Petition — Waring v. Kalgrad Navigation Co.

No. Office -Supre

FILED

In The MAR 9

1908

Supreme Court of the Bete:

————-

October Term, 1980

OSCAR WARING,

Petitioner,

VS.

KALGRAD NAVIGATION COMPANY, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

AVRAM G. ADLER

ADLER, BARISH, LEVIN

AND CRESKOFF

Attorneys for Petitioner

Rohm and Haas Building

Sixth and Market Streets

Philadelphia, Pennsylvania 19106

(215) 923-8900

AVRAM G. ADLER

ANNE E. FIALKOWSKI

On the Brief

LUTZ APPELLATE PRINTERS, INC.

4727 NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363

NJ (201) 257-6850 © PA (215) $63-5587 © DC (202) 783-7288 © MA (617) 227-1133

QUESTION PRESENTED

1. Whether the court may permit receipt of testimony as to

longshoremen’s violations of OSHA regulations and not charge the

jury that the shipowner’s scienter of such violations renders the

shipowner liable to the longshoremen?

PARTIES

Petitioner in the action is Oscar Waring. Respondent is

Kalgrad Navigation Company, Inc.

ii

TABLE OF CONTENTS

Page

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Reasons For Granting the Writ:

The charge by the court that a violation of OSHA

regulations by the stevedore as the cause of the accident

requires a verdict in favor of the shipowner is an error of

law and in conflict with the Court of Appeals for the

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iii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Bachtel v. Mammouth Bulk Carriers Ltd., 605 F. 2d 438-44

Se Gs MT badeeddncdccnnacescolenesseseaeae 9, 10

Brown v. Ivarans Rederi A/ A, 545 F. 2d 854(C.A. 2 1976). 10

Chavis v. Finnlines, Ltd. O/Y, 576 F. 2d 1072 (C.A. 4

SPER SOCCER S4 dee Ra sSS 4b PERbR CAS DKURBEES See neKss 10

Edmonds v. Compagnie Generale Transatlantique, 61 L. Ed.

Se GE GRP ONE Lobb ehsvdnsntcticneiansedssduviecves 14

Frasca v. Prudential Grace Lines, 394 F. Supp. 1092 (D.

Pe SPIO cnt dnsvb re veeeciecdasnsMePberssesvccens 13

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

Cals PPT EE cnsucvhverecewheccebeccuncannenesess 10

Griffith v. Wheeling — Pittsburgh Steel Corporation, 610

fe fogs fo Ae. Garr rrr err rrr er errr 13

Hite v. Maritime Overseas Corporation, 380 F. Supp. 222

a PUREE ab atu cag eebedcdsecenkesetceeee 13

Lawson v. United States, 605 F. 2d 448 (9th Cir. 1979) .. II

Marshall v. Isthmian Lines, Inc., 334 F. 2d 131 (1964) ... 10

Provenza v. American Export Lines, Inc., 324 F. 2d 660 (4th

SRP eanesssensusadececdes csreducssvacenecss 10

iv

Contents

Page

Reid v. Quebec Paper Sales & Transportation Co., Ltd., 340

FA Pe LIPO bon 66 use nebi tes deabovenvevescenes 10

Venable v. A/S Det Dorenede Dampskibsselskab, 399 F. 2d

og ot RB PPCPPTPeeTrerrenyT TTT CTT CETTE 10

Statutes Cited:

FBUS.C. GIZSET) ccccccccccccvcccvccessveccccscccccse 2

33 U.S.C. GOO], ef 96G. cccccccccccccccccccccccccccccces a

Other Authorities Cited:

29 C.P.LR. GIDISAKH]) wccccccccccccccccccccccccccccccece 12

29 CPLR. GIDIS.47 .nccccccccccces TETTTTTITTT EET 12

29 C.PLR. $IDIS.Si(a), (C) oncccccccccccccccccccccccccce 12

2D CPLR. GIDIS.S4 nncccccccccccccccsccccvcccccscccece 12

29 CPLR. $ID1B.1 wccccccccccccccccccccccccccccccccccs 4

29 CPR. $I91S.2 .nccccscccccccccccccvccescvcsccceces 9

29 C.F.R. $1918.32 .cccccccccccccvcccccccccccccccccees 9

29 C.F.R. GIDIS.SAB) ..ccccccccccccccccccccccccccccces “9

29 CPLR. GIDISG.DNE) .ccccccccvcccccccccccsecccccccsese 7

§343 of the Restatement of Torts, 2d ......secccescceces 13

Vv

Contents

Page

APPENDIX

Fadigment Onder oc ccccccccccsesscccicssceneusseuvessne la

Denial of Petition for Rehearing .........ssseeeeeeeeees 3a

Excerpts of Transcript of Proceedings ..........s+eeeeee: 4a

No.

In The

Supreme Court of the United States

o—

October Term, 1980

OSCAR WARING,

Petitioner,

vs.

KALGRAD NAVIGATION COMPANY, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

Petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Third

Circuit entered in the above case on October 31, 1980 and denial

of petition for rehearing en banc on December 8, 1980.

2

OPINIONS BELOW

No opinion has been filed by any of the courts below. A

direct appeal was taken to the United States Court of Appeals

for the Third Circuit from the judgment entered in the District

Court on the verdict on February 29, 1980. The Court of

Appeals for the Third Circuit denied oral argument and affirmed

the court below by a per curiam order dated October 31, 1981. A

petition for rehearing en banc filed by petitioner was denied on

December 8, 1980. The order of the said Court of Appeals

affirming the court below and the denial of the petition for

rehearing en banc are included in the appendix at pages la and

3a respectively.

JURISDICTION

The denial of the petition for rehearing of the order

affirming the court below by the United States Court of Appeals

for the Third Circuit was entered on December 8, 1980. The

jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provision involved is the Longshoremen and

Harbor Workers Act, 33 U.S.C. §901, et seq.

STATEMENT OF THE CASE

Petitioner was a longshoreman employed by a contracting

stevedore, Delaware Operating Company. He was injured on

April 24, 1976 in the Port of Philadelphia aboard the S/S Van

Union, a vessel owned and operated by the respondent

shipowner.

3

On January 18, 1978, petitioner filed a complaint in the

United States District Court for the Eastern District of

Pennsylvania; stating that on April 24, 1976 he was caused to

sustain personal injuries by reason of the negligence of Kalgrad

Navigation Company (“Kalgrad”) while he was working aboard

the vessel, the S/S Van Union. The answer of the respondent

Kalgrad denied any negligence on its part and alleged that any

injuries which the petitioner had sustained were caused by

petitioner's own negligence and by the negligence of petitioner’s

employer, Delaware Operating Company, an_ independent

contractor stevedoring company which had been hired to

discharge cargo from the vessel in Philadelphia.

The matter was tried before the United States District

Judge Clarence J. Newcomer and a jury. It was tried on all

issues including damages. The jury found, the issues having been

submitted to the jury on interrogatories, that the respondent was

not negligent. The interrogatories provided that upon such a

finding the jury need not reach causation or damages. Judgment

was entered on the verdict in favor of the respondent on

February 29, 1980.

In lieu of filing post-trial motions, petitioner filed a notice

of appeal to the Court of Appeals for the Third Circuit on

March 26, 1980.

The appeal was grounded upon the charge of the court as to

the duty of care of the shipowner under the Longshoremen and

Harbor Workers Act, 33 U.S.C. 901, et seq. The charge included

Section 343 of the Restatement of Torts 2d, a standard that had

been previously rejected by the Court of Appeals for the Third

Circuit and by the Court of Appeals for the Ninth Circuit as

including elements of assumption of the risk. In addition, it was

4

claimed that the court’s receipt of testimony as to OSHA,!'

regulations required a charge from the court that the violation of

OSHA regulations by the stevedore does not exculpate the

vessel owner. Petitioner claimed that the court erred in not

charging that to the extent that the vessel owner had scienter the

vessel owner may be found to be negligent by the jury.

The Court of Appeals for the Third Circuit did not afford

petitioner oral argument and affirmed the court below by a per

curiam order dated October 31, 1981 (la). Petition for

rehearing en banc was denied on December 8, 1980 (3a).

The S/S Van Union, a vessel owned and operated by the

respondent, carried the Liberian flag. Respondent is a

corporation organized under the laws of Liberia.

On April 24, 1976, the S/S Van Union came into the Port

of Philadelphia with steel products, including steel pipe of large

diameter. The vessel had been loaded in various ports in Japan

with these steel products. Petitioner was a member of the

“Lyles” gang which had been assigned to the number 4 hatch of

the vessel. Only the forward part of that hatch had cargo. The

vessel had no tween deck and consisted of a large general hold

from the weather deck down to the floor of the hold.

The cargo in the forward part of the number 4 hold

consisted of steel pipe stowed fore and aft on top of beams and

other steel products. The Lyles gang of which the petitioner was

a member was confronted with a stowage problem that made

discharge difficult. No dunnage had been placed between the

layers of pipe thus creating a serious hazard. It was necessary to

1. Occupational Safety and Health Act of 1970, 29 C.F.R. §1918.1,

et seq.

5

bar the pipe to elevate it from its point of rest so that a breakout

wire could be placed underneath it. The breakout wire would

then be utilized to lift the pipe sufficiently to put a lumber bridle

under the pipe in order to take the pipe from the hold to the pier

side. The top of the pile of pipe was approximately eleven to

twelve feet above the floor of the hold.

Mr. Lyles, the foreman, decided it was necessary to put a

forklift truck down in the clear part of the after end of the

number 4 hold because absent dunnage it was not possible to

bar the pipe apart so as to put breakout wire between it. The

forklift truck was utilized by having the forklift come in at a 45-

degree angle and, with one blade going underneath the pipe,

raising it up to get a strap underneath it.

Mr. Lyles testified that when dunnage was not used, it was

customary to have the cargo come in pre-slung, that is, with wire

put around the pipe at each end prior to the loading of the steel

pipe at the loading port so that neither breakout wire nor bridles

would be necessary. However, none of the cargo in the number 4

hatch on April 24, 1976 had been pre-slung.

When rain started a mate was asked to cover the hatches.

This was asked so that moisture would not make the steel

slippery. The mate, other than some nondescript manual

indications, did nothing.

When petitioner was trying to place the bridle underneath a

draft of pipe which had been raised by the forklift truck, he was

dislodged from the pile bv another piece of pipe that started to

roll. The petitioner fell some eleven to twelve feet from the top

of the pile to the deck of the lower hold in number 4 hatch, and

was removed in an unconscious state from the hold to the dock

by the use of the ship’s derrick.

6

Mr. Lyles expressed the opinion that the condition of the

stow as it came to the Port of Philadelphia from the standpoint

of discharging the cargo was not safe. He also testified that a

refusal to work and walking off the ship would endanger the

longshoremen’s jobs. He had utilized the forklift truck to raise

the pipe in order to put a breakout wire underneath as his best

solution to the dilemma.

Even after the accident, the longshoremen continued to use

the forklift truck in the same way.

William Collins, a longshoreman for approximately

eighteen years who had covered the entire spectrum of longshore

work including gangboss and shipboss, was called by the

petitioner as an expert. He had handled cargo similar to that

described by Mr. Lyles, both from a discharging and loading

aspect. He was asked what were the essentials in stowing cargo

such as steel pipe and tubing. Mr. Collins pointed out that

among the important factors was the necessity to take the cargo

out safely. While he did not approve the use of the forklift truck,

he also rejected the alternatives suggested by counsel for the

respondent as equally dangerous.

He reiterated the need for either dunnage or a chock to

provide a small space to slide in the breakout wire which would

then lift the pipe sufficiently high enough to put the necessary

bridles around it. Absent dunnage, the only other safe procedure

would be pre-slung cargo; that is, cargo already wrapped in wire

and slings so that it may be merely hooked up and taken out

immediately. He further testified that he had always loaded this

type of cargo either in pre-slung condition or by the use of

dunnage so that it may be discharged safely at subsequent ports.

Captain Cullen, a Master Mariner was also called as an

expert for the petitioner. Captain Cullen testified that the

7

Master has the ultimate responsibility for the stowage of the

cargo aboard the vessel and performs that function through his

officers. He pointed out that the » ‘mary business of a vessel is

to carry cargo from one port to another, and it was therefore

concerned with the safe and proper stowage of the cargo. Proper

stowage consists of several important elements, the first of which

is planning. The planning stage is the amount of thought which

goes into loading the cargo, the foremost of which is the safety

of the vessel and the safety of the people who are going to work

on that vessel and are going to be concerned with the loading

and discharging of the cargo.

In the opinion of Captain Cullen, the steel pipe to be

discharged in Philadelphia was not reasonably safe, absent the

use of dunnage to provide for breakout wires. He summed it up

that if dunnage had been used liberally throughout the cargo in

the number 4 hatch, it would have provided for a systematic and

safe discharge of that cargo by a method that is familiar and

consistent with longshoring practices. Without the dunnage,

longshoremen were forced to improvise when they used a forklift

in order to lift up the pipe bundle to put in breakout wire.

Captain Cullen was cross-examined on OSHA regulations and

with particularity as to No. 1918.32(b) which was read to him,

that “when an edge of a hatch section or of stow cargo more

than eight feet high is so exposed that it presents a danger of an

employee falling, the edge shall be guarded by a safety net of

adequate strength to prevent injury to a falling employee, or by

other means providing equal protection under the existing

circumstances.” He was also cross-examined on OSHA

regulation 1918.91(c) which requires that slippery conditions

be eliminated as they occur. There had been a contention

by the petitioner that the moisture from the rain had made the

pipes slippery. Respondent countered with testimony that there

was satisfactory dunnage and denied the rain.

Among the experts called by the respondent was Joseph F.

McGowan, General Manager of Stevedoring for Delaware

Operating Company, who was the petitioner’s employer. His

offered as an expert testifying on behalf of the respondent. His

opinions convicted his own company of unsafe practices by the

use of the forklift truck. He also opined that the stevedore was

doing the discharging in an unsafe manner.

Cross-examination of Mr. McGowan revealed that he hadno

hold experience, that he had worked on the wharf, and then as a

timekeeper and then went into management. He admitted that

he had not been on the S/S Van Union, and that he had not

seen the cargo. He admitted that water on naked steel makes it

slippery. He admitted that if the pipe got wet he would not

under any circumtances dispatch longshoremen to suddenly

smear the pipe with Dri-All. He admitted that he would not

expect longshoremen to scatter sawdust on the top of the pipes if

the pipes had been rained on, but would wait for the pipes to

dry. He admitted on cross-examination that loading a vessel is

under the control of either the ship’s officers or a super cargo,

that is, a port captain accompanying the vessel. He admitted on

cross-examination that his records indicated that it did rain and

that it had rained on April 24, 1976.

REASONS FOR GRANTING THE WRIT

The charge by the court that a violation of OSHA

regulations by the stevedore as the cause of the accident requires

a verdict in favor of the shipowner is an error of law and in

conflict with the Court of Appeals for the Ninth Circuit.

The court permitted testsony in extenso regarding the

safety and health regulations for longshoring which were

characterized as OSHA rules. Petitioner’s experts were cross-

examined on the activities of the stevedore and whether they

9

violated the OSHA regulations. Respondent’s experts gave their

opinion that the activities of the longshoremen did violate the

OSHA regulations and it was the violation of the OSHA

regulations that was the sole cause of the accident.

The court’s charge was explicit on this point:

“You have heard testimony regarding the

safety and health regulations of longshoring.

They apply only to stevedoring companies and

they are rules, the so-called OSHA rules, which

the stevedoring companies such as plaintiff's

employer must follow in conducting their work

aboard vessels. If you find that plaintiff's

employer failed to follow these regulations and

that this failure was the sole cause of the

accident, then you must find for the defendant.”

This charge is contrary to the laws expounded by the Court of

Appeals for the Ninth Circuit in Bachtel v. Mammouth Bulk

Carriers Ltd., 605 F. 2d 438-44 (9th Cir. 1979),2 which

discussed the precise question of violations by the longshoremen

of the requirements uf the Safety and Health Regulations for

Longshoring (29 C.F.R. §1918.2, et seq.).

Involved in that case was the precise code section that was

involved in the instant case namely, 29 C.F.R. §1918.32. This

section of the code provides:

“(b) When an edge of a hatch section or of

stowed cargo more than 8 feet high is so exposed

that is presents a danger of an employee falling,

the edge shall be guarded by a safety net or (sic)

2. Petition for certiorari pending.

10

adequate strength to prevent injury to a falling

employee, or by other means providing cqual

protection under the existing circumstances.”

As the court pointed out in Bachtel prior to the 1972

amendments te the Longshoremen and Harbor Workers Act, it

was well-settled that a violation of the regulations was an indicia

of negligence on the part of a vessel owner which if such

negligence was a proximate cause of a longshoreman’s injuries

imposed liability upon the vessel owner. This Court had denied

certiorari in Provenza v. American Export Lines, Inc., 324 F.

2d 660 (4th Cir. 1963) and this principle was followed in the

Second Circuit in Reid v. Quebec Paper Sales & Transportation

Co., Ltd., 340 F. 2d 34 (1965), and in the Fifth Circuit in Marshall

v. Isthmian Lines, Inc., 334 F. 2d 131 (1964). See also, Venable

v. A/S Det Dorenede Dampskibsselskab, 399 F. 2d 347, 353

(C.A. 4, 1968). :

The Court of Appeals for the Ninth Circuit then wrestled

with the question as to whether or not the enactment of the 1972

amendments changed this doctrine. The court examined the

post-amendment cases, Chavis v. Finnlines, Ltd. O/ Y, 576 F. 2d

1072, 1082 (C.A. 4 1978), Gay v. Ocean Transport & Trading,

Ltd., 546 F. 2d 1233 (C.A. 5 1977) and Brown v. Ivarans Rederi

A/A, 545 F. 2d 854 (C.A. 2 1976), which seemingly support the

conclusion that a violation of the regulations cannot be utilized

by a longshoreman against a shipowner. The Court of Appeals

for the Ninth Circuit in Bachtel concluded that these cases are

fatally flawed with a basic error and an unwarranted

interpretation of the regulations, when it said:

“Although §1918.2 makes it clear that the

regulations do not place additional

responsibilities or duties on owners, operators,

and others, it likewise makes it crystal clear that

the regulations do not relieve the owners,

operators, or masters from responsibilities or

duties then placed upon them by law, regulations,

or custom. The designing of a 20-30 foot deck

load of logs without adequate safeguards at the

sides could well have been viewed as evidence of

negligence under the /aw as it exists prior to

1972. This design along with the failure to

provide protective nets or other devices would be

presented to a jury under the customary

definition of negligence. That is to say, the

regulations here required nothing more than the

due care required under the doctrine of

negligence as it existed in maritime law prior to

1972.

We must assume that Congress was aware of

the Provenza, Bolenski and Venable decisions,

which held that the regulations applied to

negligence on the part of the shipowner, at the

time it passed the 1972 amendments. The

negligence mentioned in 33 U.S.C. §905(b),

therefore, would necessarily include a violation of

the then existing law and regulations, including

§1918.32(b), the subject of the court’s instruction

challenged by appellant. See Shapiro v. United

States, 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787

(1948); Allen v. Grand Central Aircraft Co., 347

U.S. 535, 74 S. Ct. 745, 98 L. Ed. 933 (1954).”

(at 445).

In Lawson v. United States, 605 F. 2d 448, 452 (9th Cir.

1979), the Court of Appeals for the Ninth Circuit reiterated its

position that a vessel owner is liable for a ship repair

contractor’s non-compliance with the safety and health

12

regulations for ship repairing. 29 C.F.R. §1915.43(e), $1915.47,

§1915.51(a), (c), and §1915.54. These rules are paralle! rules to

those relating to longshoremen and the logic is equally

applicable.

We have included in the appendix herein at 4a-Sa, two

pages of the cross-examination of Captain Cullen, an expert

witness for the petitioner, which demonstrates the pivotal effect

on the jury’s questions of the alleged violation of the regulations

by the stevedore. The pivotal effect is heightened when the

petitioner’s employer through its general manager, testifies as an

expert for the respondent, and convicts his own company of

these violations. The pivotal nature of the charge is also

highlighted by the very manner in which the court charged.

Despite the fact that interrogatories were submitted requiring

the jury to answer seriatim questions as to negligence and

causation, the language speaks in the sense of a general verdict. _

In the instant case, the OSHA regulations should not have

been permitted as a basis for exonerating Kalgrad. The

contentions as to the improper stowage and the lack of proper

planning made irrelevant any violations of OSHA regulations as

exculpatory. It permitted a ground swell of confusion as to the

implications of violations of OSHA regulations. Nothing the

court charged made clear that the violations of OSHA

regulations by a stevedore in attempting to meet a stowage

problem does not exculpate the shipowner. It could have served

as an independent basis of liability of the shipowner. It could

have served as a demonstration that in planning the stowage of

the vessel and creating the hazard of which the plaintiff

complained, that the vessel owner should have foreseen that the

stevedore might violate OSHA regulations. In the context in

which it was introduced and the manner in which it was utilized,

13

the jury was led to believe that if the stevedore violated an

OSHA regulation, the vessel owner was thereby insulated from

liability.

The charge of the court as to the duty of care of the

shipowner was a melange of the new-found standard of care as

set forth in Griffith v. Wheeling — Pittsburgh Steel

Corporation, 610 F. 2d 116 (3rd Cir. 1979) and §343 of the

Restatement of Torts, 2d. Petitioner, in its points for charge,

asked the court to charge Griffith v. Wheeling — Pittsburgh

Steel Corporation, supra, and the court so did. The respondent

asked the court to charge no. 45 of respondent's points for

charge which the court also covered. This point reads:

“The shipowner is under no duty to warn the

stevedore of dangers or defects which are (1)

open and obvious or (2) are known to the

stevedore or his employees, or (3) which could

readily be observed or discovered by said

employees in the exercise of ordinary care during

the performance of their work. Hite v. Maritime

Overseas Corporation, 380 F. Supp. 222 (E.D.

Texas 1974); Frasca v. Prundential Grace Lines,

394 F. Supp. 1092 (D. Md. 1975); Fisher v.

Norships Freighters, Inc., 1975 AMC 1622 (E.D.

Pa. 1975).”

Hite v. Maritime Overseas Corporation, 380 F. Supp. 222

(E.D. Texas 1974) and Frasca v. Prudential Grace Lines, 394 F.

Supp. 1092, 1100 (D. Md. 1975) are cited by the respondent in

support of their point of charge no. 45 and are pure

embodiments of §343 of the Restatement of Torts, 2d.

The Griffith court held that the minimum requirement of

the reasonable standard of care for a vessel owner is as follows:

14

“Ata minimum, we think that the standard

of reasonable care under the circumstances would

permit a finding of negligence upon a showing:

(1) that the vessel knew of or by the exercise of

reasonable care could have discovered the

condition on board ship that led to the injury; (2)

that the vessel knew or should have known that

the condition would pose an unreasonable risk of

harm to the longshoremen working on board

ship; and (3) that the vessel failed to exercise

reasonable care to protect the longshoremen

against that danger. See Santos v. Scindia Steam

Navigation Co., 598 F. 2d at 485.” At page 126.

(emphasis supplied).

It further held that the fact that the stevedore chose a

method of operation which may have been negligent, does not

relieve the vessel owner of its responsibilities (at page 127).

The fact that the longshoreman may have violated the

OSHA regulations is not dispositive of the vessel owner’s fault,

and, therefore, to charge the jury that if the stevedore were in

fact in violation of the OSHA regulations then the shipowner

could not be liable, was erroneous as a matter of law.

The charge of the court on OSHA regulations doomed the

parallelism deemed by Congress to be necessary for the

protection of longshoremen. Edmonds v. Compagnie Generale

Transatlantique, 61 L. Ed. 2nd 521, 530-31 (1979).

15

CONCLUSION

In sum total, a longshoreman seriously injured has been

impaled upon a violation of OSHA regulations by his employer

by a charge that permits such violations to relieve the vessel

owner dispute scienter of his parallel duty to take all steps

necessary for the safety of those who labor in the service of the

vessel.

For the above-stated reasons, it is respectfully prayed that

the petition for a writ of certiorari be granted.

Respectfully submitted,

AVRAM G. ADLER

ADLER, BARISH, LEVIN

& CRESKOFF

Attorneys for Petitioner

AVRAM G. ADLER

ANNE E. FIALKOWSKI

On the Brief

APPENDIX

JUDGMENT ORDER

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

No. 80-1514

WARING, OSCAR,

Appellant

vs.

KALGRAD NAVIGATION CO., INC.

Appeal from the United States District Court for the Eastern

District of Pennsylvania D.C. Civil Action No. 78-0186

Submitted Under Third Circuit Rule 12(6)

October 15, 1980

Before: HUNTER, WEIS, Circuit Judges, and FISHER,*

District Judge

After consideration of all contentions raised by appellant, it

is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

* Honorable Clarksen S. Fisher, Chief Judge, United States District

Court for the District of New Jersey, sitting by designation.

2a

Judgment Order

Costs taxed against appellant.

BY THE COURT,

s/ James Hunter, III

JAMES HUNTER, III

Circuit Judge

Attest:

s/ Sally Mrvos

Sally Mrvos, Clerk

DATED: Oct. 31, 1980

3a

DENIAL OF PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 80-1514

WARING, OSCAR,

Appellant,

x

Vv.

KALGRAD NAVIGATION CO., INC.

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, ROSENN, HUNTER, WEIS, GARTH,

HIGGINBOTHAM and SLOVITER

The petition for rehearing filed by Appellant in the above

entitled case having been submitted to the judges who

participated in the decision of this court and to all the other

available circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked for

reheariing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

By the Court,

s/ James Hunter, III

Judge

Dated: December 8, 1980

4a

EXCERPTS OF TRANSCRIPT OF PROCEEDINGS

[Commencing at p. 4-42]

“... what other means providing equal

protection under existing circumstances would

you prescribe? A. I really can’t thhink of any. I

really can’t think of any right now, Mr.

Mahoney.

Q. Well, have you ever seen a stevedoring

operation in which the stevedore has to discharge

a height of steel, bundles of pipe more than 8 feet

high? A. Well, no, I have never had experience

with a height of pipe like that, as I have said, so I

have never seen that operation.

Q. Not 12 feet high but just more than

8. A. More than 8 feet high. No, I don’t think

$0; no.

Q. And it wouldn’t make any difference,

would it, whether or not there was dunnage

between the bundles of pipe, this regulation

would still apply as long as the stow was more

than 8 feet high, isn’t that correct? A. It would

be a much safer stow with the dunnage in

between the pipes.

Q. That is not what I asked you, Captain. It

would not make any difference insofar as this

regulation is concerned, would it? A. Not

insofar as the written words of the regulations are

concerned, no.

Sa

Excerpts of Transcript of Proceedings

Q. Well, that is how we perpetuate

regulations, is by putting them in written words,

don’t we, Captain? [4-43] A. Correct, but —

Q. And they are — when the regulation is

prescribed, when it’s promulgated it has the force

of law, does it not? A. Yes, it does.

Q. And it has to be obeyed? A. Yes, it

does.

Q. By the stevedore. A. Well, that is what

the regulations say; yes.

Q. That is what the regulations say, right.

As a matter of fact, there is another

regulation that deals with slippery conditions, is

there not? A. Yes. —

Q. Do you know what that says? A. No, I

can’t give you the exact wording of the

regulation.

Q. Well, that is 1918.91(c); a section which

ddeals with housekeeping, and it says: Slippery

conditions shall be eliminated as they occur.

Are you familiar with that

wording? A. Yes.

Q. Now, that means that if the stevedore is

confronted with the situation where his men must

work under conditions which we would describe

as slippery, they... .”