# Petition — Williams v. Brasea, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 906

## Text

Supreme Court of the United States

OCTOBER TERM 1975

4

no. Zh - 209

ROY C. WILLIAMS,
Petitioner,

V.

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

II

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

14

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

IV
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

y
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

VI

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

2

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

I.

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

3

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

4

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...

5

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

6

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

7

($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.

8

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.

9

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

I.

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

10

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.

11

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.

12

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

-

13

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.

14

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.

15

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.

16

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).

17

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.

18

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.

19

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 ).

20

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).

21

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).

22

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.

23

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;

24

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.

25

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

26

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

os

. a Td

ee. a ore

27

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,

28

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.

29

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

30

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

31

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.

32

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.

34

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

35

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,

36

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 —_ "

37

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

38

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

39
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
v.

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.

40

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

~

41

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

42

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-

43

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.

44

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

45

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.

46

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

a

47

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

48

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

49

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.

50

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

51

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-

52

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

53
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
V.
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

34

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

(C) Defendant Construction Machinery Compa-
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).

55

(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

56
APPENDIX C
. ROY C. WILLIAMS,
Plaintiff-Appellant-Cross Appellee,

V.

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

57

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.

58

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

59

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

60

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.

61

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

62

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

63

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.

64

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0851%3A1. Public record. Not legal advice.