunnage to be banded while it is
on the ship.* The plaintiff here has not cited to us, and
5. (Cont'd. )
28 U. S. C. § 1333. This is not an issue in the case at bar because
our jurisdiction stems from 28 U. S. C. § 1332, diversity of citizen-
ship. The second aspect is a choice-of-law question : whether the
substantive principles applicable to the case are principles of state law
or principles of maritime law, including both the warranty of sea-
worthiness and maritime negligence law. It is to these two matters
that the Extension of Admiralty Jurisdiction Act, 46 U.S. C. § 740,
is relevant. The third aspect is the application of maritime law to
the facts, i.c., deciding whether under the facts the vessel was unsea-
worthy and whether the shipowner was negligent. oo
We have examined some of the cases discussed in this Opinion
with reference to the classifications spelled out above. Victory Car-
riers dealt with the second question, the choice-of-law question. — The
last paragraph of Mr. Justice White's majority opinion indicated
that a decision in that case that maritime law applied to the accident
would not necessarily mean that the federal courts would have sub-
ject matter jurisdiction under § 1333, and suggests that it would be
up to Congress to expand the admiralty subject-matter jurisdiction
of the federal courts. Gutierrez, in the section of the opinion not
dealing with negligence, deals with the third issue, in two parts:
first, whether the defective cargo containers (bean bags) made the
ship unseaworthy, and second, whether the unseaworthiness principle
allows recovery to a longshoreman working on the pier rather than
on the vessel. The Court answered both questions affirmatively. It
is the second aspect of the notion of maritime jurisdiction—the
choice-of-law question dealt with in Victory Carriers—with which
we are concerned in this section of the Opinion.
6. However, as noted above, the jury in its findings rejected
both the plaintiff's attempt to bring the case within Gutierrez and
the plaintiff's argument that the failure to band the dunnage while
A& District Court Opinion and Order
we have been unable to find, a single case applying the law
of the sea to a longshoreman injured while working on the
pier by an appurtenance of the vessel which was removed
from the vessel and which was wholly fit when removed but
rendered unfit by the stevedore after it was placed on the
pier and detached from the ship’s tackle.
The most notable cases in the area, including those
relied upon by the plaintiff, are all inapposite. In Hagans
v. Ellerman & Bucknall Steamship Co., 318 F. 2d 563 (3d
Cir. 1963), the plaintiff was working in the pier shed un-
loading bags of sand from trucks onto which they had been
placed by the ship’s tackle, when he slipped on sand that
had leaked onto the floor. Just as in Gutierrez, the evi-
dence was that the sandbags were already leaking before
they were removed from the ship’s hold. In Thompson v.
Calmar Steamship Corp., 331 F. 2d 657 (3d Cir. 1964), cert.
denied, 379 U. S. 913, 85 S. Ct. 259, 13 L. Ed. 2d 184 (1964),
the plaintiff was standing at the brake of a freight car con-
taining cargo about to be loaded aboard the vessel. The
ship’s tackle was used to pull three other loaded cars into
motion so that they would strike the plaintiff’s car and
thereby move it into proper position for loading. Thomp-
son is thus distinguishable from the case at bar because
the ship’s tackle caused the injury while it was being im-
properly used. In Spann v. Lauritzen, 344 F. 2d 204 (3d
Cir. 1965), cert. denied, 382 U. S. 938, 86 S. Ct. 386, 15 L.
Ed. 2d 348 (1965), the plaintiff was injured by a defective
piece of equipment owned by the stevedore and located on
the pier but which was being used to unload the cargo from
the ship. Our case is different because the dunnage was not
being used as equipment in the direct unloading of the
cargo.
6. (Cont’d.)
still on the ship was improper. This case might have had a different
result had the plaintiff been injured, e.g., by sharp nails protruding
from the dunnage.
District Court Opinion and Order A9
Furthermore, we must be extremely careful in relying
on pre-Victory Carriers precedents applying maritime law.
Victory Carriers did not list which lower court decisions
it approved and which it disapproved, but in 404 U. S. at
214, 92 S. Ct. 418, 30 L. Ed. 2d 383 n. 14, the Court noted
the presence of ‘‘substantial confusion in the lower courts”’
and observed that ‘‘the cases are impossible to rational-
ize.’’ Spann v. Lauritzen, supra, is one of the cases cited
as an example. Spann is also cited with approval in the
dissenting opinion, in which it is characterized as involv-
ing analogous facts to that in Victory Carriers. Accord-
ingly, we think we are better advised to scrutinize Victory
Carriers itself carefully for any teachings applicable to
our case.
The Supreme Court’s opinion approves the approach
of ‘‘[rJeliance upon the gang plank tine as the presumptive
boundary of admiralty jurisdiction except for cases in
which a ship’s appurtenance causes damage ashore,’’ 404
U. S. at 214 n. 14, 92 S. Ct. at 426. The Court examined
the facts before it and found the absence of ‘‘the typical
elements of a maritime cause of action’’: Was the plaintiff
injured by ‘‘equipment that was part of the ship’s usual
gear or that was stored on board’’; was the equipment that
injured him attached to the ship; was the equipment under
the control of the ship or its crew; and on which side of the
gangplank did the accident occur? All of these typical
elements were lacking in Victory Carriers; here we find
only the first is present, and that only in attenuated fashion,
since the dunnage was serving no function while it was
being stored on the pier. The other elements are con-
spicuously absent.’
7. Even though the location of the accident is one criterion for
considering whether maritime law applies to the plaintiff's injury, it
is not the sole criterion. In Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U. S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972),
A10 District Court Opinion and Order
Furthermore, the Court specifically held that the fact
that the plaintiff in Victory Carriers was engaged in a very
general sense in the process of unloading the cargo, his-
torica!ly a seaman’s task (and noted as such on this record
by Capiain Ash), did not automatically entitle him to the
benefit of the unseaworthiness remedy. Instead. ssid the
Court, where the injury takes place on the pier, such as in
Gutierrez, the plaintiff can recover only if his injury is
caused by an appurtenance of the ship in such a way that
the injury can be held to be an ‘injury, to the person. . .
caused by a vessel on navigable water’’ within the language
of the Extension Act. We cannot hold here, as plaintiff
asks us to, that plaintiff’s injury was ‘‘caused by a vessel
on navigable water,’’ since the dunnage was not on board
or attached to the ship at the time; it was in seaworthy
condition when it left the ship (the jury expressly so found)
and until the time came for it to be moved from one place
to another on the pier where the accident took place; and
the ship’s crew was in no way responsible for its handling
after it left the ship’s tackle. Thus for the reasons stated
we conclude that Victory Carriers does not authorize re-
covery by the plaintiff in this case for unseaworthiness.
To afford the plaintiff here an unseaworthiness
remedy, we would have to expand admiralty jurisdiction
beyond the furthest point to which the Supreme Court has
extended it, which is the Gutierrez case. For, as we have
seen, the case before us lacks two elements present in
Gutierrez which contributed to the link in that case with
the maritime jurisdiction: the fact that the cargo con-
tainers were defective while still on board the ship, and
the related fact that the shipowner had an opportunity to
7. (Cont'd. )
the Court eschewed the strict situs-of-the-tort approach in favor of
a more flexible analysis of the relationship of the accident to tradi-
tional maritime activity. This attitude is consistent with the philoso-
phy of Victory Carriers.
District Court Opinion and Order All
repair the cargo containers while they were still under his
control. Plaintiff in essence asks us to hold that the mari-
time jurisdiction applies even without these two elements.
This we are unwilling to do. Just last term, the Supreme
Court, in Executive Jet Aviation, Inc. v. City of Cleveland,
409 U. S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972), re-
iterating its approach in Victory Carriers, warned that ‘‘in
determining whether to expand admiralty jurisdiction, ‘we
should proceed with caution... .’’’ We might add our
own view that a district judge asked to expand the scope
of maritime jurisdiction might exercise more caution than
the Supreme Court, one of whose functions is to shape the
law.
In Victory Carriers the Court noted that its decision
in no way contravened the policy of compensating long-
shoremen for injuries without proof of fault because of the
hazards of their occupation. This was so because injured
longshoremen were generally covered by state workmen’s
compensation laws. Even if the plaintiff recovered from
the vessel owner, the latter would more often than not be
entitled to indemnity under its contract with the stevedore,
so that the burden of the loss in any event would fall on the
stevedore. When the longshoreman sues the shipowner for
unseaworthiness, as the Court observed, what is generally
at issue is not whether the longshoreman will recover, and
from whom, but just how much he will recover from his
employer. The legislatures, the Cont said, may wish to
make better provision for compensation of injured long-
shoremen when they have no remedy against the shipowner,
but the Court is limited by the Extension Act from expand-
ing the scope of seaworthiness protection afforded long-
shoremen working on the pier.
In fact, Congress did turn its attention to the arguable
inequity of the availability of a tort remedy to some injured
longshoremen but not others. However, the legislative
Al2 District Court Opinion and Order
solution was not to further broaden the scope of the mari-
time jurisdiction; rather, Congress extended the Long-
shoremen’s and Harbor Workers’ Compensation Act, 33
U. S. C. §§ 901-950, to cover pierside as well as shipside
accidents, § 903, and made this statutory compensation the
exclusive compensation available to longshoremen ‘‘if the
injury was caused by the negligence of persons engaged in
providing stevedoring services to the vessel.’’ §905(b)
See Act of Oct. 27, 1972, P. L. 92-576, 33 U. S. C. § 905(b).
And see generally Lucas v. Brinknes Schiffahrts GES.
Franz Lange G. m. b. h. & Co., K. G., 379 F. Supp. 759
(E. D. Pa., filed Aug. 5, 1974) (Huyett, J.). The 1972
amendments eliminate a longshoreman’s cause of action
against a vessel for unseaworthiness, although it permits
him to sue for the negligence of the vessel. Thus, even in
the case of accidents clearly within the maritime juris-
diction, longshoremen will not be able to sue the vessel for
injuries resulting solely from the negligence of their fellow
employees.* Consequently, had this plaintiff’s accident oc-
curred after November 26, 1972, the effective date of the
amendments, he would be denied recovery on the jury’s
finding of no shipside negligence by the shipowner,™ re-
gardless of whether the stevedore’s actions made the ship
unseaworthy under traditional maritime law. Moreover,
the legislative history of the 1972 amendments as explicated
at length in Lucas, supra, consistent with the thrust of
Victory Carriers, reflects the congressional intention to
place the primary duty to provide a safe place for a long-
shoreman to work upon the stevedore. Hence, our discus-
8. Under the Act prior to amendment, the common case before
the judges of this Court was one in which the longshoreman’s claim
was based upon unseaworthiness and the ship had been rendered
unseaworthy by actions of the stevedore’s employees. Such a case
no longer gives rise to liability of the vessel.
8a. We discuss the effect of the jury’s finding of pierside negli-
gence by the shipowner, infra.
te eee eae ates
a oe
District Court Opinion and Order Al3
sion in this opinion of this intellectually fascinating border-
line situation, while of course having the utmost importance
to Mr. Mascuilli, will have virtually no precedential effect.
Our research has uncovered only one case on all fours
with this case, and it supports the result we reach. In
Snydor v. Villain & Fassio et Compania Internazionale Di
Genova Societa Reunite Di Naviagaione, S. P. A., 459 F. 2d
365 (4th Cir. 1972), plaintiff Green was working in the pier
shed spotting pallets of cargo unloaded from the ship. He
was injured when a case of cargo fell from a stack of pallets,
and he claimed that his injury was caused by defective
cargo pallets, which were an appurtenance of the ship.
However, at the trial he offered no evidence that the pallets
were defective when they left the ship. Instead, the evi-
dence tended to prove that the defect in the pallets resulted
from the negligence of a forklift operator during the stack-
ing of the pallets after they left the ship. The Court of
Appeals affirmed denial of maritime recovery, holding that
evidence that the pallets were defective when they left the
ship would be ‘‘a fact crucial to establishing a maritime
cause of action under the Admiralty Extension Act.’’ 459
F. 2d at 368. The Court thus distinguished Gutierrez, as
we have done, on the ground that in Gutierrez the cargo con-
tainers were defective when they left the ship; where they
did not become defective until later, and no personnel from
the vessel made them defective, recovery must be denied.
This case is strikingly similar to Snydor. The dun-
nage was in proper condition when it left the ship, being
adequately contained by the lumber bridles; there was no
need for it to be banded while it sat in one place on the
pier; only when the stevedore lifted the dunnage on the
forks of the chisel to move it on the pier was there any-
thing wrong with the condition of the dunnage, i.é., it was
unbanded and loose. We thus agree with the Fourth Cir-
cuit, the only court we have found that has ruled on this
Al4 District Court Opinion and Order
precise point. We also infer from a reading of Gutierrez
the strongest implication that if the bean bags had not
begun leaking until after they were landed on the pier, and
it was the negligence of the longshoremen that caused them
to leak, e.g., handling the bags with sharp hooks to move
them from the pier into the pier shed, then the case would
have been decided the other way.
Garrett v. Gutzeit O/Y, 491 F. 2d 228 (4th Cir. 1974),
relied upon by plaintiffs, is inapposite. In Garrett, which
is a case virtually on all fours with Gutierrez, a longshore-
man was injured when some wire bands used to compress
bales of pulp paper which had been discharged from the
vessel broke under the stress of a hand hook while the
dock gang was jumping a bale up to the fourth tier of a
stack. The accident occurred 31% hours after the work
started during which time numerous bands on the cargo
had been breaking. The evidence was that the bands broke
because of the way the bales had been wedged in the hold
of the ship; that shifting weight during the voyage and
the strain of the wedged bales had caused breakage; and
that the ship’s crew was on duty during the unloading
and had observed the defective condition of many of the
bands for over three hours. Thus, unlike the present case,
the appurtenance causing the accident was defective prior
to leaving the ship. In a footnote, the Garrett court cites
Gutierrez as ‘‘establish[ing] that jurisdiction existed on
the dock if the shipowner discharged defective cargo con-
taimers.’’ Id. at 233 n.8 (emphasis added). And the court
reaffirmed the holding of Snydor, supra, that ‘‘{a] fact
crucial to establishing a maritime cause of action under
the Admiralty Extension Act is that the cargo containers
were defective when they left the ship.’’ Jd. n. 9.
In sum, the jury’s finding of an improper pierside
method of operation by the stevedore does not aid plain-
tiff’s case. Under the facts of this case and the applicable
(orm
District Court Opinion and Order Al5
law, plaintiff has no maritime cause of action under the
Admiralty Extension Act; hence the verdict was properly
molded for the shipowner on the issue of unseaworthi-
ness.°
We also believe, however, that even if the warranty
of seaworthiness applies in this case, that the improper
pierside method of operation by the stevedore did not
render the ship unseaworthy. We have little doubt that
improper method of operation by the stevedore’s em-
ployees on board the ship or on the pier while using the
ship’s tackle renders the ship unseaworthy, see, e.g., Fer-
rante v. Swedish American Lines, 331 F. 2d 571 (3d Cir.
1964), petition for cert. dismissed, 379 U. S. 801, 85 S. Ct.
10, 13 L. Ed. 2d 20 (1964); Scott v. Isbrandtsen Co., 327
F. 2d 113 (4th Cir. 1964), as long as the improper method
of operation is not merely instantaneous, Usner v. Lucken-
bach Overseas Corp., 400 U. S. 494, 91 S. Ct. 514, 27 L. Ed.
2d 562 (1971). However, we have found no authority sug-
gesting that an improper pierside method of operation by
the stevedore when the ship’s tackle is not being used and
the cargo is not being moved onto or off of the ship renders
the ship unseaworthy, even though the stevedore is gen-
erally engaged in the process of loading or unloading.
Therefore, we would address the third aspect of maritime
jurisdiction referred to in note 5, supra, with the conclusion
that the improper pierside method of operation specially
found by the jury did not render the vessel unseaworthy
as a matter of law, and accordingly, unseaworthiness re-
covery by the plaintiff must be denied on this additional
ground.
9. Plaintiff has not argued that there is an unseaworthiness doc-
trine in Pennsvivania law which would be applied even though federal
maritime law is not. Nor are we aware of any such doctrine. Sée
Cooper v. Australian Coastal Shipping Comm'n, 338 F. Supp. 1056
(E. D. Pa. 1972), aff'd mem., 474 F. 2d 1340 (3d Cir. 1973);
McNeil v. A/S Havbor, 339 F. Supp. 1264 (E. D. Pa. 1972).
a ——
Al6 District Court Opinion and Order
III. Did the Shipowner’s Negligence as Found by the Jury
Breach a Duty to the Plaintiff?
Plaintiff’s second claim for the molding of the verdict
in his favor stems from the jury’s findings that the ship-
owner was negligent in failing to eliminate the stevedore’s
improper method of handling the dunnage on the pier after
it left the ship’s tackle and that this negligence was a proxi-
mate cause of the plaintiff’s injury. These findings frame
the plaintiff’s contention that, even if he cannot recover
on the basis of the vessel’s unseaworthiness, he is entitled,
by reason of the jury’s finding, to recover on the basis of
negligence. Negligence, he reminds us, is a separate and
distinct doctrine from that of unseaworthiness. See Earles
v. Union Barge Line, 486 F. 2d 1097 (3d Cir. 1973).
The maritime law includes a negligence principle em-
bodying the standard of reasonable care, see Kermarec v.
Compagnie Generale Transatlantique, 358 U. S. 629, 630,
79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)."° Moreover, Victory
Carriers dealt only with the doctrine of unseaworthiness,
negligence was not at issue. However, we do not see that
as a distinction with a meaningful difference. In view of
the reasoning of Victory Carriers, we believe that the
Court would have held that there was no federal maritime
jurisdiction in the choice of law sense (see n. 5 supra)
over a negligence claim by plaintiff.
The foregoing conclusion does not of course end our
inquiry, for the case is here under the diversity jurisdic-
tion where plaintiff might be entitled to recover on the
ground of state negligence law (although he asserted no
such claim at trial). The maritime law of negiigence may
well be broader than that embodied in the law of Pennsyl-
vania which would be applicable if state law applies. How-
ever, under either Pennsylvania law or maritime law, the
10. Plaintiff is not a merchant seaman, hence the Jones Act
46 U. S. C. § 688 (1970), does not apply. , ;
District Court Opinion and Order Al7
defendant is not liable to the plaintiff if the accident did
not result from defendant’s breach of a duty of care owed
to the plaintiff. And under the facts of this case, there
is no evidence of a duty of care owed by the shipowner to
the plaintiff or of a breach thereof if any such duty existed.
Further, the jury’s finding that the shipowner was negli-
gent in failing to eliminate the stevedore’s improper
method of handling the dunnage on the pier after it left
the ship’s tackle is devoid of even minimal evidentiary
support which would enable us to mold a verdict for the
plaintiff.”
The principal question in this area is whether the ship-
owner had a duty to the plaintiff to see that the dunnage
was not transported from one spot on the pier to another
without having first been banded. As we understand Penn-
sylvania law (and also maritime law), the defendant ship-
owner had no duty to use reasonable care to see that the
method of operation employed on the pier after the cargo
left the ship’s tackle was safe and proper. To say that
cargo operations are traditional duties of seamen, that is,
shipowner’s employees, see Seas Shipping Co. v. Sieracki,
328 U. S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), is not
necessarily to conclude that even when the cargo operations
are delegated to an independent contractor (the stevedore),
as they were here, the shipowner retains supervision and
control of the entire operation. It is true that the ship-
owner remains in control of the ship and cannot delegate
his duty to provide longshoremen with a reasonably safe
11. Our view on this point has not changed since the time of
the trial. We submitted the issue of pierside negligence to the jury
only to avoid the necessity of a retrial in the event that we did change
our view upon the further reflection that we knew we could afford
on post trial motions. A similar course was followed by our col-
league Judge Higginbotham in The Venzie Corporation v. United
States Mineral Products Company, Inc., 382 F. Supp. 939 (E. D.
Pa., filed July 7, 1974).
A18 District Court Opinion and Order
place to work while they are on the ship, see Beard v. Eller-
man Lines, Ltd., 289 F. 2d 201 (3d Cir. 1961). But it is
equally true that the shipowner has no control of the pier
end correspondingly no duty, for instance, to repair or
warn against the presence of holes in the pier floor. Cf.
MeNeil v. A/S Havbor, 339 F. Supp. 1264 (E. D. Pa. 1972).
And while there was a broad opinion by Captain Ash as to
the generalized role of the master of the vessel in connec-
tion with cargo operations, there was no evidence here of
control or right of control in the ship or even evidence
from which an inference of control could be drawn such as
would justify a verdict under state law. Cf. Spinozzi v.
E. J. Lavino & Co., 243 F. 2d 80 (3d Cir. 1957),
On this record it appears that the longshoremen were
employees of the stevedore only and they took their orders
from the stevedore only, not from the ship’s officers. The
shipowner’s supervision over the method of cargo opera-
tions extended beyond the gangplank onto the pier only to
the extent that appurtenances of the ship, such as winches
and booms and cables, were used to move cargo between
the pier and the ship. Operations strictly on the pier, in-
volving use of the stevedore’s equipment only, were not
subject to control by the shipowner. The courts have
recognized that a duty of care does not always arise when-
ever ship’s officers are present to observe and inspect opera-
tions by a contractor. See West v. United States, 361 U. S.
118, 80 S. Ct. 189, 4 L. Ed. 2d 161 (1959) ; Bryant v. National
Transport Corp., 467 F. 2d 139 (3d Cir. 1972) (‘the evi-
dence would not support a finding that the shipowner had
retained possession or control of the area or the activity in
which the accident occurred’’); McGrath v. N. V. Reederin
‘*Nautiek’’, Civ. No. 70-3361 (E. D. Pa. Dee. 30, 1971) (ship-
owner had no control over unloading of cargo from boxcar
on pier); Cooper v. Australian Coastal Shipping Comm’n,
338 F. Supp. 1056 (KE. D. Pa. 1972), aff’d mem., 474 F. 2d
Cn ee ae eee
ee
District Court Opinion and Order A19
1340 (3d Cir. 1973) (shipowner had no control over cargo
movements on the pier). This is so even though the dun-
nage being moved on the pier by the stevedore was the
property of the shipowner ; the shipowner had no more duty
to supervise the method of moving its property along the
pier than it would, under the cases just cited, to supervise
the method of moving cargo, which is entrusted to it as a
carrier along the pier.
Since we hold that on this record and as a matter of
law the shipowner had no duty to control the manner in
which the stevedore operated on the pier after the ship’s
tackle was no longer involved, we cannot mold the jury’s
special finding of negligence into a verdict for the plaintiff.
This holding is buttressed by analogy to the keystone of the
plaintiff’s case—Gutierrez. In Gutierrez, the Supreme
Court held that the shipowner was negligent in permitting
the discharge of defective bean bags, even though the im-
pact of that negligence, 1.e., the accident which occurred on
the pier, was felt only in a place the shipowner did not con-
trol. That teaching is inapposite here because of the same
factual distinction that has persuaded us that Gutierrez
does not control disposition of our unseaworthiness issue.
The bean bags were defective and leaking while they were
on the ship in Gutierrez; the shipowner had control of them
at that time and should have known of their condition and
repaired them then. In our case, however, the jury found
that the dunnage was removed from the ship in a proper
manner, and that only the pierside method of operation by
the stevedore was improper. As we have noted, the evi-
dence did not show that the shipowner had the power to
direct the manner in which the longshoremen working on
the pier and not using the ship’s tackle performed their
duties. Thus, while the nondelegable duty of care referred
to in Gutierrez was a duty ‘‘not to create this risk’’ to the
plaintiff, the evidence before us is clear that the shipowner
A20 District Court Opinion and Order
did not ‘‘create the risk’’ to the plaintiff here. The risk
was created only by the stevedore’s employees, and the
question we are deciding is whether the shipowner had a
duty to prevent them from creating that risk; we hold that
it did not.
The conclusion which we reach is further buttressed by
a consideration of the legislative history of the 1972 amend-
ments, for as noted in the Lucas opinion, supra, it was the
clear intention of Congress to place the primary duty to
provide a safe place for a longshoreman to work upon the
stevedore. And, just as was the case of our analysis of the
plaintiff’s unseaworthiness claim, we feel constra ned to
observe that the 1972 amendments virtually emasculate the
precedential effect of this decision. Finally, we note that
the plaintiff has cited to us no cases holding a shipowner
liable for negligent failure to eliminate an improper pier-
side method of operation by the stevedore not involving use
of the ship’s tackle. We have been unable to find any such
cases ourselves. In sum, we hold that in the circumstances
of this case, the defendant shipowner has breached no duty
to exercise care to eliminate the improper method of opera-
tion employed by the third-party defendant stevedore in
moving the dunnage along the pier without first securing
it.’*
IV. Conclusion
For the reasons stated, we will deny the plaintiff’s
motion to remold the verdict in his favor, or in the alter-
native, to grant a new trial.
_ 12. We have already noted that the plaintiff's theory of the
shipowner’s negligence in failing to supply or requrie the use of rope
slings before the dunnage left the hold was rejected by the jury in
their answers to the special interrogatories. ; ;
District Court Opinion and Order A21
APPENDIX
SPECIAL INTERROGATORIES TO THE JURY *
I. Ownership of the Dunnage
Was the dunnage which fell from the chisel striking
the plaintiff the property of the shipowner which had been
removed from the ship earlier that day and placed on the
pier by the employees of the stevedore?
Yes
Yes No
Il. Unseaworthiness
A. Shipside
1. Method of Operation
Was the method of operation used by the stevedore in
discharging dunnage from the vessel between 8:00 a.m. and
9:00 a.m. on July 8, 1970 improper (i.e., negligent or un-
safe)? (in answering this interrogatory you are to con-
sider the method of operation used up until the time the
dunnage was released from the ship’s tackle onto the pier).
No
Yes No
2. Prorimate Cause
If the answer to the foregoing interrogatory is yes,
was the improper method of operation a proximate cause of
the injury to plaintiff?
No
Yes No
* Note to Jurors: If the answer to an interrogatory 1s, by a —
preponderance of the evidence, “ves”, then you =— _— 1 ghey
marked “yes”; otherwise you should check the box marke é;
Your verdict as to each interrogatory must be unanimous.
A22 District Court Opinion and Order
B. Shoreside
1. Method of Operation
(a) Was the method of operation used by the steve-
dore in handling the dunnage on the pier after it left the
ship’s tackle on July 8, 1970 improper (i.e., negligent or
unsafe) because the stevedore did not secure the dunnage
or make it fast?
Yes
Yes No
(b) If the answer to the foregoing interrogatory is
‘*yes,’’ was the improper method of operation a proximate
cause of the injury to plaintiff?
2. The Chisel
(a) Did Mr. Grogans pick up too much dunnage on his
forks?
Yes No
(b) If the answer to the foregoing interrogatory is
‘*yes,’’ was that fact a proximate cause of the injury to
plaintiff ?
No
Yes No
(ec) Did Mr. Grogans drive the chisel negligently?
No
Yes No
(d) If the answer to the foregoing interrogatory is
‘*yes,’’ was Mr. Grogans’ negligent driving of the chisel a
proximate cause of the injury to plaintiff?
a ae ae
en a Oe eer eR eer er lo ee ee
District Court Opinion and Order A23
III. Negligence
A. Sh ipside
1. Was the shipowner negligent in failing to supply
proper equipment to the stevedore or in failing to eliminate
an improper shipside method of operation by the stevedore
in connection with the discharge of dunnage from the vessel
between 8:00 a.m. and 9:00 a.m. on July 8, 1970? (In an-
swering this interrogatory, you are to consider the method
f operation used up until the time the dunnage was re-
leased from the ship’s tackle onto the pier)
vO
Yes No
9. Proximate Cause
If the answer to the foregoing interrogatory is ‘‘yes,”’
was the negligence of the shipowner a proximate cause of
the injury to plaintiff?
Yes No
B. Pierside
1. Was the shipowner negligent in failing to eliminate
an improper pierside method of operation by the stevedore
in connection with the handling of dunnage on the pier
after it left the ship’s tackle?
2. Proximate Cauce
If the answer to the foregoing interrogatory is ‘‘yes,”’
was the negligence of the shipowner a proximate cause of
the injury to plaintiff?
Yes
~ Yes No
A24 District Court Opinion and Order
1V. Contributory Negligence
A. Acts or Omissions
Was the plaintiff guilty of any negligence which con-
tributed to his accident?
No
Yes No
B. Proximate Cause
If the answer to the foregoing interrogatory is ‘‘yes,’’
was plaintiff’s contributory negligence a proximate cause
of his injuries?
No
Yes No
C. Percentage
If the answer to the foregoing interrogatory is ‘‘yes,’’
to what extent, expressed in percentage, did plaintiff’s neg-
ligence contribute to his injuries?
0%
V. Third Party Action
A. Breach of Warranty or Negligence
Did the stevedore breach its warranty to perform its
job in a reasonably safe, competent and workmanlike man-
ner, or was it negligent in the manner in which it performed
its job?
B. Proximate Cause
If the answer to the foregoing interrogatory is ‘‘yes,”’
was the negligence of the shipowner a proximate cause of
the injury to plaintiff?
Yes
Yes No
-_ — T
A i ta a i et te EO (le tte
Court of Appeals Judgment Order A25
APPENDIX B.
JUDGMENT ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE
THIRD CIRCUIT.
After consideration of all contentions raised by appel-
lant, it is
ApsuDGED AND Orperep that the judgment of the dis-
trict court be and is hereby affirmed.
Costs taxed against appellant.
By THE COURT,
ALDISERT,
Circuit Judge.
Attest:
Tuomas F. QuINN,
Thomas F. Quinn, Clerk.
Datrep: March 24, 1975.
Certified as a true copy and issued in lieu of a formal
mandate on April 15, 1975.
Test:
Tuomas F. Quiyy,
Clerk, United States Court of Appeals
for the Third Circuit.
A26 U.S. Constitution, Art. III, Sec. 2
APPENDIX C.
UNITED STATES CONSTITUTION.
Article III—The Judiciary.
Section 2. The judicial] Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which
shall be made, under their Authority ;—to all Cases affect-
ing Ambassadors, other public Ministers and Consuls ;—to
all Cases of admiralty and maritime Jurisdiction ;—to Con-
troversies to which the United States shall be a Party ;—to
Controversies between two or more States;—between a
State and Citizens of another State ;—between Citizens of
different States ;—between Citizens of the same State claim-
ing Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens
or Subjects.
In all Cases affecting Ambassadors, other public Min-
isters and Consuls, and those in which a State shall be
Party, the Supreme Court shall have original Jurisdiction.
In all the other Cases before mentioned, the Supreme Court
shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the
Congress shall make.
The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury; and such Trial shall be held in the
State where the said Crimes shall have been committed;
but when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law
have directed.
ee eure sen,
26 U.S. C. § 1332 AQT
APPENDIX D.
§ 1332. Diversity of citizenship; amount in controversy;
costs
(a) The district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds
the sum or value of $10,000, exclusive of interest and costs,
and is between—
(1) citizens of different States;
(2) citizens of a State, and foreign states or citi-
zens or subjects thereof; and
(3) citizens of different States and in which for-
eign states or citizens or subjects thereof are additional
parties.
(b) Except when express provision therefor is other-
wise made in a statute of the United States, where the
plaintiff who files the case originally in the Federal courts
is finally adjudged to be entitled to recover less than the
sum or value of $10,000, computed without regard to any
setoff or counterclaim to which the defendant may be ad-
judged to be entitled, and exclusive of interest and costs,
the district court may deny costs to the plaintiff and, in
addition, may impose costs on the plaintiff.
(c) For the purposes of this section and section 1441
of this title, a corporation shall be deemed a citizen of any
State by which it has been incorporated and of the State
where it has its principal place of business: Provided fur-
ther, That in any direct action against the insurer of a
policy or contract of liability insurance, whether incorpo-
rated or unincorporated, to which action the insured is not
joined as a party-defendant, such insurer shall be deemed
A28 28 U. S. C. § 1332
a citizen of the State of which the insured is a citizen, as
well as of any State by which the insurer has been incorpo-
rated and of the State where it has its principal place of
business.
(d) The word ‘‘States’’, as used in this section, in-
eludes the Territories, the District of Columbia, and the
Commonwealth of Puerto Rico, June 25, 1948, c. 646, 62
Stat. 930; July 26, 1956, c. 740, 70 Stat. 658; July 25, 1958,
Pub. L. 85-554, §2, 72 Stat. 415; Aug. 14, 1964, Pub. L.
88-439, 61, 78 Stat. 445.
<— ee enet hees
hav.
Ab PO A mn Ne cl a) ON ERIS
46 U. S.C. $740 A29
APPENDIX E.
Chapter 19A.—Admiralty and Maritime Jurisdiction.
$740. Extension of admiralty and maritime jurisdiction;
libel in rem or in personam; exclusive remedy;
waiting period
The admiralty and maritime jurisdiction of the United
States shall extend to and include all cases of damage or
injury, to person or property, caused by a vessel on navi-
gable water, notwithstanding that such damage or injury
be done or consummated on land.
In any such case suit may be brought in rem or in
personam according to the principles of law and the rules
of practice obtaining in cases where the injury or damage
has been done and consummated on navigable water: Pro-
vided. That as to any suit against the United States for
damage or injury done or consummated on land by a vessel
on navigable waters, the Public Vessels Act or Suits in
Admiralty Act, as appropriate, shall constitute the exclu-
sive remedy for all causes of action arising after June
19, 1948, and for all causes of action where suit has not
been hitherto filed under the Federal Tort Claims Act:
Provided further, That no suit shall be filed against the
United States until there shall have expired a period of six
months after the claim has been presented in writing to the
Federal agency owning or operating the vessel causing the
injury or damage. June 19, 1948, c. 526, 62 Stat. 496.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.