Petition — Fred Imbert, Inc. v. Compagnie Generale Transatlantique

Supreme Court, U. &

» FILED

Lg 1975

In the MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

Octosrr Term, 1975

tae

No. UR-421

FRED IMBERT, INC.,

PETITIONER,

Vv.

COMPAGNIE GENERALE TRANSATLANTIQUE,

RESPONDENT.

2

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Cuar.Les A. CorDERO

Box S8-1581

San Juan, Puerto Rico 00903

Counsel for Petitioner

September 15, 1975

Blanchard Press, Inc., Boston, Mass. — Law Printers

EE

= —

TABLE OF CONTENTS

Page

ig oi ik ent wae ehh wash ssa an dee 1

I aR ee ES oe ee aids ce wad owas 2

ESE Tn rn ee ee 2

EE OE se in wa die Oh. AK Ue Rien Reece abe 2

I ce ea a a a ks et 3

Point I. The Issue Presented for Review Involves

an Important Question of Federal Maritime Law,

viz., the Legal Effect of a Finding of Contribu-

tory Negligence of a Longshoreman, Decisions on

Which Issue Are in Conflict in Various Circuit

ee ON ee a rat. aes 3

Point II. The Cireuit Court of Appeals Erred in

Searching the Record To Reverse the Jury De-

cision and Thereby Deprived Petitioner of Its

Seventh Amendment Rights. .................. 7

AES ly wc ALE Sere Poi ee ear pe ne eer a 13

I aI gs Baek it cea yt Bete 14

United States District Court for the District of

Puerto Rico, Memorandum Decision Denying

Appellant’s Post Trial Motions ............... 14

United States Court of Appeals,

ns as k wince Boome 6 aww 17

Judgment, May 29, 1975 ...................... 28

ie oa oan on owen os 29

TABLE oF CITATIONS

Cases

A&G Stevedores v. Ellerman Lines, 369 U.S. 355

SE eG Gah PEE bck aT CEI rae 7, 8, 12

Arnold v. Panhandle & Santa Fe R. Co., 353 U.S. 360 12

ii Table of Contents

Page

Dick v. New York Life Ins. Co., 359 U.S. 487 ........ 12

Harnett v. Reiss Steamship Co., 421 F.2d 1011 (2nd

BEE kwh hays SUR oe Seer Lae eee 5

Hudson Steamship Co. v. Ayala Colon, 314 F.2d 44,

affirming Torres Cruz v. Hudson Steamship Co., 206

ee ee cr rn ay een pet 12

International Terminal Operating Co., Inc. v. N. V.

Nederl. d Amertk, 393 U.S. 74 ................... 8

Julian v. Mitsui O.S.K. Lines, Lid., 479 F.2d 482 (5th

Cir.), cert. denied sub nom. Mitsui O.S.K. Lines, Ltd.

v. Strachan Shipping Co., 414 U.S. 1903 (1973) .... 4, 5

Nye v. A/S D/S Svendborg, 501 F.2d 376, cert, denied

ey yh re eo 5

10, 11, 12

Constitutional Provisions

United States Constitution, Amendment VII ...... 2, 13

Statutes

pls PO ene pees 2

rere ot ues yo eee 6

Miscellaneous

Stern and Gressman, Supreme Court Practice (Fourth

ID Sex ka cecal eaA a cena se ceueds 7, 8, 9

In the

Supreme Court of the United States

Octosrer TERM, 1975

No.

FRED IMBERT, INC.,

PETITIONER,

v.

COMPAGNIE GENERALE TRANSATLANTIQUE,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner Fred Imbert, Inc. respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the First

Circuit entered in this proceeding on May 29, 1975.

Opinions Below

The opinion of the Court of Appeals, not yet reported,

is appended to this petition as provided in U.S. Sup. Ct.

Rule 23.(i). The Memorandum Decision and Order by

2

Hon. Charles L. Powell, filed and entered August 13, 1974,

which denied respondent’s post-trial motions, are also ap-

pended.

Jurisdiction

The judgment of the Court of Appeals was dated and

entered on May 29, 1975. A timely petition for rehearing

was denied without opinion on June 20, 1975. This peti-

tion for certiorari is filed within 90 days of that date.

This Court’s jurisdiction is invoked

nd ed under 28 U.S.C.

Questions Presented

I. Whether the First Cireuit Court of Appeals im-

properly held that any contributory negligence of the in-

Jured longshoreman results automatically in the awarding

of full indemnity, as a matter of law, as has been decided

by the Second, Fourth, and Ninth Cireuit Courts of Ap-

peal, or whether it is merely ‘‘a factor’’ to be considered

in determining the issue of indemnity as resolved by the

Third and Fifth Circuit Courts of Appeals?

Il. Whether petitioner’s right to a jury trial under the

Seventh Amendment to the United States Constitution has

been nullified by the Court of Appeals reversal: and

whether the Court of Appeals committe. basic orter in

searching the record for conflicting circumstantial evidence

in order to take the case away from the jury?

Statement of the Case

Jurisdiction in the United States District Court, Dis-

trict of Puerto Rico, was based on diversity of citizenship.

Ruben Santiago Martinez, a Puerto Rico longshoreman,

3

sued respondent, a foreign vessel owner, for personal in-

juries. The vessel impleaded the longshoreman’s employer

(petitioner), seeking indemnity. Plaintiff recovered a ver-

dict of $90,000.00 following a 12-day trial before a court

and jury. The jury also returned a verdict in favor of

petitioner on the third party cause of action. These were

general verdicts to which no exceptions were taken. No

special interrogatories were requested by any party.

Post-Trial motions by the vessel owner were denied by

the trial judge, Hon. Charles L. Powell, in the decision ap-

pended hereto. Judgment in favor of plaintiff and in favor

of petitioner was dated December 13, 1973 and was en-

tered on December 20, 1973. Respondent appealed.

The Court of Appeals reversed that portion of the judg-

ment which denied indemnit, to the vessel, holding that

in its view of the evidence, ‘‘it is entirely possible that the

jury found the longshoreman contributorially negligent,’’

and if so, any such contributory negligence automatically

results in indemnity against petitioner unless ‘‘conduct

precluding’’ were also found. The case was remanded for

a new trial.

Petitioner sought rehearing by a petition timely filed.

The petitioner was denied. Certiorari is timely sought.

Argument

Port I. Tue Issue Presentep ror Review INVOLVES AN

ImporTant Question or Feperat Maritime Law, Viz.,

THE LecaL Errect or Aa Finpinc or CoNTRIBUTORY

NEGLIGENCE oF a LONGSHOREMAN, Decisions on WHICH

Issuz Are 1x Conruict 1x Various Crecvurr Courts

or APPEALS.

The Court of Appeals decision is in conflict with deci-

sions of other Courts of Appeals on this same matter and

it has decided an important question of federal law which

4

has not been, but should be, settled by this Court, viz., the

legal effect of a finding of contributory negligence of a

longshoreman.

This conflict is conceded by the Court of Appeals opinion

itself, where it is written:

‘‘This dispute is whether a longshoreman’s contri-

butory negligence automatically establishes breach by

the longshoreman’s employer of its warranty of work-

manlike performance. In the Fifth Circuit it appears

that contributory negligence by a longshoreman does

not necessarily amount to breach of warranty by the

stevedore. Instead, the longshoreman’s contributory

negligence is regarded as one consideration in deter-

mining whether the stevedore breached its war-

ranty. * * * It appears that the Third Circuit ac-

cepts this approach also. * * * In the Second,

Fourth, and Ninth Cireuits the rule is that contri-

butory negligence by the longshoreman within the

scope of his employment is imputed to the stevedore.

* * * This also may be the rule in the Sixth Cireuit.

* * *’’ (Citations omitted.)

Julian v. Mitsui O.S.K. Lines, Ltd., 479 F.2d 432 (5 Cir.),

cert. denied sub nom. Mitsui O.S.K. Lines, Ltd. v. Strachan

Shipping Co., 414 U.S. 1093 (1973) is one of the principal

conflicting decisions. Julian also recognizes the conflict on

this precise issue, in these words (pages 433-434 of 479

F.2d) :

‘‘The rule in this Circuit is that contributory negli-

gence ‘. .. is a factor to be taken into consideration

on the issue of breach of the contractor’s (stevedore’s)

implied warranty’.’’

5

‘‘We are asked to reconsider our position in light of

the rule prevailing in the Second, Fourth, and Ninth

Circuits, that any contributory negligence on behalf

of the longshoreman is imputed to the stevedore and

constitutes a breach of the stevedore’s warranty as a

matter of law .. .’’ (Citations omitted.)

Harnett v. Reiss Steamship Co., 421 F.2d 1011 (2 Cir.)

was relied upon by the Court of Appeals in the case at

bar, to support its ‘‘automatic indemnity’’ holding. How-

ever, even Harnett recognizes the need for Supreme Court

clarification, stating at page 1018:

‘‘The argument was made in McLaughlin that me-

chanical application of the rules of indemnity led there

to an irrational result. At first blush, the same claim

might be made here; it does seem strange that conduct

by a Grain Handling employee which deviated only

minimally (1%) from the norm should subject his em-

ployer to potentially full liability. To this argument, it

might be enough to recall that the eccentricities of the

law in this area were explored thoroughly in McLaugh-

lin, where we concluded that attempts to make it more

rational should be left to the Supreme Court or Con-

gress.’’

As if to heighten the conflict, the Second Circuit recently

retreated from its own ‘‘automatic’’ doctrine (Nye v. A/S

D/S Svendborg, 501 F.2d 376, cert. den. US. ).

Nye was found guilty of 50% contributory negligence and

be reason of this the employer was held to have breached

its warranty by the district judge. The Second Circuit af-

firmed the 50% contributory negligence, but reversed the

indemnity judgment and dismissed the shipowner’s third

party action, holding this did not amount to a breach.

Succinetly stated, the reason the ‘‘automatic’’ rule is

erroneous is as follows: the jury was properly instructed

that if it found contributory negligence, it must reduce any

verdict by the appropriate percentage. Therefore, if con-

tributory negligence was found, no award was made for

any money damages resulting from plaintiff’s own neglect.

There is no loss to be passed on to the shipowner. Under

the doctrine of comparative negligence the plaintiff purged

himself, and those damages were excised from the case.

There is hence no remaining consequence, in terms of

money damages, of such negligence. Therefore it should

play no part in adjudicating the third party cause of ac-

tion. Any amount which the court adjudged the vessel liable

to pay the plaintiff must be assessed on a basis other than

contributory ncgligence.

In November, 1972 the Longshoremen’s and Harbor

Workers’ Compensation Act Amendments became effective

and in time, in the States, the importance of this issue may

diminish. However, in Puerto Rico it will not diminish.

These Amendments do not apply to Puerto Rico, which has

its own, separate Act, viz., the Puerto Rico Workmen’s

Accident Compensation Act, (11 LPRA 1, et seq.) which

has not been amended. In Puerto Rico, the ‘‘automatic in-

demnity’’ issue will continue, until resolved, to create un-

certainties in the court’s charges to the jury and to hobble

settlement negotiations in all cases.

Also, no matter what effect the Amendments have on

Stateside cases, this does not affect a court’s duty to cor-

rectly decide this case.

Although the Court of Appeals judgment would require

a new trial, this is nevertheless an important and clear-cut

issue of law fundamental to the further conduct of the case,

that would otherwise qualify as a basis for certiorari. If

the ‘‘factor’’ rule, as charged by District Judge Powell, is

the correct rule, then the jury verdict in favor of petitioner

7

had proper support and this old, 1968-accident case would

terminate now by reversal and re-establishment of the

jury’s verdict.

‘‘[ Where there is some important and clearcut issue

of law that is fundamental to the further conduct of

the case and that would otherwise qualify as a basis

for certiorari, the case may be reviewed despite its

interlocutory status (citing cases).’’ Supreme Court

Practice, Stern and Gressman (Fourth Ed., 1969).

In A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355

(1962), the Supreme Court granted certiorari on the peti-

tion of the stevedore whose jury verdict had been reversed

by the Court of Appeals. The Court of Appeals had affirmed

the longshoreman’s judgment but had remanded the third

party cause of action, exactly as in the case at bar (289

F.2d 201). After granting certiorari, this court reversed.

Hence it is seen that certiorari under these circumstances

may be granted to review a non-final judgment.

Porst Il. Tue Crcvir Court or Appears ErRrep IN

SEARCHING THE Recorp To REVERSE THE JuRY DEcISION

AND THEREBY Deprivep Petitioner or Its SEVENTH

AMENDMENT RIGHTs.

The usual reluctance of this Honorable Court to review

factual issues has a well-established exception in maritime

eases. Although often exercised in favor of the harbor

worker, this exception is not limited to that class of liti-

gants nor to F.E.L.A. cases.

In A. & G. Stevedores v. Ellerman Lines, supra, in re-

versing the Court of Appeals whose judgment had nullified

the effect of the jury’s verdict in favor of the stevedore,

as in this case, the Supreme Court wrote (pages 358-359

of 369 U.S.):

‘*We might agree with the Court of Appeals had the

questions of fact been left to us. But neither we nor the

Court of Appeals can redetermine facts found by the

jury any more than the District Court can predeter-

mine them. For the Seventh Amendment says that

‘no fact tried by a jury, shall be otherwise re-examined

in any Court of the United States, than according to

the rules of the common law’.’’

International Terminal Operating Co., Inc. v. N. V.

Nederl. & Amerik, 393 U.S. 74 also concerned a Court of

Appeals reversal of a jury verdict in favor of the steve-

dore. The U. S. Supreme Court granted certiorari and at

the same time, in a Per Curiam opinion, reversed, in order

to reinstate the effect of the verdict.

Supreme Court Practice, by Stern & Gressman (Fourth

Ed., 1969) at page 166 adverts to the United States Su-

preme Court’s ‘‘present strong aversion toward appellate

reversals of jury verdicts’’.

In that same text, it is further expressed thus, at page

174:

‘*A large class of such cases, over which there has

been substantial disagreement within the Court, is that

in which the Court has held that evidence was sufficient

to support a jury verdict for the plaintiff and that,

therefore, the lower court decision withholding the

case from the jury or setting aside the jury’s verdict

deprived the plaintiff of the right to a jury decision.

Although most of these cases have arisen under the

Federal Employer’s Liability Act or the Jones Act

(which extends the ELA to maritime injuries), Gib-

son v. Phillips Petroleum Co., 352 U.S. 874, was a

diversity suit for personal injuries suffered in an acci-

dent, and Dick v. New York Life Ins. Co., 359 U.S.

437, was a diversity suit on an insurance policy in

which the question was whether the insured had com-

mitted suicide.’’

At page 175, the Authors continue:

‘‘The same viewpoint is reflected in Beacon Thea-

tres v. Westover, 359 U.S. 500, 501, where the Court

granted certiorari to review an interlocutory order in

a civil antitrust case that would otherwise have per-

mitted trial of a major issue in equity by the court

sitting without a jury because, quoting from Dimick

v. Schiedt, 293 U.S. 474, 486:

‘‘Maintenance of the jury as a fact-finding body

is of such importance and occupies so firm a place

in our history and jurisprudence that any seeming

curtailment of the right to a jury trial should be

scrutinized with the utmost care.’’

And at pages 176-177, this important principle is enunciated

by these authorities:

‘‘As long as the present policy of the Court with

respect to this class of cases is adhered to by a major-

ity of the Justices, the general principles the Court

otherwise applies in not granting certiorari merely to

review evidence or to determine if a case should have

been submitted to a jury must be regarded as, to a con-

siderable extent, inapplicable when the statutory or

constitutional right to decision by a jury is in issue.’’

The jury’s verdict had ample evidentiary support. A

reading of 8 pages of the record® reflects testimony of two

* These pages are Appendix pages 23, 33, 39, 40, 46, 55, 57

and 58. Utilizing the permissive clause in Sup. Ct. Rule 21. 1.,

10

co-workers and of plaintiff himself negating contributory

negligence. Plaintiff was performing his work in the cor-

rect way and paying attention. The accident occurred fast

and without warning because of the failure of the ship’s

winch.

Petitioner refers to this testimony NOT to attack the

weight of the evidence, but to demonstrate there was ample

proof to support the jury’s verdict rendered in petitioner’s

favor. Despite this ample proof, the Court of Appeals im-

permissibly searched the record for a view of the evidence

that would take away petitioner’s verdict, stating (to quote

the opinion herein),

‘*it is entirely possible that the jury found the long-

shoreman contributorially negligent’’;

and also that,

‘‘the jury might have found that the plaintiff long-

shoreman was contributorially negligent.’’

Petitioner urges this is error.

In Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29 (1943),

the Appellate Court had set aside a verdict after finding

there was no evidence upon which to base the jury’s in-

ferences. In reversing, the Supreme Court wrote at pages

34-35:

‘*In holding that there was no evidence upon which

to base the jury’s inference as to causation, the court

below emphasized other inferences which are sug-

gested by the conflicting evidence.

petitioner has certified the Appendix which has been transmitted to

this Court. Certification of only 8 pages was requested but the Clerk

deemed it more convenient to certify the entire Appendix.

11

* * * These and other possibilities suggested by dili-

gent counsel for respondent all suffer from the same

lack of direct proof as characterizes the one adopted

by the jury. But to the extent that they involve a dis-

obedience of duty by Tennant no presumption in their

favor exists. Nor can any possible assumption of risk

or contributory negligence on Tennant’s part be pre-

sumed in order to negate an inference that death was

due to respondent’s negligence.

It is not the function of a court to search the record

for conflicting circumstantial evidence in order to take

the case away from the jury on a theory that the proof

gives equal support to inconsistent and uncertain in-

ferences. The focal point of judicial review is the rea-

sonableness of the particular inferencs or conclusion

drawn by the jury. It is the jury, not the court, which

is the fact-finding body. It weighs the contradictory

evidence and inferences, judges the credibility of wit-

nesses, receives expert instructions, and draws the

ultimate conclusion as to the facts. The very essence

of its function is to select from among conflicting in-

ferences and conclusions that which it considers most

reasonable. * * * That conclusion, whether it relates

to negligence, causation or any other factual matter,

cannot be ignored. Courts are not free to reweigh the

evidence and set aside the jury verdict merely because

the jury could have drawn different inferences or con-

clusions or because judges feel that other results are

more reasonable.

Upon an examination of the record we cannot say

that the inference drawn by this jury that respon-

dent’s negligence caused the fatal accident is without

support in the evidence. Thus to enter a judgment

for respondent notwithstanding the verdict is to de-

prive petitioner of the right to a jury trial.’? (Em-

phasis added and citations omitted.)

12

In Dick v. New York Life Ins. Co., 359 U.S. 437, the

issue was whether an insured died as a result of suicide

or accident. The court wrote at pages 445-446:

‘‘In our view, the Court of Appeals improperly re-

versed the judgment of the District Court. It commit-

ted its basic error in resolving a factual dispute in

favor of respondent. .. .’’

See also Arnold v. Panhandle & Santa Fe R. Co., 353

U.S. 360, holding that the Supreme Court cannot accept

interpretations of the evidence that nullify a party’s right

under federal law to a jury trial; and A. & G. Stevedores

v. Ellerman Lines, 369 U.S. 355, stating that a search for

one possible vic w of the case which will make a jury find-

ing inconsistent results in a collision with the Seventh

Amendment.

The Court of Appeals’ misapprehension in the case at

bar similarly relates to the matter of ‘‘conduct precluding

indemnity’’ we respectfully contend. The opinion stated

that if it knew that was the jury’s finding it could avoid

a new trial. However, this is not the test. Under Tennant,

supra, the test is whether there was evidence in the record

to support a finding that there was conduct precluding in-

demnity. The record indeed reflects such evidence as the

Court pointed out at page 3 of the opinion, i.e., that the

winchman was signalled by the crew to resume operations.

This was held to be conduct precluding indemnity by this

same court in Hudson Steamship Co. v. Ayala Colon, 314

k'.2d 44, affirming Torres Cruz v. Hudson Steamship Co.,

206 F. Supp. 216 (D.C.P.R.).

Therefore even if contributory negligence had been

found, there was sufficient evidence of conduct precluding

indemnity. This brings us back to the Tennant doctrine

that the view of the evidence leading to an affirmance of

13

the jury result is the view that must be taken. Otherwise

the Seventh Amendment’s constitutional rights have been

violated.

Conclusion

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the First Circuit; and,

upon review, the jury verdict and the district court judg-

ment thereon, reinstated.

Respectfully submitted,

Cuartes A. CorDERO

Box S-1581

San Juan, Puerto Rico 00903

Counsel for Petitioner

September 15, 1975

14

APPENDIX

UNITED STATES DISTRICT COURT

District or Puerto Rico

Civil 175-70

Rusen Santiaco MARTINEZ

Plaintiff,

—against—

CoMPAGNIE GENERALE TRANSATLANTIQUE,

Defendant and

Third-Party Plaintiff,

—against —

FRED ImBert, INc.,

Third-Party Defendant.

MEMORANDUM DECISION DENYING

APPELLANT’S POST-TRIAL MOTIONS

(Filed and entered August 13, 1974)

I. History of the Litigation

Plaintiff was a longshoreman and an employee of Fred

Imbert, Inc., the stevedore. He was injured while working

on defendant’s vessel, the Fort Desaix. Plaintiff suffered

back and shoulder injuries and psychological trauma re-

sulting in a conversion reaction causing the loss of his

normal power of speech. Plaintiff sued, alleging that the

vessel was unseaworthy and that the owner and crew were

negligent. The defendant answered denying the allegations

of unseaworthiness and negligence and alleged that con-

tributory negligence on the part of the plaintiff caused the

accident. Defendant also filed a third party complaint for

indemnity against Fred Imbert, Inc., the stevedore, alleg-

ing that if negligence caused plaintiff’s injuries, it was the

negligence of the stevedoring company and its employees.

15

After a vigorously contested jury trial plaintiff was

awarded a substantial verdict. The third party defendant

was exonerated. The evidence was conflicting and turned

largely on the credibility of the witnesses.

Defendant and third party plaintiff has moved for judg-

ment notwithstanding the verdict or for a new trial. Plain-

tiff has moved for attorney’s fees under the Puerto Rican

doctrine of ‘‘obstinacy’’ and P.R.R.Civ.P. 44.4(d) and for

pre-judgment interest under P.R.R.Civ.P. 44.4 (e). The

third party defendant has also moved for attorney’s fees

because of obstinacy.

All the motions made by each party are denied.

II. Motions of Defendant and Third Party Plaintiff

There was ample evidence to support the plaintiff’s ver-

sion of the accident. There was sufficient evidence to sup-

port the amount of damages awarded. It is true that de-

fendant and third party plaintiff forcefully brought contra-

dictory evidence and impeaching evidence to the attention

of the jury. The jury did not believe nor give weight to

defendant and third party plaintiff’s evidence.

Substantial time and effort was spent by the court and

counsel for all parties in the consideration of the proposed

instructions. It was and is the court’s belief that the in-

structions given correctly stated the applicable law and

afforded each side due process.

A general verdict was used in this case. No special inter-

rogatories were submitted to the jury. No objection to

this procedure was made at trial. The issues of negligence

and unseaworthiness were both, under the evidence and

applicable law, properly before the jury. The jury could

have found damages were due plaintiff by virtue of de-

fendant’s negligence, the vessel’s unseaworthiness or both.

Defendant’s assertion that he cannot now ascertain the

basis for the verdict is not sufficient reason to overturn

the verdict at this stage of the proceedings.

16

Defendant and third-party plaintiff ’s motions will be

denied.

o eo . *

Done By THE Court this 31st day of May, 1974.

Cuargies L. Powe.

United States District Judge

Orper Denyinc AppELLANT’s Post-Tr1at Motions

A Memorandum Decision on the motions of defendant-

third party plaintiff has been filed. For the reasons stated

therein

It 1s ORDERED that the defendant’s motions for judgment

against plaintiff notwithstanding the verdict of the jury

or in the alternative for a new trial be and they are peniep,

and |

IT 1s FURTHER ORDERED that the third party plaintiff’s mo-

tion for judgment against the third party defendant or in

the alternative for a new trial be and it is penmp.

Done sy THE Court this 31 day of May 1974.

Cuarutes L. Powe.u

United States District Judge

17

Unrrep States Court or APPEALS

For THe First Circuit

No. 74-1353

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLEE,

v.

COMPAGNIE GENERALE TRANSATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLEE.

No. 74-1354

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLANT,

Vv.

COMPAGNIE GENERALE TRANSATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLEE.

No. 74-1355

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLEE,

v.

COMPAGNIE GENERALE TRANSATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLANT.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

18

Before Auprich, McEntez and CAMPBELL,

Circuit Judges.

William M. Kimball, with whom Jose L. Novas-Dueno, Hartzell,

Ydrach, Mellado, Santiago, Perez & Novas, and Burlingham Under-

wood & Lord were on briefs, for Compagnie Generale Tyansatlantique.

Charles A. Cordero for Fred Imbert, Inc.

Harvey B. Nachman, with whom Nachman, Feldstein & Gelpi

was on briefs for Ruben Santiago Martinez.

May 29, 1975

McEnteer, Circuit Judge. The familiar longshoreman-

shipowner-stevedore triangle has led to the three appeals

presented in this case. Plaintiff Santiago Martinez, em-

ployed as a longshoreman by Fred Imbert, Inc., was working

in the hold of the M/V FORT DESAIX when he was struck

and pinned by a moving pallet on November 9, 1968. He

sued defendant Compagnie Generale Transatlantique, the

shipowner, who in turn filed a third party complaint seeking

indemnity from plaintiff’s employer, Imbert (the steve-

dore). By a general verdict the jury awarded the longshore-

man $90,000 and found for the stevedore in the indemnity

action. The shipowner appeals from both judgments. ™

addition, the longshoreman appeals from the district court’s

denial of his motion to award attorney’s fees and prejude-

ment interest against shipowner for obstinacy, and the

stevedore also appeals the deniai of an award for attorney’s

fees and other defense costs it incurred. We conclude that

the indemnity action must be retried, but reject the other

appeals.

The shipowner’s first argument is that there was not

sufficient evidence to allow the jury to find for the longshore-

man. We disagree. The unloading on the ship was being

done by a married winch operation. This required the use

of two winches pulling against each other in synchronization

to raise a pallet of cargo from the hold where the longshore-

man was working. If one winch failed or was not operated

19

correctly, the cargo would plumb under the opposite winch.

In the instant case the onshore winch stopped or did not

start and thus allowed the full pallet of cargo to plumb

under the offshore winch and pin the longshoreman. There

was testimony that the same winch had stopped about two

hours earlier, but no injury resulted. On both occasions a

member of the ship’s crew repaired the winch or replaced

fuses and signaled the winchman to resume operations. The

electric winches had separate contro! wheels, but one winch-

man operated both winches by sticks attached to the wheels

for two and one-half hours and then was relieved by the

other winchman.

On the unseaworthiness theory the shipowner essentially

argues that the winch may have overloaded and blown a

fuse because the winchman was confused as to which way

to operate the winch or because the winchman accelerated

the winch too rapidly. Even if a winchman was confused

at trial as to which way to turn the winches in this married

operation, that does not necessarily mean he was confused

at the time of the accident years earlier. The important

point is that both of these theories were presented to the

jury under proper instructions, and the shipowner cannot

reargue here that the ship was seaworthy because the evi-

dence allowed an inference that the accident occurred be-

cause of a longshoreman’s negligence with no more than

instantaneous effect. See Usner v. Luckenbach Overseas

Corp., 400 U.S. 494 (1971). The evidence does not compel

that inference, and therefore we need say nothing more

about this argument. Nor are we impressed by the argu-

ment that the evidence showed the winch ‘‘stopped,’’ not

that it ‘‘broke or failed.’’ By this distinction the shipowner

attempts to avoid the effect of Greene v. Vantage S.S. Co.,

466 F.2d 159, 163 (4th Cir. 1972): ‘‘Where an appliance or

piece of equipment breaks or fails in the normal course of

use, a plaintiff need not show why the failure occurred, but

only that it did occur with the resulting injury.’’ But the

jury could have found on the evidence that the winch did

fail in the normal course of use. The last attack made on

the unseaworthiness theory is that the ship would have been

unseaworthy had a fuse not blown when it was overloaded,

so the ship could not have been unseaworthy because a fuse

blew. The defect in this argument is that the married winch

operation may have required that a cutoff device stop both

winches automatically if one failed. We are not prepared to

say that a jury could not have applied the seaworthiness

requirement.

Plaintiff’s separate count for negligence created compli-

cations that we have had occasion to speak about before. As

the instant charge illustrates, it is difficult enough to charge

a lay jury in a seaman’s case without adding what are not

merely redundant questions, but the same questions over

again in a more complicated form.

The court charged the jury with respect to the negligence

count that plaintiff claimed the shipowner to have been

negligent in four particulars:

‘*(a) In failing to furnish the plaintiff with a reason-

ably safe place to work. (b) In failing to supply the

plaintiff with a reasonably safe vessel and appliances.

(c) in failing to provide a proper winch to remove the

cargo. (4) In failing to properly supervise the dis-

charging operations.”’

It must be apparent that the first three claims were fully

and exactly covered by the seaworthiness count and the

court’s proper charge that proof as to any of them would

impose unseaworthiness liability even though the shipowner

was entirely without fault. No purpose is served by asking

the jury to resolve the same issues again with the added

requirement that there be affirmative proof of negligence.

To paraphrase the Court in Jarecki v. G. D. Searle & Co.,

367 U.S. 303, 307 (1961), having established a hole in the

21

fence for one cat, there is no need to construct another hole

for a second. We dealt with this question in Peymann v.

Perini Corp., 507 F.2d 1318, 1323 (1st Cir. 1974), cert.

denied, 43 L.E.2d 780 (1975). where we pointed out that

the negligence count was superfluous when it merely re-

alleged the same defects that made the ship unseawortay.

Here, it can have made no difference whether the court’s

charge with respect to negligence under items (a), (b) and

(c) was sufficiently favorable to the shipowner, or whether

the evidence warranted a finding of lack of due care on the

shipowner’s part. The charge was certainly no less favor-

able to the shipowner than was that on unseaworthiness,

and both theories were submitted to the jury which re-

turned, without objection, a general verdict. On this record

we perceive no way in which the shipowner may have been

prejudged. .

The only additional matter alleged in the negligence

count was item (d), failing to properly supervise the dis-

charging operations. With respect to this, the court

charged, .

‘‘The shipowner has no duty to oversee, supervise

or direct the methods by which or manner in which the

stevedoring corporation and its employees perform

the stevedoring services, but the shipowner must cor-

rect any dangerous condition if it is known or dis-

covered by him.”’

After the charge, at the sidebar, the court stated that it had

given this request of the shipowner inadvertently, as it was

too favorable. On the shipowner’s appeal we need not con-

sider whether it was too favorable for certainly it was

favorable enough. Nor do we see any conflict between this

instruction and item (d), which was not stated to the jury

as a ruling of law, but simply as what plaintiff claimed.

The court also charged that the shipowner might be

denied indemnity if the jury found that the shipowner ‘‘by

the action of the mate or the crew member, acquiesced or

consented to the continuance of the stevedore’s conduct of

which it now complains. . .’’ and the shipowner apparently

objects that this contradicted the charge that it had no duty

to supervise. We see i» inconsistency. To allow denial of

indemnity upon a finding that the shipowner approved of

the stevedore’s performance is not to impose liability upon

a finding that the shipowner failed to disapprove of the

stevedore’s performance. Since the shipowner’s single

remaining objection to the charge in the longshoreman’s

action depends on quoting the charge out of context, we

find no error there. Consequently, the judgment for the

longshoreman is affirmed.

The longshoreman’s appeal from the finding that the ship-

owner was not obstinate within the meaning of Puerto Rico

Rules of Civil Procedure 44.4(d) and (e)* need not detain

us long. By converse reasoning to that applied above, the

shipowner had supportable claims either that it was not

liable or that it was liable to only a small degree. The jury

might have found that the winchman caused this accident

by mishandling the winch, in which event Usner would have

barred a finding of unseaworthiness. Or the jury might

have found that the plaintiff longshoreman was contribu-

torially negligent—by loading another pallet rather than

standing out of the way during the lifting phase as he was

required to. Since the first failure of this winch did not

hurt anyone and should have alerted the longshoremen in

* These rules provide as follows:

“(d) Attorney’s fees. Where a party has been obstinate, the

court shall in its judgment impose on such person the payment of a

sum for attorney’s fees.”

“(e) [Legal interest.] In all cases of money collection where

the party has been obstinate the court shall impose on such person the

payment of interest according to law, from the time in which there

appeared cause of action and in case of damages, such payment of

interest shall be imposed from the time the filing of the claim was

made ai’ computed on the amount of the judgment... .”

23

the hold not to unnecessarily expose themselves to danger,

the jury could have assessed the proportionate contribution

of such negligence at a high figure. The diagnosis of plain-

tiff’s problem as ‘‘conversion reaction, chronic related’’

also produced substantial issues regarding the amount of

damages. These considerations amply support the district

court’s denial of counsel fees and prejudgment interest.

We turn now to the indemnity issue. The shipowner

objected to the following charge:

‘‘If a contributing cause of plaintiff’s injury was his

own negligence, that is a factor to be considered by

you in determining whether the stevedore has breached

its warranty to the shipowner and [if] after consider-

ing all the evidence in the case you find that the steve-

dore has breached its warranty, then the shipowner

would be entitled to recover indemnity from the steve-

dore.’’

Its claim is that the jury should have been charged that ‘‘If

a contributing cause of plaintiff’s injury was his own negli-

gence, then the shipowner would be entitled to recover in-

demnity.’’ Another portion of the charge adequately cov-

ered the discrete issue of whether shipowner was precluded

from recovering indemnity by conduct on its part, see

Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc.,

355 U.S. 563, 567 (1958), so that issue is not involved here.

This dispute is whether a longshoreman’s contributory

negligence automatically establishes breach by the long-

shoreman’s employer of its warranty of workmanlike per-

formance. In the Fifth Circuit it appears that contributory

negligence by a longshoreman does not necessarily amount

to breach of warranty by the stevedore. Instead, the long-

shoreman’s contributory negligence is regarded as one con-

sideration in determining whether the stevedore breached

its warranty. See Julian v. Mitsui O.S.K. Lines, Ltd., 479

F.2d 432, 433 (Sth Cir.), cert. denied sub nom, Mitsui O.S.K.

24

Lines, Ltd. v. Strachan Shipping Co., 414 U.S. 1093 (1973) ;

D/S Ove Skou v. Hebert, 365 F.2d 341, 350 (5th Cir. 1966),

cert. denied sub nom. Southern Stevedoring ¢& Contracting

Co. v. D/S Ove Skou, 400 U.S. 902 (1970) ; Lusich v. Bloom-

field S.S. Co., 355 F.2d 770, 778 (5th Cir. 1966). It appears

that the Third Circuit accepts this approach also. See Shaw

v. Lauritzen, 428 F.2d 247 (3d Cir. 1970). In the Second,

Fourth, and Ninth Circuits the rule is that contributory

negligence by the longshoreman within the scope of his em-

ployment is imputed to the stevedore. McLaughlin v.

Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336-37 (2d

Cir.), cert. denied sub nom. Golten Marine Co. v. Trelleborgs

Angfartygs A/B, 395 U.S. 946 (1969) ; Nicroli v. Den Norske

Afrika-Og Australielinie, 332 F.2d 651, 656 (2d Cir. 1964) ;

Damanti v. A/S Inger, 314 F.2d 395, 399 (2d Cir.), cert.

denied sub nom. Daniels & Kennedy, Inc. v. A/S Inger, 375

U.S. 834 (1963); United States Lmes, Inc. v. Jarka Corp.

of Baltimore, 444 F.2d 26, 28 (4th Cir. 1971); Arista

Cia. DeVapores, S/A v. Howard Terminal, 372 F.2d 152,

154 (9th Cir. 1967). This also may be the rule in the Sixth

Cireuit. See Turner v. Global Seas, Inc., 505 F.2d 751,

796-07 (6th Cir. 1974). We have recently held that ‘‘a

stevedore’s warranty of workmanlike performance encom-

passes a promise to provide longshoremen free of negli-

gence. . . .’? Carrillo v. Sameit Westbulk, No. 74-1204 (1st

Cir., April 14, 1975). In light of that well-settled rule it is

difficult to argue that a stevedore has not breached its war-

ranty where it turns out that one of its employees was

negligent within the scope of his employment. We believe

the correct rule is that the plaintiff longshoreman’s negli-

gence must be imputed to his employer as a basis for

indemnity. Of course, this does not mean that a finding of

contributory negligence automatically establishes the ship-

owner’s right to indemnity. The fact finder may still find

that there was conduct by the shipowner sufficient to pre-

25

clude indemnity. See generally Hurdich v. Eastmount

Shipping Co., 503 F.2d 397 (2d Cir. 1974).

On the evidence and the charge in this case, coupled with

the general verdict, it is entirely possible that the jury

found the longshoreman contributorially negligent. Accord-

ingly we are compelled to reverse the judgment for the

stevedore and remand for a new trial, It is no answer that

the jury may have found that the shipowner’s conduct in

providing a defective winch was conduct precluding indem-

nity. If we knew that was their finding, we could avoid a

new trial, but we cannot speculate that the error in the

charge did not prejudice the shipowner. This posture evi-

dences once again the usefulness of the procedure author-

ized in Fed. R. Civ. P. 49(b). If this case had been sub-

mitted to the jury for a general verdict accompanied by

answers to appropriately phrased interrogatories, the

needless waste of a new trial could have been avoided. The

debate between the parties over who should bear respon-

sibility for this shortcoming is somewhat shortsighted.

Some measure of the blame for not requesting such a sub-

mission must be laid at the shipowner’s feet, but an equal

measure must be assigned to the stevedore. And of course

the court itself would have been well-advised to utilize this

procedure.

The remaining issue is the stevedore’s appeal. It argues

that the shipowner was obstinate in not conceding unsea-

worthiness and in not being sufficiently receptive to settle-

ment negotiations. Reliance is placed on Rivera v. Rederi

A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), where

the imposition of attorney’s fees for obstinacy was upheld

against the shipowner even though that party prevailed in

the third party action. But this case is not analogous to

Rivera, It upheld imposition of attorney’s fees for the

benefit of the plaintiff longshoreman, not for the stevedore.

Rivera also implicitly recognized that obstinacy in defend-

26

ing against a plaintiff does not necessarily establish obsti-

nacy in claiming indemnity from a third-party defendant.

See id. at 975 n. 11. Even if we had decided the appeal

of the indemnity action differently, the facts of this case

would not support a finding of obstinacy against the ship-

owner and in favor of the stevedore. We need not reach

the stevedore’s remaining point, that it is entitled to

counsel fees and other defense costs from the shipowner

for its breach of its warranty to the stevedore, since that

question has been mooted by our reversal in the indemnity

action.

The judgment for the plaintiff longshoreman is affirmed;

the denial of hts motion for an obstinacy award is also

affirmed; the judgment for the stevedore is reversed and

that case is remanded for a new trial; and the appeal of the

stevedore is dismissed.

27

Unitep States Court or APPEALS

For tHe First Circuit

No. 74-1353.

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLEE,

v.

COMPAGNIE GENERALE TRASATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLEE.

No. 74-1354.

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLANT,

v.

COMPAGNIE GENERALE TRASATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLEE,

No. 74-1355.

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLEE,

v.

COMPAGNIE GENERALE TRASATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLANT.

JUDGMENT

Entered May 29, 1975

This cause came on to be heard on appeals from the

United States District Court for the District of Puerto Rico,.

and was argued by counsel. |

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment for the

plaintiff longshoreman is affirmed, and the denial of his

motion for an obstinacy award is also affirmed;

The judgment for the stevedore Fred Imbert, Inc., is

vacated and the cause is remanded for a new trial thereon;

and

The appeal of the said stevedore is dismissed.

No costs.

By the Court:

(s) Dana H. Gauuvp, Clerk.

{[ec. Messrs. Kimball, Nachman and Cordero.]

29

Unrrep Strares Court or APPEALS

For THE First Circuit

No. 74-1353.

RUBEN SANTIAGO MARTINEZ,

PLAINTIFF, APPELLEE,

v.

COMPAGNIE GENERALE TRASATLANTIQUE,

DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT,

v.

FRED IMBERT, INC.,

THIRD-PARTY DEFENDANT, APPELLEE.

Before Atpricu, McEnTEz, and CAMPBELL,

Circuit Judges.

ORDER OF COURT

Entered June 20, 1975

It is ordered that the petition for rehearing filed on

June 12, 1975, be and tLe same hereby is, denied.

By the Court:

(s) Dana H. Gatuuvp, Clerk.

[ec. Messrs. Kimball, Nachman and Cordero. ]