Reply Brief — Scindia Steam Nav. Co. v. De Los Santos

Supreme Court, U. $,

FILED

No. 79-512 NOV 24 1880

AEL R

In the Supreme Court ® cert

OF THE

United States

OcToBER TERM 1979

Scrnpia Steam Navigation Co., Ltp.,

Petitioner,

vs.

Lauro De Los Santos AND SEATTLE STEVEDORE Co.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

REPLY BRIEF OF PETITIONER

Grayvon S. STaRING

Two Embarcadero Center

Suite 2600

San Francisco, CA 94111

(415) 421-4600

Attorney for Petitioner

LeGros, BucHanan, Paut &

MADDEN

Ropert H. Mappen

Lituick McHoss & CHARLES

Epwarp M. Krrecu

Of Counsel

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © &.F., CA O4111 © (415) 981-7882

aves pe

TABLE OF CONTENTS

Page

Ee 1

oo siecennseninvasecscssucecencssccsesoes 2

I. The summary judgment does not invade the jury’s

oi sn sniceveresnscncaresceseroeennentserees 2

II. Respondent provides only confusion as to the

sources and nature of the negligence rules to be

esses ccecanienesnescaentotsssesereccanaiess 5

III. Duty and assumption of risk are different con-

cepts, and respondent’s argument ignores the dis-

tinctions which have been drawn in opinions,

commentaries and the Restatement -......................... 7

IV. Respondent has urged other misconceptions upon

sch dict ccunsanceussenssutnasessnensarecarsnesnsess 12

A. Misconceptions of petitioner’s position ........ 12

B. Misconceptions of law and economic reality 13

Nee scesuevinguccnuevepssevecscecsecessess 15

il

TABLE OF AUTHORITIES CITED

Cases

Page

Albanese v. N/V Nederl. Amerik Stoomv. Maats., 382

i Re | pene terre titer mentee haem MF CENTS ORSON 5, 7

Anderson v. Iceland Steamship Co., 585 F.2d 1142 (1st

Sl MEN ssveccakalshstlesccthaieceaciiblp aba bailsbyuiapuaitaaaaadtandteotsadmesijiaboneie’ 6

The Arizona v. Anelich, 298 U.S. 110 (1936) .......00..2..... 8, 12

Beadle v. Spencer 298 U.S. 124 (1936) ~....0022002 ee 8, 12

Berry v. Atlantic Coast Line R.R., 273 F.2d 572 (4th

Cir.), cert. dented, 362 U.S. 976 (1960) .........00.000... 4

Chambers v. United States, 357 F.2d 224 (8th Cir.

UITTE, Scdpmacsincrepssaciguadintinsensatuletaotaarieseidetedsn dbaiamacagbias 4

Edmonds v. Campagnie Generale Transatlantique, 443

REG I CITE Ge tac cence eeeciesenteicinchond amencinetinaareinsion 13, 14

Elder v. Pacific Telephone & Telegraph Co., 66 Cal.

App.3d 650, 136 Cal.Rptr. 203 (1977) .....0.. 0... 6

Federal Marine Terminals, Inc. v. Burnside Shipping

Cig, Te Mee PI A MI ca ecssnsincintavaticnsnbcbeunicgioadtalanbonsecibicas 6

First National Bank v. Cities Service Co., 391 U.S. 253

CIR eitirsictesonsictnassteichansecveniatbiaha Aacaubealastimccnen alana de 4

Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233

(OE A SI Snieneei tis eeckeatas as eadenecdanadas i)

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

CRE sncsecacosteanniatndccnelidninncite pibiteneaies 1, 5,6

Hugev v. Dampskisaktieselskabet International, 170 F.

Supp. 601 (S.D. Cal. 1959), aff'd sub nom. Metro-

politan Stevedore Co. v. Dampskisaktieselskabet In-

ternational, 274 F.2d 875 (9th Cir.), cert. denied, 363

RE Ie CE pitas csolorscescmestnclnacimonsaicinsburtaniads 6

ili

TABLE OF AUTHORITIES CITED

CasES

ILWU vy. Kuntz, 334 F.2d 165 (9th Cir. 1964) 00202... 4

Johnson v. Sioux City & New Orleans Barge Lines,

Ine., No. 80-1450 (7th Cir. August 21, 1980), cert.

denied, 49 U.S.L.W. 3351 (November 10, 1980) (No.

aN SIRI SELLE TE IO SAT OTS kN EN ESE 14

Madeirense Do Brasil S/A v. Stulman-Emrick Lumber

Co., 147 F.2d 399 (2d Cir.), cert. denied, 325 U.S. 861

| ERROR RTE LRN LO LARA OEE T TNE I sree Mr 4

Mickle v. The Henriette Wilhelmine Schulte, 188 E.

SNe A erty SNe WUPOUE Siccebicieticcicisisauceedcneithcsninbiebhcennsasan 6

Owens v. Union Pacific R.R., 319 U.S. 715 (1948) -......... 9

Partenweederei, MS Belgrano v. Weigel, 299 F.2d 897

(9th Cir.), cert. denied, 371 U.S. 830 (1962) 0... 4

Riddle v. Exxon Transportation Co., 563 F.2d 1103 (4th

TGs SNP D = Sis ccanceh dass Suronsdibadpoclh ecco ected pablus 9

Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97,

I Ae ae I os cassnsciecvoekdenehuidcrcsvemetladadecniataainateniien 6

Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424

III 7 chasis tiara eee ancdericasceen sc ananaieaccaaaaatonnaaiale pnadaed i aaaennt 9,12

Tiller v. Atlantic Coast Line R.R., 318 U.S. 54

(RENEE ACT ora ate see ren kee HSER Reece MANOEL 8, 9, 12

West v. United States, 361 U.S. 118 (1959) -....00. 6

Wiles v. Delta Steamship Lines, Ine., 574 F.2d 1338

CRUE UNE SUITE sisi ibicbuta acta boinaecnocibdgecaencigauanbeaunlajamnsinanien 9

iv

TABLE OF AUTHORITIES CITED

Miscellaneous

Page

2 F. Harper & F. James, The Law of Torts (1956) ... 7

H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess., reprinted

im [1972] U.S. Code Cong. & Ad. News 4698 .............. 5

James, Assumption of Risk: Unhappy Reincarnation,

Fe Oe aac Be CIEE esis achat peccaaadenas 11

Keeton, Personal Injuries Resulting from Open and

Obvious Conditions, 100 U. Penn. L. Rev. 629 (1952)

iccsnlasibalbaaialesiliaiinsiinsidasigsianipatipicameahelamoaaeaeaaane 7, 8, 10, 11

W. Prosser, Law of Torts (4th ed. 1971) 00.0022. 8, 10, 11

Restatement (Second) of Torts (1965) :

INE IIE isis eh: ochaniinnnclniaiathiatuaiticnsiaeeetanicadeceseiiacadaneaaiana 9

PIII si essescsnniisacsieniastcsistchebisbecsigasasiaialesSiesciiipmtdastmasmeammeeie 9

eae aE eT 10

PN ings nii atest nneiadonnsiegpnedeciagie alan nea 9

RII. ssseciscscactcissaSieicusdomnniibipbennicesceeeh nebiacoiaaatlee tia aa laine 9

ns SU ao 8

XN ERE {as aaa META LE MAIN EA WA Si at 9, 10

mene GL, Smee aniseed 11

No. 79-512

In the Supreme Court

OF THE

United States

OcroBER TERM 1979

Scrnpia STEAM Navication Co., Ltp.,

Petitioner,

VS.

Lauro Dr Los Santos AND SEATTLE STEVEDORE Co.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

REPLY BRIEF OF PETITIONER

SUMMARY OF ARGUMENT

1. Respondent’s quibbling with the district court’s opin-

ion cannot obscure the correctness of that court’s conclu-

sion that on the agreed facts, the uncontroverted facts,

and assumptions in Respondent’s favor on all other mate-

rial facts, summary judgment was proper.

II. Respondent argues as if the duty question con-

cerned rules of general maritime law, not standards of

general and land-based law, and relies virtually exclusively

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

although Gutierrez was based upon a holding of non-

delegable duty to the plaintiff, a principle expressly re-

jected by Congress for the 1972 amendments.

2

III. Respondent confuses the defense of assumption of

risk with the duty element of a prima facie case of negli-

gence. The distinction between duty, which arises from

foresight and depends upon the reasonable expectation of

the defendant, and assumption of risk, which turns solely

on what the plaintiff knew, understood and voluntarily

agreed to risk, has been acknowledged by judges, scholarly

writers and the Restatement of Torts. As Respondent

acknowledges, the disavowal of assumption of risk in the

legislative history is only a resort to those principles

established by this Court’s rejection of assumption of

risk, and therefore cannot be interpreted as a call for the

abolition of restrictions on duty.

IV. Misconceptions in Respondent’s brief require cor-

rection: the shipowner does not contend that negligence

of a co-worker bars recovery, argue that plaintiff must

prove it had actual knowledge of the danger, nor contend

for immunity from liability; simple economies dictate that

lien recoveries will reduce the stevedore company’s safety

incentive; comparative negligence principles do not indi-

cate that the rule below promotes safety since the negli-

gence of the stevedore company cannot be compared; and

the assertion that lump sum payments subject to attorney’s

fees are as secure as compensation benefits is patently

wrong.

ARGUMENT

I

THE SUMMARY JUDGMENT DOES NOT INVADE

THE JURY’S PROVINCE

Respondent attacks the summary judgment first by quib-

bling through the district court’s discussion of the facts.

3

A fair reading shows that the district court made all the

necessary assumptions in Santos’ favor. But what, if any-

thing, the district court “found” and what assumptions it

made are, in the last analysis, immaterial here. The ques-

tion is simply whether the record supports the summary

judgment and not how the district court opinion was

written. To test the summary judgment we must take first

the material facts expressly agreed in the record and then

add those which are uncontroverted, make assumptions in

Santos’ favor as to any remaining material facts, and

apply the proper legal principles to the result.

It has been unquestionably agreed that the stevedore

“was in control of the loading”;' the alleged jumpiness of

the winch was known’ and obvious’; a pallet board struck

the pallet jack spilling sacks into the hatch;* thereafter

the balance of the load was lifted about 15 feet while

Santos cleaned up below; and, while Santos was still

engaged in this work, more sacks fell from the load, one of

them striking him.*® That the stevedore company never re-

1Pre Trial Order, A.11, Agreed Fact 7.

*Brief of Respondent at 5 (“winch had been failing to hold...

December 8th, 9th and 10th”), 7 (complaint to foreman December

8); Santos’ deposition quoted Pet. App., p. A-5.

®Respondent’s contention that there were two defects in the

winch (Brief of Respondent at 20 n.8) is as unavailing as it is

disingenuous. Santos himself testified that by “jumpy” he meant

the condition resulting from the assumed defective brake. ( Santos’

deposition, p. 36.) The condition about which Respondent now

complains was, in any event, both obvious and known to the steve-

dore company.

‘Pre Trial Order, A.11, Agreed Fact 4.

‘Pre Trial Order, A.11, Agreed Fact 5.

°Pre Trial Order, A.11, Agreed Fact 6.

+

ported or complained to the ship about the winch was

uncontroverted by any proffer of evidence’ of reports or

complaints or that the vessel knew about it.* It was like-

wise uncontroverted that the vessel was not required to

discover the alleged defect by any established standard,°

and the vessel did not intervene by giving any directions

in the circumstances.” It must be assumed, in addition,

that the alleged defect of the winch brake caused both the

first and the second fall of sacks of grain into the hold.

In reviewing the summary judgment, these facts and no

more (even those we have called uncontroverted being

probably superfluous) are the ones which must be tested

against the proper legal standard. It is that standard

which must ultimately govern, whether on summary judg-

ment or full trial, and that standard is the principal

subject of this case.

"Summary judgment is not to be denied simply because a plain-

tiff who does not come up with evidence might do so someday.

See, e.g., First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-

90 (1968); ILWU v. Kuntz, 334 F.2d 165, 169 n.5 (9th Cir. 1964);

Chambers v. United States, 357 F.2d 224, 229 (8th Cir. 1966);

Berry v. Atlantic Coast Line R.R., 273 F.2d 572, 581-82 (4th Cir.),

cert. denied, 362 U.S. 976 (1960); Madeirense Do Brasil S/A v.

Stulman-Emrick Lumber Co., 147 F.2d 399, 404-05 (2d Cir.), cert.

denied, 325 U.S. 861 (1945).

®Brief of Respondent at 15 n.5 clearly indicates the lack of such

evidence. In that footnote Respondent attempts without founda-

tion in logic or authority to impose the burden of its absence upon

the vessel rather than upon the plaintiff.

°The record is devoid of any evidence or contention with respect

to this standard. See Partenweederei, MS Belgrano v. Weigel, 299

F.2d 897 (9th Cir.), cert. denied, 371 U.S. 830 (1962).

1°No such contention appears in the Pre Trial Order, A.12-15.

3D

II

RESPONDENT PROVIDES ONLY CONFUSION AS TO

THE SOURCES AND NATURE OF THE NEGLI-

GENCE RULES TO BE APPLIED

Throughout his brief, Respondent ignores the stated

Congressional intent that the negligence remedy be gov-

erned by the duty standards of land-based law and treats

the inquiry here as one concerning the rules of the general

maritime law.

He poses the question whether the 1972 amendments

“continue” or “create” a cause of action for negligence to

divert attention from the real issue, which is whether the

word “negligence” in Section 905(b) will be interpreted as

Congress intended to avoid any “special maritime theory

of liability” such as “non-delegable duty”.** When the issue

is so framed, it becomes evident that Gutierrez v. Water-

man Steamship Corp.’ does not control this case, for

Gutierrez’s negligence holding is founded upon the very

principle of nondelegable duty Congress rejected.”

[The shipowner] had an absolute and nondelegable

duty of care toward petitioner not to create this risk

to him, which it failed to meet.

1§. Rep. No. 92-1125, 92d Cong., 2d Sess. 10 (1972); H.R. Rep.

No. 92-1441, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code

Cong. & Ad. News 4698, 4703.

12373 U.S. 206 (1963).

18Gutierrez, indeed, was the very authority aptly cited by this

Court to support its ruling in Albanese v. N/V Nederl. Amerik

Stoom v. Maats., 382 U.S. 283 (1965), as to which see Brief of

Petitioner at 12-13.

14373 U.S. at 211-12. The Court of Appeals for the First Circuit

has recognized that the shadow of Gutierrez does not compel con-

6

Since Gutierrez is no longer authority for the rule or the

result in the court below, Respondent has failed to cite any

case at all from the “large body of case law” he acknowl-

edges existed in 1972*° to uphold the standard fashioned

below. Petitioner, on the other hand, has shown at pages 11-

19 of its brief that the standards adopted by the score of

decisions in conflict with the decision below are supported

by the Hugev*®* and Mickle™ cases (cited with approval in

Burnside), and by the West’ case, all decided before

1972, as well as by the Restatement and the large and con-

sistent body of state law,” and that Congress has rejected

for the future the standard represented by Gutierrez and

tradiction of Congress’ clearly expressed intention. Anderson v.

Iceland S.S. Co., 585 F.2d 1142, 1150 (Ist Cir. 1978).

Brief of Respondent at 9-10.

1*Hugev v. Dampskisaktieselskabet International, 170 F. Supp.

601 (S.D. Cal. 1959), aff'd sub nom. Metropolitan Stevedore Co. v.

Dampskisaktieselskabet International, 274 F.2d 875 (9th. Cir.)

(adopting district court opinion), cert. denied, 363 U.S. 803 (1960).

1™Mickle v. The Henriette Wilhelmine Schulte, 188 F. Supp. 77

(N.D. Cal. 1960).

18Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394

U.S. 404 (1969).

West v. United States, 361 U.S. 118 (1959).

2°Respondent suggests (Brief at 34), as did the court below

(Pet. App., p. B-16, 598 F.2d at 488), that Rowland v. Christian,

69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968), calls for a

rule other than that urged by Petitioner. But even in California,

where a contractor is liable to provide a subcontractor with a safe

place to work (Brief of Petitioner at 33 n.64) and comparative

negligence principles apply, a contractor “cannot be held liable for

an injury resulting from a danger which was obvious or which

should have been observed in the exercise of ordinary care.” Elder

v. Pacific Telephone & Telegraph Co., 66 Cal. App. 3d 650, 661, 136

Cal. Rptr. 203, 208 (1977).

7

Albanese (a case which plainly dealt with negligence and

not unseaworthiness as Respondent asserts).”

III

DUTY AND ASSUMPTION OF RISK ARE DIFFERENT

CONCEPTS, AND RESPONDENT'S ARGUMENT IG-

NORES THE DISTINCTIONS WHICH HAVE BEEN

DRAWN IN OPINIONS, COMMENTARIES AND THE

RESTATEMENT

Respondent seeks to distort the rejected defense of as-

sumption of risk so as to embrace in its rejection the whole

notion of limits upon the conditions in which the defendant

has a duty of affirmative action. He would thus confuse

the foresight upon which the duty to exercise reasonable

care is based with the actual events which could give rise

to a defense of assumption of risk.

When not imposed by some positive rule, the duty of

care ordinarily arises from foreseeability or expectation.”

And in circumstances involving premises or chattels, as

here, it is said to be based more particularly upon the de-

fendant’s having superior knowledge to that which the

users may be expected to have or acquire,” and for this

21The case itself, quoted in full in Brief of Petitioner at 12, re-

futes the claim of Brief of Respondent at 38 that it did not deal

with negligence. Respondent’s further statement, at the same place,

that the committees “denied comment on the negligence remedy”

is patently untrue. They clearly commented on its principles and

declined comment only upon its operation in “a particular actual

setting”. S. Rep. No. 92-1125, 92d Cong., 2d Sess. 10 (1972).

222 F. Harper & F. James, The Law of Torts 1018 (1956).

*8Keeton, Personal Injuries Resulting from Open and Obvious

Conditions, 100 U. Penn. L. Rev. 629, 634 (1952).

8

reason the question whether a hazard is one which is

known or obvious has been critical in such cases. The im-

portance of incorporating such guidelines in jury instruc-

tions has also been stressed.”

In addition to being subject to a vast area of exceptions

where consent was not free, informed and deliberate,” the

defense of assumption of risk, especially in the master-

servant cases in which it originated,** was subject to an

accumulation of mischievous and unjust doctrinal ex-

iensions, which this court recognized in its FELA juris-

prudence” and which undoubtedly led to the severe restric-

tion of the defense in such eases, since it had come to rest,

as between employer and employee “in the context of our

industrial society, upon a pure fiction.’** Sometimes the

injured employee was presented no realistic choice,” but

usually his consent sprang from carelessness and so repre-

sented simply a special case of contributory negligence.”

*4Id. at 641-42.

25W. Prosser, Law of Torts 447-52 (4th ed. 1971).

Keeton, supra, at 636; Tiller v. Atlantic Coast Line R.R., 318

U.S. 54, 58-60 (1943).

21See Tiller v. Atlantic Coast Line R.R., 318 U.S. at 63-64 (“pri-

mary duty”, “promise to repair”, “simple tool ”, “peremptory order”).

6318 U.S. at 69 ( Frankfurter, J., concurring ).

2?This was so in The Arizona v. Anelich, 298 U.S. 110 (1936)

and Beadle v. Spencer, 298 U.S. 124 (1936), in which this court

rejected the bar of assumption of risk in Jones Act cases involving

defective vessel appliances.

soThe great majority of the cases involving assumption of risk

have been of this type ... .” Restatement (Second) of Torts ¢ 496A,

Comment d. See also Keeton, supra, at 633: “Again, a court will

frequently use assumption of risk to mean one type of contributory

negligence ....” And thus this Court, after The Arizona and Beadle,

9

The distinction between the defendant’s duty based upon

foreseeability or superior knowledge and the defense of

assumption of risk arising from the plaintiff’s determina-

tion to proceed in the face of danger is clearly recognized

in case law both before and since the 1972 Amendments.” |

The Restatement recognizes this distinction and imple-

ments it fully in the structure of its sections, defining the

duty of the occupier of the premises or the furnisher of

chattels in such sections as 343, 343A and 388, and sep-

arately defining the defense of assumption of risk in sec-

tions 496A, et seq., and especially section 496C. These sec-

tions are not simply the other side of the duty coin but

introduce different considerations. The Restatement ex-

plains the duty this way:

In the ordinary case, an invitee who enters land is

entitled to nothing more than knowledge of the condi-

recognized that, where a real choice was presented, the question

was one of contributory negligence. Socony-Vacuum Oil Co. v.

Smith, 305 U.S. 424 (1939).

*1Qwens v. Union Pacific R.R., 319 U.S. 715, 720 (1943) (“What

in fact was absence of departure from due care by the defendant

came to be labelled ‘assumption of risk’”) citing concurring opin-

ion of Justice Frankfurter in Tiller v. Atlantic Coast Line P.R.,

318 U.S. 54, 72 (“But ‘assumption of risk,’ in the sense that the

employer is not liable for those risks which it could not avoid in

the observance of its duty of care, has not been written out of the

law”); Riddle v. Exxon Transportation Co., 563 F.2d 1103, 1110

(4th Cir. 1977). Contrary to the argument in Brief of Respondent

at 25-32, the Fifth Circuit cases have not condemned the Restate-

ment or embraced Respondent’s argument. Gay v. Ocean Transport

& Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977), directed the ap-

plication of Restatement sections 343 and 343A as a proper way

to avoid the application of assumption of risk. Wiles v. Delta S.S.

Lines, Inc., 574 F.2d 1338 (5th Cir. 1978), never mentioned as-

sumption of risk and merely remanded the case for reconsideration

because it had been decided by the trial court before Gay.

10

tions and dangers he will encounter if he comes. If he

knows the actual conditions, the activities carried on,

and the dangers involved in either, he is free to make

an intelligent choice as to whether the advantage to

be gained is sufficient to justify incurring the risk by

entering or remaining on the land. The possessor of

the land may reasonably assume that he will protect

himself by the exercise of ordinary care, or that he

will voluntarily assume the risk of harm if he does

not suceeed in doing so. Reasonable care on the part

of the possessor therefore does not ordinarily require

precautions, or even warning, against dangers which

are known to the visitor, or so obvious to him that he

may be expected to discover them.”

Section 496C, which deals explicitly with assumption of

risk in connection with land or chattels, does not depend,

as duty does, upon foreseeavility and superior knowledge

of the defendant, but upon the subjective understanding of

the plaintiff and his voluntary acceptance of a risk,

where the defendant actually has a duty because he

could not have expected the plaintiff to discover it. Thus,

the defense of assumption of risk has a function different

from the concept of no duty.** The elements of the duty

and the defense are sharply distinguished by the objective

82?Restatement of Torts § 343A, Comment e.

38W. Prosser, Law of Torts 455 (4th ed. 1971) (“This duty does

not coincide with those risks which the plaintiff does not in fact

assume; rather it is based upon what the defendant can reason-

ably expect of him.”); Keeton, supra, at 634 (“It will be noted that

the defense of assumption of risk serves a purpose here, not served

by the limitation of the defendant’s duty. The defendant may be

guilty of a breach of duty in failing to eliminate or give notice of

a danger of which the visitor is not charged with notice. Even so,

if the visitor should become aware of the danger no recovery will

be allowed.” )

11

character of the former and the subjective character of

the latter.** Comment e to section 496C makes this clear:

The duty is determined upon the basis of what the

defendant should expect, while assumption of risk is a

matter of what the plaintiff knows, understands, and is

willing to accept.

The Restatement formulation is the outcome of a spir-

ited scholarly battle in the 1960’s** between those who

would maintain the separate existence of the defense of

assumption of risk and those who would dismantle it and

“distribute it between the concepts of duty and contribu-

tory negligence.”*’ One of the defeated generals has

pointed out, however, that the difference between the pre-

vailing Restatement view and his own is significant only

in a narrow area with which we are not here concerned,”

and it appears that both armies agree no duty is owed

where the hazardous condition of the premises or chattel

is known.**

**Keeton, supra, at 643 (“Certainly a test based on whether the

defendant-occupier could reasonably expect the particular cus-

tomer to discover and realize the danger is one that can be applied

more easily and with fewer complications than a test which de-

pends upon the state of mind of the plaintiff-customer and the

justification which he asserts for not noticing or realizing a

danger.” )

‘James, Assumption of Risk: Unhappy Reincarnation, 78 Yale

L.J. 185, 188 (1968).

*°W. Prosser, supra, at 454.

‘James, supra, at 190.

%sJames, supra, at 189.

12

This Court has rejected assumption of risk in the em-

ployment context,*® and has, we submit, never meant to

raise up a duty of care and oversight where it did not

exist or to make even an employer responsible to avoid

ordinary risks of employment,” to say nothing of making

a non-employer responsible for conditions he may reason-

ably assume are as well known to an independent con-

tractor and his employees as to himself. And certainly

there is no evidence that Congress wished to achieve such

a result in 1972. Congress meant not to allocate new risks

to the shipowner but, as Respondent acknowledges“.

simply referred to, acknowledged, and applied this Court’s

prior rulings on the subject.

IV

RESPONDENT HAS URGED OTHER MISCONCEP-

TIONS UPON THE COURT

A. Misconceptions of Petitioner’s Position

Point D of Respondent’s argument**? seeks to make it

appear that the shipowner would bar his recovery on the

basis of a negligent act of his fellow servant. Having set

up this straw man, Respondent easily knocks it down with

Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943); The

Arizona v. Anelich, 298 U.S. 110 (1936); Beadle v. Spencer, 298

U.S. 124 (1936); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424

(1939).

“See concurring opinion of Justice Frankfurter in Tiller v.

Atlantic Coast Line R.R., 318 U.S. at 72, and The Arizona v.

Anelich, 298 U.S. at 122.

“1Brief of Respondent at 23.

‘Brief of Respondent at 34-36,

13

the Edmonds case.** But the shipowner makes no such

contention, its argument being directed to whether the

shipowner prospectively should have assumed a duty and

not whether in retrospect the breach of such a duty was

excused by the actual negligence of stevedore employees.

Respondent likewise misstates the shipowner’s position

by asserting, in his point F, that the shipowner urges a

requirement of actual notice of danger.** Reference to

points I.B and C of Petitioner’s brief, and especially the

latter, should instantly refute this notion. He also asserts,

in point F, that the shipowner is asking for immunity from

liability as the means of encouraging safety.*® This, too,

is untrue. The shipowner contends, as point IT.A of its

brief indicates, not for a rule of immunity but for a rule

which fosters safety by declining to shift the full burden

of injury to the shipowner in cases in which the stevedore,

who is primarily and immediately responsible for safe op-

erations, has proceeded in a conspicuously unsafe manner.

Respondent, in contrast, offers no analysis to support his

implication that the rule below promotes safety.

B. Misconceptions of Law and Economic Reality

In addition to Respondent’s gross misconception as to

the involvement of assumption of risk or contributory neg-

ligence (to which we respond in point III above), he has

displayed in his point F several other misconceptions of

law and economic reality, most notably in relation to the

economic motivations and consequences of third-party ac-

*83Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256

(1979).

44Brief of Respondent at 38.

‘Brief of Respondent at 41.

14

tions. He pretends that because the employer is always

subject to liability for compensation, the employer’s inter-

est in safety remains a constant, regardless of the outcome

of third-party suits,“° ignoring completely that the pro-

ceeds of third-party suits, after attorneys’ fees, are applied

to reduce or eliminate the liability of the employer for

compensation. He thus studiously ignores that, apart from

the interest of lawyers, third-party suits represent a con-

test of shipowners, not primarily with longshoremen, but

with their stevedore employers.*7 And when he cites with

satisfaction the lower court’s statement that its rule “will

promote safety within a comparative negligence frame-

work”,** he must ignore, as did that court, its inability to

compare the negligence of the party primarily responsible

for safety—the stevedore employer.”

Respondent also asserts that third-party suits cannot

undermine the security inherent in a compensation sys-

tem,” ignoring that recoveries in such actions are paid in

a lump sum in lieu of some or all future compensation and

consist to a very large extent of attorneys’ fees. He as-

serts at another point that Congress could have regulated

attorneys’ fees if it had desired to do so.” It has indeed

tried to do so by regulating the fees recoverable in com-

‘Brief of Respondent at 42-43.

*7Of course, the shipowner is not the employer of the longshore-

man as Respondent tries to imply (Brief of Respondent at 43).

‘*8Brief of Respondent at 40.

“Edmonds v. Compagnie Generale Transatlantique, 443 US.

256 (1979).

‘Brief of Respondent at 41-42.

‘1Brief of Respondent at 44.

15

pensation proceedings and indicating that such proceed-

ings are to be normal and third-party suits exceptional.”

The significance of this subject is highlighted by the fact

that it is not a union of longshoremen but a group of plain-

tiffs’ lawyers which has filed an amicus brief in support of

Respondent’s position.

CONCLUSION

For the foregoing reasons and those set forth in our

opening brief, the court should reverse the judgment of the

Court of Appeals for the Ninth Circuit and thus restore

the summary judgment entered by the district court and

should also explicitly recognize the duty standard provided

by land-based law for the guidance of lower courts in fu-

ture cases.

Respectfully submitted,

Graypon S. STARING

Attorney for Petitioner

LeGros, BucHanan, Paut &

MappEN

Rosert H. MAppEN

Lituick McHoss & CHARLES

Epwarp M. Kreecu

Of Counsel

°“We are cognizant of Congress’ concern that negligence suits

under the Act too often inure to the benefit only of the attorney,

thereby needlessly increasing the volume of litigation generated

by the Act.” Johnson v. Sioux City & New Orleans Barge Lines,

Inc., No. 80-1450 (7th Cir. August 21, 1980), cert. denied, 49

U.S.L.W. 3351 (November 10, 1980) (No. 80-359).