Opposition — United States Navigation, Inc. v. Esposito

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J Supreme Ca Court, U.S

FILED

MAR 30 {978

Supreme Court of the Huited mates, AK, JR., CLERK

October Term, 1977

—}

No. 77-1296

In The

UNITED STATES NAVIGATION INC.,

and

SCINDIA STEAM NAVIGATION CO., LTD.,

Petitioners,

vs.

JOHN ESPOSITO,

Respondent.

On Petition For a Writ of Certiorari to the United States Court

of Appeals For the Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

FODERA, DORFMAN & FERRARI

Attorneys for Respondent

26 Court Street

Brooklyn, New York 11242

(212) 875-9772

JACK H. DORFMAN

Of Counsel

LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

L. RICHARD FODERA |

740

TABLE OF CONTENTS

Page

Opinion Below ...cccccccccccsccccccccccccccccsccecess 2

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Argument:

Respondent’s Reasons For Denial of the Writ (Commenting

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TABLE OF CITATIONS

Page

Cases Cited:

Dailey v. Carroll, 248 Fed. 466 (2d Cir. 1917) .............. 4,5

Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83

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Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d

Se Ge EN CUED SNebie cen s ence nbn cestecsesnéosnce 5

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Contents

Hastorf v. F. R. Long — W. G. Broadhurst Co., 239 Fed.

Boe Ge Ge. GREED cccccvcsccccccccecodencesescevess

Leary v. United States, 14 Wall 607, 81 U.S. 607, 20 L. Ed.

FED 6006606060640 r bees eo ecntesénss coiesemnsenbes

N.L.R.B. v. Amalgamated Clothing Workers of America,

GID F.20 SES Gee Ge. TOFD cvcccscccecccsccsccccees

Reyes v. Marine Enterprises Inc., 494 F.2d 866 (Ist Cir.

DED 56a ntacndeccenecuces sebnasedencseuntnveeses

Scalafani v. Moore McCormack Lines, Inc., 388 F. Supp.

897 (D.C.N.Y. 1975), aff'd., 535 F.2d 1242 ............

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872,

Se Gn Hh CUED bc cc svincdcctecconnsencineeeess

Taylor v. McKeithen, 407 U.S. 191, 32 L. Ed. 2d 648, 92 S.

Bes SE CUNSNS6 6b onccendecniweswesndesaerseeéeaes

The Pennsylvania Railroad Company v. McAllister Broth-

ers, Inc., 137 F. Supp. 788, aff'd., 240 F.2d 423 (2d Cir.

The Willie, 231 Fed. 805, 152 C.C.A. (2d Cir. 1916) ........

Statutes Cited:

1972 Amendments to the Longshoremen’s Harbor Workers

Compensation Act, 33 U.S.C.:

§901, Ch. 509 §1, 44 Stat. 1424 00... . eee eee eee

Page

i

Contents

Page

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SPEED cb cendvisevesccvusdencsevesneenccsnsedeens 4

Rules Cited:

Rules of the Supreme Court, Rule 19 ..................45. 3,7

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In The

Supreme Court of the United States

October Term, 1977

—p-

No. 77-1296

UNITED STATES NAVIGATION INC.,

and

SCINDIA STEAM NAVIGATION CO., LTD.,

Petitioners,

VS.

JOHN ESPOSITO,

Respondent.

On Petition For a Writ of Certiorari to the United States Court

of Appeals For the Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

2

OPINION BELOW

The Court of Appeals unanimously affirmed the unreported

judgment of the district court on the opinion of Chief Judge

Jacob Mishler.

JURISDICTION

Respondent does not question the jurisdiction as set forth in

the petition.

STATEMENT

The instant case which petitioners desire to bring before this

Court for review involves little more than a tort claim by

respondent John Esposito, a longshoreman, who sued to recover

damages for the personal injuries he sustained while working

aboard a barge. Cargo was in the process of being discharged

from a Scindia ship onto the barge on which respondent was

working as part of a continuous operation, then to be

transferred to another Scindia vessel berthed nearby. Petitioner

United States Navigation had possession of the barge under a

hiring for an indefinite term over which it exercised sole and

exclusive dominion and control. The district court found, on the

facts, that United States Navigation was a demise charterer of

the barge with the concomitant duties of owner pro hac vice

(Sa),' the predicate for its liability to respondent for the personal

injuries he sustained due to the unseaworthy condition of the

barge. The court also held Scindia liable as the principal for

whom United States Navigation was agent.

The issues before the trial court (non-jury) were just another

instance of an injury to a longshoreman who derived his right of

action from Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct.

872, 90 L. Ed. 1090 (1946), and the plethora of cases that

followed, including Gutierrez v. Waterman Steamship Corp.,

|. Refers to page number in appendix to petition.

on)

373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 297 (1962), and others,

which extended the shipowner’s liability shoreward to the pier,

and beyond.

This case presents no questions of import to bring it within

the ambit of those considerations governing review on certiorari

as outlined in Rule 19 of the Rules of the Supreme Court; nor is

any factual aspect of the case, or the opinion of Chief Judge

Jacob Mishler, novel, unique, of first impression or of public

interest warranting intervention at this stage of the judicial

process.

Moreover, petitioners’ contentions and supporting

arguments have already been considered four times, once before

Chief Judge Mishler, and on three separate occasions by the

circuit court of appeals — a distinguished bench. More recently,

an application for a stay presented to the Hon. Thurgood

Marshall was also denied.

ARGUMENT

RESPONDENT'S REASONS FOR DENIAL OF THE WRIT

(COMMENTING ON PETITIONERS’ POINTS)

=>

.

If, arguendo, petitioner United States Navigation is correct

in its assertion that the question it raises has commercial

importance — namely, its need, and that of shipping agents

similarly situated, to now obtain insurance coverage to protect

themselves against non-negligent liability for pre-demise

unseaworthiness, I direct the Court’s attention to the 1972

Amendments to the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. §901 ef seg., Ch. 509 §1, 44 Stat.

1424, which renders this issue moot.

The accident at bar occurred March 18, 1969, and because

the 1972 amendments to §905 were not applicable to injuries

4

sustained prior to the effective date of the amendments

(Scalafani v. Moore McCormack Lines, Inc., 388 F. Supp. 897

(D.C.N.Y. 1975), affd., 535 F.2d 1242; Reyes v. Marine

Enterprises Inc., 494 F.2d 866 (Ist Cir. 1974)), the long line of

cases involving injuries to longshoremen to whom was owed the

duty to provide a seaworthy vessel pertained.

The purpose of the 1972 amendments was to relieve vessels

of liability to longshoremen for damages under the admiralty

doctrine of unseaworthiness and to eliminate the vessel’s action

for indemnity against the stevedoring company. The reference to

“vessel” in §905(b) includes not only the vessel itself, but its

owner, owner pro hac vice, agent, operator, charter or bare boat

charterer, master, officer or crew members §18(b), 33 U.S.C.

§902(21).

Therefore, petitioners’ argument that commercially

important questions are raised which should be settled is of no

consequence because the longshoremen can no longer sue for

non-negligent injuries or for pre-demise unseaworthiness.

In regard to the issues presented herein, it is settled law that

charters of barges without motor power, in local harbors, are

demises, from which it naturally follows that the demisee is

looked upon as the owner pro hac vice of the barge. The

charterer is therefore subject to all of the duties and

responsibilities of ownership and stands liable in personam for a

breach of its duty to provide a seaworthy vessel and a

reasonably safe place to work. Dailey v. Carroll, 248 Fed. 466

(2d Cir. 1917); The Willie, 231 Fed. 865, 152 C.C.A. (2d Cir.

1916); Hastorf v. F. R. Long — W. G. Broadhurst Co., 239 Fed.

852 (2d Cir. 1917); Leary v. United States, 14 Wall 607, 81 U.S.

607, 20 L. Ed. 756.

In the case at bar, the district court found, as a fact, that

United States Navigation was in possession and control of the

barge for nineteen (19) days and entitled to divert its navigation

5

and employment, which it did (4a). As an owner pro hac vice,

United States Navigation had the duty to furnish a seaworthy

barge and the concomitant obligation to provide longshoremen,

such as respondent, with a safe place to work. The district found

that it breached this duty. The issue was uncomplicated and the

findings supported by ample precedent.

The cases to which petitioners allude are inapposite for they

relate to self-propelled navigational vessels and are otherwise

distinguishable on the facts. Petitioners misconceive that a

special rule of law applies to barges, which, in the opinion of

Dailey v. Carroll, supra, rests on “the nature and exigencies of

harbor business only.”

“11.”

The district court could have relied on alternative principles

of law in the imposition of liability as to Scindia (shipowner),

i.e., the longshoreman (respondent) was working in the service

of the ship performing an integral part of the unloading of

petitioners’ cargo vessel. The Pennsylvania Railroad Company

v. McAllister Brothers, Inc., 137 F. Supp. 788, aff'd, 240 F.2d

423 (2d Cir. 1957)?; Hagans v. Ellerman & Bucknall Steamship

Co., 318 F.2d 563 (3d Cir. 1963). Instead, Chief Judge Mishler

applied the law of agency (5a) and held Scindia liable for its

agent’s acts which were performed within the scope of its agency

— basic “hornbook law”. There is nothing remarkable about

this concept to invite further judicial intervention.

“1.”

The thrust of petitioners’ argument to justify review by this

Court is what they choose to refer to as a summary affirmance

by the court of appeals, but neglect to include the critical words:

“on the opinion of Chief Judge Mishler below.”

2. In the district court action, on substantially similar facts, the

predecessor law firm to petitioners’ present attorneys admitted liability to the

longshoreman.

6

if the circuit court recited Judge Mishler’s opinion

verbatim, and concluded with the words: “Appellants

contentions are without merit. Affirmed.”, could it be said that

the court rendered a summary affirmance?

It is undisputed that there is an ever-increasing caseload of

federal judicial business, especially in the Second Circuit. This

monumental task has led to the promulgation of Rule §0.23

which, in the proper case, authorizes a summary disposition.

This is not to say that a summary affirmance is indiscriminately

rendered; there is a careful judicial screening and safeguards to

assure the proper disposition of a case. As was stated in

N.L.R.B. v. Amalgamated Clothing Workers of America, 430

F.2d 966 (Sth Cir. 1970):

“...in a number of cases there is no real need

for an opinion at all. Where in a given case that

is the considered judicial judgment of three

Judges comprising a panel, then it is perfectly

obvious that the now limited and precious

judicial resources can be husbanded by a

procedure which eliminates that unnecessary

opinion.”

The Supreme Court is faced with an even more gargantuan

burden with the inordinate number of petitions for a writ of

certiorari and can well appreciate the necessity to screen the.

cases to ascertain those that have precedential value. In the

words of Mr. Justice Rehnquist in the case of Taylor v.

McKeithen, 407 U.S. 191, 32 L. Ed. 2d 648, 92 S. Ct. 1980:

“I think decisions as to whether opinions should

accompany judgments of the courts of appeals,

and the desirable length and content of those

opinions are matters best left to the judges of the

courts of appeals.”

RT tt cd

-

The ultimate question, therefore, is not whether the court of

appeals has too much latitude, but whether che particular case is

an appropriate candidate for elucidation.

In the case at bar, the circui. court of appeals did express its

views when it adopted the opinion of Chief Judge Mishler.

It is evident that petitioners have failed to present a

convincing argument that this case involves questions or

principles of law important to others than the parties litigant.

The decision below does not involve a precedential question of

federal law which should be settled by this Court; the questions

of law are not of public importance or affect large public

interests, and, more significantly, the issues have been moot

since the 1972 Amendments to the Longshoremen’s and Harbor

Workers’ Compensation Act.

Succinctly stated, Rule 19 has not been satisfied.

CONCLUSION

For the enumerated reasons, which have eroded petitioners

arguments, respondent submits that the petition for a writ of

certiorari should be denied.

Respectfully submitted,

s/ L. Richard Fodera

FODERA, DORFMAN

& FERRARI

Attorneys for Respondent