Petition — Newport Tankers Corp. v. Simmons

Office Supreme Court, U.S.

Si Le: Dp

£0 -1 701 MAR 81 1981

——— RCCRAND STL. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NEWPORT TANKERS CORPORATION,

Petitioner,

V.

WILLIAM MICHAEL SIMMONS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

|

Louis H. BEARD

WELLS, PEYTON, BEARD,

GREEN, HUNT & CRAWFORD

P. O. Box 3708

Beaumont, Texas 77704

Counsel for Petitioner,

Newport Tankers

Corporation

QUESTIONS PRESENTED

1. Whether, on the record as a whole, the decision of the

Court of Appeals in this Jones Act case in holding Petitioner, a

ship operator, liable in damages for adhesions sustained by

Respondent, a crewmember, after an appendectomy, is

tantamount to a holding that a ship operator is liable for any

adverse effect to a crewmember arising from medical attention

afforded by the ship operator irrespective of negligence or

malpractice.

2. Whether, on the record as a whole, the decision of the

Court of Appeals in holding Petitioner liable in damages for

adhesions sustained by Respondent after an appendectomy con-

stitutes a holding which is in conflict with holdings of the

Supreme Court of the United States and of other Courts of

Appeal.

3. Whether the findings of fact made by the Trial Court

were So Clearly erroneous as to be contrary to law thereby calling

for the exercise of the Supreme Court’s power of supervision.

Opinion Below

Jurisdiction

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Statement of the Case

Reasons for Granting the Writ .. «<<... -..0ss«s0deeeeeueen

1. In view of the total absence of evidence of probative

value supporting a finding of negligence against Peti-

tioner, the decision below represents a holding that a

shipowner is liable for any adverse effect to a

crewmember arising from medical attention afforded

by the shipowner, which holding is in conflict with

holdings by the Supreme Court and other Courts of

ADPORE o.oo cuts wel a uke p ome ee 4

2. The decision below has decided an important question

of Federal Law, that is, that a shipowner is liable for

any adverse effect to a crewmember arising from medi-

cal attention afforded by the shipowner without refer-

ence to the standard of care to be exercised by a

physician treating a crewmember in a foreign port,

which decision is thereby in conflict with applicable

decisions of the Supreme Court ................... 1]

3. The findings of fact made by the Trial Court, and

which were sustained by the Fifth Circuit Court of

Appeals, are so clearly erroneous as to be contrary to

law, thereby calling for the exercise of the Supreme

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Parent, Affiliate and Subsidiary Companies of Petitioner ..... 2

2

4

Court's power of supervision. ...:.<¢ss2. 4.05 pees 14

Conclusion .........000000003000 55000000 en oe 16

Certificate of Service .........sc1.s:0phey uubee ee eee 17

APPOOGAK oooooo sos mje s cease ed 5p ane enn nn A-1

Opinion and Judgment of Court of Appeals ............ A-4

Findings of Fact and Conclusions of Law.............. A-5

Summary of Salient Parts of the Record............... A-9

CITATIONS

Statutes

28 U.S.C.A. §1254(1)

46 U.S.C.A. $688 . 7. ..... 66505255005 2

28 U.S.C.A. $1333... . 5.5 cucuevaes teed senna 2

ii

Cases

Central Gulf Steamship Corporation v. Sambula, 405 F.2d 291

Se MN ee es hee au etetn Wale hws ia SO

Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173,

PAPUA. SE EE oe ears hl Perc aoe one Chae

Coulter v. Ingram Pipeline, Inc., 511 F.2d 735 (Sth Cir. 1975)

DeZon v. American President Lines, 318 U.S. 660, 63 S.Ct.

Be Oe Cee Pt I ik ns Cha ie bck eek oe keke awek

Fitzgerald v. A. L. Burbank & Co., Ltd., 451 F.2d 670, 1972

Fe eS 2 |)

Graham v. Alcoa, 201 F.2d 423 (3rd Cir. 1953); cert denied,

346 U.S. 832, 74 S.Ct. 32, 98 L.Ed. 355..... Lea alte

McAllister v. United States, 348 U.S. 19,20, 75 S.Ct. 6,8, 99

Sk ee CRS Cn eee ae De ce eee

The IROQUOIS, 194 U.S. 240, 24 S.Ct. 640, 48 L.Ed. 955

i a RUDE Em a CARB Wnk aE by yt Arey SPA Mi Reed pt an

United States v. United States Gypsum Co., 333 U.S. 364,395,

68 S.Ct. 525,542, 92 L.Ed. 746,766 (1948) ..............

Walker v. Sinclair Refining Company, 331 F.Supp. 408 (D.C.

Pa. 1971)

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st a Se 8 8a A) Ae SS ee OD, Ole Oe Se eS ee Bc eae

MISCELLANEOUS

Great Soviet Encyclopedia, Vol. 20, p. 279

Of e 2.8 POE Oe SC ee ee

PAGE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NEWPORT TANKERS CORPORATION,

Petitioner,

V;

WILLIAM MICHAEL SIMMONS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, NEWPORT TANKERS CORPORATION,

respectfully prays that Writ of Certiorari issue from this Court

to review the Judgment and Opinion of the United States Court

of Appeals for the Fifth Circuit in this case.

OPINION BELOW

The Court of Appeals for the Fifth Circuit decreed that its

opinion not be published. It is reproduced in the Appendix Page

2. No opinion was rendered by the District Court for the East-

ern District of Texas.

JURISDICTION

The Judgment of the Court of Appeals for the Fifth Circuit

was entered on January 21, 1981. No motion for Rehearing was

filed. This petition was filed within ninety (90) days of January

21, 1981. This Court’s jurisdiction is invoked under 28 U.S.C.A.

§1254(1).

2

QUESTIONS PRESENTED

1. Wether, on the record as a whole, the decision of the

Court of Appeals in this Jones Act case in holding Petitioner, a

ship operator, liable in damages for adhesions sustained by

Respondent, a crewmember, after an appendectomy, is

tantamount to a holding that a ship operator is liable for any

adverse effect to a crewmember arising from medical attention

afforded by the ship operator irrespective of negligence or

malpractive.

2. Whether, on the record as a whole, the decision of the

Court of Appeals in holding Petitioner liable in damages for

adhesions sustained by Respondent after an appendectomy con-

stitutes a holding which is in conflict with holdings of the

Supreme Court of the United States and of other Courts of

Appeal.

3. Whether the findings of fact made by the Trial Court

were so clearly erroneous as to be contrary to law thereby calling

for the exercise of the Supreme Court’s power of supervision.

PORTIONS OF THE RECORD

Findings of Fact and Conclusions of Law made by the Trial

Court is attached in the Appendix Page .5...

A Summary of Salient Parts of the Record is attached in the

Appendix Page 2

PARENT, AFFILIATE AND SUBSIDIARY COMPANIES

OF PETITIONER

There is none.

STATEMENT OF THE CASE

This is a Jones Act suit. The basis for jurisdiction in the Trial

Court is Rule 9(h) of the Federal Rules of Civil Procedure, the

Jones Act, 46 U.S.C.A. $688, and the general maritime law of

the United States, 28 U.S.C.A. §1333.

3

Respondent, WILLIAM MICHAEL SIMMONS, served as a

pantryman aboard the S/T ACHILLES, owned and operated by

Petitioner, NEWPORT TANKERS CORPORATION. While

in the Port of Poti, Russia, and on July 8, 1977, Respondent

suffered an attack of appendicitis necessitating his hospitaliza-

tion and an emergency appendectomy in a hospital located in

Poti, Russia.

Respondent made an _ uneventful recovery from the

appendectomy. On or about September 12, 1977, Respondent

resumed work; however, he continued to complain of pain in the

abdominal area. On March 17, 1978, Respondent underwent an

exploratory laparotomy in the Buna Medical Center Hospital,

Buna, Texas, which was performed by John L. Sessions, a doctor

of osteopathy. He found that adhesions had formed in the area

of the appendix and these were removed. Respondent testified

that subsequent to the laparotomy the pain in the abdominal

region no longer persisted.

The trial of the case was before the Court in the United States

District Court for the Eastern District of Texas, Beaumont Divi-

sion, and upon conclusion of the trial the Court made findings of

fact and conclusions of law (attached in Appendix Page 5. . )

and entered judgment for the Respondent. The Fifth Circuit

Court of Appeals affirmed the judgment for Respondent.

The contentions of the Respondent were that Petitioner was

negligent in the selection of the medical facility in Poti, Russia,

and in the selection of the doctors who attended the Respondent

and that the doctors in performing the appendectomy were neg-

ligent and that such negligence was the proximate cause of the

injuries and damages sustained by Respondent. On the other

hand, Petitioner contended that it exercised reasonable care in

selecting the medical facility and the doctors who attended

Respondent and that the doctors were not negligent and that

Petitioner was not otherwise negligent. Petitioner contended

further that the adhesions which formed subsequent to the

4

appendectomy in Poti, Russia formed as a natural consequence

of the appendectomy and their forming was not caused by the

negligence of the surgeon.

REASONS FOR GRANTING THE WRIT

1. In view of the total absence of evidence of probative value

supporting a finding of negligence against petitioner, the decision

below represents a holding that a shipowner is liable for any

adverse effect to a crewmember arising from medical attention

afforded by the shipowner, which holding is in conflict with hold-

ings by the Supreme Court and other Courts of Appeal.

Several established rules of law are to be kept in mind when

considering this case:

A. In Jones Act cases the shipowner must furnish medical

attention to the ill or injured seaman and is liable for failing to

do so without regard to fault or negligence.

B. In Jones Act cases the shipowner is liable to the seaman

on proof that the shipowner was negligent in selecting the medi-

cal facility or doctor.

C. In Jones Act cases the shipowner is liable to the seaman

on proof that the physician selected by the shipowner was neg-

ligent in treating the seaman.

D. In Jones Act cases the physician selected by the ship-

owner to treat the seaman is bound by a standard of care, that

being to exercise the degree of care and skill of the average

qualified practitioner of the art and science of medicine.

In considering this case, it must be done against the backdrop

of the circumstances of the Respondent having suffered an

attack of appendicitis in a foreign port, to-wit, Poti, Russia.

Clearly, what would constitute the exercise of reasonable care by

a ship operator in providing medical attention to a seaman in

Poti, Russia may very well not constitute the exercise of reason-

able care in providing medical attention to a seaman in Norfolk,

Virginia or New Orleans, Louisiana. In Poti, Russia, Captain

D. H. Mappin, of the S/T ACHILLES, had no discretion in

selecting the agent who would service the vessel. Inflot selected

the medical facility and sent Respondent to the hospital in Poti,

Russia for the appendectomy. Prior to the operation, Captain

Mappin did have an opportunity to make an independent survey

of the facility and concluded that it was adequate in every

respect, and, additionally, was reassured by the agent of its

adequacy.

The record shows that Captain Mappin and the agent believed

the surgeon and nurses competent to perform the appendectomy.

As the appendectomy was performed successfully, this attests to

their competency.

The matter of knowing in advance of the availability of ade-

quate medical facilities and competent physicians in a foreign

port presents questions which cannot be answered satisfactorily

in advance. The operator of the vessel must of necessity rely

upon the recommendations of his agent, and in particular in

Poti, Russia where the ship operator has no choice as to the

agent who will service its vessel.

The adverse effect suffered by Respondent was adhesions. The

presence of adhesions does not prove the incompetency of the

Russian surgeon or that he performed the appendectomy in a

negligent way. It is an undisputed medical fact that adhesions

form to some degree in all patients after all appendectomies. The

extent to which they show up will vary. Adhesions will form

whether the surgeon is competent or incompetent, and whether

the operation is performed properly or improperly. Thus it is

Petitioner’s position that the adhesions found in Respondent

were a normal sequel of the surgery.

The Fifth Circuit Court of Appeals has stated in its opinion:

ees

The maritime law has long imposed upon shipowners the

duty to provide proper medical treatment for seamen falling

ill or suffering injury in the service of the ship. This is a

6

duty imposed without fault; it is no mere formal obligation.

... Fitzgerald vy. A. L. Burbank & Co., 451 F.2d 670, 679

(2d Cir. 1971) (citations omitted). In Central Gulf S.S.

Corp. v. Sambula, 405 F.2d 291 (Sth Cir. 1968), this court

found no ‘distinction between the responsibility of a ship for

a physician in its regular employ and its responsibility for

the negligence of an independent physician engaged to

fulfill a singular duty to provide maintenance and cure.’ ”

405 F.2d at 302 n.7.

Thus the Court below recognized that in the first instance the

shipowner must furnish medical attention to the ill or injured

seaman and failing to do so it is liable to the seaman irrespective

of negligence or fault. In the second instance the Court Below

recognizes that the shipowner may be liable to the seaman upon

proof of negligence on the part of the shipowner in selecting the

medical facility or doctor, or negligence of the doctor. But in the

subject case the adhesions suffered by the Respondent after the

appendectomy formed as a natural consequence of the surgery.

For this Petitioner to be held liable for this adverse effect to the

Respondent is tantamount to a holding by the Court Below that

the shipowner is liable for any adverse effect to the seaman

irrespective of fault or negligence. Petitioner submits that this is

not the law, and that the Court Below has fallen into error.

Admittedly, in its opinion, the Fifth Circuit Court has stated

“there was ample evidence to support the Trial Judge’s conclu-

sions that the seaman’s problems were caused by adhesions, that

the adhesions were more severe than those that would follow

surgery performed with adequate skill and that the Russian sur-

geon was negligent;”” however, when all of the facts and circum-

stances are considered, there is no evidence of probative value

that the Russian surgeon was negligent. ©

Petitioner believes and urges that the Fifth Circuit Court

failed to give adequate and proper attention to the following

facts and rules of law and had it done so it would have reversed

the decision of the Trial Court:

7

1. The fact that this case has as its setting Poti, Russia, a

foreign port.

2. The fact that under the Government of Russia foreign

vessels in their ports must-use as their agent Inflot, which is an

arm of the Russian Government.

3. The fact that Respondent’s appendicitis attack and

appendectomy constituted an emergency.

4. The rule of law that the duty of the shipowner to care for

ill crewmembers varies with the circumstances of each case.

5. The rule of law that the proper standard for malpractice

(negligence) is simply whether the physician exercised the

degree of care and skill of the average qualified practitioner of

the art and science of medicine.

It is the holding of this Honorable Court that in order for the

injured seaman to recover there must be proof of negligence

against the ship operator in selecting the medical facility or

physician, or proof of negligence of the physician selected to

treat the seaman. This is the holding of this Honorable Court in

DeZon v. American President Lines, Ltd., 318 U.S. 660, 63

S.Ct. 814, 87 L.Ed. 1065 (1943). Mr. Justice Jackson delivered

the opinion of the Court stating:

“We hold, therefore, that the shipowner was liable in

damages for harm suffered as a result of any negligence on

the part of the ship’s doctor. . .

“We come, then, to the question as to whether there was

sufficient proof of negligence to require sending this case to

the jury...

“The doctor apparently made a wrong diagnosis, but that

does not prove that it was a negligent one. It seemed to be

the obvious diagnosis from the history which the patent

gave him, and that appears to have been incomplete and not

unlikely to mislead. . .

“The loss of Petitioner’s eye is a serious handicap. But

damages may be recovered under the Jones Act only for

8

negligence. Jamison v. Encarnacion, supra, 281 U.S. at p.

639, 50 S.Ct. at p. 442, 74 L.Ed. 1082. Whether the legisla-

tive policy of compensating only on the basis of proven fault

is wise is not for us to say, nor is it our function to circum-

vent it by reading into the law a theory, however disguised,

that a physician who undertakes care guarantees cure, and

that each unsuccessful effort of the physician may be visited

with a successful malpractice suit.”

That there must be a showing of negligence is also the holding

of this Honorable Court in the cases of Cortes v. Baltimore

Insular Line, Inc., 287 U.S. 376, 53 S.Ct. 173, 77 L.Ed. 368

(1932) and in The TROQUOIS, 194 U.S. 240, 24 S.Ct. 640, 48

L.Ed. 955 (1904).

That there must be proof of negligence in the selection of the

medical facility or physician, or proof of negligence of the treat-

ing physician prior to the shipowner being liable to the injured or

ill seaman is also the established rule in the Second Circuit. In

Fitzgerald v. A.L. Burbank & Co. Ltd., 451 F.2d 670, 1972

A.M.C. 207 (C.A.2d, 1971), the seaman was engaged in “blow-

ing down” the boilers in the engine room in extremely hot

temperatures. He collapsed and was taken ashore to a hospital

where he died of heat exhaustion and pneumonia.

The Court stated at p. 679 of its opinion:

“In the circumstances of this case, there are two ways in

which the shipowner may have been negligent in exercising

this duty. One is in improperly providing for a seaman’s

care, including the negligent selection of a doctor; the other

is in the negligence of the doctor himself, see DeZon, supra,

318 US. at 664-665, 63 S.Ct. 814; Central Gulf Steamship

Corp. v. Sambula, 405 F.2d 291 (5 Cir. 1968).”

The United States Court of Appeals for the Third Circuit has

held in accord with the decisions of this Honorable Court and of

the Second Circuit. See Graham v. Alcoa S.A., Inc., 201 F.2d

423 (3 Cir. 1953); cert. denied, 346 U.S. 832, 74 S.Ct. 32, 98

L.Ed. 355.

9

Until its decision in the subject case, the United States Court

of Appeals for the Fifth Circuit also followed the rule that there

must be proof of negligence in the selection of the medical

facility or physician, or proof that the treating physician was

negligent in order for the injured or ill seaman to recover against

the shipowner. In Central Gulf Steamship Corp. v. Sambula,

405 F.2d 291 (C.A.5, 1968), the shipowner was held liable for

reason of the failure of the shipowner to consult an eye specialist

available in the vicinity of Inchon, Kovea and the negligence of

the treating physician in failing to properly diagnose the eye

injury sustained by the seaman.

There can be no plausible argument made that there was neg-

ligence on the part of the Petitioner in its selecting the hospital

where the appendectomy was performed on the Respondent.

Poti, Russia is a port city with many excellent facilities. In 1976,

the population of Poti, Russia was 54,000. The work Grear

Soviet Encyclopedia, Vol. 20, p. 279, describes Poti:

“Poti has a shipyard, a flour mill, and plants that manufac-

ture hydraulic equipment, electrical equipment, and

dynamoelectric amplifiers. An important fishing center,

Poti has a fish combine. Educational and cultural institu-

tions include an evening division of the Georgian Polytech-

nical Institute, the Colchis Integrated Cultural Experi-

mental Station of the All-Union Scientific Research

Institute of Tea and Subtropical Crops, a Hydraulic

Development Technetium, Medical and Music Schools, a

Drama Theater, and a Museum of Local Lore.”

The proof in this case shows that the hospital in which

Respondent received his appendectomy was a two-story stone

structure. There was a waiting room and an operating room. The

room occupied by the Respondent was a semi-private room con-

taining furniture. There was linoleum-type covering on the floor.

There were sheets on the bed. A male surgeon and nurses were

in attendance. Very clearly, the medical facility selected by the

Master of the S/T ACHILLES was adequate. There can be no

10

negligence attributable to the Petitioner in the selection of the

particular medical facility.

Turning to the second inquiry, that is, whether the surgeon

who performed the appendectomy on the Respondent was neg-

ligent. It is abundantly clear that he was not negligent. The only

facts which can be pointed to which would support a finding of

negligence are the following:

Dr. John L. Sessions, the doctor of osteopathy, of Kirbyville,

Texas, was employed by the Respondent to perform the

exploratory surgery, that is, the laparotomy. After performing

the laparotomy, he found limited adhesions. During the course

of his deposition he testified that “apparently there was some

bleeding after the surgery inside, and irritation resulted from the

absorbing of the blood.” He testified further that the

“procedure” which was conducted in Russia in surgery was the

cause of the adhesions in Respondent. The reliability of these

two observations made by Dr. John L. Sessions must be given

close scrutiny. Of course, Dr. Sessions was not in attendance at

the time of the appendectomy. Thus his observations are pure

speculation and are of no probative value and do not constitute

evidence upon which a finding of negligence can be based.

Respondent argues a further point in support of the fact that

the surgeon was negligent. During the exploratory laparotomy,

Dr. Sessions found a part of a suture in the appendeceal stump.

Subsequently the pathologist, Dr. H. R. Wilcox, examined the

specimen from the area of the appendix of the Respondent con-

taining the part of the suture. He observed the part of the suture,

but found no indication of inflammation. He gave the diagnosis

of “granulation tissue from appendeceal stump.” The Petitioner

called Dr. A. H. Tew, a Board certified surgeon, who testified

that in the United States surgeons use absorbable and nonab-

sorbable sutures at their discretion. Thus the non-absorbable

suture played no part in causing the adhesions, the Russian sur-

geon was not negligent in using it.

1]

Respondent contends further that the finding of adhesions

supports its argument that the surgeon was negligent. The fact

of finding adhesions is certainly not evidence of probative value

supporting the argument of negligence. Adhesions form to some

degree after every appendectomy irrespective of the competence

of the surgeon. Dr. Tew, a Board certified surgeon, testified that

in connection with every appendectomy adhesions appear to

some degree.

2. The decision below has decided an important question of

federal law, that is, that a shipowner is liable for any adverse

effect to a crewmember arising from medical attention afforded

by the shipowner without reference to the standard of care to be

exercised by a physician treating a crewmember in a foreign port,

which decision is thereby in conflict with applicable decisions of

the Supreme Court.

It is to be remembered that there is a standard of care which

applies to the work of the treating physician and there must be a

finding that the treating physician failed to meet this standard of

care. In malpractice cases in the United States, the Courts have

followed a “locality” rule and a physician is held only to the

standard of care existing in the area in which he practices. That

is not the standard of care required in a Jones Act case of a

treating physician in a foreign land. In Fitzgerald v. A. L.

Burbank & Co. Ltd., 451 F.2d 670, 1972 AMC 207 (C.A.2d,

1971) the Second Circuit Court had under consideration the

standard of care to be exercised by treating physician located in

Bahrain Hospital, Bzhrain Island, Persian Gulf. In the opinion

by Circuit Judge Anderson of the Second Circuit, he enunciated

the rule as follows:

“Both the duty to provide maintenance and care and the

Jones Act are maritime provisions designed to compensate

for the often harsh and dangerous life of a seaman. To

require him to prove the standard of care of the medical

profession in some far distant land is incompatible with

12

their intent and purpose. Assuming that reasonably ade-

quate medical facilities were available, the proper standard

for malpractice is simply whether the physician exercised

the degree of care and skill of the average qualified practi-

tioner of the art and science of medicine.”

It is submitted that in the subject case the operating surgeon

in Poti, Russia, who performed the appendectomy on the

Respondent, “exercised the degree of care and skill of the aver-

age qualified practitioner of the art and science of medicine.”

It is to be noted that in the opinion attached hereto in the

Appendix Page 2. and written by Circuit Judge Rubin of the

Fifth Circuit Court of Appeals, he makes no reference to the

standard of care. He affirms a finding of fact by the Trial Court

that the operating physician was negligent without giving atten-

tion to the “standard of care’’ test enunciated in Fitzgerald. No

plausible argument can be made that the Petitioner through the

operating surgeon in Poti, Russia failed to meet the enunciated

“standard of care.” Is it reasonable to assert that the finding of

limited adhesions during the exploratory operation, the finding

of a nonabsorbable suture and the conclusion expressed by the

doctor of osteopathy who performed the laparotomy that “the

procedure” in Russia caused the adhesions sufficient evidence

upon which the Court can conclude that the operating physician

was negligent or guilty of malpractice? It is submitted that it is

not when the “standard of care” test enunciated in Fitzgerald is

applied to those facts. The operating physician did all that he

could do. When the Respondent entered the hospital, a blood

test was made. The blood count was high. The appendectomy

was performed within a period of two hours after Captain

Mappin had been notified by the Respondent of his desire for

medical attention. It was an emergency situation, for the

Respondent was sick, vomiting and knew that he needed medical

attention. The life of the Respondent was saved. Adhesions did

form, but these were a natural consequence of the surgery. Their

13

forming was in no way related to any act of negligence on the

part of the operating physician.

The Fifth Circuit Court of Appeals in its opinion cites the case

of Central Gulf S.S. Corp. v. Sambula, 405 F.2d 291 (C.A. 5

1968). In that opinion, Circuit Judge Goldberg stated at p.300

the following:

“The IROQUOIS and the DeZon instruct us that the ship

through its Captain, has a duty to care for sick or injured

crewmembers; and this duty, whose measure varies with the

circumstances of each case, admits of no perfunctory dis-

charge. The duty is not to be conceived and executed in a

vacuum. Rather, its operational dimensions have rational

variables. The extent of the duty varies with the nature of

the injury and the relative availability of medical facilities

The Fifth Circuit Court of Appeals thus recognizes that cir-

cumstances can alter the duties thrust upon the shipowner. Con-

sidering the facts that the appendectomy was performed in Poti,

Russia, that the Respondent needed immediate medical atten-

tion, that it constituted an emergency situation, that the Peti-

tioner had to work through its agent, Inflot, that the

appendectomy was performed within a period of two hours and

the only adverse effect was adhesions, Petitioner met its duties to

the Respondent as required by law.

The Supreme Court has established the rule that it will not

award damages in every case where there is some adverse effect

which flows from the medical attention given by the shipowner

to a seaman.

In DeZon v. American President Lines, 318 U.S. 660, 63,

S.Ct. 814, 87 L.Ed. 1065 (1942), the seaman lost an eye

apparently through a wrong diagnosis made by the doctor, but

the Supreme Court denied to the seaman recovery of damages

because there was no proof of negligence. Mr. Justice Jackson

stated at Page 820: |

14

‘Whether the legislative policy of compensating only on the

basis of proven fault is wise is not for us to say, nor is it our

function to circumvent it by reading into the law a theory,

however disguised, that a physician who undertakes care

guarantees cure, and that each unsuccessful effort of the

physician may be visited with a successful malpractice

suit.”

Thus in DeZon this Honorable Court recognizes that when

the standard of care is followed then the seaman will not recover

damages notwithstanding the fact that he suffers some adverse

effect from the treatment received. Just as a scar on the

abdomen is a natural sequel of an appendectomy so is adhesions

a natural sequel of an appendectomy. Certainly there could be

no thought of awarding damages for the scar and adhesions

should fall into the same category.

The Courts have given particular weight to the fact that the

medical attention given by the shipowner has been in a foreign

port when determining whether the standard of care has been

met. As in the subject case the place of the surgery was Poti,

Russia, this in itself constitutes an additional reason for holding

that Petitioner has met the standard of care. In Walker v.

Sinclair Refining Company, 331 F.Supp. 408 (D.C.Pa. 1971),

the Court denied recovery to a seaman who claimed he was

negligently cared for in a hospital in Ponce, Puerto Rico.

3. The findings of fact made by the trial court, and which

were sustained by the Fifth Circuit Court of Appeals, are so

clearly erroneous as to be contrary to law, thereby calling for the

exercise of the Supreme Court’s power of supervision.

Petitioner urges that Respondent has failed to meet its burden

of proving negligence of Petitioner which played a part in caus-

ing damages to Respondent. The record is absolutely devoid of

any proof of negligence of Petitioner which proximately caused

damages to Respondent.

15

The Findings of Fact and Conclusions of Law attached hereto

in Appendix Page 5. show no specified act of negligence sup-

ported by probative evidence which resulted in the adhesions.

The only evidence which can be pointed to by Respondent is the

following: limited adhesions were found in Respondent, a part of

a suture was found in Respondent, but there was no infection;

the doctor of osteopathy, John L. Sessions, testified that it was

that “procedure” in Russia which caused Respondent’s

problems. This is all the evidence. There is no more. Even

assuming that it is some evidence, it is evidence of no probative

value. Accordingly, the subject case is one which calls for the

application of the rule which has been followed in many deci-

sions, that on the record as a whole, the findings of the Trial

Court which were sustained by the Fifth Court of Appeals are

clearly erroneous. A mistake has been committed. The Judg-

ment entered against Petitioner that Respondent recover from it

$35,000.00 is clearly contrary to law. This Judgment should be

reversed. See McAllister v. United States, 348 U.S. 19, 20, 75

S.Ct. 6, 8, 99 L.Ed. 20, 24 (1954); United States v. United

States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92

L.Ed. 746, 766 (1948); Coulter v. Ingram Pipeline, Inc., 511

F.2d 735 (Sth Cir. 1975); Fed. R. Civ. P., 52(a).

16

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review

the Judgment and opinion of the Fifth Circuit.

Respectfully submitted,

Louis H. BEARD

WELLS, PEYTON, BEARD,

GREENBERG, HUNT & CRAWFORD

624 Petroleum Building

P. O. Box 3708

Beaumont, Texas 77704

Telephone (713) 838-2644

State of Texas Bar

Card No. 01975000

17

IN THE

Supreme Court of the Wnited States

OCTOBER TERM,1980

NEWPORT TANKERS CORPORATION,

Petitioner,

Vv.

WILLIAM MICHAEL SIMMONS,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that on the .... day of March, 1981, |

mailed three copies of the Petition for Writ of Certiorari to the

Honorable March H. Coffield, counsel for the Respondent, by

placing the same in the United States Mail, postage prepaid,

certified, return receipt requested, addressed to his offices, P. O.

Box 480, Jasper, Texas 75951.

he i nie he eS Ss ke S Fe £6 8 6 6 8 6 8 et 8

Louis H. BEARD

WELLS, PEYTON, BEARD,

GREENBERG, HUNT & CRAWFORD

P. O. Box 3708

Beaumont, Texas 77704

Telephone (713) 838-2644

Counsel for Petitioner

A-1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NEWPORT TANKERS CORPORATION,

Petitioner,

V.

WILLIAM MICHAEL SIMMONS,

Respondent.

APPENDIX

A-2

DO NOT PUBLISH

IN THE

UNITED STATES COURT OF APPEALS

For THE FIFTH CIRCUIT

UNIT A

No. 79-3201

WILLIAM MICHAEL SIMMONS,

Plaintiff-Appellee,

VERSUS

NEWPORT TANKERS CorpP.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

(January 21, 1981)

Before WISDOM, RUBIN and SAM D. JOHNSON,

Circuit Judges.

RUBIN, Circuit Judge:

Having suffered an attack of appendicitis while in a Russian

port awaiting fumigation of his vessel, a seaman was treated by a

Russian doctor who performed an emergency appendectomy.

After an uneventful recovery, the seaman returned to the United

States where he experienced abdominal pains, sought medical

attention and eventually submitted, on medical advice, to an

exploratory laparotomy. The attending surgeon testified by dep-

osition that the seaman was suffering from adhesions, that the

type of suture used by the Russian doctor caused the seaman’s

A-3

reaction and that the type of suture American doctors use would

not cause such a reaction. The surgeon further testified that, had

the appendectomy been performed correctly, the extensive adhe-

sions suffered by the seaman would not have resulted and the

laparotomy would not have been required. Another doctor,

called by the defendant, testified that the adhesions were a

normal sequel of the surgery and that the Russian surgical

procedure was not negligently performed. The seaman sued his

employer for damages, the case was tried to the court and the

trial judge awarded judgment in favor of the plaintiff. Having

determined that his findings were not clearly erroneous, Fed. R.

Civ. P. 52, and that his legal conclusions were not incorre—t, we

affirm.

“The maritime law has long imposed upon shipowners the

duty to provide proper medical treatment for seamen falling ill

or suffering injury in the service of the ship. This is a duty

imposed without fault; it is no mere formal obligation. ...”

Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 679 (2d Cir.

1971) (citations omitted). In Central Gulf S.S. Corp. v.

Sambula, 405 F.2d 291 (Sth Cir. 1968), this court found no

“distinction between the responsibility of a ship for a physician

in its regular employ and its responsibility for the negligence of

an independent physician engaged to fulfill a singular duty to

provide maintenance and cure.” 405 F.2d at 302 n.7.

There was ample evidence to support the trial judge’s conclu-

sions that the seaman’s problems were caused by adhesions, that

the adhesions were more severe than those that would follow

surgery performed with adequate skill and that the Russian sur-

geon was negligent. For these reasons, we need not explore the

additional bases for the award relied upon by the trial court. The

amount of the verdict being uncontested, the judgment is

AFFIRMED.

A-4

FILED

U.S. DISTRICT COURT

EASTERN DISTRICT OF

TEXAS

MAR 9 1981

MURRAY L., HARRIS,

CLERK

BY DEPUTY

/s/ Jupy L. Lewis

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 79-3201

D. C. Docket No. B-77-369-CA

WILLIAM MICHAEL SIMMONS,

Plaintiff-Appellee,

Vv.

NEWPORT TANKERS CorpP.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

Before WISDOM, RUBIN and SAM D. JOHNSON,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the record

from the United States District Court for the Eastern District of

Texas and was argued by counsel;

ON CONSIDERATION WHEREOPF, It is now here ordered

and adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be, and the same is hereby, affirmed;

IT IS FURTHER ORDERED that defendant-appellant pay

to the plaintiff-appellee, the costs on appeal to be taxed by the

Clerk of this Court.

JANUARY 21, 1981

ISSUED AS MANDATE:

A-5

IN THE

UNITED STATES DISTRICT COURT

IN AND FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

Civit ACTION No. B-77-369-CA

WILLIAM MICHAEL SIMMONS

VS.

NEWPORT TANKERS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-entitled and numbered cause having come on for

trial before the Court, and the Court having heard the evidence

and argument of counsel, and being fully apprised in the prem-

ises, now finds the following:

FINDINGS OF FACT

(1) That at all times material hereto, plaintiff, William

Michael Simmons, was a seaman and a member of the crew of

the S/T ACHILLES.

(2) That at all times material hereto, defendant, Newport

Tankers Corporation, was the owner of the S/T ACHILLES

and the employer of its crew, including the officers of said vessel,

and plaintiff, William Michael Simmons.

(3) That said vessel was taken to port in Poti, Russia, for the

purpose of furnigating the vessel.

(4) That while said vessel was in port in Poti, Russia, the

crew, including plaintiff, were housed in a hotel.

A-6

(5) That on or about July 8, 1977, plaintiff became ill with

appendicitis and was sent by the master of the said vessel, D. H.

Mappin, to a hospital in Poti, Russia, for treatment.

(6) That the surgeons in Poti, Russia, who performed an

appendectomy on plaintiff were selected by the master of the

vessel in question.

(7) That Poti, Russia, had a population of approximately

50,000 persons.

(8) That within a reasonable travel distance of Poti, there

are five (5) cities, Batumi, Kutaisi, Sukhumi. Sochi, and

Novorossiysk, each of which had a population of 100,000 per-

sons, or more.

(9) That the quality and availability of medical, surgical and

hospital services and facilities in Russia are significantly affected

by population.

(10) That the master of the vessel in question admitted that

the facilities at the hospital in Poti were primitive and that they

appeared primitive to him.

(11) That the appendectomy performed on plaintiff on July

8, 1977, was done with a local anesthetic, instead of a general

anesthetic.

(12) That the surgery on plaintiff was negligently performed

and directly and proximately resulted in personal injuries to

plaintiff, and necessitated additional corrective surgery, a

laparotomy, on March 17, 1978.

(13) The defendant, and its officers, was negligent in its

selection of doctors and facilities used to perform the surgery on

plaintiff.

(14) That defendant, and its officers, was negligent in failing

to transport plaintiff to doctors and facilities in the »icinity of

Poti, Russia for surgery and treatment.

A-7

(15) That defendant, and its officers, was negligent in select-

ing Poti, Russia, for the fumigation of its said vessel when the

medical facilities, there were primitive.

(16) That defendant, and its officers, was negligent in failing

to determine the quality of medical facilities and doctors in Poti,

Russia, prior to selecting that port for fumigation of the vessel in

question.

(17) That defendant, and its officers, was negligent in failing

to furnish plaintiff a reasonably safe place in which to work.

(18) That the negligence of defendant, and its officers,

played a part in and proximately caused damages to plaintiff.

(19) That the sum of $35,000.00, if paid now in cash, would

reasonably compensate plaintiff for his damages caused by the

said negligence of plaintiff, and its officers.

CONCLUSIONS OF LAW

(1) That this Court has jurisdiction of the parties and the

subject matter of this cause.

(2) That the Jones Act, 46 U.S.C.A. §688, applies to the

facts of this cause.

(3) That the allegations contained in the plaintiffs trial

pleadings and the contentions made by plaintiff in the Pre-Trial

Order in this cause and the evidence herein give rise to a duty on

the defendant, and its officers, to exercise reasonable care in the

selection of a port, the selection of doctors and medical facilities

for plaintiff, to provide reasonable medical attention and treat-

ment for plaintiff, and to furnish plaintiff a reasonably safe place

to work.

(4) That the evidence in this cause establishes that

defendant, and its officers, breached its duties to plaintiff.

A-8

(5) That plaintiff is entitled to recover $35,000.00 of and

from the defendant for his damages, and shall have Judgment

for that amount herein.

(6) That interest at the rate of 9% per year shall run on the

said $35,000.00 from and after Judgment in this cause.

Let Judgment be entered accordingly.

SIGNED and ORDERED ENTERED this 11th day of

September, 1979.

/s/ JOE J. FISHER

Judge Presiding

A-9

SUMMARY OF SALIENT PARTS OF THE RECORD

The Master of the S/T ACHILLES, D. H. Mappin, testified

that the hospital appeared to him to be clean, adequate and of a

type where the Respondent would receive proper attention. He

was convinced that the doctors and nurses were qualified, and if

the appendectomy was performed that it would be done in first-

class fashion. He was reassured with regard to these matters by

Inflot, an agency of the Russian Government, which was acting

as agent for the s/T ACHILLES. (Tr. pp. 100-101).

Chief Mate, William R. Horne, testified that when a vessel

enters a port in Russia it is required to work through Inflot,

which is an arm of the Russian Government, and the owner or

operator of the vessel has no discretion in naming the agent. (Tr.

p. 82, his deposition p. 11).

Some of the members of the crew required medical attention

while in the first port entered in Russia, the Port of Novoros-

siysk, and Inflot was there acting as agent. The members of the

crew treated ashore at Novorossiysk made no complaints that

the medical attention which they received was in any way faulty.

(Tr. p. 83, his deposition p. 20).

Chief Mate Horne described the hospital in Poti, Russia as a

stone building of two or possibly three stories which was situated

right across the street from the Inflot office. Others of the crew

went to the hospital in Poti for medical attention and none com-

plained about the attention received. (Tr. p. 85, his deposition

pp. 29, 30, 31).

Chief Mate Horne identified the Medical Log of the ship and

the entry therein regarding the Respondent:

“Simmons underwent an emergency operation for

appendicitis at the hospital at Poti, USSR.”

A-10

~

The report shows that the operation took place on July 8, 1977,

at about 1500 hours and Respondent was released from the hos-

pital in an ambulatory condition on July 18, 1977. (Tr. pp. 86,

87).

Carol Ann Stevenson Mappin was the wife of the Master of

the S/T ACHILLES and was aboard as Librarian. (Tr. p. 89).

She testified that Captain Mappin had no discretion in selecting

the agent for the ship while in Russia and that it was Inflot’s

responsibility to take care of any of the ship’s crew who needed

medical attention. Inflot would be contacted to make arrange-

ments for the medical attention required. She testified that

insofar as the work done by Inflot in behalf of the ship, every-

thing was quite satisfactory. (Tr. p. 91, her deposition pp. 15-

16).

Mrs. Mappin testified that the crew was staying in a hotel in

Poti while the vessel was being fumigated. (Tr. p. 92, her deposi-

tion pp. 25-26). Respondent related to Captain Mappin that he

had vomited in the shower and Captain Mappin told him to go to

the doctor immediately and directed him to the agent, Inflot.

Very soon the agent called the Captain on the phone advising

him that Respondent needed an operation and the Captain went

immediately to the hospital. (Tr. pp. 92-94, her deposition pp.

31-33).

Mrs. Mappin described the hospital as a two-story brick struc-

ture consisting of two buildings. She described the room

occupied by Respondent as measuring 25 to 30 feet square, hav-

ing one window, and having furniture consisting of a large

wooden cabinet, a nightstand, and one long table with a chair by

it and having two beds. The floor was covered with a linoleum-

type covering. There were white sheets on the bed. On each

occasion when she entered the room there would be nurses

present, but they would leave upon her entering. Mrs. Mappin’s

purpose in going to the hospital was to find out how the

Respondent was doing, and Respondent’s response was always a

A-1]

big grin and that everything was fine. She described the hospital

as being the best that Poti had to offer. (Tr. pp. 94-95, her

deposition pp. 33-46).

Dr. Alton H. Tew, a Diplomat of the American Board of

Surgeons since 1950, testified for Petitioner and testified that he

had performed three hundred to five hundred appendectomy

operations. (Tr. pp. 27-30). He stated that an appendectomy

would ordinarily take thirty minutes to an hour and a half, and is

considered a routine operation today in the medical field, and for

a young man of twenty-five years of age, as the Respondent was

at the time of his operation, complete recovery usually would

take four weeks. (Tr. pp. 31-32).

Dr. Tew stated that adhesions is a scar tissue laid down within

the abdominal cavity, and that some people are more prone to

have adhesions than others because of the type tissue they have.

Adhesions have a blood supply but would not have any nerve

fiber, and the adhesions could be cut without any pain. He stated

that after an appendectomy, adhesions would form immediately

to some degree and gradually increase up to a point, but once

they form, they do not grow. Dr. Tew testified that adhesions are

not disabling in themselves, but disabling only when they

interfere with something else as where they are extensive and

Cause an obstruction to the bowel function. (Tr. pp. 33-36).

Dr. Tew reviewed the operative procedure report prepared by

Dr. D. O. Sessions and expressed the opinion that the adhesions

were “rather limited,” and the further opinion that because of

the minimal extent of adhesions found, the surgery for removal

of the adhesions was unnecessary. (Tr. pp. 38-40).

After the operation was performed, Dr. Sessions presented to

Dr. H. R. Wilcox, a pathologist, a specimen of the tissue in the

area of the appendix, and Dr. Wilcox found a small portion of a

suture in the cystic mass. Dr. Wilcox could find no acute inflam-

mation and gave a diagnosis of “granulation tissue from

appendeceal stump.” (Tr. p. 72; Report by Dr. H. R. Wilcox in

A-12

Exhibits 8, 9 and 10 of the Medical Records of Buna Medical

Center Hospital). Dr. Tew expressed the opinion that a nonab-

sorbable suture was used and that the finding of a portion of it,

as was found by Dr. Wilcox, was to be expected, and he stated

further that a suture would not cause an infection. (Tr. pp. 41-

42).

Respondent testified that he was vomiting, sick and could not

have continued his duties as a pantryman and that Captain

Mappin acted immediately and sent him to Inflot, the agent. The

Inflot agent understood that Respondent was ill and wanted to

go to a doctor. The hospitai was right across the street from the

Inflot office. Respondent waited in the waiting room fifteen to

twenty minutes, when a nurse came in and took blood from his

finger for a blood test. Within about twenty to twenty-five

minutes after the blood was taken, the decision was made to

perform the appendectomy. (Tr. pp. 46-50). Respondent was

conscious during the entire procedure, which was performed by a

male doctor and nurses were around him during the operation.

When asked if the room was clean, Respondent stated it was

“fair,” and when asked if the nurses took care of his needs, he

stated “‘mostly.”” He stated that he was given a shot each day

while in the hospital and he believed it to be penicillin. (Tr. pp.

50-53).