Petition — Empresa Lineas Maritimas Argentinas v. Samuels

EMPRES

PETITIO}

INDEX

Page

SE A a ee 1

EL ST ae 1

Questions PRESENTED:

1. Whether 33 U.S.C. §905(b) of the Longshore-

men’s and Harbor Workers’ Compensation Act

which purports to relieve the shipowner from

liability in damages for acts or omissions of the

stevedore, requires the finder of fact to eval-

uate and ascertain the percentages of fault of

the concurrently negligent stevedore and reduce

the plaintiff/longshoreman’s recovery against

the shipowner accordingly. [This question will

in general be referred to as the “equitable

eredit or proportional fault issue.”] ........ 2

2. Whether under the 1972 Amendments to 33

U.S.C. §905(b) which abrogated a longshore-

man’s cause of action based upon the warranty

against unseaworthiness, the shipowner is liable

for injuries to an employee of an independent

contractor when the danger presented at the

place of work on the ship is open and obvious

and known to the stevedore supervisory em-

ployees, and the ability to mitigate the dangers

ee ee eee ee eee. 4a le ey,

Writ:

w Is SHarPLy In CoNFLICT

JrHER Courts or APPEALS ..

Circuit versus Fourth Cir-

. Credit Question. Certiorari

review this conflict in Ed-

19 on November 6, 1978 ...

versus Second Circuit on

WS NEN S de ccnndusys

rsus Land-based Negligence

$0208 686648 006060066 6 0 6 @@:6. 8 6

LVES IMPORTANT QUESTIONS

RPRETATION IN WHat Con-

s Feperat Law. THe Dect-

oF APPEAL ARE IN DISARRAY

Can On ty Be Resotvep By

or Tus Court ..........

12

Page

Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S.

106, 94 S.Ct. 2174, 40 L.Ed. 2d 694 (U.S. 1974) 12, 13, 14

Cox v. Flota Mercante Grancolombiana, S8.A., 577 F.2d

798 (2d Cir. 1978), cert. denied, Case No. 78-72 ... 8,9

Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362 (Pa.

ic EE, SIRE NA Fe aE ETD as 11

Crawford Johnson & Co. v. Duffner, 189 So.2d 474 (Ala.

nn RO TEES Clin Eee 1 ay a Shit aaa 11

PUNE hae BEG Ca ada thks an i 60s «-aedione oi 11

S.Ct. 1685, 48 L.Ed. 2d 188 (1976) ........... 6, 12,13

Edmonds v. Compagnie Generale Transatlantique, 557

F.2d 1153 (4th Cir. 1978), cert. granted No. 78-479

¢ Revit ee re 6, 7, 12, 14,15

Florida Power ¢ Light Co. v. Robinson, 68 So.2d 406

SC RE Ae Fak 65S) died one bh 0-ns-08 sa or'ds o dice 11

ME Ae whht ntkab he Cai ni tks ns Gli kbs kes kane <a 11

cert. denied, 364 U.S. 835, 81 S.Ct. 70, 5 L.Ed. 2d

61, rehearing denied. 364 T].S. 906. 81 S C+ 921 5

+ be — Doe

Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.

eidd ETT ET ee et i Es 7

Miles v. Shell Oil Co., 498 F.2d 105 (Sth Cir. 1974) ... 11

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202,

938 L.Ed. 143 (U.S. 1953) ...................... 12,13

Pruett v. Precision Plumbing, Inc., 554 P.2d 655 (Ariz.

App. 1998). ...; .icscinpemsedaca eee ee 11

Ryan Stevedoring Co. Inc. y. Pan-A tlantic Steamship

Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133

secant OT ee I LN) Ngee op 6,13

Samuels v. Empresa Lineas Maritimas Argentinas, 573

F.2d 884 (Sth Cir. 1998) ..ccc3........0.5.: passim

Schwarz v. General Electric Realty Corp., 126 N.E. 2d

TS (Obke BOUR)..... ..icncnsscatanee a Dee 11

Seas Shipping Co. v. Sieracki, 3283 U.S. 85, 66 S.Ct. 872,

SO Is.d. 1600 (2008) oo cc cease filha, 5-6

Seeney v. Dover Country Club Apartments, Inc., 318

A.2d 619 (Del. App. 1974) ..................... 11

Shellman v. United States Lines, 528 F.2d 675 (9th Cir.

1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1668, 48

MBG, D8 UF (RUUD on cacnccas ek, cc. oe 6, 12,13

Storm v. New York Telephone Co., 270 N.Y. 103, 200

NAB. GD (RY. 008) ow... ices ee. 11

EMPRESA

PETITION

The peti

tinas respe

to review

States Cou

for rehearing en bane was denie¢

and this petition for certiorari wa

of that date. This Court’s jurisdic

28 U.S.C. § 1254(1).

QUESTIONS PRESE!

1. Whether 33 U.S.C. § 905(b

men’s and Harbor Workers’ Com

purports to relieve the shipown

damages for acts or omissions of tl

the finder of fact to evaluate and a

age of fault of the concurrently

and reduce the plaintiff/longs)

against the shipowner accordingly

in general be referred to as the

proportional fault issue.’’]

2. Whether under the 1972 Ame

§ 905(b) which abrogated a longs

action based upon the warranty a

ness, the shipowner is liable for inj

of an independent contractor wh

sented at the place of work on the

vious and known to the stevedore :

ees, an the ability to mitigate the

sory personnel to relay the warning or knowl-

») the employees.

second and third questions will generally be

a to as the ‘‘care standard issues.”’]

STATUTORY PROVISIONS INVOLVED

ed States Code, Title 33 § 905(b):

‘In the event of injury to a person covered un-

this Act caused by the negligence of a vessel,

n such person, or anyone otherwise entitled to

ver damages by reason thereof, may bring an

ion against such vessel as a third party in ac-

dance with the provisions of section 33 of this

, and the employer shall not be liable to the

sel for such damages directly or indirectly and

agreements or warranties to the contrary shall

oid. If such person was employed by the vessel

rovide stevedoring services, no such action shall

ermitted if the injury was caused by the negli-

ce of persons engaged in providing stevedoring

‘ices to the vessel. If such person was employed

the vessel to provide ship building or repair

‘*The vessel should be liable for damages as a

third party, just as land-based third parties in non-

maritime pursuits are liable for damages when,

through their fault, a worker is injured.” H.R.

Rep. No. 1441, 92d Cong., 2d Sess., [1972] U.S.

Code Cong. & Admin. News, pp. 4698, 4702-05.

On the standard of care issue, a direct contlict exists

between the Fifth Circuit in Samuels and the Second

Circuit in Coz v. Flota Mercante Grancolombiana, S.A.,

577 F.2d 798 (2d Cir. 1978), cert. denied by the United

States Supreme Court in Case No. 78-72 on October 2,

1978.

Indicative of the conflict is that both of these cir-

cuits purport to follow Restatement (Second) of Torts

§§ 342, 343 and 343A as setting the standards for de-

termining what is shipowner negligence under 33 U.S.C.

§ 905(b). Gay v. Ocean Transport & Trading Ltd., 546

F.2d 1233 (5th Cir. 1977) ; Hickman v. Jugoslavenska

Linijska Plovidba Rijeka Zvir, 570 F.2d 449 (2d Cir.

1978). Yet these two Courts apply the standard with

contradictory results.

In the Second Circuit Coz case, a vessel hatch beam

could not be pinned or locked into place because of the

scure

ing a

by im

cuit f

based law that a warning to

ment is sufficien.

For instance in Gulf Oil

753 (5th Cir. 1960), cert. de

70, 5 L.Ed. 2d 61, rehearin;

S.Ct. 231, 5 L.Ed. 2d 199 (U,

‘The owner or occup'

has a duty to warn the «

ent contractor who has |

the property, of dange

inhere in that property,

charged if those in char

dependent contractor a

knowledge of the dang

supervisors in employme

son.”

It should be noted that |

Bivins was applying Restat

§ 342 as it also purported to

The landowner has the ri

tractor’s supervisory person

knowledge about a dangerou

ard Atr Line Railroad Co., 222 F.2d 57 (4th Cir.

99) Georgia law; Brown v. American Cyanamid &

emical Corp., 372 F.Supp. 311 (S.D. Ga. 1973);

oley v. Matson Navigation Co., 313 F.Supp. 555

».D. Ala. 1969), rev’d on other grounds, 434 F.2d 73

th Cir. 1970)—Alabama law; Kelley v. General Tele-

one Co. of the Southwest, 498 F.2d 105 (5th Cir.

74)—Texas law; Miles v. Shell Oil Co., 498 F.2d 105

th Cir. 1974)—Texas law; Hobart v. Sohio Petro-

m Uo., 255 F.Supp. 972 (N.D. Miss. 1966) aff’d 376

2d 1011 (5th Cir. 1967)—Mississippi law; Storm v.

2w York Telephone Co., 270 N.Y. 103, 200 N.E. 659

-Y. 1936); Schwartz v. General Electric Realty

rp., 126 N.E. 2d 906 (Ohio 1955) ; Hotel Operating

). V. Saunders’ Adm’r., 141 8.W. 2d 260 (Ky. 1940) ;

unt Vv. Laclede Gas Co., 406 8.W. 2d 33 (Mo. 1966) ;

ace Vv. Henry Disston & Sons, Inc., 85 A.2d 118

a. 1952); Crane v. I.T.E. Circuit Breaker Co., 278

2d 362 (Pa. 1971) ; American Mut. Liability Ins. Co.

Boston v. Chain Belt Co., 271 N.W. 828 (Wis. 1937) ;

ikovich v. Peoples Gas Light and Coke Co., 195 N.E.

260 (Ill. App. 1963) ; Pruett v. Precision Plumbing,

., 004 P.2d 655 (Ariz. App. 1976) ; Citizen’s Utility

s Court Are in Apparent Conflict.

e law is unmistakeably toward

‘lity according to fault. This

oring Co. v. Fritz Kopke, Inc.,

74, 40 L.Ed. 2d 694 (U.S. 1974)

based upon comparative fault

not statutorily immune in non-

nited States v. Reliable Trans-

) S.Ct. 1708, 44 L.Ed. 2d (U.S.

damages to be allocated in di-

‘elative fault of the vessels in-

on to date refusing to reduce

ist third parties when the in-

r is concurrently negligent has

Laenn Ship Ceiling & Refitting

S.Ct. 277, 96 L.Ed. 318 (U.S.

ot, Inc. v. Hawn, 346 U.S. 406,

143 (U.S. 1953) and Cooper

2 Kopke, Inc., 417 U.S. 106, 94

694 (U.S. 1974). See Zapico v.

2d 714, 724-725 (2d Cir. 1978) ;

md Co., , Inc., 521 F.2d 756, 759-

btn tn £2 es -— = . a. «. * i.

Court’s opinion in Reliable Transfer which advocated

the allocation of ‘‘liability for damages according to

comparative fault whenever possible.’’ 421 U.S. at 411.

While Reliable Transfer was decided two days before

argument of the appeal in Landon, it was cited in

neither that case nor in the subsequent appellate opin-

ions in Samuels, Shellman, or Dodge. Judge Friendly

cites Reliable Transfer in Zapico, 579 F.2d at 725, but

only for a proposition totally unrelated to the appor-

tionment of fault holding for which Reliable Transfer

is best known.

The Halcyon and Hawn precedents are more than a

quarter of a century old. In the interim there have been

vast changes in the Longshoremen’s and Harbor Work-

ers’ Compensation Act by virtue of the 1972 Amend-

ments; the Supreme Court in Cooper Stevedoring Co.

v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174 (1974)

has specifically held that the doctrine of contribution

applies in non-collision admiralty actions, thus emas-

culating the primary holding of Halcyon; and indem-

nity jurisprudence based on Ryan Stevedoring Co. v.

Pan-Atlantic Steamship Co., 350 U.S. 124, 76 S.Ct. 232

(1956) and its warranty of workmanlike service was

Oe a. Ce — . > FY

or Cooper Stevedoring was the Court called upon to

determine the validity of a credit defense such as that

approved by the Fourth Circuit in Edmonds.

Regardless of the distinguishing features of these

Supreme Court cases, each provides some guidance by

analogy. Where, as here, the guidance is inconsistent, it

is appropriate for this Court to step in and eliminate

any discrepancies through a clear directive to the courts

below. This is particularly true in this instance since

‘“‘the Judiciary has traditionally taken the lead in for-

mulating flexible and fair remedies in the law mari-

time... .’’.United States v. Reliable Transfer Co., Inc.,

421 U.S. at 409.

3. The Conflict Involves Important Questions of Statutory

Interpretation in What Congress Designated as Federal

Law. The Decisions of the Courts of Appeal Are in

Disarray and the Conflict Can Only Be Resolved by the

Prompt Action of This Court.

Congress intended that legal questions arising in ac-

tions brought under the Longshoremen’s and Harbor

Workers’ Compensation Act are to be determined as a

matter of federal law.’

asad set tines ae tet at as

Over the pas

gled under the

‘*federal comm

and have tried

the various Sta

common law. 7

development of

identified sever,

formity.

There is a el

uncertainty nov

faced with ma

severity of the

dustry are well

Edmonds, No. '

The granting

opportunity fo)

credit issue.

However ‘‘eq

uncertainties e)

shipowner litig:

A determinat

certainty and uniformity sought |

maritime community.

CONCLUSION

Petitioner respectfully urges t

granting the writ are significant: t

tions of the interpretation of the fi

be reviewed and decided by this Cc

ity will be restored to all maritime

Respectfully submi

NATHANIEL G.

P. O. Box 143

Tampa, Florid

Tel: (813) 22!

Attorney for F

FowLer, WHITE, GILLEN, Bocas,

VILLAREAL AND BANKER, P.A.

Of Counsel

November 13, 1978

APPENDIX

beams abutted only three sides of the stanchion-ladder,

there was a space behind the ladder as wide as the ladder,

described variously by the witnesses as from 16 inches to

21% feet in width. On April 13, 1973, at 9:30 p. m., the plain-

tiff slipped or stepped backwards into this void after get-

ting a drink of water from a cooler.

There was evidence that the stevedore foreman and one

or more of the other longshoremen knew of the hole; but

there was evidence that the plaintiff himself did not know

of it, and that it had never been called to his attenion. There

was no dunnage over the cavity. The opening would have

been open and obvious had the area been well lighted.

The ship was being unloaded at night. It had no fixed or

permanent lights under the tween deck of the lower hold.

Therefore, it was necessary to use drop lights arranged

in a cluster beneath a reflector to provide sufficient illumi-

nation for the work to proceed. The lights were provided by

the ship but placed by the stevedore’s personnel. One was

placed on each of the four corners of the hatch opening.

This provided enough light to enable the men to work.

The degree of illumination, however, was not clearly

established. Some witnesses testified that they could see

the hole into which the plaintiff fell; another that it was

obscure; one testified that the level of illumination was

the |]

light

the }

Ur

liabil

on tl

unre.

pect

dang

condi

evide

Secti

against a vessel sued pursuan

after considerable discussion,

Fourth Circuit in Edmonds v.

atlantique, 4 Cir. 1977, 558 1

granted June 3, 1977, held tha

to be “confined to its own negli

utory fault on the part of the «

tiff’s recovery should be redu

ployer’s negligence. The plain

the compensation he has recei

recoup what he has paid fror

subrogation provision of the ]

Worker’s Compensation Act, 3

The rationale for not reducir

ery because of his employer’s

the Ninth Cireuit’s in Dodge v.

Tokyo, 9 Cir. 1975, 528 F.2d 66!

944, 96 S.Ct. 1685, 48 L.Ed.2d 1§

States Lines, Inc., 9 Cir. 1975

1976, 425 U.S. 936, 96 S.Ct. 166

conclusion was reached (in dic

Landon v. Lief Hoegh & Co., 2

cert. denied sub nom., 1976, 42.

L.E.d.2d 642.

Jireuit allowed what has come to be known as the “Murray

‘redit” and allowed the tortfeasor in a common law tort

ction to claim a 50 precent credit if the compensation-

overed plaintiff’s employer were found to be contributorily

egligent. Murray v. United States, 1968, 132 U.S.App.D.C.

1, 405 F.2d 1361. It later extended the same principle to an

mployee-plaintiff covered by the Longshoremen’s and Har-

or Workers’ Compensation Act. Dawson v. Contractors

‘ransport Corp., 1972, 151 U.S.App.D.C. 401, 467 F.2d 727,

_ pre-1972 amendment case.

In addition, a number of legal scholars have probed for

solution. Robertson, Negligence Actions by Longshore-

ren Against Shipowners Under the 1972 Amendments, ete.,

976, 7 Journal of Maritime Law and Commerce, 447, 480,

/ eq.; Cohen and Dougherty, The 1972 Amendments to the

ongshoremen’s and Harbor Workers’ Compensation Act:

n Opportunity for Equitable Uniformity in Tripartite In-

ustrial Accident Litigation, 1974, 19 N.Y.L. Forum 587 ;

horter, In the Wake of the 1972 Amendments ot the L. &

.W. C.A.: The Vessel’s Rights Against the Stevedore,

76, 7 J. of Mar.L. & Com. 671; Steinberg, The 1972

mendments to the Longshoremen’s and Harbor Workers’

ompensation Act: Negligence Actions by Longshoremen

gainst Shipowners—A Proposed Solution, 1976, 37 Ohio

as 767 + (nlaman ee ee ee 6 ll

‘sions would merely further prolif-

We adhere to the logic of the Ninth

conclusion, we start with the pre-

the employer is immune to suit for

m by the vessel. 33 U.S.C. § 905;

stern Transmission Corp., 5 Cir.

. denied sub nom., 1976, 423 U.S.

d.2d 638; Aetna Casualty & Surety

ng, Inc., 5 Cir. 1973, 490 F.2d 299.

0 the Longshoremen’s and Harbor

Act evidence no intention of over-

_Haenn Ship Ceiling & Refitting

72 S.Ct. 277, 96 L.Ed. 318. Cooper

Fritz Kopke, Inc., 1974, 417 U.S.

Ct. 2174, 2178, 40 L.Ed.2d 694.

rressional aims in 1972 were two-

nseaworthiness action but leave in

tion with promotion of shipboard

8; (2) eliminate any form or ves-

ttempt to shift liability (in whole

indirectly) to the stevedore. See

it.L. & Com. at 484-85. Permitting

1e these aims by effectuating with-

“fo tor eee Se | oe « nee ae

Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and

the longshoreman’s compensation benefits were increased

and the geographic area of coverage expanded. See North-

east Marine Terminal Co., Inc. v. Caputo, 1977, 432 U.S.

249, 97 S.Ct. 2348, 53 L.Ed.2d 320. It is not apparent that

the vessel owner was saddled with a disproportionate bur-

den under the scheme. The plaintiff’s recovery is still re-

duced proportionately to his own fault, Pope and Talbot,

Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143;

see Edmonds, supra, 558 F.2d at 189; Dodge, supra, 528

F.2d at 673; Landon, supra, 521 F.2d at 760, and the Act does

not prevent the shipowner from seeking either contribution

or indemnity from third persons other than from a covered

plaintiff’s employer. But the Act does mandate that the em-

ployer’s exclusive liability will be compensation under the

Act.

If there is a further adjustment to be made when the

vessel’s common law negligence is concurrent with the plain-

tiff’s employer’s negligence, the decision is for the Congress.

Allowing an offset or credit raises questions best decided

by a legislative body which can account for factors that we

may not appropriately consider: what kind of employer neg-

ligence reduces the longshoreman’s recovery: common law

or maritime? [That is, should the standards of judging em-

ployer negligence be the same as thase annijachla tn the