Petition — Williams v. Brasea, Inc.

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Supreme Court of the United States

OCTOBER TERM 1975

no. Zh - 209

ROY C. WILLIAMS,

Petitioner,

BRASEA, INC., VESSEL CIAPESC I, her engines, etc.,

BENDER WELDING & MACHINE COMPANY, INC.,

and CONSTRUCTION MACHINERY COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

J. ROBERT MCKISsSsICK

WILLIAM R. EDWARDS

LAW OFFICES OF WILLIAM R, EDWARDS

P. O. Drawer 480

Corpus Christi, Texas 78403

CLEVELAND & SHAABER

Barnett First National Bank

Jacksonville, Florida

Attorneys for Petitioner

Alpha Law Brief Co., One Main Plasa, ) 0.1 Main St., Houston, Texas 77002

SUBJECT INDEX

Questions Presented for Review—

I. Should a seaman’s claims against the vessel and

its owner for injuries occurring at sea as a result of an

unseaworthy condition be determined by application of

the general maritime law rather than the theory of strict

SS HE 6b cbt boa ent 000600 60esseceecses

II. Js @ seaman’s claim against manufacturers and

sellers of defective ship’s equipment for injuries occur-

ring at sea beyond the territorial jurisdiction of any

state, determined by the general maritime law as it in-

corporates Section 402A of the Restatement (Second)

of Torts rather than by concepts of strict product lia-

bility alone, that are neither uniformly recognized nor

applied within the several states, and many of which

are contrary to existing standards of admiralty law ..

Ill. The District Court held that a fellow crew mem-

ber was negligent in turning on the power to a cathead

without making any reasonable effort to ascertain wheth-

er the master was out of danger, although he knew the

master was untangling a line on the cathead with his

hands at the time. The Court of Appeals held this find-

ing to be clearly erroneous in the absence of an addi-

tional finding that the master did not order the power

turned on. Does the Jones Act permit a distinction to

be made between masters and crew members of a shrimp

trawler so that in addition to proving that the fellow

crewman failed to use reasonable care which was a

proximate cause of his injuries, the master also has the

burden of proving and obtaining a separate finding that

he did not give an instruction to turn on the winch

even though the District Court, in that portion of its

findings of fact and conclusions of law dealing with the

master’s comparative fault, stated that it was not pre-

pared to find that such an instruction was given ....

EI I eR

rr eee nteeeeenenetuae 2

Reasons for Granting the Writ—

I. The denial of Petitioner's unseaworthiness claims

solely by application of common law negligence con-

cepts and without regard to the general maritime law

is in conflict with applicable decisions of this Court

and so far departs from the accepted and usual course

of judicial proceedings in admiralty as to call for an

exercise of this Court’s power of supervision ......

II. Jn failing to apply the general maritime law to Pe-

tioner’s claims against Bender and CMC for injuries

occurring at sea outside of state territorial jurisdic-

tion, the Court of Appeals has decided a question of

federal maritime tort law in a manner that conflicts

with applicable deci:ions of this Court and other

COED GF GE icc evicccvseunceccesévesysscacs

III. Jn holding that the District Court was clearly erro-

neous in concluding that Terry was negligent in turn-

ing on the power to the winch, the decision of the

Court of Appeals is in conflict with decisions of other

circuit Courts of Appeal, decisions of this Court and

PE ee GD odie cocececsscocesscccecese

BY ccccrccccncccndtndesccccsccenctscetecenséads

GN «9.605 400b00n0cs dnaudesoneeneesdensetsceeane

Appendix A—District Court’s Memorandum and Order ....

Appendix B—District Court’s Amended Final Decree .....

Appendix C—Opinion of the Court of Appeals ...........

Appendix D—Opinion of the Court of Appeals on Motios

SP TE ccc cs ccwcevecvccrenetevtetedececes

Appendix E—Text of Art. III, §2, U.S. Const., 28 U.S.C.,

REBOS wet GB WEG. GE a icccccensccccccccscess

Appendix F—Text of Rule 9(h) and Rule 52(a), Federal

Rules of Civil Procedure .....cccccccecseececcsee’s

Appendix G—Text of RESTATEMENT (SECOND) OF

TORTS, §402A and comments b, g,# and nm ........

Appendix H—Plaintiff’s Ex. 3—photograph of winch and

GD ccc sececcencedeensestenseecececcouseces’s

SD. Shes edndectvnndunscdevdenseteedessncense

Appendix J—Plaintiff’s Ex. 10—photograph of winch and

GRD occ Facccvccdconccccescecccscsotesescdece

Page

III

TABLE OF AUTHORITIES

CASES Page

Alamo Chemical Transportation Co., In Re, 320 F.Supp. 631

a My MED C40S00 0WS 6 dd cbeCecovsncsdnesuioss 16

ARIZONA, The v. Anelich, 298 U.S. 110 (1936) ........ 17, 19, 20

Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914)... 15

Beadle v. Spencer, 298 U.S. 124 (1936) ........ceececees 18

Bexiga v. Havir Mfg. Corp., 290 A.2d 281 (N.J. Sup. 1972) 26

Blumenthal v. United States, 306 F.2d 16 (3rd Cir. 1962).. 30

BOAT DAGNY, Inc. v. Todd, 224 F.2d 208 (1st Cir. 1955) 35

Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076,

cert. denied, US. , 95 S.Ct. 127 (1974)...... 23

Brown v. Quick Mix Co., 454 P.2d 205 (Wash. Sup. 1969) 23, 26

Burkhard v. Burkhard, 175 F.2d 593 (10th Cir. 1949)..... 31

Burrus Feed Mills, Inc. v. Reeder, 391 S.W.2d 121 (Tex.

Civ. App.—Amarillo 1965, no writ hist.) .............. 24

C. A. Hoover v. O. M. Franklin Serum Co., 444 S.W.2d 596

CTH. BU. BOER) cccvccdccncccvwedvcwcedicstusscces 25

Carlisle Packing Co. v. Sandanger, 259 U.S. 255 (1922)... 13

Chelentis v. Luckenbach S.S. Co., Inc., 247 U.S. 372 (1918) 17

China Union Lines, Ltd., v. A. O. Andersen & Co., 364 F.

2d 769, (Sth Cir. 1966), cert. denied, 386 US. 933

(1967), reh. denied, 386 US. 999.(1967) ...... aaieee 31

Container Patents Corp. v. Stant, 143 F.2d 170 (7th Cir.

1944), cert. denied, 323 U.S. 734 (1944) 2... ce eceeees 31

Cortes v. Baltimore Insular Line, 287 U.S. 367 (1932).. 19, 32

Cronin v. J. B. E. Olson Corp., 501 P.2d 1153 (Calif. Sup.

SPN dco we 0 cee es ap h sews ers bere de deWseNescrboches 22

Pn. | v. The JOACHIM HENDRIK FISSER, 358 US.

BBB CIDR) ncccccecccccedccsccccnsecnsccecioscedses 11

Davis v. Fox River Tractor Co., FF .2d___s (10th Cir.,

No. 74-1392, filed June 10, Rp esge AOS 23

Devers v. Mobil Chemical Corp., 488 F.2d 258 (Sth Cir.

BOTS) cccccccsecccwewcevocecccvereevese cst copeces 26

Dorsey v. Yoder Co., 331 F.Supp. 753 (E.D. Pa. 1971),

aff'd., 474 F.2d 1339 (Bak Cae. BOTS) cevorccctvervceccses 23

Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3rd

Cir, 1971) ..ceccccccsccccccccctevsvcsvenecssscenes 23

Eshbach v. W. T. Grant’s & Co., 481 F.2d 940 (3rd Cir.

$OT3) —.tocccccccccceccccccevecscecccees decscveces 25,27

Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex. Civ. App.—

Houston [14th Dist.] 1975, writ granted) ............. 25

Ford v. Harnischfeger Corp., 365 F.Supp. 602 (E.D. Pa. se

Ee on eh cugaiens edabiheaeedi ees esas

CASES Page

Ferguson v. Moore-McCormack Lines, Inc., 352 US. 521

GEUEV) ccecescesenesensaneenennineenedeeeee 18, 33,35

Freeman v. Gould Special School District, 405 F.2d 1153

(8th Cir. 1969), cert. denied, 396 U.S. 843 (1969)...... 30

Glass v. Ford Motor Co., 304 A.2d 562 (N.J. Super. Law

SP. BOGE) vcccncscecdecccasseceuebensiaeae 22

Hartzell Propeller Co., Inc. v. Alexander, 485 S.W.2d 943

(Tex. Civ. App.—Waco 1972, writ ref. mre.) ......... 25

Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (Sth

Cir. 1967), cert. denied, 391 U.S. 913 (1968) ......... 21

Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. Sup.

i. BETTI eee peeseneseceeeueuess 24, 26

Jacob v. City of New York, 315 U.S. 752 (1942)........ 18

Jamison v. ENCARNACION, 281 U.S. 635 (1930)....... 32

Johnson v. United States, 333 U.S. 46 (1948) ........... 19, 32

Just v. Chambers, 321 U.S. 383 (1941) .......cccc eee, 21

Kermarec v. Compagnie Generale Transatlantique, 358 U.S.

Gae GUGUGE cccusvcccuscsaunl ooceeseeueneeneneuens 15

Kernan v. American Dredging Co., 335 U.S. 394 (1958)... 32

Krause v. Sud-Aviation, Societe Nationale de Constructions

Aeronautiques, 301 F.Supp. 513 (S.D.N.Y. 1968), afd.

413 3.26 438 (2nd Cle. 1068) ..cccccccccccccccccess 16

Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa.

Bap. SOUG) ovccoccovsvenesdsicnenanekieeneeee 27

Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.

SUGR) oc nercccece0sees6eeeessneunna ennai 27

Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631

ee Ee ee 16, 19, 20

Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U.S.

BOP COUEED occccosccconcenncesnneemnnn eee 12

Luque v. McLean, 501 P.2d 1163 (Calif. Sup. 1972)...... 23

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944)........ 11, 12, 13

Manning v. Jones, 349 F.2d 992 (8th Cir. 1965)......... 30

MARINE SULPHUR QUEEN, In Re, 460 F.2d 89 (2d Cir.

BOVE) 9 ccvsvcesesnsesneese6swe.qekeueeneeee 13

McAllister v. United States, 348 U.S. 19 (1952) ......... 33

McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965) 16,19

Messick v. General Motors Corp., 460 F.2d 485 (Sth Cir.

BOVE) cccccccececeeeseteenenshueniennal 23

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325 (1960).. 12

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)..... 11,12, 14

Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) 28

Noel v. United Aircraft Corp., 342 F.2d 232 (3rd Cir. 1964) 16

Otis Elevator Co. v, Wood, 436 S.W.2d 324 (Tex. Sup.

SUED) cccccccecceccceseecseseeeneeud enna 27

sec ne A eet ts ee i

CASES

Perez v. Ford Motor Co., 497 F.2d 82 (Sth Cir. 1974)....

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953). vases

Powell v. E. W. Bliss Co., 346 F.Supp. 819 (W.D. Mich.

ES Hore rrr Try TT ITT TTT Trt

Pyatt : Engel Equipment, Inc., 309 N.E.2d 225 (ill. Ct.

App. 3rd Dist. 1974) ......ceccccce weer eeeceeeecees

Ritter v. Narragansett Eiec. Co., 283 A.2d 255 (R.1. Sup.

rrr

Rourke v. Garza, 511 S.W.2d 331 (Tex. Civ. App.—Houston

[ist Dist.] 1974, writ granted) ...........eeeeceeees

Ross v. Up-Right, Inc., 402 F.2d 943 (Sth Cir. 1968)...

Runnings O Ferd Motor Co., 461 F.2d 1145 (9th Cir. 1972)

Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217

(Gth Cir. 1969) ...ccccccccccccccccccccccccccccsces

Schulz v. Pennsylvania R.R. Co., 350 US. 523 (1956)....

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946)........

Shapiro v. Rubens, 166 F.2d 659 (7th Cir. 1948)........

Shoiler v. Secretary of State oj United States, 175 F.2d 402

RR Speseess

Sinach v. Seas Shipping Co., 149 F.2d 98 (3rd Cir. 1945),

aff'd., 328 U.S. 85 (1946) ...---ee-cececceeceeeeeees

Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966),

a granted, vacated and remanded, 388 U.S. 459 (1967),

aff'd. in part, remanded in part, 390 F.2d 353 (9th Cir.

PT ped enaaeeseceseedccccococccceccoceoces cess

Smith 4 Dhy-Dynamic Co., 107 Cal. Rep. 907 (Calif. Ct.

, Bs TEE, BOTS) cccccccccccccccccccccccccccces

FR Oil Co. v. Smith, 305 U.S. 424 (1939)....

South Austin Drive-In Theatre v. en 421 —— 933

Tex. Civ. —Austin 1967, writ ref. ne.) ........

Spruill v. Desie ltidues, Inc., 308 F.2d 79 (4th Cir. 1962)

Switzer Bros., Inc. v. Locklin, 297 F.2d 39 (7th Cir. 1961),

cert. denied, 369 U.S. 851 (1962) ..---+-++-++-seeeeee

Turcotte v. Ford Motor Co., 494 F.2d 173 (Ast Cir. 1974)

Turner v. General Motors Corp., 514 S.W.2d ‘ys Civ.

App.—Houston [14th Dist.] 1974, writ ref. n.re.)......

Pn» pp wer Overseas Corp., 400 U.S. 494 (1971)

Vella v. Ford Motor Co., US. , 95 S.Ct. 1381

CCL) eee ee eee

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971).......

Waldron v. Moore-McCormack Lines, Inc., 386 US. 724

weiss A, Miehle-Goss-Dexter, Inc., 378 F.2d 409 (3rd Cir.

FOBT) ec ccccccccccccccccccccccccccsccccccccccccess

Warner v. Goltra, 293 U.S. 155 (1934) ....ceceeceeeee

CASES. Page

Warner v. Goltra, 67 S.W.2d 47 (Mo. Sup. 1933)........ 34

Watz v. Zapata Off-Shore Co., 431 F.2d 100 (Sth Cir. 1970) 16,27

Weakley v. Fishbach & Moore, Inc., F.2d (5th

Cir., No. 74-1499, filed July 21, 1974) ..........---.. 23, 26

Woods v. Turner, 172 F.2d 313 (10th Cir. 1949)........ 31

Zimmerman v. Montour R.R. Co., 296 F.2d 97 (3rd Cir.

1961), cert. denied, 369 U.S. 828 (1962) .......---e0. 30

CONSTITUTION AND STATUTES

Article III, §2, cl. 1, CONSTITUTION OF THE UNITED

EE GP I aad, 15

RULE 52(a), FEDERAL RULES OF CIVIL PROCED-

ALOE E RR LEME ILE EEE ONE 12, 33, 35, 37

TITLE 28, UNITED STATES CODE, §1333 ........... 17

TITLE 45, UNITED STATES CODE, §51 ...........-. 18

TITLE 46, UNITED STATES CODE, §688 ......... 17, 32, 33, 37

TITLE 46, UNITED STATES CODE, §713 ..........-. 34

MISCELLANEOUS

RESTATEMENT (SECOND) OF TORTS, §395 ....... 15

RESTATEMENT (SECOND) OF TORTS, §402A ......

SELLS SAD ROP RME MY pe SA Pe 13, 14, 19, 20, 21, 22, 25, 28

Gemma © . ccccceceeoeveses ceeconeesensssneneons 19

COMMER F .....ccccccsccccvcccccccccseeseseesess 27

ee 22

GUNEEE no cn c0cceeee ceensecoeosnoeseseogecesee 25

G. Gilmore & C. Black, THE LAW OF ADMIRALTY (2d

WE, BOGE) cccccccccceccocccceccescescscceageeseoss 15

R. Hursh & H. Bailey, AMERICAN LAW OF PRODUCTS

LIABILITY 2d (1974) ....cccccccccccceccsececcces 20, 28

M. J. Norris, THE LAW OF SEAMEN (3rd Ed. 1970).. 30,31

CCH PRODUCTS LIABILITY REPORTER (1975) .... 20,28

IN THE

Supreme Court of the United States

OCTOBER TERM 1975

NO.

ROY C. WILLIAMS,

Petitioner,

Vv.

BRASEA, INC., VESSEL CiAPESC I, her engines, etc.,

BENDER WELDING & MACHINE COMPANY, INC.,

and CONSTRUCTION MACHINERY COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Roy C. Williams prays that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the Fifth Circuit.

OPINIONS BELOW

The District Court’s memorandum opinion is not re-

ported but is included in the Appendix contained herein

at page 39. The judgment of the District Court appears

in the Appendix at page 53. The opinion of the Court of

Appeals is reported at 497 F.2d 67 and appears in the

Appendix at page 56. The opinion denying Motions for

Rehearing and Rehearing En Banc is as yet unreported,

but is contained in the Appendix at page 79.

JURISDICTION

The District Court’s memorandum opinion was filed

April 24, 1972. That Court’s judgment was entered June

5, 1972. The opinion of the Court of Appeals was entered

J uly 5, 1974 and the opinion denying Motions for Rehear-

ing and Rehearing En Banc was entered May 23, 1975.

The jurisdiction of this Court is invoked pursuant to

Title 28, United States Code, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

Should a seaman’s claims against the vessel and its

owner for injuries occurring at sea as a result of an un-

seaworthy condition be determined by application of the

general maritime law rather than the theory of strict

product liability.

Il.

Is a seaman’s claim against manufacturers and sellers

of defective ship’s equipment for injuries occurring at sea

beyond the territorial jurisdiction of any state, determined

by the general maritime law as it incorporates Section

402A of the Restatement (Second) of Torts rather than

by concepts of strict product liability alone, that are

neither uniformly recognized nor applied within the several

States, and many of which are contrary to existing stand-

ards of admiralty law.

Il.

The District Court held that a fellow crew member was

negligent in turning on the power to a cathead without

making any reasonable effort to ascertain whether the

master was out of danger, although he knew the master

was untangling a line on the cathead with his hands at

the time. The Court of Appeals held this finding to be

clearly erroneous in the absence of an additional finding

that the master did not order the power turned

on. Does the Jones Act permit a distinction to be

made between masters and crew members of a shrimp

trawler so that in addition to proving that the fellow

crewman failed to use reasonable care which was a

proximate cause of his injuries, the master also has the

burden of proving and obtaining a separate finding that

he did not give an instruction to turn on the winch even

though the District Court, in that portion of its findings

of fact and conclusions of law dealing with the master’s

comparative fault, stated that it was not prepared to find

that such an instruction was given.

STATUTES INVOLVED

The pertinent provisions of Article III, Section 2 of

the Constitution of the United States of America; Title 28,

United States Code, Section 1333; and Title 46, United

States Code, Section 688 is found at page 83 of the

Appendix. Rules 9(h) and 52(a), Federal Rules of Civil

Procedure are found at page 85.

STATEMENT OF THE CASE

On December 10, 1969, Roy Williams’ career as a

seaman ended abruptly with the loss of both of his arms.

At the time of this tragedy, he was serving as master of

the vessel, CIAPESC I, which was trawling for shrimp

in the Gulf of Mexico 10.35 miles off the Texas coast.

Aboard with Williams were two crewmen, Edward Terry

and Jeremiah Richo. Respondent, Brasea, Inc. (Brasea)

was the owner and operator of the vessel and the employer

of Wiliams and the other crewmen. At a point approxi-

mately amidships of the vessel was a power winch designed

and manufactured for use on shrimp boats by Respondent,

Construction Machinery Company (CMC), and installed

by Respondent, Bender Welding and Machine Company,

Inc. (Bender), the ship’s designer and builder. The winch

had three drums which revolved when power was supplied

to the winch. Attached to and extending aft from the

port-side and middle drums were two catheads, less than

three feet apart. Overhead and between the two drums,

as part of the power take-off system, Bender had instalied

a push-pull handle that the winch operator used to engage

the power to the winch, and thus to the catheads. In

order to reach the handle, it was necessary for the operator

to stand on a raised metal platform between the catheads

and lean over the drums. As designed and manufactured,

the catheads would continue to rotate or freewheel several

times after the power was shut off. One of the uses for

which the winch was designed was to assist the crew in

picking up the nets from the water. This was accomplished

by wrapping the free end of the line from the net ( whip-

line) around a cathead and engaging the power so that

the rotation of the cathead would pull the net alongside

the vessel and out of the water up to the deck. The winch

is shown in Plaintiff's Exhibits 3, 5 and 10, which were

admitted into evidence by the District Court and appear

in the Appendix at pages 91, 92 and 93.

Immediately preceding the injury, the crew was picking

up the port-side net when the whipline became tangled on

the port cathead. Terry, who was operating the winch,

disengaged the power to the cathead in order to avoid

Hho...

damage to the ship’s rigging. Williams, who had been

below, came on deck to see what had occurred and recog-

nizing the problem, told Terry to pull on the whipline

from overhead to create some slack while he began un-

tangling the line around the cathead with his hands. At

about this time, Terry turned on the power to the cathead,

catching Williams’ left hand in the tangle. Williams yelled

to Terry to cut off the power, which was done immediately,

but the cathead continued to rotate, entangling Williams’

right hand and arm in the line and pulling him into and

over the cathead several times. The resulting injuries re-

quired that Williams be flown by Coast Guard helicopter

to the Marine Hospital in Galveston where the remnants

of both his arms were removed.

Thereafter, Williams brought suit against Respondents

in the United States District Court of the Southern District

of Texas, Corpus Christi Division, in Admiralty under

Rule 9(h), Federal Rules of Civil Procedure. J urisdiction

of the Federal Court was predicated on the general

maritime law and 46 U.S.C. Section 688, the “Jones Act”.

Williams alleged his injuries were caused in whole or in

part by the unseaworthy condition of the vessel, the

negligence of Terry, CMC and Bender, the unreasonably

dangerous condition of the winch as designed, manufac-

tured and sold by CMC and the unreasonably dangerous

condition of the vessel as designed, manufactured and

sold by Bender. Brasea asserted a cross-action for indem-

nity against Bender and CMC. Bender asserted a cross-

action for indemnity against CMC. All claims were tried

by the Court without a jury.

Because of the conflicting manner in which the case

was determined, first by the District Court and then by

the Court of Appeals, some detail of the holdings of those

Courts is necessary in order to present the facts material

to the consideration of the questions presented herein.

The District Court held that Brasea was liable to

Williams because its employee, Terry, was negligent in

turning on the power to the cathead without making a

reasonable effort to ascertain whether Williams was out of

danger. The Court found that the installation of the snatch-

block frame by Bender resulted in the whipline reaching the

cathead at an angle other than ninety degrees (lack of

fair lead) which caused the line to tangle on the cathead.

This was held to render the winch defective and un-

reasonably dangerous to users thereof and to be a produc-

ing cause of Williams’ injuries. The Court also held that

the failure of CMC to provide a brake to stop the rotating

cathead after the power was disengaged rendered it defec-

tive and unreasonably dangerous and a producing cause

of Williams’ injuries. Brasea was also held liable to Wil-

liams because the position of the snatch-block frame, the

lack of an independent brake to the port cathead, and

the position of the rod used to control the power to the

winch of the CIAPESC I created an unseaworthy condi-

tion. The Court found Williams’ damages totaled $527,-

500.00. Although the Court speciiically stated it was

“not prepared to find that Plaintiff gave Terry specific

instructions to turn on the power” it found that Williams

was negligent in trying to untangle the line “when a crew

member was close to the rod which only had to be pushed

in to start the power and thus turn the cathead, and he

should have known better.” Based on this, the Court re-

duced Williams’ recovery by forty percent to $316,500.00.

Brasea, CMC and Bender were each held primarily liable

to Williams for one-third of the judgment ($105,500.00)

and secondarily liable to him for two-thirds thereof

($211,000.00). All cross-claims for indemnity were

denied. Although the CIAPESC I was found to be un-

seaworthy and judgment against Brasea was entered in

personam, the Court failed to enter judgment in rem

against the vessel.’ All parties appealed from the judgment

of the District Court.

On appeal, the United States Court of Appeals for the

Fifth Circuit affirmed the judgment of the District Court

in part, reversed in part and remanded the case to the

District Court with directions. With regard to the findings

of negligence vis-a-vis Williams and Terry the Court of Ap-

peals held that the trial Court’s findings pertaining to

Terry’s negligence were “clearly erroneous” because “the

lower Court concluded that Terry was negligent because

he failed to make a reasonable effort to be sure that Wil-

liams was free from danger when he cut the power on,

even if Williams had ordered him to cut it on.” Based on

this assumption that Williams ordered the power turned

on, the Court of Appeals then held that Terry was under

an absolute duty to obey such an order without regard to

the consequences of his actions and without making any

effort to ascertain whether Williams’ hands were on the

cathead, even though the District Court had found that

Terry knew Williams was untangling the line with his

hands. The Court also held that in the absence of such an

order, Williams could not be contributorily negligent in

failing to foresee that Terry would turn on the power. For

this reason, the case was ordered remanded to the District

1. Brasea’s Petition for Exoneration from or Limitation of Liabil-

ity is still pending in Civil Action No. 69-B-162, in the United States

District Court for the Southern District of Texas, Brownsville Divi-

sion. The CIAPESC I was released by the Court on Brasea’s posting

of a bond in the amount of $90,000.00.

Court to determine again whether Williams ordered Terry

to turn on the power.

With regard to the liability of Bender and CMC, the

Court of Appeals refused to pass on whether the general

maritime law, under which Williams’ claim initially arose,

incorporated to any extent the law of strict product lia-

bility. Instead, the Court concluded that Williams had

failed to establish liability against Bender and CMC under

the theory of strict product liability, as expressed in Sec-

tion 402A of the Restatement ( Second) of Torts, without

regard to the general maritime law. In reversing the Dis-

trict Court, it held that neither the lack of a fair lead nor

the lack of a brake to the cathead was unreasonably dan-

gerous because tangles on the cathead and the continued

rotation of the cathead after the power was shut off was

“within the contemplation” of seamen such as Williams.

It further held that there could be no proximate cause

under the facts because neither Bender nor CMC could

“foresee” the manner in which the injury would occur.

Finally, the Court concluded that if Williams ordered

the power turned on, he assumed the risk of injury which

provided both Bender and CMC with a complete defense

under the Restatement. If on the other hand, Terry turned

on the power without instruction from Williams, it was a

misuse of the product which also provided a complete de-

fense to both Respondents.

Because of its determination that neither Bender nor

CMC was liable to Williams under the theory of strict

product liability, the Court of Appeals held that Wil-

liams’ arguments relating to joint and several liability and

reduction of the judgment based on Williams’ comparative

negligence as it related to these Respondents was moot.

Brasea’s appeal relating to indemnity from Bender and

CMC was also denied.

Finally, the Court of Appeals ordered the District Court

on remand to enter judgment in rem against the

CIAPSEC I, pointing out that the finding that the vessel

was unseaworthy was not challenged on appeal by Brasea

either on brief or at oral argument.

From this opinion, both Williams and Brasea filed

Motions for Rehearing and Rehearing En Banc. In its

opinion of May 23, 1975, the Court of Appeals denied

these motions and further amended its original opinion

to deny Williams judgment against the CIAPESC I, in

rem for the reason that the trial Court’s findings of an un-

seaworthy condition were based on the same findings of

fault relating to the liability of Bender and CMC and in

light of the disposition of those claims, the question of the

unseaworthy condition of the vessel was considered to be

“moot”,

REASONS FOR GRANTING THE WRIT

THE DENIAL OF PETITIONER’S UNSEAWORTHI-

NESS CLAIMS SOLELY BY APPLICATION OF COM-

MON LAW NEGLIGENCE CONCEPTS AND WITH-

OUT REGARD TO THE GENERAL MARITIME LAW

IS IN CONFLICT WITH APPLICABLE DECISIONS

OF THIS COURT AND SO FAR DEPARTS FROM

THE ACCEPTED AND USUAL COURSE OF JUDI-

CIAL PROCEEDINGS IN ADMIRALTY AS TO CALL

FOR AN EXERCISE OF THIS COUR.’S POWER OF

SUPERVISION.

The District Court found that “at the time the rope line

bringing in the nets was tangled on the port cathead, the

vessel, and particularly the area in front of the winch, was

not suitable for its intended use and thus unseaworthy.””

Although judgment against the owner Brasea was entered

in personam, the Court failed to enter judgment in rem

against the vessel. In its first opinion, the Court of Ap-

peals ordered that the District Court on remand enter

judgment against the vessel based on its findings of un-

seaworthiness.* In its per curiam opinion denying both

Petitioner’s and Brasea’s Motions for Rehearing, the Court

of Appeals reversed its original holding and instead, de-

termined that Petitioner’s unseaworthiness claims against

the ship should be decided under the same legal conclu-

sions used to dispose of Petitioner’s claims against Bender

and CMC.* The monadic legal justification relied on to

render “moot” and reverse the District Court’s findings

and conclusions relative to these two separate and dis-

tinct claims was held to be a failure to properly apply the

2. App. at page 46.

3. Williams v. Brasea, Inc., 497 F.2d 67, 68 (Sth Cir.

1974); App. at page 67-68.

On brief and in oral argument before the Court of Appeals, Brasea’s

objections to the findings and conclusions of the District Court were

limited to the failure of the District Court to award indemnity over

against Bender and CMC. Only after oral argument and entry of the

July 5, 1974 opinion of the Court of Appeals did Brasea suggest in

its Brief in support of its Motion for Rehearing that it should be

afforded the same defenses as Bender and CMC. While Petitioner

acknowledges the merit of Brasea’s claim for indemnity as against

Bender and CMC in creating the unseaworthy condition, the

validity of such a claim is not determinative of the initial question

of whether the shipowner breached his maritime duty to provide a

seaworthy vessel to Williams. Sieracki v. Seas Shipping Co., 149 F.2d

98, 99-100 and 101-102 (3rd Cir. 1949), aff'd., 328 US. 85 (1946).

4. “Our disposition reversing the District Court as to the cross-

appeals of Bender and CMC, Parts IV and V of this opinion, infra,

eliminates any basis for holding CIAPESC I liable in rem. The point

is rendered moot.” App. at page 82.

law of strict product liability to the facts of the case.®

In short, the Court of Appeals decided Petitioner’s unsea-

worthiness claim against the ship and its owner based on

an interpretation of the law of product liability rather than

maritime law.

The decision of the Court of Appeals demands this

Court’s review because it constitutes a radical and un-

warranted departure from one of the most basic, firmly

established principles of admiralty law. The determination

of whether a vessel is unseaworthy has consistently been

held to be solely controlled by concepts peculiar to the

general maritime law and is not limited by concepts

grounded in common law tort or contract. Seas Shipping

Co. v. Sieracki, 328 U.S. 85, 94 (1946); accord, Mitchell

v. Trawler Racer, Inc., 362 U.S. 539, 547-550 (1960),

and cases cited therein. Petitioner’s unseaworthiness claim

in this case was determined by the Court of Appeals rely-

ing exclusively on negligence concepts of assumption of

risk, and intervening negligence.°

Knowledge of a defective condition, voluntary exposure

to a known and appreciated danger, foreseeability, failure

to use a Safe alternative and the other variations which

make up the common law defense of assumption of risk

are not defenses available to a shipowner to defeat a sea-

man’s claim for personal injuries resulting from unsea-

worthy appliances. Mahnich v. Southern S. S. Co., 321

U.S. 96, 103 (1944). Even if the equipment of the ship

is otherwise safe, its misuse or mishandling by a fellow

worker may render it unseaworthy. Crumady v. The

JOAHCHIM HENDRIK FISSER, 358 U.S. 423, 427-428

(1959). Nor is the negligence of a fellow servant in

5. Williams, 497 F.2d at 78; App. at page 74.

6. Wéilliams, 497 F.2d at 78-79; App. at page 75-78.

causing the unseaworthy condition a defense to the ship-

owner. Mahnich, 321 U.S. at 102-103. In fact, an un-

seaworthy condition may be brought about by a non-

negligent act or omission of a crew member. Waldron vy.

Moore-McCormack Lines, Inc., 386 U.S. 724 (1967).

Whether the shipowner could reasonably foresee either

that the defective condition would occur or that injury

would result therefrom has no place in a claim based on

unseaworthiness. Michalic v. Cleveland Tankers, Inc.,

364 U.S. 325, 327-328 (1960); Mitchell, 362 U.S. at

548; Sieracki, 328 U.S. at 94-95. Liability based upon un-

seaworthiness is wholly distinct from liability based upon

negligence because “unseaworthiness is a condition and

how that condition came into being—whether by negli-

gence or otherwise—is quite irrelevant to the owner’s

liability for personal injuries resulting from it.” Usner vy.

Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971).

Whether a condition renders a vessel unseaworthy is

ordinarily a question of fact to be determined by the Dis-

trict Court, sitting without a jury, and that finding will

be considered as controlling unless shown to be clearly er-

roneous. Mahnich, 321 U.S. at 98-99: Luckenbach

v. W. J. McCahan Sugar Refining Co., 248 U.S. 139,

145 (1918). The finding of the District Court that the ves-

sel was unseaworthy under the maritime law was not held by

the Court of Appeals to be “clearly erroneous” under Rule

52(a), Federal Rules of Civil Procedure. Instead, the

Court of Appeals concluded that the conduct of either

Terry or Williams afforded the shipowner complete de-

fenses for failing to provide a seaworthy vessel. This is

contrary to the modern admiralty policy and practice that

a seaman’s contributory negligence may be considered

only in mitigation of damages as justice requires. Pope &

Talbot, Inc. v. Hawn, 346 U.S. 406, 408-410 (1953).

The opinion of the Court of Appeals not only holds that

assumption of risk is a defense to Petitioner’s claims for

unseaworthiness, but also that the intervening negligence

of a crew member acts as a complete bar to recovery. To

afford the shipowner the boon of complete defenses here-

tofore rejected in admiralty is inimical to the traditional

rights enjoyed by seamen “who are peculiarly the wards of

admiralty” and is a clear departure from the rule that the

legal rights and liabilities of parties subject to the federal

maritime jurisdiction are to be determined solely by the

standards of federal maritime iaw. Mahnich, 321 U.S. at

101-103; Carlisle Packing Co. v. Sandanger, 259 US.

255 (1922).

While it may be true as a general statement that

products liability is a form of passive tort, analogous to

unseaworthiness,’ the doctrine of unseaworthiness does

not incorporate the negligence concepts implicit in the

Court of Appeals interpretation of Section 402A of the

Restatement to accord shipowners a diminution of the

obligations owed by them to seamen injured while en-

gaged in the service of their vessels.*

7. Williams, 497 F.2d at 79; App. at page 70.

8. In Re MARINE SULPHUR QUEEN, 460 F.2d 89 (2d Cir.

1972). In this case, the Court of Appeals emphasized the separate

nature of the two concepts in holding that survivors of deceased sea-

men killed when their vessel disappeared under unknown circum-

stances were entitled to the permissible inference that an unseaworthy

condition caused the vessel to sink, but were not entitled to that in-

ference regarding strict liability claims relating to the shipbuilder’s

defective design and reconstruction of the vessel, because “‘|[t]he duty

of providing the crew with a seaworthy ship runs only to the owner,

and the shipbuilder neither employs the crew nor can he control what

happens to the ship once she leaves his yard.” /d. at 101.

There is ample room for argument in light of

history, as to how the law of unseaworthiness should

have or could have developed. Such theories might

be made to fill a volume of logic. But, in view of

the decisions in this Court over the last 15 years,

we can find no room for argument as to what the

law is. What has evolved is a complete divorcement

of unseaworthiness liability from concepts of negli-

gence. To hold otherwise now would be to erase

more than just a page of history. Mitchell, 362

U.S. at 550.

Because the holding of the Court of Appeals on the

question of whether judgment in rem should have been

entered in favor of Petitioner and agaicst the CIAPESC I

is contrary to and deviates from established admiralty

law and procedure, it should be reviewed by this Court.

II.

IN FAILING TO APPLY THE GENERAL MARITIME

LAW TO PETITIONER’S CLAIMS AGAINST BENDER

AND CMC FOR INJURIES OCCURRING AT SEA

OUTSIDE OF STATE TERRITORIAL JURISDIC-

TION, THE COURT OF APPEALS HAS DECIDED A

QUESTION OF FEDERAL MARITIME TORT LAW

IN A MANNER THAT CONFLICTS WITH APPLI-

CABLE DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEAL.

The Court of Appeals refused to apply federal mari-

time law in determining the legal rights and obligations

governing Petitioner’s claims against Bender and CMC,

adopting instead a negligence-laden interpretation of Sec-

tion 402A of the Restatement (Second) of Torts and the

comments thereto.” The effect of this holding raises the

9. Wéilliams, 497 F.2d at 78-79; App. at pages 75-78.

important federal question of whether maritime or non-

maritime law governs a suit for injuries to a seaman

occurring on board a vessel engaged in maritime com-

merce on navigable waters as a result of allegedly de-

fective ship’s equipment designed and sold by shoreside

manufacturers.

Whether federal maritime law governs a cause of action

depends on whether it is a case within the admiralty and

maritime jurisdiction conferred on the federal district

courts by the Constitution and jurisdictional statutes of

the United States. Victory Carriers, Inc. v. Law, 404 U.S.

202, 204 (1971). This Court has repeatedly affirmed

that the maritime tort jurisdiction of the federal courts

is determined by the locality of the injury and that mari-

time law governs those torts relating to maritime service

which occur on navigable waters. Jd., at 205; e.g., Ker-

marec v. Compagnie Generale Transatlantique, 358 U.S.

625, 628-629 (1959); Atlantic Transport Co. v. Imbro-

vek, 234 U.S. 52, 60-63 (1914). The jurisdictional facts

of this case and the allegations of Williams against Bender

and CMC standing alone required that the Court of Ap-

peals consider the question of whether maritime law

applied to those claims.*°

The maritime law, as it exists and is applied in modern

times, has been substantially influenced over the years

by common law concepts.’' Thus, it has been generally

recognized that a products liability action for injuries

resulting from the negligent design or manufacture of

products ** is “part of the general law of torts, maritime

10. U.S. Const. Art. III, §2; 28 U.S.C. §1333(1) (1949).

11. G. Gilmore & C. Black, THE LAW OF ADMIRALTY §1-16

(2d Ed. 1975).

12. RESTATEMENT (Second) OF TORTS, §395.

as well as common law.” Sieracki v. Seas Shipping Co.,

149 F.2d 98, 99-100 (3rd Cir. 1945), affd., 328 US.

85 1946); Watz v. Zapata Off-Shore Co., 431 F.2d 100

(5th Cir. 1970); Schaeffer v. Michigan-Ohio Navigation

Co., 416 F.2d 217 (6th Cir. 1969); Noel v. United Air-

craft Corp., 342 F.2d 232 (3rd Cir. 1964); Krause v.

Sud-Aviation, Societe Nationale de Constructions Aero-

nautiques, 301 F.Supp. 513 (S.D.N.Y. 1968), affd.,

413 F.2d 428 (2nd Cir. 1969).** Likewise, it is generally

acknowledged by the lower federal courts that the general

maritime law recognizes a cause of action against

manufacturers in strict tort liability..* Two of the Circuit

Courts of Appeal have specifically held that an action

against the manufacturer under the theory of strict prod-

uct liability may be maintained under the federal district

court’s maritime tort jurisdiction. Lindsay v. McDonnell

Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972);

McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir.

1965). The refusal of the Court of Appeals to consider

the question of whether the law of strict product liability

is now incorporated in the maritime law is in conflict with

these decisions.

13. In Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir.

1966), cert. granted, vacated and remanded, 388 U.S. 459 (1967),

aff'd. in part, remanded in part, 390 F.2d 353 (9th Cir. 1968), a

longshoreman sued the shipowner and manufacturer for injuries sus-

tained when he stepped through the packaging of a bundle of doors.

The United States Court of Appeals for the Sixth Circuit has cited

this case “. . . as an example of a product liability case within ad-

miralty jurisdiction where the Supreme Court action implicitly rec-

ognized the validity of the cause of action.” Schaeffer, 416 F.2d at

221. But see Watz, 431 F.2d at 113, n. 16.

14. A definitive discussion of the evolution of strict product lia-

bility from a warranty concept of common law to an accepted part

of maritime tort law is contained in Jn Re Alamo Chemical Trans-

portation Co., 320 F.Supp. 631 (S.D. Tex. 1970).

In addition, the holding of the Fifth Circuit clearly

departs from the numerous decisions of this Court holding

that the substantive and procedural maritime rules govern-

ing the rights of seamen under admiralty law, in tort

actions arising under federal maritime jurisdiction, may

not be supplanted by application of state or common

law rules. As previously stated, the negligence concepts

of assumption of risk, including foreseeability on the

part of either the seaman or the ship’s owner and the

negligent conduct of a fellow servant upon which the

Court of Appeals’ decision is based, have been held

not to be defensive to a claim for unseaworthiness.’° It

is now beyond dispute that those concepts have no place

in a seaman’s action for maintenance and cure — only

his gross and willful misconduct being a defense thereto.

E.g., Vella v. Ford Motor Co., __— U.S. ___. , 95 S.Ct.

1381 (1975).

In a seaman’s maritime tort action alleging negligence,

this Court almost sixty years ago stated that although

under the saving clause,’® a right sanctioned by the mari-

time law may be enforced through an appropriate common

law remedy, the determination of a defendant’s liability

is measured by maritime rather than common law stand-

ards—a seaman’s rights are those recognized by the law

of the sea. Chelentis v. Luckenbach S.S. Co., Inc., 247

U.S. 372, 384 (1918). In The ARIZONA v. Anelich, 298

U.S. 110 (1936), the Court concluded that since asumption

of risk had never been recognized as a defense under mari-

time law, it was not available to defendants under the Jones

15. See argument and authorities relative to Reason I, supra.

16. Act of March 3, 1911, ch. 231, 36 Stat. 1092, as amended,

28 U.S.C. §1333(1) (1949).

17. 46 U.S.C. §688.

Act'’ even though that act specifically incorporated the pro-

visions of the FELA,"* under which the defense of assump-

tion of risk was still available at that time. On the same day,

the Court also stated that “[cJontributory negligence is not a

defense to a suit brought either under the Jones Act or under

the maritime law for injuries attributable to negligently de-

fective equipment.” Beadle v. Spencer, 298 U.S. 124, 131

(1936). The fact that a seaman may know and appreciate

that a ship’s appliance is in a dangerous condition, but vol-

untarily elects to use that appliance, even when a safer

alternative is available, will not serve as a defense to

one who creates the dangerous condition. Socony-Vaccuum

Oil Co. v. Smith, 305 U.S. 424 (1939); accord, Jacob

v. City of New York, 315 U.S. 752 (1942).

Any rule of assumption of risk in admiralty,

whatever its scope, must be applied in conjunction

with the established admiralty doctrine of compara-

tive negligence and in harmony with it. Under that

doctrine contributory negligence, however gross, is

not a bar to recovery but only mitigates damages.

Smith, 305 U.S. at 431 (emphasis added).

Nor is it necessary that one who furnishes inadequate or

defective equipment be in a position to foresee the exact

chain of circumstances that actually leads to a seaman’s

injury. Ferguson v. Moore-McCormack Lines, Inc., 352

U.S. 521 (1957).

The application of admiralty law in cases brought

under the federal court’s maritime tort jurisdiction is not

limited solely to the determination of defensive issues.

The quantum of negligence necessary to establish liability

under the Jones Act was held to be less than that required

18. 45 U.S.C. §51, et seq.

under the FELA because “[t]he conditions of sea differ

widely from those on land, and the diversity of conditions

breeds diversity of duties.” Cortes v. Baltimore Insular

Line, 287 U.S. 367, 377-378 (1932). Similarly, it was

held that the issue of proximate cause in a Jones Act

case may be determine’ by whether the facts of the oc-

currence warrant the inference of negligence, the maritime

equivalent of res ipsa locquitor. Johnson v. United States,

333 U.S. 46 (1948); see Schulz v. Pennsylvania R.R. Co.,

350 U.S. 523 (1956).

A seaman’s cause of action in products liability, whether

based on standards of strict tort liability or negligence,

was unknown in admiralty until recent years. Its incor-

poration into the federal maritime law was to accomplish

the dual purpose of according to those who labor at sea

the same protection due their terrestrial counterparts and

to achieve one of the primary goals of admiralty law,

uniformity. Lindsay, 460 F.2d at 637; McKee, 354 F.2d

at 584; see cases cited at page 19, supra. The present

situation is thus analogous to the incorporation of the

provisions of the FELA into maritime tort law by the

Jones Act in 1920. The *RIZONA, 298 U.S. 110. But

the source from which the concepts peculiar to the law

of strict product liability were derived do not rest on

immutable statutory provisions enacted by Congress to

effect these purposes, but rather on medieval criminal

laws and common law theories of warranty and negligence

as developed by the common law courts.'” The Restate-

ment (Second) of Torts §402A (1965) is not a statutory

nor a judicial definition of the law of strict product lia-

bility, but simply a statement of the theory of that law

as approved by the American Law Institute. The Courts

19. RESTATEMENT (Second) OF TORTS §402A, comment ).

of the various states that have adopted it have defined

and applied it within their jurisdiction in varying ways,

depending on whether their interpretation was guided by

common law tort or warranty concepts.*” There are no

historical, legislative or judicial prescriptions as to the

operation of the law of strict product liability in the

maritime field to which it has been transferred. In that

field, the extent of its application and operation must be

determined solely by the federal courts in the exercise

of their maritime tort jurisdiction. The election available

to the federal courts in applying the law of strict product

liability is between alternatives accorded by the maritime

law as modified by §402A, and ot between the maritime

law and some nonmaritime system. The ARIZONA, 298

U.S. at 119. Thus in Lindsay, the Eighth Circuit held that

the incorporation of strict product liability into maritime

tort law did not include the principle that the negligence

of the user of a defective product would operate as a

complete bar to recovery, but rather that the admiralty

rule of comparative negligence should apply. 460 F.2d

at 636. The failure of the Court of Appeals to recognize

this basic principle warrants this Court’s review.

But there are other features of the opinion of the

Court of Appeals in this regard that warrant review by

this Court. One of the more obvious problems (in addition

to the Court’s disregard of the maritime law) inherent

in the opinion is that there is no indication of the legal

source or sources from which the Court derived its in-

terpretation of Section 402A. The only legal authorities

referred to in support of its conclusions were two diversity

20. The status of the theory of strict tort liability in the various

states may be found at R. Hursh & H. Bailey, AMERICAN LAW

OF PRODUCTS LIABILITY 2d §4:41 (1974); 1 CCH PROD-

UCTS LIABILITY REP. {4060 (1975).

cases decided on interpretations of Texas law.” Neither of

these cases involved a maritime cause of action nor do

they correctly express the law of strict product liability

as it would have applied to the facts of this case had

Williams’ injuries occurred on Texas soil rather than

10.35 miles from its coast and outside any state’s territorial

jurisdiction. While this Court has held that federal ad-

miralty courts may recognize and enforce a liability which

a state has established in the absence of an available

remedy under the general maritime law, application of

such state created rights and remedies in maritime tort

actions have in the past always been limited by two

important considerations: (1) the injury must have oc-

curred within the state’s territorial jurisdiction and (2)

the state law must not be hostile to the characteristic

features of maritime law or inconsistent with federal

legislation. See, e.g., Just v. Chambers, 312 U.S. 383,

387-388 (1941). Aside from the basic flaw that the

Court’s interpretation and application of Section 402A

is decidedly in conflict with the fundamental concepts of

maritime tort law, there is no evident reason why the law

of strict product liability as applied in Texas or any other

state should govern a Texas seaman’s claim against lowa

(CMC) and Alabama (Bender) defendants for injuries

occurring on the high seas.

Less evident, but of significant importance in the future

determination of seamen’s product liability claims in

admiralty, is the conflict between the decision in this case

and the decisions of other state and federal courts over

the correct interpretation to be accorded to Section 402A.

21. Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (Sth

Cir. 1967), cert. denied, 391 U.S. 913 (1968); Ross v. Up-right, Inc.,

402 F.2d 943 (Sth Cir. 1968).

The basis for the Court of Appeals’ determination that

Williams as a matter of law had failed to establish lia-

bility under the theory of strict product liability may be

summarized as follows: (1) that there existed no defec-

tive conditions, unreasonably dangerous to the crew of

the CIAPESC I, because it was obvious or patent to all

on board that there was no brake to prevent the cathead

from rotating after the power was disengaged and that

lines had a propensity to tangle on the catheads; and

(2) that there was an absence of proximate cause because,

(a) assuming Williams ordered the power turned on, the

defendants could not reasonably foresee that he would

do so while his hands were in the line on the cathead and

by such order he assumed the risk of injury, or (b)

assuming Terry acted without orders in turning on the

power, the defendants could not reasonably foresee he

would do so while Williams’ hands were on the line and

such action by Terry constituted a misuse of the products.”

Contrary to the decision of the Court of Appeals, it

has been held that the liability of a manufacturer under

Section 402A is not predicated on whether the product

was “unreasonably dangerous”, but is established simply

by showing the product was defective, that the defect

proximately caused harm to the Plaintiff and that the

Plaintiff was a foreseeable user of the product. Cronin

v. J. B. E. Olson Corp., 501 P.2d 1153, 1158-1163 (Calif.

Sup. 1972); Glass v. Ford Motor Co., 304 A.2d 562, 564

(N.J. Super. Law Div. 1973). Comment i to Section 402A

is not a proper definition of whether the product is either

defective or unreasonably dangerous, its only purpose

being to prevent sellers of products with inherent possi-

bilities of harm from becoming automatically responsible

22. Williams, 497 F.2d at 78-79; App. at pages 75-78.

for all the harm that such things do in the world. Pyatt

v. Engel Equipment, Inc., 309 N.E.2d 225, 228-229

(Ill. Ct. App. 3rd Dist. 1974). “As used in the Restate-

ment, ‘defective’ means ‘unreasonably dangerous’; it has

no independent significance.” Borel v. Fibreboard Paper

Products Corp., 493 F.2d 1076, 1087 at note 20 (Sth

Cir. 1973), cert. denied, ___U.S.___, 95 S.Ct. 127

(1974), applying Texas law.

Whether the user of a defectively designed or manu-

factured product is aware of the defect is not determina-

tive of the manufacturer’s primary liability under Section

402A. Davis v. Fox River Tractor Co., F.2d.

(10th Cir., No. 74-1392, filed June 10, 1975), applying

Oklahoma law. “The point is that to preclude absurd re-

sults the obviousness of the danger must constitute but

one of the factors that determines whether the danger is

unreasonable.” Dorsey v. Yoder Co., 331 F.Supp. 753,

759 (E.D. Pa. 1971), aff'd., 474 F.2d 1339 (3rd Cir.

1973); accord, Ford v. Harnischfeger Corp., 365 F.Supp.

602 (E.D. Pa. 1973). Other Courts hold that the user’s

knowledge is not to be considered in initially deter-

ing whether the product is defective, but is relative

only to raising the affirmative defensive issue of whether

the manufacturer is excused from selling a defective prod-

uct by the user’s conduct. Weakley v. Fishbach & Moore,

Inc., F.2d (5th Cir., No. 74-1499( filed July 21,

1975), applying Texas law; Luque v. McLean, 501 P.2d

1163 (Calif. Sup. 1972); Brown v. Quick Mix Co.,

454 P.2d 205 (Wash. Sup. 1969); see Messick v. Gen-

eral Motors Corp., 460 F.2d 485 (Sth Cir. 1972),

applying Texas law; Elder v. Crawley Book Ma-

chinery Co., 441 F.2d 771 (3rd Cir. 1971), applying

Pennsylvania law; Walsh v. Miehle-Goss-Dexter, Inc., 378

F.2d 409 (3rd Cir. 1967), applying Pennsylvania law;

Powell v. E. W. Bliss Co., 346 F.Supp. 819 (W.D. Mich.

1972); Rourke v. Garza, 511 S.W.2d 331 (Tex. Civ.

App.—Houston [Ist Dist.] 1974, writ granted). Under

these authorities, the District Court’s findings of fact clear-

ly justified its conclusion that the lack of a fair lead and

brake to the cathead created a defective and unreasonably

dangerous condition to users such as Roy Williams.**

The Court of Appeals further held as a matter of law

that there was no “proximate cause” between the defective

condition of the winch and Williams’ injuries because of

a lack of common law foreseeability.** The District Court,

however, found such defects to be a “producing cause of

the injuries.”** The difference is more than semantic. As

applied by the Court of Appeals and the Texas Courts’

proximate cause includes the element of foreseeability and

is the definition used in negligence cases, not cases of

strict tort liability. Burrus Feed Mills, Inc. v. Reeder, 391

S.W.2d 121, 127 (Tex. Civ. App.—Amarillo 1965, no

writ hist.). In Texas under Section 402A, the Plaintiff

need prove only “an efficient, exciting or contributing

cause, which in a natural and continuous sequence, in

connection with any other cause or causes produced the

event complained of. There can be more than one pro-

ducing cause of an event.” Rourke, 511 S.W.2d at

339; see Henderson v. Ford Motor Co., 519 S.W.2d 87,

89 (Tex. Sup. 1974); R. Hursh, supra note 20, §1:28.

Common law foreseeability has no place in the concept

of strict product liability cases involving defective design.

23. The iindings of the trial Court were not found to be clearly

erroneous. Williams’ claims against Bender and CMC were deter-

mined by the Court of Appeals as a matter of law without disturbing

the findings of fact relating to these claims.

24. Wiliams, 497 F.2d at 78-79; App. at pages 75 and 78.

25. App. at pages 44 and 45.

Ethicon, Inc. v. Parten, 520 $.W.2d 527, 533 (Tex. Civ.

App.—Houston [14th Dist.] 1975, writ granted); Hartzell

Propeller Co., Inc. v. Alexander, 485 S.W.2d 943, 946

(Tex. Civ. App.—Waco 1972, writ ref. n.r.e.); see C. A.

Hoover v. O. M. Franklin Serum Co., 444 S.W.2d 596

(Tex. Sup. 1969). In Eshbach v. W. T. Grant’s & Co.,

481 F.2d 940 (3rd Cir. 1973), the Court explained that

§402A does not require a manufacturer to foresee that a

lawnmower designed for cutting grass will be used to cut

logs or pipe, but does require that he foresee an injury

resulting from a defect while the mower is being used to

cut grass, even if the injury does not occur in a particular

manner one might expect.

It is to this extent, then, and to this extent only,

that foreseeability enters into the strict liability equa-

tion. The use of the word foreseeability without the

limits imposed by strict liability concepts improperly

distorts the balance between the manufacturer and

consumer embodied in §402A. /d., 481 F.2d at 943.

At the time of injury, the crew of the CIAPESC I was

using the winch for the specific purpose for which it was

designed, hauling in the nets. Whether either Williams’ or

Terry’s conduct provided a defense under §402A to those

responsible for the defective conditions causing the injury

was not dependent on the ability of Bender or CMC to

foresee that conduct.

In order for Williams’ conduct to provide a defense to

Bender and CMC under comment n to §402A, it was

necessary for the Court of Appeals to assume that Wil-

liams ordered the power turned on. This is because the

availability of the defense of assumption of risk or volenti

non fit injuria in strict tort liability cases is conditioned

on proof that the user voluntarily (i.e., by a free and

intelligent choice) proceeded to encounter a known and

appreciated danger and without regard to whether the

user was contributorily negligent. Henderson v. Ford

Motor Co., 519 S.W.2d 87, 89-91 (Tex. Sup. 1974);

Runnings v. Ford Motor Co., 461 F.2d i145 (9th

Cir. 1972), applying Washington State law; see Smith

v. Dhy-Dynamic Co., 107 Cal. Rep. 907 (Calif. Ct.

App. 5th Dist. 1973); Bexiga v. Havir Mfg. Corp.,

290 A.2d 281 (N.J. Sup. 1972). Mere knowledge of a

dangerous condition cannot be equated with voluntary or

unreasonable conduct. “It could never be said as a matter

of law that a workman whose job requires him to expose

himself to a danger, voluntarily and unreasonably en-

counters the same.” Brown v. Quick Mix Co., 454 P.2d

205, 208 (Wash. Sup. 1969); see Devers v. Mobil Chem-

ical Corp., 488 F.2d 258 (Sth Cir. 1973), applying Texas

law. But the basic fallacy in the Court of Appeals’ argu-

ment in this regard is that the assumption on which it is

grounded (that Williams ordered the power turned on)

was held not to be supported by a factual finding of the

District Court.” Volenti is an affirmative defense and the

burden of proving all of its essential elements was on

Bender and CMC. Weakley, F.2d . If it was

clearly erroneous for the District Court to conclude that

Terry was negligent in the absence of a clear finding

that Terry acted without a direct order, it is also clear

that the absence of such a finding will not support a con-

clusion that Williams voluntarily and unreasonably pro-

ceeded to encounter a known and appreciated danger.

Finally, the opinion of the Court of Appeals rests on

whether Terry’s turning on the power without authority

constituted an unanticipated product “misuse” as contained

26. Williams, 497 F.2d at 72-73; App. at pages 60-63. It may be

inferred however, that the District Court found that Williams did not

give such an order. See argument and authorities relative to Reason

III, infra.

SBOE ene HO Fe. Li ee + re

. a Td

ee. a ore

in comment g of Section 402A. Because at the time of

injury, the winch was being used for its intended purpose

of hauling in nets, Terry’s negligence at most can only be

characterized as an intervening force which brought the

existing defective conditions into play to produce the in-

jury, and this does not relieve the manufacturer of liability

for selling a defectively designed or manufactured product.

See Watz v. Zapata Off-Shore Co., 431 F.2d 100, 116-

117 (Sth Cir. 1970); South Austin Drive-in Theatre v.

Thomison, 421 S.W.2d 933, 951 (Tex. Civ. App.—Aus-

tin 1967, writ ref. n.r.e.). Where a defective condition in-

creases the risk of a particular harm, the fact that the

harm is ultimately brought about only by intervention of

another force does not relieve the manufacturer from lia-

bility. Eshbach v. W. T. Grant's & Co., 481 F.2d 940,

943-944 (3rd Cir. 1973), applying Pennsylvania law. The

negligence of a third party assumes legal significance only

if it is a superceding cause of the injury. Kuisis v. Baldwin-

Lima-Hamilton Corp., 319 A.2d 914, 920 (Pa. Sup.

1974). In any event, such questions of causation are to

be determined by the trier of fact on the evidence pre-

sei tod. /d., at 920-921; Eshbach, 481 F.2d at 945. In

strict product liability, a manufacturer is held to have an-

ticipated the environment which is normal for the use of

its product and the risk attendant to such use, including

the negligence of third parties. Perez v. Ford Motor Co.,

497 F.2d 82, 87 (Sth Cir. 1974), applying Louisiana

law; Turcotte v. Ford Motor Co., 494 F.2d 173 at 180-

182 (1st Cir. 1974); Larsen v. General Motors Corp.,

391 F.2d 495, 501-503 (8th Cir. 1968), applying Mich-

igan law; Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 82-

83 and 87-89 (4th Cir. 1962), applying Virginia law;

Ritter v. Narragansett Elec. Co., 283 A.2d 255, 260 (R.1.

Sup. 1971); Otis Elevator Co. v. Wood, 436 S.W.2d 324,

328 (Tex. Sup. 1968); Turner v. General Motors Corp.,

514 S.W.2d 497, 503-505 (Tex. Civ. App.—Houston

[14th Dist.] 1974, writ ref. n.r.e.).

That the Court of Appeals’ interpretation of Section

402A is in conflict with the decisions of other Courts is

not surprising, but simply emphasizes the lack of uni-

formity that is present in this area. Not all states have

adopted the theory and among those that have, legal

rights and remedies vary depending on whether a par-

ticular state’s judiciary interprets it on principles grounded

in common law tort or warranty.*’ By failing to apply the

same well-settled principles of maritime law which govern

every other type of maritime-related tort occurring on

navigable waters to Roy Williams’ claims against Bender

and CMC, the decision of the Court of Appeals virtually

assures a lack of uniformity in the decision of other ad-

miralty tort claims incorporating the theory of strict prod-

uct liability.

Most recently, this Court has declared that a remedy

for wrongful death is provided by the federal maritime law.

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

(1970). The effect of this decision was to provide sur-

vivors of seamen a uniform remedy for wrongful! death

occurring on navigable waters regardless of location,

whether within state territorial waters or on the high seas.

The Court noted in its opinion that the maritime law

has always been separate from the common law, develop-

ing general principles unknown to that system. “These

principles included a special solicitude for the welfare

of those men who undertook to venture upon hazardous

and unpredictable seas voyages.” /d., at 386-387 (citations

omitted). The expressly intended result of the decision

27. See note 20 at page 20, supra.

was to put an end to the existing nonuniformity occas-

sioned by survivors’ claims brought under various state

and federal statutes providing a multiplicity of rights,

limitations and remedies.

Our recognition of a right to recover for wrongful

death under general maritime law will assure uniform

vindication of federal policies, removing the tensions

and discrepancies that have resulted from the neces-

sity to accommodate state remedial statutes to ex-

clusively maritime substantive concepts. E.g., Hess

v. United States, 361 U.S. 314, 80 S.Ct. 341, 4

L.Ed.2d 305 (1960); Goett v. Union Carbide Corp.,

361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341 (1960).

Such uniformity not only will further the concerns of

both of the 1920 Acts but also will give effect to the

constitutionally based principle that federal admiralty

law should be “a system of law coextensive with, and

operating uniformly in, the whole country.” The Lot-

tawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875).

Id., at 401-402.

If for no other reason, the threat to the uniform applica-

tion of the admiralty law posed by the opinion of the

Court of Appeals justifies its review by this Court.

III. ;

IN HOLDING THAT THE DISTRICT COURT WAS

CLEARLY ERRONEOUS IN CONCLUDING THAT

TERRY WAS NEGLIGENT IN TURNING ON THE

POWER TO THE WINCH, THE DECISION OF THE

COURT OF APPEALS IS IN CONFLICT WITH DE-

CISIONS OF OTHER CIRCUIT COURTS OF AP-

PEAL, DECISIONS OF THIS COURT AND ITS OWN

PRIOR DECISION.

Under the Jones Act, the burden of proof is upon the

seaman to establish the negligence of the shipowner or

his employee by a preponderance of the evidence.** In

order to impose liability on Brasea for the conduct of

its employee Terry, it was necessary for Williams to prove

and for the District Court to find that Terry had been

negligent in turning on the power to the winch. The

factual findings of the District Court in this regard were:

that at the time Terry engaged the power to the winch,

he was standing between the catheads only a couple of

feet from Williams; that he knew Williams was trying

to untangle the line with his lands; and that he made no

reasonable efiort to ascertain that Williams was out of

danger.** The Distiict Court made no finding, either

specifically or by implication, that Williams instructed

Terry to turn on the power. On the findings the District

Court concluded that Terry was negligent which was a

proximate cause of Williams’ injuries,*’ and accordingly,

entered judgment against Brasea. On appeal, the findings

of fact of the District Court should have been construed

liberally and found to be in consonance with the judgment

so long as the judgment was supported by evidence in the

record. Freeman v. Gould Special School Dist. of Lincoln

Co., Ark., 405 F.2d 1153, 1156 (8th Cir. 1969), cert.

denied, 396 U.S. 843 (1969); Manning v. Jones, 349 F.

2d 992, 996 (8th Cir. 1965); Blumenthal v. United States,

306 F.2d 16, 17-18 (3rd Cir. 1962); Zimmerman vy.

Montour R.R. Co., 296 F.2d 97, 98 (3rd Cir. 1961),

cert. denied, 369 U.S. 828 (1962). Instead, the Court of

Appeals narrowly construed the District Court’s findings*

28. M. J. Norris, THE LAW OF SEAMEN (3rd Ed.), §695 at

page 414.

29. App. at page 41.

30. App. at page 54.

_ $1. “The lower Court clearly reasoned that Terry was negligent

in turning on the power even if he was ordered by Williams to do

so.’ Williams, 497 F.2d at 72; App. at page 62.

Rn ate ik eli ll Da ND Cee ital te thinly a te WE

in order to justify the use of an erroneous theory of law

to overturn the judgment.

In holding that the findings of the District Court were

not sufficient to establish that Brasea had failed to carry

its burden of proof, the opinion of the Court of Appeals

is in conflict with the decisions of those Courts of Appeals

which have held that the failure to make a finding on a

particular fact will be assumed to be a finding against the

party having the burden of proof. Switzer Bros., Inc. v.

Locklin, 297 F.2d 39, 45 (7th Cir. 1961), cert. denied,

369 U.S. 85i (1962); Burkhard v. Burkhard, 175 F.2d

593, 596 (10th Cir. 1949); Shoiler v. Secretary of State

of United States, 175 F.2d 402, 403 (7th Cir. 1949);

Woods v. Turner, 172 F.2d 313, 315 (10th Cir. 1949);

Shapiro v. Rubens, 166 F.2d 659 (7th Cir. 1948); Con-

tainer Patents Corp. v. Stant, 143 F.2d 170, 172 (7th

Cir. 1944), cert. denied, 323 U.S. 734 (1944). In 1966,

the Court of Appeals for the Fifth Circuit in a maritime

tort action held that “. . . all facts not embraced in the

specific findings [of the trial court] should be regarded

as not proved by the party having the burden of proof.”

China Union Lines, Ltd. v. A. O. Andersen & Co., 364

F.2d 769, 790 (Sth Cir. 1966), cert. denied, 386 USS.

933 (1967), reh. denied, 386 U.S. 999 (1967).

Whether Williams did or did not instruct Terry to turn

on the power was ultimately a defensive issue, to be con-

sidered in determining whether Williams was guilty of

comparative negligence. On this issue, the burden of proof

was on Brasea.*? In determining this issue, the District

Court not only refused to find that Williams gave such

an instruction to Terry, it specifically stated that “[t}he

Court is not prepared to find that Plaintiff gave Terry

32. M. J. Norris, THE LAW OF SEAMAN (3rd Ed. 1970),

$688 at page 370.

specific instructions to turn on the power, but, in any

event, the Court finds that Plaintiff disregarded existing

danger and that his own fault contributed forty percent

(40% ) to his injuries.”** In holding that Terry could

not be held negligent without an additional finding that

Terry acted without a direct order, the Court of Appeals

improperly shifted the burden of proof on this issue from

Brasea to Williams, after the District Court had specifically

refused to find that Williams had given such an order.

The effect of this holding is to require Jones Act seamen

to prove they did not assume the risk of injury in addition

to proving duty, negligence and causal relationship as a

prerequisite to establishing negligence imputable to the

shipowner-employer. Such a rule is contrary to the prior

decisions of this Court in interpreting the quantum of

negligence required to impose liability under the Act.

Under the Jones 4 a shipowner is liable for injuries

to a seaman resulting in whole or in part from the negli-

gence of another emploee. Johnson v. United States, 333

U.S. 46, 49 (1948). This is true whether such negligence

is mere inadvertence or malicious bodily assault. Jamison

v. ENCARNACION, 281 U.S. 635, 641 (1930). The

negligence or fault that consists of a breach of duty of

care under the FE:A and the Jones Act is not the same

as at common law. Kernan v. American Dredging Co.,

355 U.S. 426, 432 (1958). In some instances, the

Jones Act duty of the shipowner has been held to be

greater, and the quantum of proof necessary to establish

negligence less than under the FELA. Schulz v. Penn-

sylvania R.R. Co., 350 U.S. 523 (1956); Johnson v.

United States, 333 U.S. 46 (1948); Cortes v. Baltimore

33. App. at page 49. The Court of Appeals correctly determined

that the District Court erred in finding Williams contributorily negli-

gent for failing to foresee that Terry would turn on the power with-

out instructions. Williams, 497 F.2d at 74; App. at pages 65-60.

« ee ed se weed. bab yr vee. 2H eee GO ©

33.

Insular Line, 287 U.S. 367 (1932). In any event, this

Court has held that the standard of liability under the

Jones Act in jury cases is whether the proofs justify

within reason the conclusion that employer negligence

played any part, even the slightest, in producing the in-

jury for which damages are sought. Ferguson v. Moore-

McCormack Lines, 352 U.S. 521, 523 (1957).

The Court of Appeals justified its holding in two

steps. First, by disregarding the findings of the District

Court, sine qua non, and adopting in their stead, Terry’s

testimony that Williams’ hands were not visible to him

because they were somehow obscured by a ten inch cat-

head, even though the two were standing only two feet

apart and Terry was on an elevated platform looking

down on Williams.** In this the Court of Appeals ex-

ceeded the permissible scope of review permitted by Rule

52(a), Federal Rules of Civil Procedure. McAllister v.

United States, 348 U.S. 19, 20 (1952). Secondly, it held

as a matter of law that the discipline required on a three-

man, seventy-eight foot shrimp trawler, fishing on shares,

in a non-emergency situation, dictates that when the

master gives an instruction®® to turn on the winch, the

winch operator must instantly obey and execute without

making any reasonable effort to ascertain whether the

master is in danger, even though he knows at the time

that the master is attempting to untangle a line on the

cathead with his hands.

In drawing a fine line of discrimination between

“master” and “crew member” as a basis for determining

the liabilii; of a shipowner under the Jones Act, the

decision oi the Court of Appeals is contrary to both the

34. See App. at pages 91, 92 and 93.

35. As referred to by the District Court. Only in the opinion of

the Court of Appeals is the term “order” found.

purpose of that Act and the decisions of this Court. In

Warner v. Goltra, 293 U.S. 155 (1934), this Court

abolished the distinctions between masters and crew

members in negligence actions brought under the Jones

Act. In that case, the master of a tugboat had been killed

through the negligence of a pilot employed to navigate

the tug. /d., at 156. The Missouri Supreme Court held

that a “master” was not a “seaman” under the Jones

Act because of the statutory distinction encompassed in

46 U.S.C. § 713 and because any negligence on the part

of the pilot occurred while the master was in overall

command of the vessel. Warner v. Goltra, 67 S.W.2d

47, 49 (Mo.Sup. 1933). In reversing, this Court held

that the scope of the class of seamen at other times and

in other contexts was not significant. “Our concern is to

define the meaning [of ‘seaman’] for the purpose of a

particular statute which must be read in the light of the

mischief to be corrected and the end to be attained.” 293

U.S. at 158. Although for other purposes there are, out

of necessity, valid reasons for discrimination between

masters and seamen, “[i]t is neither rational nor just if

extended to remedies for bodily wounds. At such times

masters and seamen are approximately equal.” 293 U.S.

at 162. Since that decision, this Court has never recog-

nized a distinction between classes of “seamen” as being

sufficient to relieve employers of liability from a failure

to exercise reasonable care for the safety of others under

the Jones Act.

The fact that a seaman may not be held contributorily

negligent for carrying out orders that resuli in his own

injury has nothing to do with whether Terry’s conduct

constituted negligence imputable to Brasea. It is clear

that under the Jones Act, a crew member does not assume

the risk of injury in carrying out an order, nor does a

master assume the risk of injury brought about by the

negligence of a fellow employee. BOAT DAGN Y, Inc. v.

Todd, 224 F.2d 208 (1st Cir. 1955). But the issue in

point is not assumption of risk or contributory negligence,

but whether Terry’s negligence played any part, even

the slightest, in producing Williams’ injuries. See Fergu-

son v. Moore-McCormack Lines, Inc., 352 U.S. 521,

522-523 (1957). Whether Williams instructed Terry to

turn on the power was a question of fact to be deter-

mined by the District Court in considering the issue of

comparative negligence. This issue was raised by Brasea

relying solely on Terry’s testimony, was duly considered

by the District Court and rejected.

Williams met his burden of proving Terry’s negligence

under the Jones Act. The District Court made sufficient

findings to sustain its conclusions of law in this regard.

Because the decision of the Court of Appeals requires an

additional burden of proof on this issue that is tantamount

to requiring Williams to negate that he assumed the risk

of injury, it is inimical to the intent and prior construc-

tions of the Jones Act and warrants this Court’s review.

SUMMARY

Whether a ship’s equipment and rigging is in such

condition that it renders the vessel unseaworthy is a ques-

tion of fact which, when made by the District Court, is

controlling unless shown to be clearly erroneous within

the limits of review imposed by Rule 52(a), Federal

Rules of Civil Procedure. The duty of the shipowner to

provide a seaworthy vessel arises out of and is solely de-

termined by application of the general maritime law. The

liability imposed by a breach of that duty is totally and

absolutely divorced from negligence-encrusted concepts of

contributory negligence, assumption of risk, foreseeability,

or the conduct of a fellow servant. In determining Peti-

tioner’s claim for unseaworthiness to be “moot” because

he “fails to establish liability under the theory [of strict

product liability]”, the decision of the Court of Appeals

is a radical and unwarranted departure from established

admiralty law and procedure and will, if allowed to

stand, virtually eliminate the duty to provide a seaworthy

vessel by subjecting seamen to assume the risk of being

injured by defectively designed and manufactured ship’s

equipment in addition to the normal hazards and perils

attendant to their profession.

The rights of seamen injured on vessels operating on

navigable waters has consistently been determined by

standards peculiar to the general maritime law. That law

has been influenced over the years by common law con-

cepts. Often, as in the case of the Jones Act, survivors’

rights in death actions, and actions such as this, involving

the defective design and manufacture of ship’s equip-

ment, the maritime law has incorporated common law

remedies that were not previously considered to be avail-

able in admiralty. However, the extent to which non-

maritime concepts apply and operate within the admiralty

framework involves a selective process which adopts only

those rights and duties which are in harmony with exist-

ing maritime law and rejects those which are not. The

purpose of this selective procedure is twofold: to afford

all seamen a similar measure of protection enjoyed by

those employed in non-maritime industry and to achieve

uniformity in the application and operation of admiralty

law. In determining Petitioner’s claims against CMC and

Bender without regard to the general maritime law, the

decision of the Court of Appeals deprives seamen injured

at sea as a result of defectively designed or manufactured

ery aa Se See —_ "

ship’s appliances of their traditional right to have such

claims determined by the well-settled standards peculiar

to the general maritime law. Instead, it subjects them to

the uncertainty of having such claims determined by stand-

ards of the common law that are not yet uniformly and

consistently accepted or applied.

In remanding this case to the District Court for an ad-

ditional finding as to whether Petitioner instructed Terry

to turn on the power, the decision of the Court of Ap-

peals not only expands the permissible scope of appellate

review beyond the perimeters set by Rule 52(a), Federal

Rules of Civil Procedure, but also subjects seaman under

the Jones Act to an additional, and heretofore unknown,

burden of proving that their conduct did not constitute

contributory negligence or an assumption of the risk of

injury as a prerequisite to determining whether a fellow

crewman’s negligence was a proximate cause of those

injuries. Finally, it imposes an unrealistic discrimina-

tion against masters of small fishing vessels contrary to

the beneficial purposes of the Jones Act.

CONCLUSION

For the reasons set forth above, Roy C. Williams prays

that this Court enter its Order directing that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit herein and

upon such review that this Court Order the remand of

this case to the United States District Court for the

Southern District of Texas with instructions to enter

judgment in favor of Petitioner and against Respondents

Brasea, Inc., Bender Welding and Machine Company and

Construction Machinery Company, in personam and the

_CIAPESC I, in rem, in the amount of Five Hundred

Twenty-Seven Thousand Five Hundred Dollars ($527,-

500.00), together with all taxable costs both in this Court

and in the Courts below, with legal interest from the date

of judgment.

Respectfully submitted,

Roy C. WILLIAMS, Petitioner

J. ROBERT MCKIssICcK

WILLIAM R. EDWARDS

LAw OFFICES OF WILLIAM R. EDWARDS

400 Wilson Tower

Corpus Christi, Texas 78403

CLEVELAND & SHAABER

Barnett First National Bank

Jacksonville, Florida

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing

Petition for Writ of Certiorari have been deposited with

the United States Postal Service, with proper first-class

postage affixed thereto, certified mail, return receipt re-

quested, addressed to each of the following counsel for

Respondents: Mr. Charles D. Kennedy, Suite 3710, One

Shell Plaza, Houston, Texas 77002, Mr. Jack G. Carin-

has, Jr., 910 E. Levee Street, Brownsville, Texas, Mr.

A. J. Watkins, 443 The Main Building, Houston, Texas

77002 and Mr. M. W. Meredith, P. O. Box 2768, Corpus

Christi, Texas 78403 on this the 6th day of August, 1975.

J. ROBERT MCKIssick

LAW OFFICES OF WILLIAM R. EDWARDS

400 Wilson Tower

Corpus Christi, Texas 78403

arti vith 0 boo on ni

APPENDIX A

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CIVIL ACTION NO. 69—C—213

Admiralty or Maritime Claim Within

the Meaning of Rule 9(h)

ROY LEWIS C. WILLIAMS

BRASEA, INC., ETC., ET AL

(Filed April 24, 1972)

MEMORANDUM AND ORDER

The Plaintiff Williams, captain of the CIAPESC: I,

a fishing vessel, was injured while the vessel was fishing

in the Gulf off the Texas coast. His injuries were very

disabling. Both his arms were broken so severely that his

left arm was amputated at the shoulder and the right arm

just below the elbow.

The CIAPESC I was built by Defendant Bender Weld-

ing and Machine Company (sometimes called Bender)

and was sold to Defendant Brasea, Inc., in the ordinary

course Of Bender’s business. In constructing the vessel,

Bender had installed a winch, of which the port cathead

was a component part. This winch, designated as Model

Sx-3r, was designed and manufactured by Defendant

Construction Machinery Company (sometimes referred

to as CMC) and sold directly to Bender. Bender also

installed on the vessel the engine and power takeoff

equipment which operated the winch, constructed a

snatch-block frame which was above the winch, but

Bender did not rig the vessel. There was installed a rod

with a handle on it, as part of the engine and power take-

off equipment. To use the handle, one of the crewmen

had to stand on a low platform in front of the winch

and between the catheads and reach over the catheads

and above the winch. The rod was pushed in to activate

the winch and pulled out to cut it off. No substentiai

change had occurred or modifications made in said winch,

the port cathead, or the machinery related to the opera-

tion of the cathead, or in the snatch-block frame from

the date of the delivery of the vessel to Brasea until the

time Plaintiff suffered said injuries.

This case was tried without a jury and the Court's prob-

lem is to determine what caused the injury and, if parties

other than the Plaintiff were at fault, how much money

is the Plaintiff entitled to recover.

The winch was in operation immediately prior to the

incident causing Plaintiff’s injuries. It was being used to

pull in the nets, and the line, a rope about one inch

in diameter, became tangled on the port cathead. The

~ ee

power was turned off and the cathead had stopped moving

when Captain Williams commenced trying to untangle

the line. Plaintiff was using both hands to work with

the line when the power came on and the cathead

commenced to turn. Plaintiff's hands became entangled

in the line and, although the power was immediately

shut off, the cathead continued to turn for several revolu-

tions and Plaintiff was flipped around until it stopped.

The acts above mentioned are uncontradicted. The

Court, in determining what caused the injury, must

resolve the conflicts existing as to other facts. Terry, a

deckhand on the CIAPESC I, testified that Williams

told him to turn on the power and he followed this in-

struction by reaching over and pushing in the rod. Will-

iams denies giving such instruction and Rico, another

deckhand, did not hear it. Terry testified he thought

Williams was in the clear when the motor started, but

there is no convincing proof that Terry made any reason-

able effort tc be sure. In any event, there is little doubt

that Terry started the engine. He was standing between

the catheads, just a couple of feet from Plaintiff, and knew

he was trying to untangle the line with his hands. Whe-

ther Plaintiff told him to do so or not, when Terry

turned on the power without making a reasonable effort

to be sure Plaintiff was clear of danger, he was negligent,

and thus the Defendant Brasea, Inc., was actively at

fault. As soon as he realized Williams’ hands were caught,

Terry shut off the power, but the cathead continued to

turn. If the power had not come on, Williams probably

would still be fishing today. This negligence was a proxi-

mate cause of Plaintiff's injuries.

But, such negligence was not necessarily the only cause

of the injury. Rope lines being hauled aboard shrimp

vessels, generally via a cathead, will sometimes tangle,

and experienced seamen are aware of this. The fact that

the rope tangled and Plaintiff was injured is not in itself

enough to warrant a finding of strict liability or of negli-

gence on the part of any of the Defendants. Helene Curtis

Industries, Inc. v. Pruitt, 385 F.2d 841. So, the Court

must determine what caused the rope to tangle in the first

place. In determining this fault, if any, in the cathead,

Plaintiff's Exhibits 13, 14 and 16, and the testimony di-

rectly related thereto, will be disregarded.

Since the rope tangled on the port cathead, we will

Start with it. Was there a fault in the configuration of

the cathead which was responsible for the tangling of

the rope, thus starting the chain of events resulting

eventually in Plaintiff's injuries? There is ample evidence

that the cathead and the other equipment on the vessel

had been reasonably well maintained and kept in good

repair. Except for normal deterioration, the cathead was

in the same condition as when manufactured and installed

on the vessel.

Counsel has furnished the Court with a transcript of

the testimony of witness Koloc, with references to page

and line of certain portions of such testimony. The Court

appreciated this courtesy and it was very helpful. How-

ever, the testimony regarding the slant of the inside of

the flange and the reduction of the radius of the curve

as it merges into the throat of the spool from two inches

to one-half inch, and the imperceptible taper of the spool,

consisted of many speculative questions and answers, and

the various exhibits in evidence did not remove the

speculation. The Court concludes that Plaintiff failed to

prove the cathead was not reasonably suited for the pur-

poses for which it was intended. Even if there was suffi-

cient evidence to make a prima facie case, which the

Court doubts, it was not convincing. Even if there was

“guesswork” involved in manufacturing, and the configu-

ration of the finished product was different than shown

on the drawings, this would be pertinent only after the

Court was satisfied the configuration was faulty. The

presumption of adverse testimony, if applicable at all,

was not strong enough to overcome the weakness of the

Plaintiff's case as to this issue.

The Plaintiff also complains that CMC designed the

winch without providing a braking mechanism to stop

the revolving cathead when an emergency such as existed

here arises. There was no uncertainty in the evidence as

to this. It is undisputed that the port cathead on the winch

will continue to revolve several times after the power to

the winch is cut off, and that, if the rope becomes tangled,

further revolutions of the cathead would increase and

tighten the tangle. It is also undisputed that the injuries

to Plaintiff were greatly aggravated by the continued re-

volving of the cathead after Plaintiff's hands were caught

in the rope. And, there is no reason why an adequate

braking mechanism for the cathead could not be provided.

It seems to the Court, under the circumstances in this

case, if there had been proper application of a braking

mechanism on the port cathead, the tangle might have

been easily disentangled and Plaintiff might not have been

injured, but there is no way to tell for sure about that.

The evidence does indicate that the additional turns of

the cathead, after the first or perhaps even after the

second, were responsible for Plaintiff's loss of both arms,

and the Court is satisfied that, if the cathead had been

stopped after the first or second turn, Plaintiff's injuries

would not have been so severe.

Therefore, the Court finds that the failure on the part

of CMC to provide an adequate braking mechanism for

the port cathead rendered the same defective and un-

reasonably dangerous to persons situated as was Plaintiff,

and, therefore, it was not reasonably suited for the pur-

pose for which it was intended; and, further, that the

absence of an adequate brake was a producing cause of

injuries to Plaintiff.

The Defendant Bender Welding and Machine Co., Inc.,

in the construction of the vessel CIAPESC I, installed

the winch and also provided a snatch-block frame above

the winch. Plaintiff contends the snatch-block frame did

not provide a fair lead from the snatch block to the port

cathead. “Fair lead” refers to the angle at which a rope

line runs from the snatch block to the cathead. This angle

is determined by the relationship of the snatch-block

frame and the throat of the cathead. The rope line used in

pulling in the nets runs up through the rigging and down

to the snatch-block frame and through the snatch block,

and from there to the port cathead. The evidence proved,

to the satisfaction of the Court, that the snatch-block

frame was too far forward and thus there was not a fair

lead from the snatch block to the port cathead. The im-

Properly located snatch-block frame and the resulting

absence of a fair lead caused the line to tangle on the

port cathead. Also, the winch was installed so that it

Slanted down toward the stern of CIAPESC I, which may

have contributed to the lack of a fair lead. Therefore,

the Court finds the placement of the snatch-block frame

by Bender was such as to make the vessel, and partic-

ularly the area in front of and near the winch, unreason-

ably dangerous to uses thereof, and thus it was not reason-

ably suited for the purpose for which it was intended;

Bi A ents ea le ba bok 4

ht ced.

} " —s

and such installation was a producing cause of the inci-

dent in which Plaintiff was seriously injured.

There was some testimony with regard to a shackle

between the snatch-block frame and the snatch block, but

the evidence was uncertain with regard to this and it did

not establish to the satisfaction of the Court that the

shackle did any more than contribute to the fair-lead

problem, if it did anything, and its presence does not

change the findings of the Court with regard to the lack

of a fair lead from the snatch-block frame down to the

port cathead on the winch. The Court finds the fair-lead

problem would have been the same without the shackle.

However, this is a matter of unseaworthiness which will

be discussed later.

With regard to the negligence of both Construction

Machinery Company and Bender Welding and Machine

Co., Inc., the Court is not satisfied that the evidence

charges either Defendant with any negligent fault which

was the proximate cause of Plaintiff's injuries. Under the

theory of strict liability, a defective condition created by

a Defendant which was a producing cause of an injury

is sufficient. C.A. Hoover and Son v. O. M. Franklin

Serum Company, 444 S.W.2d 596 (1969); and Putman

v. Erie City Manufacturing Company, 338 F.2d 911 (5

Cir., 1964). This is not so as to negligence.

It was established that winches powered as the one

here involved do not usually have separate braking mech-

anisms on the catheads, particularly on shrimping vesseis,

and that there is no proof in the record of any history

of serious injuries resulting from the absence of such

braking mechanism. There was a lack of convincing

proof that the braking system was needed under any cir-

cumstances other than those which occurred in this case.

There is no negligence on the part of CMC unless it failed

to use ordinary care in the design and manufacture of

the winch and cathead. Cain v. George, 411 F.2d 572

(5 Cir., 1969). The Court finds CMC did not fail to

use ordinary care in designing and manufacturing said

winch without a separate brake on the port cathead.

Bender Welding and Machine Co., Inc., was not negli-

gent in installing the winch purchased from CMC in

CIAPESC I, nor in the placing of the snatch-block frame

where it did. Although it was not properly placed and

thus subjected Bender to strict liability, when the activities

of Bender are measured against ordinary care, the evi-

dence is not convincing that it was negligent; thus, the

Court finds Defendant Bender was not negligent in plac-

ing the snatch-block frame as it did in the construction

of the vessel.

The foregoing findings and conclusions of the Court

relate to the liability of Defendants Bender and CMC

to Plaintiff. We have already found the negligence of

seaman Terry in turning on the power was active negli-

gence for which Defendant Brasea, Inc., is responsible.

Defendant Brasea, Inc., has other liability in this case.

The snatch-block frame was improperly placed and De-

fendant Brasea, Inc., did not make proper use of shackles

to remedy this defect. The port cathead had no inde-

pendent braking mechanism. The rod used to turn on

the power to the winch and turn it off was over the

winch and not easy to reach. Consequently, at the time

the rope line bringing in the nets was tangled on the

port cathead, the vessel, and particularly the area in

front of the winch, was not reasonably suitable for its

intended use and thus unseaworthy. Gibbs v. Kiesel, 382

F.2d 917 (5 Cir., 1967).

ors ee ee

Now that the responsibility of the several Defendants

has been determined, The Court must now resolve the

amount of the money damages resulting from Plaintiff's

injuries. Maintenance and cure are not here involved, but

loss of wages, loss of physical capacity other than earning

a living, and pain and mental anguish are certainly serious

problems.

At the time of the trial, the Plaintiff's physical wounds

had healed, but he had not yet learned how to use any

prothesis. The evidence established his work-life expect-

ancy at twenty-six years, and his actual life expectancy

at thirty years. He is a person with a limited sixth-grade

education and has spent most of his life as a seaman,

working mainly on shrimp boats. He has been serving

as a captain of a shrimp boat for some time. It is cus-

tomary in the shrimping industry that the captain and

his crew are paid based on a percentage of the haul,

so the Plaintiff's income would naturally vary from year

to year. There was some conflict in the testimony with

regard to the income of the Plaintiff, and there is no

way to figure it accurately, but considering what informa-

tion the Court has, it finds that from the time of the

injury to the time of trial, the Plaintiff lost wages of

$10,500.00; and the amount of money, if paid now, which

will compensate him for his loss of earnings in the future

is $142,500.00.

In determining the amount necessary to compensate

him for his physical incapacity from the date of the

injury to the time of trial, we must take into account

that he was taken care of at no expense to him for a

considerable time after the injury. The Court finds this

amount to be $5,000.00; and, in determining the amount

of money necessary to compensate him for his future

physical incapacity, other than wages, we must take into

account the cost of the assistance he will need. Of course,

it is possible that he may be able to develop the ability

to use artificial limbs, but the use of such prothesis will

be exceedingly limited. The Court finds the amount of

money, if paid now, which will compensate Plaintiff for

his future physical incapacity for the remainder of his

life is $109,500.00.

The physical pain and suffering which the Plaintiff

underwent at the time of the accident and subsequent

thereto until his wounds healed must have been severe,

and the mental anguish which he suffered as a result of

such injuries up to the time of trial must have been ex-

treme. There is no indication Plaintiff will suffer physical

pain to any great extent in the future, but he will, for

the rest of his life, be limited in his ability to take care

of himself. The proof indicates that by diligence Plaintiff

could manipulate artificial devices to the extent of taking

care of a number of common personal chores, and thus

relieve him of some anxiety. Nevertheless, and taking

into account a reasonably proficient use of artificial limbs,

the mental anguish incident to living like that must be

tremendous. To know what physical pain and this sort of

mental anguish is worth in dollars and cents is exceed-

ingly difficult; there is no accurate way to measure it.

The Court finds that the damages for physical pain and

mental anguish sufferec by Plaintiff to time of trial to be

$135,000.00; and the physical pain and mental anguish

which will be suffered by Plaintiff in the future and for

the rest of his life to be $125,000.00.

The Court has recognized the severity of Plaintiff's

injuries. The total damages suffered by Plaintiff because

of his injuries are $527,500.00. All of the Defendants

have some responsibility in this regard, but so does the

Plaintiff. He took the hard way, a dangerous way, in

trying to untangle the rope at a time when a crew member

was close to the rod which had only to be pushed in to

start the power and thus turn the cathead, and he should

have known better. He disregarded the existing danger,

when, if careful, he could have avoided being caught

by the tangled rope, when the rod was pushed in. The

Court is not prepared to find that Plaintiff gave Terry

specific instructions to turn on the power, but, in any

event, the Court finds that Plaintiff disregarded existing

danger and that his own fault contributed forty percent

(40% ) to his injuries. The question of whether this Court

may reduce Plaintiff's recovery by deduction of the per-

centage of his fault has been raised. Nevertheless, the

Court has taken Plaintiff's fault into account, and thus,

his recovery is the sum of $316,500.00.

In considering if Plaintiff's fault should be taken into

account, which is, in effect, apply comparative negligence,

the Court considered the case of Texsun Feed Yards, Inc.

v. Ralston Purina Co., 447 F.2d 660 (5 Cir., 1971).

It involved a cause of action arising within the State of

Texas, and it holds that, under the facts related in the

opinion, contributory negligence will not defeat recovery

in a suit based upon a theory of products liability, even

though negligence of the defendant is also claimed in the

same suit; and, that the contributory negligence of the

Plaintiff was not related to the actions of the Defendant.

Texsun Feed Yards was a civil diversity action totally

unrelated to admiralty and the decision was based on

the law of products liability in Texas. This Court does not

consider it as authority for denying the Defendants here

the reasonable protection of the rule of comparative

negligence.

This Court is here concerned with an admiralty suit

brought under Rule 9(h). The Plaintiff, as in Pope &

Talbot, Inc. v. Hawn, 346 U.S. 406, 409-411, “was

injured on navigable waters while working on a ship * * *.

Consequently, the basis of [his] action is a martime tort

* * *.” Thus Federal maritime law is controlling and the

rule of comparative negligence should apply. While in

Pope & Talbot the Supreme Court was concerned with

the repudiation of contributory negligence as a complete

bar to a plaintiff's recovery in an admiralty case, the

i of the Court in that case is certainly applicable

ere.

Further, since the liability of the ship owner for breach

of warranty of seaworthiness is analogous to the liability

of a manufacturer or seller for the breach of warrant for

fitness, Grigsby v. Coastal Marine Service of Texas, Inc.,

412 F.2d 1011 (5 Cir., 1969), the refusal to apply

comparative negligence to all phases of this case would

create a most confusing situation. The faults of Bender

and CMC, as heretofore outlined, are the same faults

which caused Defendant Brasea, Inc., to afford to Plaintiff

an unseaworthy vessel. To put it another way, all De-

fendants are at fault for the same reasons, and certainly,

in admiralty, and if the facts justify it, comparative negli-

gence is properly an offset to any damages Plaintiff

suffered because of the unseaworthiness of the vessel,

and so it should be as to the products liability claim

pursued by Plaintiff herein.

The final matter for decision concerns claims for in-

demnity. Although all of the Defendants are jointly and

severally liable to the Plaintiff, each Defendant is asking

for indemnity from another Defendant. The Court must

finally resolve this issue between the Defendants, as

prayed for in their respective cross-actions.

On an active-passive tort theory of indemnity, Defend-

ant Construction Machinery Company and Defendant

Bender Welding and Machine Company, which are only

passive participants by virtue of their strict liability in

tort, may very well have a claim over against Defendant

Brasea, Inc., the owner of the vessel, due to the active

negligence of Terry, the employee of Brasea, in starting

the winch engine before making a reasonable effort to see

that Plaintiff was clear of the cathead. Tri-State Oil Tool

Industry, Inc. v. Delta Marine Drill. Co., 410 F.2d 178

(1969).

On the other hand, Brasea, Inc., may very well be

entitled to recover over against Bender, based upon a

contractual indemnity theory arising from Bender’s failure

to provide a snatch-block frame reasonably suitable for

its intended use, Grigsby v. Coastal Marine Service of

Texas, Inc., supra, and against CMC, because of its

implied warranty of the fitness of the port cathead for

the use intended which CMC breached when it failed to

provide adequate braking facilities. Grigsby, Id.

This Court has been furnished with excellent briefs by

all counsel, but, even so, the Court concludes there is

little maritime authority to help solve the dilemma pointed

up by the alternatives just discussed. However, South

Austin Drive-In Theatre v. Thomison, 421 S.W.2d 933,

writ ref., n.r.e. (1967), is sufficiently analogous to war-

rant our consideration of the reasoning in the opinion.

In that case, a manufacturer breached its duty to design

a power mower reasonably suited for the purpose in-

tended. The operator of the mower, who was the em-

ployee of the defendant seeking indemnity from the

manufacturer, negligently reversed the mower and thereby

caused injury to the plaintiff. Faced with cross-actions for

indemnity, the Texas court held:

“We believe that the negligence of . . . [defendant-

employer] . . . places the [defendant-employer] in

pari delicto with [the defendant-manufacturer]. Since

the [defendant-employer] and [defendant-manufac-

turer] were concurrent or joint tortfeasors, having

no relation to one another, each of them owing the

same duty to [plaintiff], and involved in an accident

in which the injury occurred without breach of duty

to each other, no right of indemnity exists on behalf

of either against the other.” Id., at 949.

The Court is satisfied that the reasoning of the Texas court

will produce a just result as to Defendants before this

Court and concludes that CMC and Bender together were

in pari delicto with Brasea. Also, the Court believes that

CMC and Bender were in pari delicto with each other.

The final result of all the various actions for indemnity

is a stalemate. No indemnity will be awarded as between

any of the three Defendants.

The foregoing constitutes the findings of fact and the

conclusions of law of the Court in this case. The Clerk

shall furnish all counsel with copies of this memorandum

and order. The Court will prepare its own judgment

herein.

Signed this 24th day of April, 1972.

OWEN D. COX

United States District Judge

APPENDIX B

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CIVIL ACTION NO. 69-C-213

ROY LEWIS C. WILLIAMS

BRASEA, INC., ET AL

Admiralty or Maritime Claim Within the

Meaning of Rule 9(h)

(Filed June 5, 1972)

AMENDED FINAL DECREE

This cause was tried before the Court, with all parties

present and represented by counsel, and the Court made

its findings of fact and conclusions of law, and same were

incorporated in its Memorandum and Order filed on the

24th day of April, 1972. Pursuant to said findings of fact

and conclusions of law, it is hereby ORDERED, AD-

JUDGED and DECREED by the Court,

(1) That Plaintiff, Roy C. Lewis Williams, do have

and recover of and from the Defendants, Brasea, Inc.

Bender Welding and Machine Company, and Construc-

tion Machinery Company, the sum of Three Hundred

Sixteen Thousand Five Hundred Dollars ($316,500.00):

(A) Defendant Brasea, Inc., shall be primarily

liable for 3343 % of the sum of Three Hundred Six-

teen Thousand Five Hundred Dollars ($316,500.00),

i.e., One Hundred Five Thousand Five Hundred Dol-

lars ($105,500.00), and secondarily liable to Plain-

tiff Williams for the sum of Two Hundred Eleven

Thousand Dollars ($211,000.00);

(B) Defendant Bender Welding and Machine

Company shall be primarily liable for 334% of the

sum of Three Hundred Sixteen Thousand Five Hun-

dred Dollars ($316,500.00), i.e., One Hundred Five

Thousand Five Hundred Dollars ($105,500.00), and

secondarily liable to Plaintiff Williams for the sum

of Two Hundred Eleven Thousand Dollars ($211,-

000.00); and

ny shall be primarily liable for 334%4% of the sum

of Three Hundred Sixteen Thousand Five Hundred

Dollars ($316,500.00), i.e., One Hundred Five

Thousand Five Hundred Dollars ($105,500.00), and

secondarily liable to Plaintiff Williams for the sum

of Two Hundred Eleven Thousand Dollars ($211,-

000.00).

(2) That Brasea, Inc., as a cross-plaintiff, take noth-

ing by its cross-action herein for indemnity from and

against cross-defendants Bender Welding and Machine

Company and Construction Machinery Company;

(3) That Defendant Bender Welding and Machine

Company, as cross-plaintiff, take nothing by its cross-

action herein for indemnity from and against cross-de-

fendant Construction Machinery Company;

(4) That Defendant Construction Machinery Compa-

ny, as cross-plaintiff, take nothing by its cross-action for

indemnity from and against cross-Defendant Bender Weld-

ing and Machine Company,

(5) That Plaintiff shall have his costs of action; and

(6) That Plaintiff shall have interest on this judgment

at the rate of six percent (6% ) per annum from April 24,

1972, until paid.

Signed this 2nd day of June, 1972.

OWEN D. COX

United States District Judge

APPENDIX C

. ROY C. WILLIAMS,

Plaintiff-Appellant-Cross Appellee,

BRASEA, INC., and VESSEL CIAPESC I, her engines,

etc., Defendants-Appellees-Cross Appellant,

Bender Welding & Machine Co.., Inc.,

Defendant-Appellee-Cross Appellant,

Construction Machinery Company, Defendant-

Appellee-Cross Appellant.

No. 72-3623.

United States Court of Appeals,

Fifth Circuit.

July 5, 1974.

Appeal from the United States District Court for the

Southern District of Texas.

Before GEWIN, THORNBERRY and SIMPSON. Cir-

cuit Judges.

SIMPSON, Circuit Judge:

The shrimp trawler CIAPESC I, out of Freeport, Texas

was trawling for shrimp in the Gulf of Mexico, when the

events leading to this involved lawsuit took place. Roy C.

Williams, the plaintiff below and appellant (and cross-

appellee) here, was master of the CIAPESC I at the time

he was seriously injured aboard the vessel. Williams pre-

vailed below in this action against the owner of the vessel,

Brasea, Inc. (Brasea), its builder Bender Welding and

Machine Company, Inc. (Bender), and the designer- man-

ufacturer Construction Machinery Company (CMC), of

the winch assembly involved in the accident. As to Brasea

the action was premised upon unseaworthiness of the

CIAPESC I and negligence under the Jones Act, Title 46,

U.S.C. Sec. 688. Bender and CMC were sued on theories

of negligence and products liability. Brasea cross-claimed

for a right of indemnity as against Bender and CMC, and

Bender cross-claimed for indemnity from CMC.

The several claims and cross-claims were tried together

to the district court without a jury. Final judgment was

entered for Williams in the sum of $316,500, which was

reduced from a finding of damages in the amount of

$527,500, by 40% ($211,000.00), the proportion of

damages the court found to represent Williams’ contrib-

utory negligence. Liability was found as to Brasea based

on the negligence of employee Terry, a crewman aboard

the vessel, and unseaworthiness of the CIAPESC I. Ben-

der and CMC were found liable on the theory of products

liability set forth in the Restatement of Torts 2d, Sec.

402A. Both Bender and CMC were further found not to

have been negligent, and both cross-claims for indemnity

were denied. By amendment to the final judgment, the

liability found was changed from joint and several against

the defendants to primary-secondary. Williams gave timely

notice of appeal and all defendants filed cross-appeals.

After review of the briefs, record, and argument we re-

mand for further findings in connection with the negli-

gence issues and reverse on the issue of products liability.

I. FACTS

On December 10, 1969, the CIAPESC I was trawling

for shrimp in the Gulf of Mexico off the Texas coast.

Aboard were Williams, master of the vessel, and two

crewmen, Edward Terry and Jeremiah Richo. The acci-

dent involved a power winch designed and manufactured

by CMC and installed by Bender during the ship’s con-

struction. The winch had three drums which revolved

when power was supplied to the winch. Two machined

steel winch heads, called “catheads”, were attached to and

extended from the drums. Catheads resemble large empty

spools perhaps a foot high and of somewhat smaller di-

ameter. Their function largely is to assist in pulling “whip-

lines”, a whipline being a line attached to a shrimp net

and run thence through a block and tackle down to the

deck of the ship from the A-frame boom which supports

it. By wrapping the loose end of the whipline around the

cathead and engaging the power, a crewman uses the ro-

tation of the cathead to pull the net alongside the vessel

and from there out of the water and up to the deck.

There were two catheads on board the CIAPESC I. A

push-pull handle for engaging the power to the winch, and

thus the catheads, was located between the two. A low

platform on which to stand in front of the handle facili-

tated reaching it. On the day in question, with both port

and starboard nets out, in the 25-fathom area, they hit

a “bad bottom” and Williams, the master, ordered the

crew to pick up the nets. As the port net was being re-

trieved the whipline running from the net through the

snatch block to and around the cathead became tangled

around the cathead. Terry cut the power to the cathead

and Williams, who had been below, came on deck to see

what had happened. Recognizing the problem, he instruct-

ed Terry to pull on the line in order to create some slack.

Williams then began untangling the line around the cat-

head with his hands.

From all the testimony it appears that, at this precise

moment, Terry was standing on the platform in front of

the on-off power handle, between the two catheads. Wil-

liams was on the other side of the cathead on which the

line was tangled, perhaps two feet away. Richo was about

six feet away, but was not watching Terry or Williams.

A factual dispute exists with respect to what immediately

ensued. Terry testified that Williams ordered him to cut

on the power of the winch and he did so. Williams denied

giving any such order. Richo did not hear anything, but

that fact is by no means conclusive, because he was not

paying attention and because extraneous noises existed at

the time.

When the power came on the cathead began to turn

and the line quickly became taut. Williams’ left hand

caught in the line on the cathead and he yelled for Terry

to cut the power. The cathead continued to turn for three

or four revolutions after the power was cut, as do all

catheads mounted on winches that lack a brake. While

trying to free himself, Williams caught his right hand in

the line on the cathead and this arm was pulled further

into it. He was cut loose after having been carried over

the cathead several times thus entangled. The resulting

injuries required the amputation of both of Williams’

arms. There was further conflict in the evidence as to who

actually turned the power off and whether it was before

or after Richo freed Williams by cutting the line. Terry

further testified that he looked at Williams just before he

was ordered to turn on the power and, while he could not

see his hands, he seemed to be in the clear.

I. APPEAL BY WILLIAMS

Williams appeals from several aspects of the court’s

final judgment. Most significant is his attack on the 40%

reduction of the judgment because of his asserted con-

tributory negligence. He fir’ urges that he was not in fact

contributorily negligent, and second that, even if he were,

the court made no factual findings to support its 40%

comparative negligence figure. In our view the question of

Williams’ contributory negligence vel non is inextricably

tied to the issue of (a) Terry’s, and (b) hence Brasea’s'

negligence. We deal first therefore with the competing

negligence claims of Williams and Brasea.

The district court’s memorandum-opinion and order

contains two references to the dispute as to whether Wil-

liams ordered Terry to engage the power and its relevance

to liability. The court initially stated that “[w]hether

plaintiff told him to do so or not, when Terry turned on

the power without making a reasonable effort to be sure

plaintiff was clear of danger, he was negligent, . . .” App.

at 1746. Later in its opinion the court observed that

“[tJhe Court is not prepared to find that Plaintiff gave

Terry specific instructions to turn on the power, . . .” App.

at 1758. The lower court clearly reasoned that Terry was

negligent in turning on the power even if he was ordered

by Williams to do so.

1. While there may have been room for question at the time of

trial as to whether Terry was an employee of Brasea for purposes of

the latter’s vicarious liability, that issue is now settled adversely to

Brasea. See Bishop v. United States, 5 Cir. 1973, 476 F.2d 977.

Williams’ contributory negligence was put on a different

footing. There was testimony regarding alternative meth-

ods Williams might have used in an effort to untangle the

line around the cathead, such as prying it loose with a

Stillson wrench or simply cutting it with a knife. This

was perhaps the basis of the district judge’s 40% com-

parative negligence figure, since in his reference to the

reduction he stated that “(h)e took the hard way, a

dangerous way, in trying to untangle the rope... (h)e

disregarded the existing danger, when, if careful, he could

have avoided being caught by the tangled rope, when the

rod was pushed in”. App. at 1757.

We determine that the present findings of fact in the

record will not support the trial court’s legal conclusions

as to negligence and contributory negligence, and ac-

cordingly remand for further factual determination con-

sistent with the following discussion.

As noted above, the trial court declined to find whether

or not Williams instructed Terry to engage the power.

Williams asserts that the burden of proof on that issue

rested with Brasea by reason of its allegation that Wil-

liams gave the order in support of its contributory negli-

gence claim. From there Williams argues that, since the

court made no finding, and the burden of proof was on

Brasea, a failure to carry that burden below means that

we must assume on appeal that the order was not given.

We find that argument imaginative but unavailing. The

fact that the court did not make a factual finding is the

functional equivalent of not passing on whether the bur-

den of proof was carried—not a premise from which to

infer that the burden was not carried. Specifically, the dis-

trict court held that Terry was negligent even if the order

was given; thus that it was unnecessary to resolve the

factual dispute.

On the subject of Terry’s negligence, we review the re-

cord mindful that factual determinations are to be over-

turned only if clearly erroneous. F.R.Civ.P. 52(a). Mc-Al-

lister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6,

99 L.Ed. 20. This court has consistently interpreted that

rule to mean that a finding of fact should not be reversed

if supported by substantial evidence. Lentz v. Metropoli-

tan Life Ins. Co., 5 Cir. 1970, 428 F.2d 36. We reiterate

that the lower court concluded that Terry was negligent

because he failed to make a reasonable effort to be sure

that Williams was free from danger when he cut the power

on even if Williams had ordered him to cut it on. We con-

sider that conclusion clearly erroneous in the absence of

an additional finding that Terry acted without a direct

order.

Brasea’s brief accurately demonstrates the fallacy in

this finding of the lower court. The real question is

whether Terry was negligent, assuming Williams gave the

disputed order. Terry and Williams were but two feet

apart, and Terry testified he observed that Williams ap-

peared to be in the clear just as he reached for the power

lever. Williams’ hands were not visible to Terry, since his

vision was blocked by the cathead itself. Thus, in order

to exercise the level of care found lacking by the district

court, Terry would have had to descend the platform,

walk to the side of the cathead to observe Williams’ hands,

then return to the platform in order to cut on the power;

and all this coming after receipt of a direct order from

Williams to turn the power on.

While we entertain some doubt as to whether this would

be negligence as between two crewmen (a question we

PRR ee

ahem

need not consider), we have no doubt that it was not such

as between the master of a vessel and a crewman. A seéa-

man’s duty to obey orders from his immediate superior over-

rides the postulate that the seaman must delay execution of

the order until he makes a reasonable effort to be sure that

following the order will not injure the superior who gave

the order. On this reasoning we determine that the dis-

trict court’s conclusion was clearly erroneous and based

on a false legal premise. Indeed, a seaman may not be

contributorily negligent for carrying out orders that re-

sult in his own injury, even if he recognizes possible

danger. Darlington v. National Bulk Carriers, 2 Cir.

1946, 157 F.2d 817. Terry’s conduct reflects less in the

way of culpability than did that of the seaman in Darling-

ton, and we perceive no valid reason for holding him to

a higher standard of care.

It needs emphasis here that our contrary determination

on this point flows directly from the necessary assumption

that Williams gave the order to turn on the power. If that

assumption is dispelled upon remand by a factual deter-

mination adverse to Brasea that no such order was given,

it may follow that Terry was in fact negligent. Our pre-

sent holding is simply that such a finding cannot stand in

the face of an assumption that Williams ordered him to

turn on the power.

The clearly erroneous talisman of Rule 52(a) F.R.Civ.

P. governs in considering the merits of Williams’ appeal

from the district court’s finding that he was contributorily

negligent. While his argument focuses upon eyents leading

up to the accident, we feel that solution of this problem is

inseparably linked to the issue of Terry’s alleged negli-

gence discussed above.

The district judge stated that Williams employed the

most dangerous of several alternative methods for un-

tangling the line from the cathead. This appears from

study of his memorandum-opinion to be the sole under-

girding for reducing the final award by 40%. As noted

above, the opinion stressed that instead of using his

hands, he could have pried the line loose with a Stillson

wrench or crowbar, or he could have cut the line any-

where above the cathead. Williams attacks this, arguing:

(1) that the alternative methods were either drastically

impractical or not necessarily safer; (2) that a finding

of contributory negligence cannot stand when there was

a lack of proximate cause due to the intervening, unfore-

seeable negligence of Terry; and (3) that the district

court erred in not relating how it computed the figure of

40% for reducing the final award.

The lower court did not find Williams contributorily

negligent because he gave an order to turn on the power

while untangling the line with his hands, but appeared

rather to rely entirely on the use by Williams of his hands

when other methods were available. We do not doubt

that if Williams in fact ordered the power turned on, it

was negligence on his part to do so when one or bo.. of

his hands were entangled in the whipline around the cat-

head. The difficulty arises when we assume the opposite,

that he did not give the order. We proceed to an analysis

of each of Williams’ claims utilizing that assumption.

The first question is whether Williams’ use of his hands,

was contributory negligence in and of itself. The sug-

gested alternative of cutting the line is frail indeed. Ac-

cording to the testimony, lines frequently tangle on cat-

heads, and to cut one each and every time seems both

impractical and demonstrative of an extraordinary rather

than an ordinary and usual standard of care. But the use

of a crowbar or Stillson wrench may have been a practical,

viable, and safer option under the circumstances. This

point seems to us so close as to require that we defer to

the judgment of the trial court as not clearly erroneous.

Williams’ second argument poses a more difficult ques-

tion: assuming that Terry acted without an oider from

Williams, was his action intervening unforeseeable negli-

gence, depriving Williams’ contributory negligence of prox-

imate causation with respect to his injury? As to this point

we find Williams’ argument persuasive.

While the hornbook rule advanced by Williams with

respect to intervening negligence needs no citation, it is

likewise not without exception: “It is not always neces-

sary, however, to find intervening conduct specifically

foreseeable. Courts have held tortfeasors responsible when

their conduct threatens a particular sort of result and an

unanticipated force intervenes to produce that result.”

Watz v. Zapata Off-Shore Co., 5 Cir. 1970, 431, F.2d

100, 116. In Watz a chain manufacturer sold a chain in

which a link had been negligently fused and was thereby

rendered weaker than it should have been. Despite negli-

gent use by the purchaser, the damage that resulted when

the link failed was found to be proximately caused by the

negligent fusion of the link.

We recognize the difficulties inherent in drawing fine

lines between foreseeable negligence and contributory neg-

ligence, but conclude that Williams’ situation differs from

that which obtained in Watz to the extent that Watz is

not controlling here. The focus in Watz was upon the

threat posed by selling a chain with a defective link. The

danger was that it might fail even when used in lifting

loads within its stated capacity. While abuse of the chain

was not specifically foreseeable, the chain manufacturer’s

negligence threatened a particular sort of result, i.e. the

breaking of the chain. But the same observation does not

fit Williams’ conduct, which did not threaten any sort

of result, save the untangling of the line, until the com-

pletely unforseeable intervention of Terry’s (assumed)

negligence. On remand, should the district court find that

Terry was not acting under Williams’ order, it should con-

clude that ‘villiams’ negligence was not a contributing

proximate cause of his injury.

We need spend a little time with Williams’ assertion of

error in the trial court’s failure to state the underpinning

for its 40% reduction of the amount of his award be-

cause of contributory negligence. This feature of the de-

cision below falls with our reversal for further findings as

to Brasea’s (and Terry’s) negligence and Williams’ con-

tributory negligence. If upon remand Williams is again

found contributorily negligent, the percentage reduction

of his award should be related to the evidence by an ap-

propriate finding.

This analysis disposes of the most significant aspect of

both Williams’ and Brasea’s appeals, but several other

issues are raised and require consideration. Williams also

attacks the trial court’s modification of final judgment by

which the originally found joint and several liability of

the defendants was changed to primary-secondary. This

was done by applying the divided damages rule, limited

to maritime law, under which each tortfeasor is assessed

primary liability for only his proportionate share, in this

case one-third, and secondary liability as to the remainder.

See, e.g., Crain Bros., Inc. v. Wieman & Ward Co., 3 Cir.

1955, 223 F.2d 256. Williams argues that the divided

damages rule is limited to collision cases and was thus

improperly applied below in this case. The Supreme Court

has recently ruled otherwise in Cooper Stevedoring Co.,

Inc. v. Fritz Kopke, Inc., et al., 1974, US , 94

S.Ct. 2174, 40 L.Ed.2d_._ [decided May 28, 1974]

where this Court’s award of contribution between joint

tortfeasors in a noncollision maritime case, 5 Cir., 479

F.2d 1041, was affirmed as proper under the circumstances.

Cf. also Empire Seafoods v. Anderson, et al., 5 Cir. 1968,

398 F.2d 204. We determine, infra, that Bender and

CMC are not liable in damages, so that the applicability

of the divided damages rule need not be answered here.

Williams argues also that it was improper to reduce his

judgment by 40% under the comparative negligence doc-

trine of maritime law as against Bender and CMC, who

were found liable under a products liability theory. The

argument is that since strict liability under Sec. 402A of

the Restatement is not barred by contributory negligence,

that negligence should not be used to effect a percentage

reduction of an award premised upon a violation of that

section. We recognize at least arguable merit in Williams’

position, but resolution of the issue must await an appro-

priate case, since this point also is moot in light of our

reversal of the trial court’s finding of liability on the part

of Bender and CMC.

Finally, Williams alleges that the district court erred

by failing to enter judgment in rem against CIAPESC I

despite the fact that the vessel was found to be unsea-

worthy. The point is well taken. The lower court speci-

fically found the CIAPESC I unseaworthy, App. at 1754,

and that finding is not challenged on appeal by Brasea

either on brief or at oral argument. The district court on

remand should make the appropriate modification of its

final order.

lil. BRASEA’S CROSS-APPEAL

Brasea’s liability was grounded upon both the negli-

gence of Terry, under the doctrine of respondeat superior,

and the unseaworthiness of the CIAPESC I. On cross-

appeal Brasea asserts error with respect to the lower

court’s finding of negligence by Terry and its denial of

indemnity as against Bender and CMC. We have already

dealt with the interrelated negligence issues, and ordered

a remand on the subject. We turn our attention to the

indemnity issues.

There is more than one string to Brasea’s indemnity

bow, and we will summarize each briefly. First it is ar-

gued that the indemnity principles of Ryan* should be

applied in this case. Ryan established the now familiar

doctrine that a stevedoring contractor’s agreement to per-

form all of a shipowner’s stevedoring operations necessarily

includes the consensual implied obligation to stow cargo

properly and safely, (now usually referred to in the cases

as WWLP, or warranty of workmanlike performance),

and affirmed the Second Circuit's award to the shipowner

of indemnity against the stevedoring company for the

amount recovered by one of the contractor’s longshoremen

employees for injuries sustained while unloading a ship

due to improper stowage, and held that shipowner’s fail-

2. Ryan Stevedoring Company, Inc. v. Pan-Atlantic Steamship

Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.

ure to discover and correct contractor’s own breach of

contract could not excuse such breach. The exclusiveness

of liability provision of the Longshoremen’s and Harbor-

workers’ Compensation Act, Sec. 5, 33 U.S.C. Sec. 905

was held by the Court to be no bar to the indemnity claim.

The inappositeness of Ryan to the present case is ap-

parent. Naturally, if on remand Terry (and hence Brasea)

is found to have been negligent, then the sole cause of

Brasea’s liability will not be the conduct of either Bender

or CMC. The analogy fails for added reasons. Ryan was

limited to a situation of contract breach, but no such

obligation existed here. Most importantly, the stevedore

in Ryan was found negligent. Bender and CMC were ex-

pressly found not to have been negligent, and we reverse,

as will be seen below, Parts IV and V, the strict liability

judgment. Nothing is left upon which Brasea can base an

argument for indemnity flowing from contractual or quasi-

contractual breach.

Brasea’s second theory comes closer to the mark, but

is still unavailing. The argument seeks to apply here the

indemnity principles we employed in Tri-State Oil Tool

Industries, Inc. v. Delta Marine Drilling Co., 5 Cir. 1969,

410 F.2d 178. In Tri-State indemnity was based upon a

major-minor/ active-passive tort theory, as opposed to the

contractual theory of Ryan. A member of a drilling crew

on board a submersible barge was injured as a result of

defective equipment which had been furnished by Tri-

State. Delta Drilling, whose sole liability was due to un-

seaworthiness because of the defective equipment, was

held indemnified as the passive tortfeasor by Tri-State,

whose active negligence brought about the condition of

unseaworthiness.

Again, assuming that Terry is not found negligent on

remand,* the argument still must fail. Even if Bender and

CMC were liable in products liability, that is simply an-

other form of passive tort, analogous to unseaworthiness.

Thus the parties would have been in pari delicto, as the

district court found. But here again, our reversal on the

Strict liability, Parts IV and V, leaves Bender and CMC

without any, much less passive, tort liability.

Apparently anticipating the fundamental flaw in its in-

demnity arguments, Brasea goes on to urge that the lower

court erred in finding that Bender and CMC were not

negligent. While Brasea may have thought that success

here would cure the defect in its indemnity theory, our

discussion of that issue amply demonstrates that the claim

fails, regardless. But since we reverse on the products

liability issue, it is appropriate for us to address the ques-

tion of possible negligence in order to determine if Bender

and CMC should sustain any liability whatever in this

action.

Here again we are guided by F.R.Civ.P. 52(a), and

may overturn only a finding of fact which we determine

to be clearly erroneous. The district court discussed the

roles of Bender and CMC in the litigation, then specifi-

cally found that neither had been negligent. We find sub-

stantial evidence to support that conclusion and approve

it as correct.

Two allegations with respect to CMC’s negligence were

considered by the lower court. First, there was a question

3. If Terry were to be found negligent, Brasea could not possibly

be a “passive” tortfeasor. Contrary to its assertion to that effect on

brief, vicarious liability through the doctrine of respondeat superior

is not functionally equivalent to “passive” negligence. See Barrios v.

Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157.

to resolve as to whether the machined taper on the cat-

head would increase the likelihood of lines tangling. The

district court found scant evidence for such a conclusion,

after hearing from CMC engineer Koloc, who was called

as an adverse witness by Williams. App. at 1748. We see

no more evidence to support the allegation than did the

lower court, and cannot label as erroneous its conclusion

of a failure to carry the burden of proof.

The failure of CMC to install a braking mechanism

on the winch-cathead assembly was the second factor

considered below. In essence, the district court concluded

that it was feasible to install a brake and that its absence

rendered the winch defective and unreasonably dangerous

to users. However, the court also found that this did not

constitute the exercise of less than the ordinary standard

of care, and that no fault was attributable to CMC. App.

at 1752. Support for the latter conclusion was based

in part upon testimony that winches, and especially

winches on shrimp boats, are practically never equipped

with braking devices. CMC cannot be held to have failed

to exercise ordinary care by the manufacture of a winch

capable of producing injury only when used in such

unusual situations as the one involved here. CMC was

not shown to have departed from the required standard

of care in its design, engineering and manufacture of

the winch.

Brasea raises nothing to refute these conclusions.

Rather, it points to the testimony of CMC engineer Koloc

as proof that the winch was not properly tested prior to

sale. That theory also was expressly rejected by the lower

court, after consideration was given to all the relevant

evidence on the point. App. at 1748. The record supports

that conclusion and we discern nothing which would

require reversal in this regard under the clearly erroneous

standard.

The strict liability of Bender was based upon the man-

ner in which it positioned the snatch-block frame above

the cathead. This is the pulley device through which the

whipline runs from the shrimp net to the cathead. Bender’s

error was found to be in positioning the block too far

forward, thus depriving the line of a “fair lead,” which

refers to the angie at which a line runs from the block

to the cathead. App. at 1750. This situation increases

the probability of lines tangling, and a tangled line was

the first in a chain of events leading to Williams’ injury.

Brasea argues that this defect in positioning, together

with the fact that the block was not tested under strain,

requires a finding of negligence. But testing the line under

strain would have revealed nothing germane to the fair

lead problem; the court’s finding related rather to position-

ing. Additionally, the testimony of Thomas Bender was

persuasive that his company did in fact exercise care in

installation, despite the slightly improper location of the

block and hanger frame.

Finally, Brasea postulates that CMC should be re-

quired to pay 90% of whatever damages are ultimately

awarded. The theory is that but for the lack of a brake

on the winch, Williams would have sustained relatively

minor injury to his left hand, which was caught when he

first yelled for the power to be cut. Medical testimony

was introduced to the effect that had Williams only suf-

fered this injury to his left hand he would still have been

able to resume 90% of his normal daily activities after

the accident. From this it is argued that CMC’s failure

to provide a brake produced 90% of Williams’ full dis-

ability, and that it should therefore contribute a similar

proportion to his monetary recovery. Authority for the

argument advanced is asserted to be found in Horton &

Horton, Inc. v. T/S J. E. Dyer, 5 Cir. 1970, 428 F.2d

113i. We acknowledge the novelty of the argument, but

do not pass upon its merits or the possible application of

Horton. Again, our resclution, infra Part V, of the negli-

gence and products liability issues in CMC’s favor moots

the discussion and its decision.

IV. CROSS-APPEAL BY BENDER

At the outset we are met with Bender’s claim that the

trial court lacked jurisdiction over it. Jurisdiction over

Bender, an Alabama corporation, was claimed under the

Texas Long Arm Statute, Vernon’s Tex.Rev.Civ.Stat.Ann.,

Art. 2031b (1959). The requisite activity within Texas

for jurisdiction to attach is measured by the “minimum

contacts” standard. We have earlier noted that “the

Texas purpose [in enacting article 2031b] was to exploit

to the maximum the fullest permissible reach under fed-

eral constitutional restraints.” Atwood Hatcheries v. Heis-

dorf & Nelson Farms, 5 Cir. 1966, 357 F.2d 847, 852.

Bender’s motion to dismiss for lack of jurisdiction and to

quash service addressed to the lower court, was denied

by a well reasoned memorandum: and order. Williams

v. Brasea, Inc., $.D.Tex. 1970, 320 F.Supp. 658. For the

reasons there well articulated we hold that the district

court had personal jurisdiction over Bender, under the

teachings of Hearne v. Dow-Badische Chemical Co.,

S.D.Tex.1963, 224 F.Supp. 90, applying International

Shoe Co. v. State of Washington, 1945, 326 U.S. 310,

66 S.Ct. 154, 90 L.Ed. 95, to the Texas Statute, Article

203 1b.

Before reaching the merits of the products liability is-

sues in this case, we pause to comment upon the theoreti-

cal posture in which they arose. The incorporation of

products liability law into general maritime law is of

most recent vintage. District courts have divided on the

propriety of such incorporation, and only one appellate

court has passed judgment thus far on the issue (by ap-

proving the incorporation). Lindsay v. McDonnell Doug-

las Aircraft Corp., 8 Cir. 1972, 460 F.2d 631. We do not

believe that a case such as this, which in our judgment

fails to establish liability under the theory, presents the

appropriate vehicle for consideration of whether that

theory should be made part of the maritime law in this

circuit. Thus we qualify our holding by saying that even

if products liability law is to be incorporated into our

general maritime law, there can be no liability under the

facts of this case. The question of incorporation vel non

is left open for decision at a later date when more guide-

lines may be available.

The district court relied upon the theory of strict li-

ability set forth in the Restatement of Torts 2d, Sec.

402A, which provides, in pertinent part:

“One who sells any product in a defective condition

unreasonably dangerous to the user or consumer

or to his property is subject to liability for physical

harm thereby caused to the ultimate user or con-

sumer, or to his property, .. .”

As is evident from the language of the Restatement,

three elements of proof must be present: (1) defective

condition of the product; (2) unreasonable danger to

the user; and (3) proximate cause of injury. Assuming

arguendo that Bender’s installation of the winch resulted

in a lack of fair lead which may be termed a defective

condition, our judgment is that it was neither unreason-

ably dangerous nor a proximate cause of Williams’ in-

juries.

The defect alleged was dangerous in that it increased

the likelihood of lines tangling on the cathead. It is sig-

nificant to note that it merely increased the likelihood

of an event not at all uncommon on shrimp trawlers, i.e.

lines tangling on a cathead. The district court in its Final

Order expressly acknowledged this pre-existing likelihood.

App. at 1747.

Assuming then that the tangling of lines is dangerous,

the question then is whether a defect increasing the likeli-

hood of that event makes it unreasonably dangerous. We

find the answer in Sec. 402A com. i: “The article sold

must be dangerous to an extent beyond that which would

be contemplated by the ordinary consumer who pur-

chases it, with ordinary knowledge common to the com-

munity as to its characteristics.” We are unable to con-

clude that the tangling which led to Williams’ injury was

beyond the contemplation of seamen who had common

knowledge that lines on shrimp boats frequently tangle.

As a matter of elementary logic, such a conclusion would

be a manifest non sequitur. We hold accordingly that

the position of the snatch block frame was not unreason-

ably dangerous as a matter of law.

In the next place proximate cause is absent under the

facts as given. To use common law terms for the moment,

the requisite foreseeability was lacking; see Helene Curtis

Industries, Inc. v. Pruitt, 5 Cir. 1967, 385 F.2d 841

(foreseeability as part of proximate cause considered

in the field of products liability as to hair bleaching

products). If Williams ordered the power on, Bender can

hardly be charged with anticipating his doing so while

his hands were in the line around the cathead. Alter-

natively, if Terry acted without authority, neither should

Bender be charged with foreseeing that he would do so

while Williams had his hands in the line.

The comments to Sec. 402A support this conclusion

in even more precise terms. If Williams ordered the

power turned on, comment n would be applicable: “vol-

untarily and unreasonably proceeding to encounter a

known danger, (which) commonly passes under the name

of assumption of risk, is a defense under this Section as

in other cases of strict liability.” If Terry turned the power

on without instruction from Williams, comment g would

control: “The seller is not liable when he delivers the

product in a safe condition, and subsequent mishandling

or other causes make it harmful . . .” Lines tangle regard-

less of whether a fair lead problem may exist, but only

Terry’s mishandling of the product, assuming he acted

without authority, produced the injury. Under either or

any of the foregoing posited analyses, we hold that Bender

could not be properly held liable in products liability.

V. CROSS-APPEAL BY CMC

The sole basis of liability arrived at by the trial court

as to CMC was its failure to provide a braking mechan-

ism on the winch it sold to Bender. All the crewmen

knew it lacked a brake, and the evidence was clear that

winches with brakes were almost non-existent on trawlers

used by the shrimping in-ustry.

Although the district court perceived this omission by

CMC as an unreasonably dangerous defect, that charac-

terization is not, strictly speaking, permissible under these

facts. According to the commentary, a defective condition

obtains only when “the product is, at the time it leaves

the seller’s hands, in a condition not contemplated by

the ultimate consumer, ..... ” Sec. 402A com. g. The

winch was not “defective” because all involved knew that

it lacked a brake. This case falls into the category of de-

fective design, situations in which the “defect” is said to

inhere in the design of the product, i.e. lack of a safety

device. The “defect” issue is thus subsumed into a deter-

mination of whether that design, though known full well

to the user, rendered the product unreasonably dangerous

to him. See, for example, Ross v. Up-Right, Inc., 5 Cir.

1968, 402 F.2d 943; Wade, Strict Tort Liability of Man-

ufacturers, 18 S.W.L.J. 5 (1965).

The question then arises whether the lack of a brake

made the winch “dangerous to an extent beyond that

which would be contemplated by the ordinary consumer

who purchases it,..... ” Sec. 402A com. i. This propo-

sition carries its own answer. The danger posed by the

lack of a brake could scarcely be beyond the centempla-

tion of crewmen who knew of its absence and worked

with the winch in that condition on a daily basis.

Our conclusion is further supported by the theoretical

approach advocated by Wade, supra, and others in de-

fective design cases. Unreasonable danger is assessed un-

der a cost-benefit analysis of the proposed safety device.

Paraphrasing the variables suggested by Dean Wade,

19 S.W.L.J. at 17, we find the following in support of a

“cost outweighs benefit” conclusion here: (1) catheads

are practically indispensable to the shrimping business;

(2) few, if any, are equipped with a braking device; (3)

the likelihood of injury is remote, limited to peculiar cir-

cumstances such as occurred in this unusual case; (4)

the inherent danger is obvious to all; (5) injury could

have been avoided but for the misuse of the product; and

(6) installation of a brake would substantially increase

the cost of the winch.

When we come to the element of proximate cause,

CMC occupies a position nearly identical to that of

Bender. Depending on whether an order to turn on the

power was given by Williams or not, either assumption

of risk or unanticipated product misuse, as described in

comments n and g, Sec. 402A, may properly be inferred.

We further think it manifest that such action is not the

foreseeable type of conduct which should give rise to a

holding of strict liability against a manufacturer.

VI. CONCLUSION

Our holdings are summarized as follows: (1) the case

is remanded for a factual finding as to whether Williams

ordered Terry to engage the power; (2) the district court

is ordered to assess liability in rem as to the vessel

CIAPESC I; (3) the district court’s dismissal of the

indemnity claims is affirmed; (4) the district court’s

finding that Bender and CMC were not negligent is

affirmed; (5) the district court’s finding of product lia-

bility is reversed; (6) Bender and CMC are due to be

dismissed as parties defendant.

Affirmed in part, reversed in part and remanded with.

directions.

APPENDIX D

Roy C. WILLIAMS,

Plaintiff-Appellant Cross Appellee,

Vv.

BRASEA, INC., and VESSEL CIAPESCA I, her engines,

etc., Defendant-Appellee Cross Appellant,

Bender Welding & Machine Co., Inc.,

Defendant-Appellee Cross-Appellant,

Construction Machinery Company,

Defendant-Appellee Cross Appellant.

No. 72-3623.

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

May 23, 1975.

Appeals from the United States District Court

for the Southern District of Texas

ON PETITIONS FOR REHEARING AND

PETITIONS FOR REHEARING EN BANC

(Opinion July 5, 1974, 5 Cir. 1974, 497 F.2d 67)

Before GEWIN, THORNBERRY and SIMPSON, Cir-

cuit Judges.

PER CURIAM:

The Petition for Rehearing filed on behalf of Roy C.

Williams is denied and no member of this panel nor Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc, (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 12) the Petition for Rehearing En Banc is denied.

The Petition for Rehearing filed on behalf of Brasea,

Inc. is denied and no member of this panel nor Judge in

regular active service on the Court having requested that

the Court be polled on rehearing en banc, (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 12) the Petition for Rehearing En Banc is denied.

We have given thorough consideration to the petitions

for rehearing and for rehearing en banc, as well as to the

several briefs, including briefs by amici curiae, received

in support of or in opposition thereto, before reaching

our decision to deny the petitions.

We direct two slight changes in the panel opinion,

Williams v. Brasea, Inc., 5 Cir. 1974, 497 F.2d 67.

Perceiving that our disposition of the cross-appeals (1)

of Bender, Part IV of the panel opinion, 497 F.2d at

77-79, and (2) of CMC, Part V of the panel opinion,

497 F.2d at 79—holding that neither of said parties

could be held liable under a theory of products liability—

dissipated completely any basis for assessing damages

in rem against the shrimp trawler CIAPESC I, we with-

draw and recede from the following designated portions

of the panel opinion:

(a) The statement appearing at page 75 of 497 F.2d:

“Finally, Williams alleges that the district court

erred by failing to enter judgment in rem against

CIAPESC I despite the fact that the vessel was

found to be unseaworthy. The point is well taken.

The lower court specifically found the CIAPESC I

unseaworthy, App. at 1754, and that finding is not

challenged on appeal by Brasea either on brief or

at oral argument. The district court on remand should

make the appropriate modification on its final order.”

(b) That portion of the “VI CONCLUSION” section

of the opinion, appearing at page 80 of 497 F.2d:

“(2) the district court is ordered to assess liability

in rem as to the vessel CIAPESC I.”

In lieu of (a) above the following language is sub-

stituted:

“Finally, Williams alleges that the district court

erred by failing to enter judgment in rem against

CIAPESC I despite the fact that the vessel was

found to be unseaworthy. The point would be well

taken if the underpinning for the finding of unsea-

worthiness was sustained against the cross-appeals

of Bender and CMC, either or both. The bt s for

the unseaworthiness finding by the district court was

in fact its findings’ that Bender and CMC provided

1. “Therefore, the Court finds that the failure on the part of

CMC to provide an adequate braking mechanism for the port cat-

head rendered the same defective and unreasonably dangerous to per-

sons situated as was plaintiff, and, therefore, it was not reasonably

suited for the purpose for which it was intended; and, further, that

the absence of an adequate brake was a producing cause of injuries

to plaintiff.” (App. p. 1750)

“Therefore, the Court finds the placement of the snatch-block frame

by Bender was such as to make the vessel, and particularly the area

in front of and near the winch, unreasonably dangerous to users

thereof, and thus it was not reasonably suited for the purpose for

which it was intended; and such installation was a producing cause

of the incident in which plaintiff was seriously injured.” (App. p.

1751)

“Bender installed on the vessel, engine and power take off equip-

ment which operated the winch, constructed a snatch-block frame

the vessel CIAPESC I with equipment which was

‘unreasonably dangerous’, ‘defective’ and ‘not reason-

ably suited for the purpose for which it was intended.’

The district court’s opinion further held ‘The faults

of Bender and CMC, as heretofore outlined, are the

same faults which caused Defendant, Brasea, Inc.,

to neo) to Plaintiff an unseaworthy vessel.’ (App.

“Our disposition reversing the district court as to

the cross-appeals of Bender and CMC, Parts IV and

V of this opinion, infra, eliminates any basis for

holding CIAPESC I liable in rem. The point is

rendered moot.”

With respect to (b) above the remaining numbered

portions under “VI CONCLUSION” of the opinion, i. e.

(3), (4), (5S) and (6) are renumbered respectively (2),

(3), (4) and (5).

The costs of this appeal are directed to be assessed one-

half against the plaintiff-appellaut-cross-appellee, Roy C.

Williams, and one-half against the defendant-appellee-

cross-appellant, Brasea, Inc.

which was above the winch and installed a rod with a handle on it

me part of the engine and power take off equipment.” (App.

“No substantial change had occurred or modifications made in said

winch, the port cathead, or the machinery related to the operation of

the cathead, or in the snatch-block frame from the date of delivery

of the vessel to Brasea until the time plaintiff suffered said injuries.”

(App. p. 1745).

APPENDIX E

Article III, Section 2, Clause 1 of the Constitution of the

United States of America, provides:

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 affecting Ambassadors, other public Ministers

and Consuls;—+to all Cases of admiralty and maritime

Jurisdiction;—to Controversies to which the United

States shall be a Party;—to Controversies between

two or more States;—between Citizens of different

States;—between Citizens of the same State claiming

Lands under Grants of different States, and between

a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

Section 1333 of Title 28, United States Code, provides:

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime juris-

diction, saving to suitors in all cases all other reme-

dies to which they are otherwise entitled.

(2) Any prize brought into the United States and

all proceedings for the condemnat.on of property

taken as prize. June 25, 1948, c. 646, 62 Stat. 931;

May 24, 1949, c. 139, § 79, 63 Stat. 101.

Section 688 of Title 46, United States Code, provides:

Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

trial by jury, and in such action all statutes of the

United States modifying or extending the common-

law right or remedy in cases of personal injury to

railway employees shall apply; and in case of the

death of any seaman as a result of any such personal

injury the personal representative of such seaman

may maintain an action for damages at law

right of trial by jury, and in such action all statutes

the defendant employer resides or in which his prin-

cipal office is located. Mar. 4, 1915, c. 153, § 20,

38 Stat. 1185; June 5, 1920, c. 250, § 33, 41 Stat.

1007.

APPENDIX F

Rule 9(h), Federal Rules of Civil Procedure provides:

thin

on some other ground may contain a statement iden-

tifying the claim as an admiralty or maritime claim

for the purposes of Rules 14(c), 38(e), 82, and the

tal Rules for Certain Admiralty and Mari-

time Claims. If the claim is cognizable only in ad-

miralty, it is an admiralty or maritime claim for

those purposes whether so identified or not. The

amendment of a pleading to add or withdraw an

identifying statement is governed by the principles

of Rule 15. The reference in Title 28, U.S.C.

§ 1292(a) (3), to admiralty cases shall be construed

to mean admiralty and maritime claims within the

meaning of this subdivision (h).

As amended Feb. 28, 1966, eff. July 1, 1966; Dec.

4, 1967, eff. July 1, 1968; March 30, 1970, eff.

July 1, 1970.

Rule 52(a), Federal Rules of Civil Procedure, provides:

In all actions tried upon the facts without a jury

or with an advisory jury, the court shall find the

facts specially and state separately its conclusions of

law thereon, and judgment shall be entered pursuant

to Rule 58; and in granting or refusing interlocutory

injunctions the court shall similarly set forth the

findings of fact and conclusions of law which con-

stitute the grounds of its action. Requests for findings

are not necessary for purposes of review. Findings

of fact shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the wit-

nesses. The findings of a master, to the extent that

conclusions of law appear therein. Find-

ings of fact and conclusions of law are

other motion except as provided in Rule 41(b).

As amended Dec. 27, 1946, eff. March 19, 1948;

Jan. 21, 1963, eff. July 1, 1963.

APPENDIX G

Section 402A of the RESTATEMENT (SECOND) OF

TORTS provides:

(1) One who sells any product in a defective con-

dition unreasonably dangerous to the user or con-

sumer or to his property is subject to liability for

physical harm thereby caused to the ultimate user

or consumer, or to his property, if

(a) the seller is engaged in the business of selling

such a product, and

(b) it is expected to and does reach the user or

consumer without substantial change in the condition

in which it is sold.

(2) The rule stated in Subsection (1) applies al-

though

(a) the seller has exercised all possible care in

the preparation and sale of his product, and

(b) the user or consumer has not bought the

product from or entered into any contractual rela-

tion with the seller.

Comment b provides:

Since the early days of the common law those en-

gaged in the business of selling food intended for

human consumption have been held to a high degree

of responsibility for their products. As long ago as

1266 there were enacted special criminal statutes

imposing penalties upon victualers, vintners, brewers,

butchers, cooks, and other persons who supplied

“corrupt” food and drink. In the earlier part of this

century this ancient attitude was reflected in a series

of decisions in which the courts of a number of

states sought to find some method of holding the

seller of food liable to the ultimate consumer even

though there was no showing of negligence on the

part of the seller. These decisions represented a

departure from, and an exception to, the general

rule that a supplier of chattels was not liable to third

persons in the absence of negligence or privity of

contract. In the beginning, these decisions displayed

considerable ingenuity in evolving more or less ficti-

tious theories of liability to fit the case. The various

devices included an agency of the intermediate dealer

or another to purchase for the consumer, or to sell

for the seller; a theoretical assignment of the seller’s

warranty to the intermediate dealer; a third party

beneficiary contract; and an implied representation

that the food was fit for consumption because it was

placed on the market, as well as numerous others.

In later years the courts have become more or less

agreed upon the theory of a “warranty” from the

seller to the consumer, either “running with the

goods” by analogy to a covenant running with the

land, or made directly to the consumer. Other deci-

sions have indicated that the

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