Opposition — Marvin v. Central Gulf Lines, Inc.

Su a

(PILED \

| DEC 19 1977

—— RODAK, JR., CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-712

JOHN I. MARVIN,

Petitioner

versus

CENTRAL GULF LINES, INC., FORMERLY

CENTRAL GULF STEAMSHIP CORPORATION

Respondent

BRIEF BY RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI IN THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JOHN J. BRODERS,

JOHN O. CHARRIER, JR., and

EDITH BROWN CLEMENT

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

28th Floor, 225 Baronne Street

New Orleans, Louisiana 70112

Telephone: (504) 581-6641

Counsel for Respondent,

Central Gulf Lines, Inc.

ä — —— — — — — —

A B Letter Service, las., 327 Chertres St., Mew Orleens, Le. (504) 5861-5555

INDEX

PAGE NO.

Table of Authorities. ii

Citation to Opinion Below ................ 1

ess 1

ae. 2

Reasons for Denial of the Petition

. 5

eee 17

ii

TABLE OF AUTHORITIES

PAGE NO.

Armstrong v. Commerce Tankers Corp.,

311 F.Supp. 1236 (S. D. N.Y. 1969), aff'd

423 F. 2d 957 (2d Cir.) cert. den. 400 U.S.

833, 91 S.Ct. 67, 27 L.Ed. 2d 65 (1970)... . 7,17

Boeing Co. vs. Shipman, 411 F.2d 365

re eee 6

Buford v. Cleveland & Buffalo Steamship

Co., 192 F. 2d 196, 198 (7th Cir. 1951). 7,16

De Zon v. American President Lines, Ltd.,

318 U.S. 660, 63 S. Ct. 814, 87 L. Ed.

„5 6,16

Diddle bock v. Alcoa Steamship Co.,

237 F.Supp. 538, 541 (E. D. Penn. 1964) 7,16

Galloway vs. United States,

1943, 319 U.S. 372, 63 S.Ct. 1077........ . 6

Gunning v. Cooley, 1930,281 , U.S. 90,

94, 50 S.Ct. 231, 74 L.Ed. 720. 6

Gypsum Carrier, Inc. us. handles man,

307 F.2d 525, 534 (9th Cir. 1962) 7,16

Hawley v. Alaska Steamship Co.,

236 F.2d 307, (9th Cir. 1956)............ 5

iii

TABLE OF AUTHORITIES (Continued)

PAGE NO.

Jamison v. Encarnacion, 281 U.S., 635,

50 S.Ct. 440, 74 L.Ed. 1082............. 6,16

Lavender v. Kurn, 327 U.S. 645, 655, S.Ct.

790,90 L.Ed. 916 (1940) ............... 8

Marvin v. Central Gulf Lines, Inc.,

554 F.2d 1295 (Sth Cir. 1977) ........... 8,9, 11,18

Moore v. Chesapeake & Ohio Railway Co.,

340 U.S. 573, 578, 71 S.Ct. 430. 16

Perry v. Morgan Guaranty Trust Company of

New York, 528 F.2d 1378, 1379 (5th Cir.

c 7

Rab b v. Canal Barge Co., Inc., 428 F. 2d

fe 16

Repsholdt vs. United States,

205 F.2d 852, 856 (7th Cir. 1953)........ 7,16

Rogers vs. Missouri Pacific Ry. Co.,

1957, 352 U.S. 500, 506, 77 S.Ct.

443, 448 1 L.Ed. 2d 483................ 10

Schlichter v. Port Arthur Towing Co.,

288 F.2d 801, 805, 806 (Sth Cir. 1961) 7,16

iv

TABLE OF AUTHORITIES (Continued)

Traupman v. American Dredging Co.,

470 F.2d 736 (2d Cir. 1972)

PAGE NO.

7,10,13,16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 77 - 712

JOHN I. MARVIN,

Petitioner

CENTRAL GULF LINES, INC., FORMERLY

CENTRAL GULF STEAMSHIP CORPORATION

Respondent

BRIEF BY RESPONDENT IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI IN THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

CITATION TO OPINION BELOW

The petition for writ of certiorari submitted by petitioner

incorrectly cited the decision of the Fifth Circuit Court of

Appeals. The correct citation of the appellate opinion, re-

versing the trial court and reflecting the denial of the

petitions for Rehearing and Rehearing En Banc on August

22, 1977, is 554 F.2d 1295.

QUESTIONS PRESENTED

I. Did not the Court of Appeals for the Fifth Circuit

properly reverse the judgment of the lower court denying

defendant’s motion for directed verdict and for judgment

notwithstanding the verdict, on the grounds that there was

a complete absence of probative facts to support the conclu-

sion reached by the jury?

2

II. Did not the District Court commit reversible error in

submitting the case to the jury and in refusing to grant res-

pondent’s motion for directed verdict where the evidence

was insufficient to establish any specific negligence on the

part of respondent?

STATEMENT OF THE CASE

The Litigation

John I. Marvin, a bluewater seaman, filed suit against

Central Gulf Lines, Inc. for injuries he allegedly received

while working as a crewmember of Central Gulf’s S/S

GREEN SPRINGS. Marvin asserted that he was injured on

January 17, 1972, while assisting in docking the S/S

GREEN SPRINGS at Pusan, South Korea, when he was

struck by a mooring line with which he was working.

Central Gulf filed an answer to the complaint denying any

negligence or unseaworthiness and asserting Marvin's sole

fault and/or contributory negligence.

The case was tried before a jury on June 12 and 15,

1975. At the close of the plaintiff's case, Central Gulf

moved for directed verdict in its favor on the basis that

plaintiff had failed to adduce evidence demonstrating the

unseaworthiness of the S/S GREEN SPRINGS, and further

had failed to adduce evidence of any negligence of Central

Gulf which contributed, even in the slightest, to plaintiff's

injury.

Central Gulf’s motion for directed verdict was denied,

and the jury thereafter returned a verdict in the plaintiff's

favor finding Central Gulf negligent, the vessel seaworthy,

and plaintiff free of contributory negligence, and the plain-

3

tiff entitled to damages in the amount of $25,000.00.

Central Gulf timely filed a motion for judgment notwith-

standing the verde and for other alternative relief; the

motion was denied by the Trial Court.

Central Gulf filed an appeal with the Fifth Circuit Court

of Appeals seeking reversal of the denial by the Trial Court

of respondent’s motion for directed verdict and motion for

judgment notwithstanding the verdict. The Fifth Circuit

reversed the Trial Court, overturned the jury verdict, and

held that the motion for directed verdict should have been

granted for the reason that the evidence was insufficient to

establish any specific negligence on the part of Central

Gulf. Petitioner has filed a petition for writ of certiorari

to which this brief is submitted in opposition.

The Casualty

Marvin was a seaman of some experience at the time of

his injury. He first began going to sea in 1949 and since

1954 he has been classified as an able-bodied seaman. He

joined the S/S GREEN SPRINGS on December 15, 1971,

in New Orleans, Louisiana. The S/S GREEN SPRINGS,

expecting to call in various Far East ports, arrived in Pusan,

South Korea, on January 17, 1972.

As an able-bodied seaman and a member of the dock

crew, it was Marvin's duty to assist with docking the ship.

When the vessel arrived at its intended berth in Pusan on the

morning of January 17, two lines were put out, a bow line

and a spring line. The vessel docked “starboard side to and

in connection with the docking a bow line was run from the

starboard bow area of the GREEN SPRINGS to a bollard

forward of the vessel on the dock. A spring line was run

4

forward from a bollard on the dock approximately amid-

ships through the starboard bulkhead of the GREEN

SPRINGS at the number three chock, and forward through

the starboard fairlead and from there aft to the starboard

drum of the anchor windlass on the bow of the vessel.

While Marvin's testimony is confused, apparently after

the bow line and the spring line were made fast, orders were

given to slack off these lines, to move the spring line 150

feet astern to a bollard further down the dock and then to

heave on the spring line to move the ship astern.In the task

of moving the ship astern, Marvin’s job was to handle the

spring line. To do this, Marvin, after taking five or six

wraps on the drum of the windlass, positioned himself two

or three feet astern of the drum of the anchor windlass.

To move the ship astern, of course, all Marvin needed to

do after taking the wraps on the drum was to keep tension

on the line. To slack the line he merely need have slacked

the tension he held on the line.

According to Marvin's account of the accident, after the

ship began moving astern, but while still going astern, the

line flew off and hit him in the head and face. While in a

deposition taken before trial, Marvin admitted lack of

knowledge of what struck him and caused his injury, and

while at the trial he was still unsure about what had struck

him, in large part Marvin believed that he had been struck

by the mooring line with which he was working when it

jumped the starboard fairlead.

Significantly, however, no witnesses were called on the

plaintiff's behalf other than himself, and no documentary

5

or demonstrative evidence was introduced by the plaintiff

which demonstrated a cause of the line “jumping the fair-

le»). Moreover, Marvin was unable to offer any explana-

tion for the line jumping the fairlead as he contended, other

than to say that the line came off “for some reason or

other.”

After being struck in the face, Marvin was provided with

first aid on ship and sent to a hospital in Pusan. After re-

ceiving sutures to his face at the hospital, Marvin returned

io the ship, picked up some belongings and then returned to

the hospital. He remained in the hospital in Pusan for sev.

eral days, and then was repatriated to the United States,

specifically New Orleans. Arriving in New Orleans, he was

admitted as an inpatient in the Public Health Service Hos

pital and continued his inpatient treatment there for ap-

proximately two weeks. He was declared fit for duty on

March 30, 1972, two and one-half months after the acci-

dent, and was willing and able to re-ship at that time.

REASONS FOR DENIAL OF THE PETITION

FOR WRIT OF CERTIORARI

Even under the liberalized test of proof under the Jones

Act, petitioner simply failed to carry his burden of proof.

While the jury did indeed return a verdict in the petition-

er's favor on the negligence issvz, the Fifth Circuit Court

of Appeals properly held that the evidence and the law

make it clear that the case should never have been sub-

mitted to the jury for its consideration.

6

DID NOT THE COURT OF APPEALS FOR THE FIFTH

CIRCUIT PROPERLY REVERSE THE JUDGMENT OF

THE LOWER COURT DENYING DEFENDANT’S

MOTION FOR DIRECTED VERDICT AND FOR JUDG-

MENT NOTWITHSTANDING THE VERDICT, ON THE

GROUNDS THAT THERE WAS A COMPLETE ABSENCE

OF PROBATIVE FACTS TO SUPPORT THE CONCLU-

SION REACHED BY THE JURY?

At the close of Marvin's case, which consisted only of his

testimony and stipulated medical reports, Central Gulf

moved for directed verdict in its favor. The Trial Court

being greatly disposed to grant the motion, nonetheless

denied it with the indication that it would be reconsidered

should the jury bring in a verdict. In so ruling, the Trial

Court commented that “. . .there may be just barely enough

there to go to the Jury."’ When the Trial Court denied its

motion for directed verdict, after reading a stipulation

from the pre-trial order, Central Gulf rested.

The Fifth Circuit agreed with Central Gulf that the Trial

Court erred in submitting the case to the jury. The proof

which the plaintiff adduced was neither “barely enough”

nor did it compromise the “‘scintilla of evidence” required

to properly place the matter before the jury for its deter-

mination."

It is fundamental that under the Jones Act, damages may

only be recovered for negligence, DeZon v. American Presi-

dent Lines, Lid., 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed.

1065; Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440,

1. Gunning v. Cooley, 1930, 281 U.S. 90,94, 50 S.Ct. 231, 74 L.Ed

720; Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077;

Hawley v. Alaska Steamship Co., 236 F.2d 307 (9th Cir. 1956);

Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).

7

74 L.Ed. 1082; Buford v. Cleveland & Buffalo Steamship

Co., 192 F.2d 196, 198 (7th Cir. 1951); Repsholdt v.

United States, 205 F.2d 852, 856 (7th Cir. 1953). It is

equally fundamental that the burden of proving negligence

in a Jones Act case is upon the plaintiff. Gypsum Carrier,

Inc. v. Handlesman, 307 F.2d 525, 534 (9th Cir. 1962);

Diddlebock v. Alcoa Steamship Co., 237 F.Supp. 538, 541

(E.D. Pa. 1964); Schlicter v. Port Arthur Towing Co.,

288 F.2d 801, 805, 806 (Sth Cir. 1961); Traupman v.

American Dredging Co., 470 F.2d 736 (2d Cir. 1972).

While Central Gulf, as a vessel owner, was subject to a

more liberalized or strict standard of care than that imposed

on its landside brethren, the “statute does not prescribe

liability without some proof of fault“ nor does it relieve a

Jones Act plaintiff from showing facts from which a jury

can reasonably infer that either his employer or his co-

workers were negligent.” Traupman, 737, supra; Armstrong

v. Commerce Tankers Corp., 311 F.Supp. 1236 (S.D. N.Y.

1969); aff'd. 423 F.2d 957 (2d Cir.) cert. den. 400 U.S.

833, 918. Ct. 67,27 L.Ed. 2d 65 (1970). More succinct-

ly put, “there must be some evidence of negligence 2 In

Perry v. Morgan Guaranty Trust Company of New York,

528 F.2d 1378, 1379 (Sth Cir. 1976), the Fifth Circuit

restated clearly and succinctly that in Jones Act cases

, there must be some evidence from which a jury can in-

fer that an unsafe condition existed and that the owner

either knew, or in the exercise of due care, should have

known of it.’’ There was no such evidence presented in the

record of this case.

In Marvin's petition for writ of certiorari, it is argued

that the reversal by the Fifth Circuit was absolutely

2. Schlichter, supra, at 806

8

contrary to a long and well-established line of decisions of

the United States Supreme Court. In support of this argu-

ment petitioner relies on the Lavender v. Kum, 327 US.

645 (1946), and the Schulz v. Pennsylvania Railroad Co.,

350 U.S. 523 (1956), decisions which are the exact two

Supreme Court cases cited in the opinion of the reversing

appellate court. The Fifth Circuit in Marvin v. Central Gulf

Lines, Inc., 554 F.2d 1295, 1297, (Sth Cir. 1977), stated

as follows:

“Although a Jones Act plaintiff suing in negli-

gence shoulders a lighter burden than his counter-

part on land would carry, G.Gilmore & C. Black,

Admiralty 88 6-35, 6-36 (2d Ed. 1975), we as an

appellate court must still overturn a judgment

based on a jury verdict in favor of the plaintiff

‘when there is a complete absence of probative

facts to support the conclusion reached. .

Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct.

740, 744, 90 L.Ed. 916, 923 (1946). We loox,

then, for ‘evidence consisting of direct statements

by witnesses or proof of circumstances from

which inferences can fairly be drawn’ to support

the verdict and, thus, the judgment thereon.

Shulz v. Pennsylvania Railroad, 350 U.S. 523,

526, 76 S.Ct. 608, 610, 100 L.Ed. 668, 671

(1956). Neither the testimony of Marvin nor the

permissible inferer.ces from that testimony sup-

ports the jury’s finding that Central Gulf was

negligent.” (Footnotes omitted.)

An examination of the testimony in this case not only

leaves one with a clear and distinct understanding that Mar-

vin proved nothing but an injury, the record also demon-

> —

9

strates not a scintilla of evidence upon which Central Gulf's

liability can be based. Synopsizing the pertinent parts of

Marvin's testimony reveals that while he contended that the

line jumped off the fairlead, he did not know and only

could assume some unknown cause for the occurrence.

Moreover, not only does the evidence fail to establish any

cause for the line jumping the fairlead, there is a distinct

lack of evidence to prove either that the line actually jump-

ed the fairlead or even that the line was what struck Marvin

at all. When Marvin was pressed about what hit him, he

testified, ‘‘maybe the Captain struck me, I don’t know.”

In any event, the record makes it abundantly clear that

Marvin could only assume possible causes for his injury.

Even if it be accepted that the line jumped the fairlead, the

best explanation and cause Marvin could offer for this oc-

currence was . the line vas working under a heavy strain,

and for some reason or another, the line slipped the fair-

lead.

Petitioner's position that Marvin's testimony was uncon-

troverted and as such presented sufficient facts to support a

jury finding of negligence is untenable. Marvin could not

testify with conviction as to what hit him, much less, as to

why something hit him. The gravamen of the Fifth Cir-

cuit’s reversal was the simple fact that Marvin failed to pre-

sent sufficient facts to support the jury finding of action-

able negligence; Marvin’s testimony presented mere assump-

tions and speculation as was explicitly pointed out in the

appellate court’s decision in Marvin, supra, at 1298, fn. 8,

as follows:

10

“8. On cross-examination, when asked whether

he knew for sure that the line jumped the fair-

lead, Marvin answered as follows: ‘I know that

something flew through the air and hit me and I

can only guess that it was the line come up on the

drum and it must have been that the line came

off.’ The questioning continued: ‘All you know

is that something hit you?’

Marvin replied, ‘Very much so, yes.’

Later Marvin was asked: ‘If the line jumped

the fairlead, Mr. Marvin, you cannot tell us, to-

day, the reason it jumped the fairlead?’ He an-

swered, ‘No, I can only assume.’

When deposed prior to trial, Marvin made it

clear that he could only surmise that it was the

hawser that hit him: ‘Well, something hit me. I

don’t know what it was. All I can say is some-

thing hit me, and the best thing I can see, it was

the rope, mooring line did it.“

The evidence, as presented by Marvin, the only witness

to testify, failed to establish an evidentiary basis for the

jury’s conclusion that Central Gulf was negligent. Petition-

er very simply failed to carry his burden of proof.

In Rogers v. Missouri Pacific Ry. Co., 1957, 352 US.

500, 507, 77 S.Ct. 443, 448 1 L.Ed. 2d 493, the Supreme

Court stated a rule of causation making the employer li-

able in the event of his negligence which contributes even in

the slightest manner to his employees injury. As the Traup-

man Court observed:

11

‘* several Jones Act and Fela cases. have allow-

ed juries]...to speculate on the connection be-

tween the defendant’s admittedly negligent act

and the plaintiff's injuries. [Citing cases.]. . These

cases, however, cannot be read to give a jury the

same latitude in determining whether the act

complained of was negligently performed in the

first place. 470 F.2d 736, 738.

In submitting the case to the jury the district court judge

may have been laboring under the erroneous view that the

slightest negligence of Central Gulf would be sufficient for

fixing liability in this case. Whether he held this erroneous

view or not, it is clear that the judge erred in submitting the

case to the jury because not even a scintilla of evidence was

adduced on which to base a finding of negligence on the

part of Central Gulf. Therefore, it likewise follows that the

district judge was in error in refusing to grant Central Gulf’s

motion for judgment notwithstanding the verdict and that

the reversal by the Fifth Circuit should be upheld.

Petitioner contends that the appellate court ‘‘far exceed-

ed the proper scope of review...by inquiring into the facts of

the casualty and by examining the credibility of the plain-

tiff.” This contention is entirely incorrect. The reversing

court succinctly described its role in Marvin, supra, at 1297,

as follows:

we as an appellate court must still overturn a

judgment based on a jury verdict in favor of the

plaintiff ‘when there is a complete absence of

probative facts to support the conclusion reach-

ed.. (Emphasis added.)

12

The court went on to describe the reviewing procedure,

citing the Supreme Court in Shulz v. Pennsylvania Ruilroad,

supra, as one in which the appellate court looks for evidence

of witnesses’ direct statements or proof of circumstances

from which inferences can fairly be drawn to support the

jury verdict.

The Fifth Circuit in the case at bar followed precisely the

above stated procedure by examining the record, which con-

sisted of testimony by the plaintiff alone. There was no

examination of Marvin's credibility because credibility is

not at issue in this litigation. It is not a question as to

whether Marvin was believable, but, merely as to whether

there were any facts presented which tended to prove that

Central Gulf was negligent and hence liable for Marvin's

injury. The reviewing court found that the record did not

reflect any direct testimony or inferences sufficient to sup-

port the jury’s finding of negligence.

After an exhaustive study of the record in this case it is

evidence that the jury verdict of negligence was based solely

on the closing argument to the jury by counsel for petition-

er wherein he made issue of the fact that Central Gulf did

not present any witnesses. Petitioner re-urges this point

in his petition at page 18 where he re-states that the ship’s

captain was present in Court but not called to testify. This

Court cannot be swayed by petitioner’s argument to the

jury because, as a matter of law, the burden of proof rest-

ed with the plaintiff, Marvin, and he failed to carry his bur-

den to prove that Central Gulf was negligent. Consequent-

ly, as a matter of law, Central Gulf was not required, nor

even expected, to present testimony to refute that which

had simply not been proven.

13

Respondent respectfully suggests that that portion of pe-

titioner’s petition, (contained in essence on pages 12-14,

and A-15-21), which comprises an attack on the intentions

and motivations of Judge Gee should be disregarded and

stricken by this Court as being irrelevant, immaterial, and

scandalous matter as is provided by Rule 40(5) of the Rules

of the Supreme Court of the United States. The referenced

portion of petitioner’s petition is a simple and transparent

attempt to discredit and embarrass Judge Gee by inferring

that he would circumvent or ignore the controlling decisions

of this Court.

It is ridiculous and naive of counsel for petitioner to con-

tend that the appellate decision on appeal was solely that of

the authoring judge, Judge Gee. The panel was composed of

Judges Wisdom, Fay, and Gee. The petitions for rehearing

and for rehearing on banc were reviewed and denied by

judges other than just Judge Gee.

The charge by petitioner that Judge Gee engaged in ad-

vocacy is insulting to the integrity of the appellate procedure

and borders on contempt. The decision authored by Judge

Gee is a well-reasoned opinion which explains the basis for

the reversal by examining the evidence and concluding that

there were no probative facts adduced at the trial. The ele-

ment of advocacy was absent: the appellate court performed

the function which the district court was remiss in not under-

taking by denial of Central Gulf’s motions for directed ver-

dict and for judgment notwithstanding the verdict. The trial

testimony and permissible inferences were finally properly re-

viewed and assessed by the Fifth Circuit Court of Appeals

and the order of reversal must stand.

14

DID NOT THE DISTRICT COURT COMMIT REVERSIBLE

ERROR IN SUBMITTING THE CASE TO THE JURY AND

IN REFUSING TO GRANT RESPONDENT’S MOTION

FOR DIRECTED VERDICT WHERE THE EVIDENCE WAS

INSUFFICIENT TO ESTABLISH ANY SPECIFIC NEGLI-

GENCE ON THE PART OF RESPONDENT?

Considering the evidence in its most favorable light to the

petitioner’s case, the petitioner proved nothing more than an

accident and injury when the mooring line under a heavy

strain For some reason or other slipped off the fairlead. It

is pertinent to paraphrase here the Traupman ? court's co-

gent reasoning: A jury will be allowed some latitude in

speculating on a connection between admittedly negligent

conduct of a defendant and an injury, but may not be per-

mitted the same latitude with respect to determining that

there was negligence in the first place.

The reversal by the appellate court was imperative since

neither a cursory nor an in depth examination of the record

reveals any negligence whatsoever on the part of Central

Gulf. The jury, in reaching its finding of negligence, could

only have acted out of abuse of discretion or misappreciation

of law.

The Fifth Circuit found that the record indicated two

possible theories for finding Central Gulf negligent: the pro-

cedure of backing the ship may have been inherently danger-

ous and constituted negligence, or one of Marvin's co-em-

ployees may have been negligent in carrying out the docking

manuever. After a review of the testimony, the appellate

court, Marvin, supra, at 1297, 1298, rejected both theories

3. Traupman v. American Dredging Co., 470 F. ad at 738.

15

and held as follows:

“The evidence in the record could not support a

jury finding against Central Gulf on the former

theory, negligence inherent in the backing proce-

dure employed, since no testimony was heard

suggesting that backing the ship in this manner

was a particularly dangerous or even unorthodox

method. Indeed, Marvin himself indicated that

he had on other occasions assisted in backing a

ship in this way. [Emphasis added and footnote

omitted.}] Absent any evidence that the method

employed was itself in any way unusual or haz-

ardous and the matter being well beyond the

ambit, of common knowledge or judicial notice,

the jury had no basis for finding that the Central

Gulf employees in charge of the GREEN

SPRINGS acted negligently in choosing to move

the ship in this manner.

“Under the remaining theory of recovery, Mar-

vin's testimony points to his conclusion that the

chief mate, who directed the backing operation,

was negligent in failing to stop the process (as by

instructing Marvin to slack the line) before the

line slipped the fairlead and struck Marvin. We

are forced to conclude that the evidence likewise

failed to make out this ground of recovery.”

The reviewing court observed that Marvin was unable to

offer any physically cogent reason why the line might have

jumped the fairlead, and quoted Marvin’s testimony that

for some reason or another the line slipped the fairlead.”

16

The evidence fails to establish an unsafe procedure and there

was no evidence on which to base a conclusion that a co-

employee should have seen that the accident was about to

occur. Marvin, supra, at 1298.

The trial of this case to a jury does not dispense with the

requirement that negligence be proved by the plaintiff.

DeZon v. American President Lines, Ltd., supra; Jamison v.

Encarnacion, supra; Buford v. Cleveland & Buffalo Steamship

Co., supra; Repsholdt v. United States, supra; Gypsum

Carrier, Inc. v. Handlesman, supra; Diddlebock v. Alcoa

Steamship Co., supra; Schlichter v. Port Arthur Towing Co.,

supra; Traupman v. American Dredging Co., supra.

In the case at bar there was a complete and utter failure to

establish anv proof of negligence on the part of Central Gulf.

In returning a ve ict for Marvin on the negligence issue,

it is clear that the jury let ite speculation ‘‘run riot.“ The

jury’s verdict in Marvin’s favor on the negligence issue, in

spite of the complete lack of evidence of negligence, demon-

strates clearly that its decision was an unpermitted “product

of sheer surmise and conjecture. 5 Speculation, of course,

“cannot supply the place of proof. 6 The rule of Lavender

v. Kum, 327 U.S. 645, 66 S.Ct. 790, 90 L.Ed. 916 (1940),

and Rabb v. Canal Barge Company, 428 F.2d 201 (5th Cir.

1970) is not to the contrary, and in this instance the appear-

ance of reversible error is clear in that there is a complete

lack of probative evidence supporting the jury verdict.”

4. Buford v. Cleveland & Buffalo Steamship Co., supra, 199.

5. Traupman, supra, 738.

6. Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 578, 71 S.

Ct. 430; Buford v. Cleveland & Buffalo Steamship Co., supra, 199.

17

With respect to respondent’s position that Marvin simply

failed to carry the burden of proof, reference is made to the

decision of Armstrong v. Commerce Tankers Corp., 423 F.

2d 957 (2d Cir. 1970). There, as in this case, plaintiff chose

to rely upon his own testimony alone in establishing his case.

The gravamen of his complaint was that while leaving a cabin

aboard ship after one of the occupants of the cabin took of-

fense at something he said, the door of the cabin slammed

shut on his thumb “with force producing a compound frac-

ture. The jury returned a verdict in his favor finding that the

negligence of one of his co-employees was the proximate

cause of Armstrong’s injury. The Trial Court granted defen-

dant’s motion for judgment notwithstanding the verdict on

the ground that proof of negligence was wholly lacking. In

affirming the Trial Court, the Second Circuit Court of Ap-

peals said in pertinent part:

“Although, as this circuit has emphasized before,

a jury's verdict is not lightly to be set aside, it is

apparent that the jury’s finding that some active

negligence was performed by the plaintiff's ship-

mates was sheer surmise and conjecture. [Citing

cases]. 423 F. ad at 960.

Inasmuch as the jury verdict in favor of Marvin was based

upon pure surmise and conjecture, as in Armstrong, the facts

of this case readily support the Fifth Circuit’s reversal of the

jury verdict and of the district court’s refusal to grant the

motions for directed verdict and for judgment notwithstand-

ing the verdict.

CONCLUSION

In conclusion, Central Gulf, respondent, urges this Court

18

to refuse the petition for writ of certiorari for the reason that

the Fifth Circuit Court of Appeals properly reversed the judg-

ment of the lower court denying defendant's motion for

directed verdict and for judgment notwithstanding the ver-

dict, on the grounds that there was a complete absence of

probative facts to support the conclusion reached by the

jury. In further support of respondent’s position that the

petition must be denied is the fact that the reviewing appel-

late court correctly held that the district court committed

reversible error in submitting the case to the jury and in re-

fusing to grant the motion for directed verdict where the evi-

dence was insufficient to establish any specific negligence on

the part of Central Gulf.

Finally, in support of respondent's position in opposition

to this petition for writ of certiorari, Central Gulf relies on

the cogent reasoning of the Fifth Circuit, which reflects a

proper review of the evidence in the record:

Marvin has not presented any evidence which

would support the conclusion that anyone con-

cerned acted negligently in any specific manner

while docking the S/S GREEN SPRINGS. All

that he, the sole witness, could say was that in

the course of a procedure not shown to be un-

common or improper the line somehow came

loose and struck him. No evidence was even pre-

sented as to the manner in which this did or could

have happened, let alone that it resulted from

anyone’s carelessness. . . .[T]he burden of prov-

ing negligence and causation in a Jones Act case

is a light one, but even at sea injury does not pre-

suppose negligence.” Marvin, supra , at 1299.

19

Respondent, Central Gulf, urges this Court to recognize

that the Fifth Circuit was correct in reversing the district

court and in overturning the jury verdict for the obvious

reason that Marvin failed to carry the burden of proof and,

hence, the evidence presented did not justify a finding of

negligence.

For the above stated factual and legal reasons, it is respect-

fully submitted that the petition for writ of certiorari must

be denied.

Respectfully submitted,

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE &

DENEGRE

BY:

JOHN J. BRODERS,

JOHN O. CHARRIER, IR.,

and EDITH BROWN CLEMENT

28th Floor, 225 Baronne Street

New Orleans, Louisiana 70112

Telephone: (504) 581-6641

Attorneys for Respondent

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CERTIFICATE OF SERVICE

I hereby certify that copies of this reply brief have been

served on counsel for petitioner, John I. Marvin, by placing

same in the U.S. Mail, postage prepaid, properly addressed

to Bruce A. North, 820 Gravier Street, Suite 500, New

Orleans, Louisiana 70112, this 16th day of December, 1977.

JOHN J. BRODERS