Petition — HOFFMAN RIG RIGGING & & CRANE SERVICE SERVICE SERVICE, INC. v. LOPEZ (No. 76-1391)

a

Supreme Court, US|

FILE D <#

| APR 9 1977

| MICHAEL RODAK, JR., CLERK

IN THE ae

Supreme Court of the United States

APRIL TERM, 1977

ih aeene 76-1391

HorrmMan Ricoine anp Crane Service, Inc.,

Petitioner,

versus

Benito Lopez, Ecan OLpENpOoRF and INTERNATIONAL

TERMINAL OpeRATING Co., INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Rosert 8S. Biane

Counsel for Petitioner

One World Trade Center

Suite 5215

New York, N. Y. 10048

INDEX

Opinions Below ...........

S282 4628 8866 68 6a 6.8 2 6

Jurisdiction

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Questions Presented

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Statement of the Case

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Reasons for Granting the Writ

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The Court of Appeals Erroneously Found That

The Crane Operator Employed by Hoffman

Rigging and Crane Service, Inc., Was Not

The Borrowed Servant of Hoffman, and

That Hoffman Was Liable for Any Negli-

gence of The Crane Operator

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Conclusion

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APPENDIX

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Excerpts from Transcript of Trial

CITATIONS

Cases:

Denton v. Yazoo & M.V.R. Co., 284 U.S. 305 (1932),

at pages SUS and S10 ...... ccc cec ccc csccceees

Errickson v. F. W. Schwiers, Jr., Co., 108 NJL 481,

F&F Be Fe eS nes

10

li INDEX

Hartell v. Simonson & Son Co., 218 N.Y. 345 (1916)

Helton vy. United States, 309 F.Supp. 479 (D.C. Ar-

TOD 6c ci cckevceneeeuevecsnceenviedse

McCollum v. Smith, 339 F.2d 348 (9 Cir. 1964) .....

Moore v. Newport Quarries, 285 App. Div. 640 (4th

Dept, 1GGB) .ncccccccccccccccccvccccsccccsece

Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.

BP 66 cccdnsccddenseviealeneetakscseaueenss

ee ae wk

Usner v. Luckenbach Overseas Corp., 400 U.S. 494

ARRAS Hn cele ES 5 SSE NE A OD

Statute Crrep

28 U.B.C. $1254 (1) ...ccccccccccccccccsccscccccs

PAGE

7

IN THE

Supreme Court of the United States

APRIL TERM, 1977

De sacs

yx

a

Horrman Riaoine anp Crane Service, Inc.,

Petitioner,

versus

Benito Lopez, Ecan OLpENpORF and INTERNATIONAL

TeRMINAL OperaTine Co., INc.,

Respondents.

-_~_ ——- > -

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The petitioner, Hoffman Rigging and Crane Service,

Ine., respectfully prays that a writ of certiorari issue to

review the judgment and opinion and amended judgment

of the United States Court of Appeals for the Second Cir-

cuit entered in this proceeding on the 9th day of December,

1976.

Opinions Below

The attorneys for Egan Oldendorf, Cichanowiez & Cal-

lan, Victor S. Cichanowicz of counsel, have stipulated with

the attorneys for Hoffman Rigging and Crane Service,

2

Ine., Hill, Betts & Nash, Robert S. Blane of counsel, that

the opinion of the Court of Appeals, the amended judg-

ment of the Court of Appeals, the order denying Egan

Oldendorf’s petition for rehearing and the excerpts from

the transcript of trial printed in Egan Oldendorf’s petition

for certiorari are incorporated by reference in Hoffman

Rigging and Crane Service, Inc.’s petition for certiorari.

Jurisdiction

The judgment and opinion and amended judgment of the

Court of Appeals for the Second Circuit were entered on

December 9, 1976. Egan Oldendorf’s timely petition for

rehearing was denied on January 10, 1977, and Hoffman

Rigging and Crane Service, Inc’s petition for certiorari

was filed within 90 days of that date. This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

Questions Presented

Was the Court of Appeals in error in denying the claim

of Hoffman Rigging and Crane Service, Inc., that the op-

erator of the crane, which it leased together with the crane

personnel to International Terminal Operating Co., Ince.,

was the borrowed servant of ITO, and that for that

reason Hoffman could not be held liable to any party for

any negligence of the crane operator.

Statement of the Case

This case arises out of an accident on board M/V Josst

OLpENDORF, a vessel owned by Egan Oldendorf, in which a

longshoreman was injured at the beginning of the dis-

charge of a cargo of steel I-beams from the No. 1 hatch of

said vessel. A stevedore, International Terminal Opera-

ting Co., Inc., was in charge of the discharge of the steel

3

beams from the vessel and rented from Hoffman Rig-

ging and Crane Service, Inc., the crane company, a

crane and its personnel in connection with the discharge.

ITO directed the positioning of the crane boom over

the hatch. ITO’s signalman directed the operations of

the crane by hand signals from the deck of the vessel to

the crane operator on the dock.

After the longshoremen had made up a draft of steel

I-beams and hooked it to the cargo hook of the crane, the

signalman signaled the crane operator to raise the draft.

The operator took the strain on the load and the signal-

man continued to signal him to raise the draft. The

operator paused, the signalman looked at him and the

operator signaled to the signalman that the operator was

going to raise the head of the boom, which he did. After

he gave the signalman the topping signal, the signalman did

not signal the crane operator to stop at that immediate time.

The operator raised the draft and topped the boom. The

next signal he received from the signalman was to stop

about 15 seconds later. During that time the first draft of

steel beams dragged across the other steel beams from

offshore to inshore, taking 15 seconds, during which the

signalman gave the crane operator no signal to stop. The

draft dislodged an I-beam which fell and struck the in-

jured longshoreman’s leg.

The longshoreman’s action against the shipowner was

tried to a jury which found that the lashings and chocks

by means of which the cargo of steel I-beams had been

secured during the ocean voyage had been removed prior

to the commencement of the discharging operation and

that this did not render the vessel unseaworthy, but that

the shipowner was negligent. It assessed damages at

$365,000.00 but reduced them by 15% to $310,250.00 be-

cause it found that the injured longshoreman was con-

tributorily negligent in that percentage.

All claims between the shipowner, the stevedore and

the crane company were tried solely to the Court which,

4

following the jury verdict, denied the longshoreman’s mo-

tion to amend the complaint to allege a claim against the

crane company, but later reversed itself and granted the

motion to amend the complaint against the shipowner by

adding the crane company as a defendant.

After the shipowner rested on the third-party claims,

the Trial Court granted it indemnity against the stevedore

and, on the completion of the testimony in the amended

complaint against the shipowner and the crane company,

the Trial Court found that the crane operator was negli-

gent and that the shipowner and the crane company were

liable to the longshoreman and awarded recovery against

the shipowner and the crane company jointly and severally

for the damages as assessed by the jury. The Trial Court

awarded the shipowner, if it paid the judgment, indemnity

against the stevedore and the crane company, each for

50%, and awarded the crane company, if it paid the judg-

ment, recovery from the stevedore for 50%. The Trial |

Court dismissed the stevedore’s cross claim against the

erane company for indemnity or for contribution.

All parties filed notices of appeal from the final judg-

ment, but the longshoreman’s appeal was subsequently

withdrawn.

The shipowner appealed on the ground that as a matter

of law it was error to submit the case to the jury because

neither under the warranty of seaworthiness nor the theory

of negligence was a shipowner obligated to furnish an acci-

dent-free ship, and because under this Court’s decision in

U’sner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971),

a shipowner is not liable for a wholly unforeseeable act of

negligence of a third party. It also urged that the jury’s

findings of negligence and seaworthiness were inconsistent.

The shipowner finally appealed from the denial of defense

costs including reasonable counsel fees.

The stevedore appealed from the indemnity award to the

shipowner on the ground that an implied warranty of work-

5

manlike service is not invoked to benefit a shipowner liable

solely for its own negiigence. It also appealed from the

award against it in favor of the crane company on the

ground that the award constituted contribution. It further

appealed the dismissal of its cross claims against the crane

operator for indemnity and contribution and contended

, that the crane company was solely liable for payment of

the plaintiff’s recovery or, in the alternative, that the ship-

owner’s recovery against the stevedore and the crane com-

pany should be apportioned so that the stevedore pay 15%

for the contributory negligence of the longshoreman im-

puted to it and the crane company pay 85% of the total

award.

The crane company appealed on the ground that the

crane operator was the borrowed servant of the stevedore

so that the crane company is not liable to the longshore-

man, the shipowner or the stevedore by way of indemnity

or otherwise. The crane company also appealed on the

ground that it was error for the Trial Court to grant the

longshoreman’s motion for a direct action against the

crane company without requiring the plaintiff to move

pursuant to Rule 14(a) of the Federal Rules of Civil

Procedure. The crane company finally appealed on the

ground that it was error for the Court to take jurisdiction

in the direct action by the longshoreman against the crane

company, both citizens of New Jersey, because there was

no diversity of citizenship.

Reasons for Granting the Writ

The Court of Appeals erroneously found that in a com-

parable factual situation this Court has held that the mere

reception of signals by a winchman from a stevedore’s

foreman did not operate to relieve the winchman’s em-

ployer of liability for the negligence of its employee.

Standard Oil Company v. Anderson, 212 U.S. 215 (1909).

6

This is not a comparable factual situation because in the

Anderson case the defendant shipowner preferred to do

the work of hoisting a cargo of oil into the vessel and re-

ceived from the stevedore payment for the hoisting

whereas in this case the crane company rented a crane

and furnished personnel to the stevedore who paid the

crane company for both the crane and the personnel. In

these circumstances the crane operator was the employee

of the stevedore. The applicable rule is set forth in Denton

v. Yazoo € M.V.R. Co., 284 U.S. 305 (1932), at page 308:

“When one person puts his servant at the disposal

and under the control of another for the perform-

ance of a particular service for the latter, the serv-

ant, in respect of his acts in that service, is to be

dealt with as a servant of the latter and not of the

former.”

In the Denton case this Court analyzed the case of Stand-

ard Oil Company v. Anderson, supra, at page 310:

“This court held upon the facts, in the light of the

rule which we have just stated and discussed, that

the power, the winch, and the winchman were those of

the company, and that the company did not furnish

them, but furnished the work they did to the steve-

dore and this work was done by the company as its

own work, by its own instrumentalities and servant

under its contro!.”

The distinction is clear. Here, the crane operator was

doing the work of the stevedore and was under its direc-

tion and control. The stevedore had contracted with the

shipowner to discharge the vessel, was in control of the

discharge operation and was in control of the crane and

crane personnel employed in the operation.

In McCollum vy. Smith, 339 F.2d 348 (9 Cir., 1964) tie

Court, after citing Denton and other cases, stated at page

351:

“But as the above cases make clear, it is not essen-

7

tial, in order to constitute an employee a loaned

servant, that the general employer relinquish full

control over his employee, or that the special em-

ployee be completely subservient to the borrower.

While the latter must possess the power of ‘authori-

tative direction and control’ over the employee

(Standard Oil v. Anderson, supra 212 U.S. at 222)

so that his directions will have ‘the force of a com-

mand’ (Denton v. Yazoo, supra, 284 U.S. at 310),

this authority need not extend over every incident

of an employer-employee relationship but only over

the servant’s performance of the particular work in

which he is engaged at the time of his negligent act

or omission.”

In Helton v. United States, 309 F. Supp. 479 (D.C.

Arkansas, 1969) the Court stated at p. 484:

“The ‘borrowed servant’ doctrine is an old and estab-

lished doctrine in admiralty. See Standard Oil Co. v.

Anderson, 212 U.S. 215 (1909); Park SS Co. v. Cities

Service Oil Co., 188 F.2d 804 (2d Cir., 1951), and cases

cited therein. The doctrine is equally well established

in Arkansas. (citing cases)

“Briefly stated, the borrowed servant doctrine dictates

that when a servant in the general employ of one

person comes under the control of another for the per-

formance of a particular service for the latter, the

servant, in respect of his acts in that service, is to be

dealt with as a servant of the latter and not of the

former. This is in accord with the general common

law of vicarious liability: one who ts in a position to

exercise control over the situation giving rise to injury

should bear the loss.”

The borrowed servant rule set forth above is the law

in New York. Hartell v. Simonson d& Son Co., 218 N.Y.

345 (1916); Parke-Bernet Galleries, Inc. v. Franklyn, 26

8

N.Y.2a 19; Moore v. Newport Quarries, 285 App. Div. 640

(4th Dept. 1955). It is also the law in New Jersey where

the accident oceurred. Errickson v. F. W. Schwiers, Jr.,

Co., 108 N.J.L. 481, 158 Atl. 482 (E & A 1932).

Errickson is particularly apposite here. In that case

the general employer of an allegedly negligent derrick

operator had rented the derrick and its operator to Hill

Dredging Company. Hill employed the plaintiff who was

injured when struck by lumber which fell from the lift-

ing sling. Plaintiff claimed that the crane operator re-

mained the employee of his general employer, Schwiers,

and sought to impose respondent superior liability on

Schwiers. The Court, in denying recovery, stated, 108

N.J.L. at 484:

“The derrick operator had nothing whatever to do

with moving the lumber other than to obey the sig-

nals given him by the Hill Company’s employees,

operating the derrick only as and when they told

him to do so. We therefore think that the defend-

ant was not an independent contractor and that the

operator of the derrick was a fellow employee of the

plaintiff, and if negligent in that operation, his negli-

gence cannot be charged against the defendant corpo-

ration.”

If the shipowner is held in damages by reason of negli-

gent operation of the crane its remedy by way of indemnity

or otherwise is against the stevedore liable for the

activities of its borrowed servant and not against Hoff-

man. Similarly, if the shipowner is entitled to indemnity

against the stevedore the stevedore may not recover on its

cross-claim against Hoffman for the negligence of the

stevedore’s borrowed servant, the crane operator.

Since the crane operator was ITO’s borrowed servant

Lopez has no cause of action against Hoffman.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari:

should issue to review the judgment and opinion and

amended judgment of the United States Court of

Appeals for the Second Circuit.

Respectfully submitted,

Rosert 8S. Bianc

Counsel for Petitioner

One World Trade Center

Sruite 5215

New York, N. Y. 10048

10

APPENDIX

Excerpts from Trial Transcript.

Mr. Blanc: One other aspect of the problem your Honor

has not considered but may wish to take into account

before entering judgment is the contention of Hoffman

throughout this case that the crane operator and the

crane oiler were the borrowed servants of ITO. (120)

They were under ITO’s supervision and control insofar

as the discharge of this cargo was concerned; the crane

was in good working order and condition; both the opera-

tor and the oiler were experienced and for that reason I

don’t believe that Hoffman can be held solely liable. (121)

The Court: I have just been handed something called

“Trial Memorandum on Behalf of Third-Party Defendant

Hoffman.” (122)

The Court: I have read the Hartnett case, I guess,

which is the grain case from Buffalo. I have read the

opinion of the Court of Appeals.

In a situation very similar to our own, the Court of

Appeals approved an equal division of liability as be-

tween parties who correspond to ITO and Hoffman here.

(125)