Opposition Brief — Armadores de Cabotaje, S. A. v. Young

OC

No. 93-1040 and No. 93-1068

In The

October Term, 1993

+

No. 93-1040

EMPRESA NACIONALE SIDERURGICA, S.A.,

Petitioner

versus

IERRY YOUNG,

Respondent

and

COOPER/T. SMITH STEVEDORING COMPANY, INC

Respondent/Intervenor

No. 93-1068

ARMADORES DE CABOTAIE, S.A.,

Petitioner

versus

IERRY YOUNG,

Respondent

and

COOPER/T. SMITH STEVEDORING COMPANY, INC

Respondent Intervenor

e¢-- ——e

Petitions For Writ Of Certiorari To The Louisiana

Court Of Appeal For The Fourth Circuit

-¢+

BRIEF OF RESPONDENT/INTERVENOR IN OPPOSITION

TO PETITIONS FOR WRITS OF CERTIORARI

— @ —_—_______—_—

Rocu P. PoetMan

(Counsel of Record)

JouHn H. Musser, V

Hesert, Moutepoux & BLAND

601 Poydras Street, Suite 1650

New Orleans, Louisiana 70130

Telephone: 504/525-3333

Attorneys for Respondent/Interveno:

Cooper/T. Smith Stevedoring Company, In

OCKLE LAW BS6RIEF PRINTING CO. (800) 225-494

OR CALL COLLECT (402) 2-283

LIST OF PARTIES

The following are parties to the this proceeding:

1. Jerry Young, plaintiff/respondent;

2. Armadores de Cabotaje, S.A. — defendant/

petitioner;

3. Cooper/T. Smith Stevedoring Company,

Inc.! — intervenor/respondent; and

4. Empresa Nacional Siderurgica, S.A. — defen-

dant/ petitioner.

! Pursuant to Supreme Court Rule 29.1, Cooper/T. Smith

Stevedoring Corporation is the parent company of Cooper/T.

Smith Stevedoring Company, Inc.; River Grain Elevators, Inc.

and Paco Terminals, Inc. are the only two non-wholly owned

subsidiary companies of Cooper/T. Smith Stevedoring Com-

pany, Inc.

il

TABLE OF CONTENTS

Page

LIST OOP PARTI 5 6s sosivec cant cetubkeriaes Coarneees i

TABIR OF COIN Tae i ccvctacderevtesecinvaneers ii

TABLE OF AUTIOGRERIGO 6 oi ccscccccecevactcecuses iv

STATEMENT OF THE CASE ...2.ccccccsucdsengcuces 1

REASONS FOR DENYING THE WRIT OF ENSIDESA

1. GRANDERSON’S ALLEGED STATEMENTS

DURING DELIBERATIONS MERELY REFLECT

HIS EMOTIONAL REACTIONS AND MENTAL

PROCESSES, AND ARE PROPERLY PRO-

TECTED BY HIS RIGHT TO PRIVACY AND

PROTECTION FROM HARASSMENT IN

ACCORDANCE WITH ALL RELEVANT JURIS-

PRPEPEEED. viv cd 04s dcndn div sedan pwamded Vk ate es 6

2. LOUISIANA’S PROCEDURES FOR DISALLOW-

ING JUROR’S AFFIDAVITS TO IMPEACH THEIR

OWN VERDICT IS SUBSTANTIALLY SIMILAR

TO THE PARALLEL FEDERAL RULE AND IS

CONSISTENT WITH ALL CONSTITUTIONAL

PFO 6 60s chi 0 64 eke herd e PERECERENRT Fe ee 9

3. THE FOURTH CIRCUIT’S RULING THAT THE

JURORS’ AFFIDAVITS DID NOT DEMON-

STRATE THE EFFECT OF OUTSIDE INFLUENCE

IS EXACTLY WHAT COURTS AROUND THE

COUNTRY HAVE HELD ON THE SAME ISSUE

AND REFLECTS THE CONSTITUTIONAL BAL-

ANCE THAT HAS BEEN ESTABLISHED IN THIS

WELL-GETTLED ARBA 6c csccciccccscccsceces 10

REASONS FOR DENYING THE WRIT OF ARCASA.. 12

iii

TABLE OF CONTENTS - Continued

Page

ARCASA FAILS TO STATE ANY REASONS

WHICH INDICATE THAT THIS CASE IS

APPROPRIATE FOR SUPREME COURT REVIEW

eseeereeeeaerveseeeresese eee eee eseereeea eae seeeersee eer ere ee ef

THE TURNOVER DUTY OF SAFE CONDITION

ENCOMPASSES THE METHOD OF CARGO

POMC es eSevteN use cbbcndsbcdvdsedecevess

ACTUAL KNOWLEDGE OF THE NEGLIGENT

STOWAGE OF CARGO BY THE VESSEL OWNER

ee PEE. 55.05 co escencewsdsidevacees

THE OPEN AND OBVIOUS NATURE OF THE

DANGEROUS CARGO CONDITION DID NOT

RELIVE ARCASA OF A DUTY TO CORRECT

INTE Cike C840 co Nae denn canvonsaivnss

PET UCecevcocccebunsetoccatedsctteewess

16

17

19

iv

TABLE OF AUTHORITIES

Page

CAsEs:

Bennett v. Sedco Maritime, 527 So.2d 894 (La. App.

ele Ge BONE oo vnk ccc kasdvecnesresvepraderesi 5, 9, 10

Bjaranson v. Botelho Shipping Corp., 873 F.2d 1204

ee Ee eer er tt Pree rer 14

Derr v. Kawasaki Kisen K.K., 835 F.2d 490 (3rd Cir.

1987), cert. denied, 487 U.S. 1007, 108 S.Ct. 1733

CUE 6c ke se has iv bbeidy de uwevbeusaeesdaeus 15, 18, 19

Jorgenson v. York Ice Machinery Corp., 160 F.2d 432

vo BO, ie pr ke ray ee 12

Maldonado v. Missouri Pacific Railway Company, 798

F.2d 764 (5th Cir. 1986), cert. denied, 480 U.S. 932,

og oe MR: eee ree rr ee ee 7, 9, 10

Martinez v. Food City, Inc., 658 F.2d 369 (5th Cir.

6 a0a Kehr denne Cavedeuueleeeiepatesaneereruss 7

Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50

SR ie sahddbe kaeircheannedd daunbadson eunenees cece 8

Morris v. Compagnie Maritime Des Chargeurs Runis,

SO ee Oe ee Ge FO Pe bc ctccensvtecdecioreess 21

Pluyer v. Mitsui O.S.K. Lines, Ltd., 664 F.2d 1253

ee G SR a.ve bene ccorde beds E Keene sevedce 21

Poilizi v. M/V ZEPHYROS NO. II MONROVIA, 860

Pile BEF Ge Ge SI vow Sa se hese secsddecces. 22

Raines v. Diamond M Company, 396 So.2d 306 (La.

App. 3rd Cir.), writ denied, 399 So.2d 623 (La.

| See iets GUA wenGhEntAAhdNETAREEEEAD UR c0> © 00 es 9

Riggs v. Scindia Steam Nav. Co., 8 F.3d 1442 (9th Cir.

Phas dic cand edels ceusudaundeseivenasesatees 14, 15

Vv

TABLE OF AUTHORITIES —- Continued

Page

Ryals v. Home Insurance Company, 410 So.2d 827

(La. App. 3rd Cir.), writ denied, 414 So.2d 375

GLA. THUD cnet cece cncepevevsadnndveeabed kee erase 10

Scindia Steam Navigation Co., Ltd. v. De Los Santos,

451 U.S. 156, 101 S.Ct. 1615 (1961)......... 12, 14, 20

Sheppard v. Maxweli, 384 U.S. 333, 86 S.Ct. 1507

(FOES os cn pcnvvesdkunercdpans ep eagktaceatemenbeantin 9

Shillcutt v. Gagnon, 602 F.Supp. 1280 (E.D.Wisc

SHOE sé scien evedens yacees kbs cbabcaunnareanhnere: 11

Smith v. Brewer, 444 F.Supp. 482 (S.D.lowa 1978). .10, 11

Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739

CRORE 62 oa 620090080 ohnnen ned neaekereentens 6, 7

Taylor v. Moram Agencies, 739 F.2d 1384 (9th Cir.

ic isn déerereccaveche+erdshxesenga tee etevers 21

Torres-Valencia v. United States, 464 U.S. 44, 104

DE Fie Ghee ice to nec cbivooecdesevadtoncencaens 16

Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.

OED oe Sccknoatndsnetncdsacckhexedaspeurcciometeces 19

United States v. Duzac, 622 F.2d 911 (5th Cir. 1980) ...7, 8

United States v. Riley, 544 F.2d 237 (5th Cir. 1976),

cert. denied, 430 U.S. 932, 97 S.Ct. 1554 (1977)...... y

Woods v. Sammisa Co., Ltd., 873 F.2d 842 (5th Cir.

1989), cert. denied sub nom, Sammiline Co., Ltd. v.

Woods, 493 U.S. 1050, 110 S.Ct. 853 (1990)...... 15, 19

Statutes, CODAL PROVISIONS AND RULEs:

PE Sas oer hhscuedne seu bodawdeenhe 2, 13, 14

Ce usec enroekousakacedeaeeenns 4,9, 10

vi

TABLE OF AUTHORITIES — Continued

Page

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CB Be TRG FO 6 oc ceccccccctsvccconsencedvencter 16

UB. GA Bathe BDL... ccvcccvveveccsevevscdevcesuceees i

MISCELLANEOUS:

H.R. Rep. No. 92-1441 reprinted in 1972 U.S. Code

Cong. & Admin. News 4698 (1972) ........600005. 13

S. Rep. No. 92-1125 (1972) ........- eee ee eeeeeees 13, 19

3 J. Weinstein & M. Berger, Weinstein’s Evidence,

BEOGIOES. CIDSS) 2. ccccccccvcacccseccccvevesscccesecs 10

27 C. A. Wright & V. J. Gold, Federal Practice and

Procedure, §6074 (1990, Supp. 1993). ...........0005. 6

STATEMENT OF THE CASE

On November 22, 1982, Jerry Young (hereinafter

“Young”), a longshoreman employed by Cooper/T. Smith

Stevedoring Company, Inc. (hereinafter “Cooper”), was

injured while offloading a cargo of steel I-beams from the

M/V LORENA, an oceangoing cargo vessel that was

owned and operated by Armadores de Cabotaje, S.A.

(hereinafter “ARCASA”) and voyage chartered by

Empresa Nacional Siderurgica, S.A. (hereinafter

“ENSIDESA”). ENSIDESA, pursuant to a charter party

with ARCASA, loaded stowed and arranged for dis-

charge of the cargo of I-beams. ENSIDESA employees

prepared a stowage plan for the cargo, which was

approved by the master of the M/V/ LORENA, an

employee of ARCASA.

ENSIDESA loaded the cargo of I-beams aboard the

M/V LORENA in a “H” configuration, as opposed to the

preferred “I” configuration. The “I” configuration is pre-

ferred because it does not destroy the wooden dunnage

(scraps of wood placed between the layers of cargo),

making the cargo easier and safer to discharge.

The M/V LORENA arrived in New Orleans in

November 1982 to discharge a portion of its cargo. At this

time, ENSIDESA hired Cooper to offload the cargo. Coo-

per’s personnel inspected the vessel and her cargo before

beginning the discharge operations. Despite the fact that

the cargo was loaded in the “H” formation, the Cooper

supervisor authorized the longshoremen to offload the

cargo. Recognizing the situation, Cooper proceeded

because ARCASA did not provide an alternative means

of offloading the cargo. As Cooper offloaded the cargo,

the effects of the “H” beam loading method became more

apparent. As the longshoremen got farther down into the

hold, the crushed nature of the wooden dunnage became

even more apparent. Indeed, at some locations, several

bundles of I-beams were resting directly on the bundles

below them.

In order to discharge the cargo, the longshoremen,

including Young, were required to “nip” the beams by

trying to wedge a “breakout wire” under the edge of the

bundle of beams. Once the wire is beneath an end of a

beam, the crane operator will lift the beam slightly

enabling the longshoremen to place the chain which is

actually used to lift the cargo beneath the slightly raised

beams. This procedure is then utilized again on the other

end of the bundle of beams. While attempting to nip a

bundle of beams, a breakout wire slipped off, struck

Young, causing him to fall and sustain injuries.

In October of 1984, Young filed suit against ARCASA

for vessel negligence pursuant to the Longshore and Har-

bor Workers’ Compensation Act (hereinafter “LHWCA”),

33 U.S.C. §905(b). Cooper intervened in that action, seek-

ing to recover payments of medical expenses and com-

pensation benefits paid to and/or on behalf of Young

pursuant to the LHWCA. Young later amended his Peti-

tion to name ENSIDESA as a defendant as well. ARCASA

and ENSIDESA both filed Cross-Claims for indemnity

against the other. After a jury trial on April 17, 1989, the

jury returned a verdict, finding ARCASA 15 percent at

fault and ENSIDESA 85 percent at fault in causing

Young’s damages.

3

Following trial ENSIDESA obtained affidavits from

three jurors, Cynthia Gleason, Gay Barbaran and Robert

Jessup, Jr., who stated that during deliberations, one

juror, Everett W. Granderson, Jr., repeatedly urged a ver-

dict on grounds other than the evidence adduced at trial.

Granderson allegedly stated that Young should prevail

because he was a lone individual fighting corporations.

Some of his remarks also allegedly appealed to racial bias

and prejudice. One juror affiant stated that after deliber-

ating almost ten hours, the jurors finally gave in to this

particular juror out of frustration, and more than doubled

the amount of what would have been their verdict.

On September i, 1989, the District Court denied the

Motions of ARCASA and ENSIDESA for judgment not-

withstanding the verdict, new trial, and also dismissed

their Cross-Claims for indemnity or contribution.

ARCASA and ENSIDESA later moved for reconsideration

and remittitur, which the District Court denied, entering

final judgment on October 6, 1989.

The District Court’s judgment also recognized Coo-

per’s lien for compensation benefits. Immediately prior to

the trial, the District Court severed Cooper’s interven-

tion, presumably so that it would be tried at a later date.

However, all parties subsequently agreed to the amount

and nature of Cooper’s lien, and included Cooper’s lien

in the final judgment. Because Cooper’s recovery is

dependent on Young’s recovery in the main demand,

Cooper now appears before this Honerable Court as a

respondent to the writs of ENSIDESA and ARCASA.

ARCASA and ENSIDESA both appealed to the Loui-

siana Fourth Circuit. The Fourth Circuit reversed the

District Court’s dismissal of ARCASA’s Cross-Claim,

ordering ENSIDESA to indemnify ARCASA, and also

reduced the damage award. All other aspects of the Judg-

ment were affirmed.

ARCASA, ENSIDESA and Young all applied for a

writ of certiorari or review with the Louisiana Supreme

Court. On October 1, 1993, the Supreme Court denied the

applications of all of the parties.

ARCASA and ENSIDESA have petitioned this Hon-

orable Court for writs. Cooper submits this Brief in oppo-

sition to the petitions for writs filed by both ARCASA

and ENSIDESA.

REASONS FOR DENYING THE WRIT OF ENSIDESA

Louisiana Code of Evidence Article 606(B), which is

patterned after Federal Rule of Evidence 606(b), states:

Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any

matter or statement occurring during the course

of the juror’s deliberations or to the effect of

anything upon his or any other juror’s mind or

emotions as influencing him to assent to or dis-

sent from the verdict or indictment concerning

his mental processes in connection therewith,

except that a juror may testify on the question of

whether any outside influence was improperly

brought to bear upon any juror, and, in criminal

cases only, whether extraneous prejudicial infor-

mation was improperly brought to the jury’s

attention. Nor may his affidavit or evidence of

any statement by him concerning a matter about

which he would be precluded from testifying be

received for these purposes.

Under this article, the affidavits of these three jurors as to

matters or statements made by Granderson during delib-

erations was properly found by the Louisiana Fourth

Circuit Court of Appeal to be inadmissible to question the

validity of the jury verdict.

Prior to Louisiana’s adoption of the code of evidence,

a body of law allowed affidavits such as those offered by

ENSIDESA for the limited purpose of showing that a

juror responded untruthfully on voir dire. Bennett v. Sedco

Maritime, 527 So.2d 894, 904 (La. App. 3rd Cir. 1987).

ENSIDESA argued that the affidavits were admissi-

ble to show that the juror in question violated his oath of

impartiality. However, the exception cited should not be

employed where the allegedly untruthful statement was a

general one that the juror could render an impartial ver-

dict. Id. Accordingly, the Louisiana Fourth Circuit ruled

that the affidavits were inadmissible as they did not

pertain to any outside influence and were also inadmiss-

ible to show that the juror in question violated his oath of

impartiality.

1. GRANDERSON’S ALLEGED STATEMENTS DUR-

ING DELIBERATIONS MERELY REFLECT HIS

EMOTIONAL REACTIONS AND MENTAL PRO-

CESSES, AND ARE PROPERLY PROTECTED BY

HIS RIGHT TO PRIVACY AND PROTECTION

FROM HARASSMENT IN ACCORDANCE WITH

ALL RELEVANT JURISPRUDENCE

The fact that a juror may not generally testify to

impeach his own verdict is a policy well-founded in the

history of the law. 27 C. A. Wright & V. J. Gold, Federal

Practice and Procedure, §6074 (1990, Supp. 1993). The two

main goals behind this policy are the finality of verdicts

and the insulation from judicial scrutiny of jury value

judgments underlying a verdict or indictment. “Obvi-

ously, the goal of finality is threatened if the validity of

the jury’s decision is under attack. Similarly, the power of

the jury to choose what values to reflect in its decision

may be eroded if the validity of the decision is at issue.”

Wright & Gold, supra, at 406. Thus, the court’s review of

affidavits regarding the emotional or mental processes of

jury members would reveal the thought processes of the

juror and could undermine the policy of protecting jury

value judgments from judicial inspection.

Furthermore, if the irregularities in the jury room are

internal occurrences (i.e., emotional or intellectual mis-

conduct), the court should refuse to permit testimony on

the issue of such misconduct. Tanner v. United States, 483

U.S. 107, 107 S.Ct. 2739 (1987). In Tanner, the petitioners

asserted that, contrary to the holdings of the district court

and the court of appeals, juror testimony on ingestion of

drugs or alcohol during the trial was not barred by Fed-

eral Rule of Evidence 606(b). However, the United States

Supreme Court ruled that the voluntary intoxication of a

juror, no matter how severe, does not constitute the type

of outside influence about which jurors may testify at a

post-verdict hearing. Tanner, 483 U.S. at 122, 107 S.Ct. at

2748. The Court further held that long recognized and

very substantial concerns support the protection of jury

deliberations from intrusive inquiry. Id., 483 U.S. at 127,

107 S.Ct. at 2751.

The Court should also exclude testimony that the

jury reached a decision based on bias, the desire to com-

plete jury service, uncertainty regarding the correctness

of a decision, or considered prejudicial evidence. Mal-

donado v. Missouri Pacific Railway Company, 798 F.2d 764

(5th Cir. 1986), cert denied, 480 U.S. 932, 107 S.Ct. 1571;

United States v. Duzac, 622 F.2d 911 (5th Cir. 1980); Mar-

tinez v. Food City, Inc., 658 F.2d 369 (5th Cir. 1981). In

Maldonado, the defendant made a motion for a new trial

based on an affidavit of one of the jurors which related to

discussions during deliberations regarding the defen-

dant’s wealth and about giving the benefit of the doubt to

the plaintiff. Here, the court ruled that the affidavit

reflected certain subjective thoughts and emotions of the

jurors that may have influenced their decisions during

deliberations and, thus, were shielded from inquiry. Mal-

donado, 798 F.2d at 769.

In Duzac, the defendant's attorney moved for a mis-

trial based on certain prejudices among certain jury mem-

bers. The defendant attempted to argue that the

prejudices fell within the exception to the rule prohibiting

jurors from impeaching their verdict. Duzac, 622 F.2d at

913. That exception allowed a court to set aside the ver-

dict where there was evidence that improper external

influences were brought to bear on one or more of the

jurors. Id.; see also, Mattox v. United States, 146 U.S. 140, 13

S.Ct. 50, 52-53 (1892). In Duzac, the Fifth Circuit ruled that

there was no evidence of any external influence brought

to bear on members of the jury. The prejudice complained

of was alleged to be the product of personal experience

unrelated to the litigation. The court further ruled that

the proper time to discover such prejudices is when the

jury is being selected and peremptory challenges are

available to the attorneys.

Although the jury is obligated to decide the case

solely on the evidence, its verdict may not be

disturbed if it is later learned that personal prej-

udices were not put aside during deliberations.

We therefore hold that the trial court acted

properly in denying appellant’s motion for a

new trial.

Duzac, 622 F.2d at 913. Finally, the Duzac court held that

post-verdict inquiries that took to probe the mental pro-

cesses of the jurors are impermissible. Id.

In accordance with the above line of jurisprudence,

the affidavits relating to any alleged statements made by

Granderson during the deliberations merely reflect his

mental processes and emotional reaction to the evidence

heard at trial and should properly be protected by his

right to privacy and protection from harassment.

2. LOUISIANA’S PROCEDURE FOR DISALLOWING

JUROR’S AFFIDAVITS TO IMPEACH THEIR OWN

VERDICT IS SUBSTANTIALLY SIMILAR TO THE

PARALLEL FEDERAL RULE AND IS CONSISTENT

WITH ALL CONSTITUTIONAL PROVISIONS

Both state and federal courts have generally dis-

favored post-verdict interviewing of jurors. The courts

have repeatedly refused to “denigrate jury trials by after-

wards ransacking the jurors in search of some new

ground, not previously supported by evidence, for a new

trial”. United States v. Riley, 544 F.2d 237, 242 (5th Cir.

1976), cert. denied, 430 U.S. 932, 97 S.Ct. 1554 (1977).

Furthermore, as the Supreme Court has declared:

The courts must take such steps by rule and

regulation that will protect its processes from

prejudicial outside interferences. Neither prose-

cutors, counsel for defense, the accused, wit-

nesses, court staff nor enforcement officers

coming under the jurisdiction of the court

should be permitted to frustrate its function.

Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507 (1966).

Pursuant to La.C.E. art. 606(B), juror affidavits are

generally not considered by the courts. However, excep-

tions are recognized when jurors have not been truthful

during voir dire. Bennett, supra; Raines v. Diamond M

Company, 396 So.2d 306 (La.App. 3rd Cir.), writ denied, 399

So.2d 623 (La. 1981). Also, the federal rule, from which

article 606(B) derives, allows an exception for statements

which tend to show deceit during voir dire..Maldonado,

798 F.2d at 770. However, the exception cited is not to be

employed where the alleged untruthful statement was a

10

general one that the juror could render an impartial ver-

dict. Id.; Bennett, 527 So.2d at 904; Ryals v. Home Insurance

Company, 410 So.2d 827 (La. App. 3rd Cir.), writ denied,

414 So.2d 375, 376 (La. 1982). Thus, the affidavits should

not be considered to attack Granderson’s statements dur-

ing voir dire because ENSIDESA’s argument is directed

only to an alleged general statement by Granderson that

he could be impartial.

3. THE FOURTH CIRCUIT’S RULING THAT THE

JURORS’ AFFIDAVITS DID NOT DEMONSTRATE

THE EFFECT OF OUTSIDE INFLUENCE IS

EXACTLY WHAT COURTS HAVE HELD ON THE

SAME ISSUE AND REFLECTS THE CONSTITU-

TIONAL BALANCE THAT HAS BEEN ESTAB-

LISHED IN THIS WELL-SETTLED AREA

Jury conduct which occurs in the jury room and

injects a note of bias into the deliberations does not fit

neatly on one side or the other of the dichotomy drawn in

article 606(B). 3 J. Weinstein & M. Berger, Weinstein’s

Evidence, §606[04] (1993). The problem is whether such

wholly intrajury statements can be viewed as extraneous

information or an outside influence and, if so, whether

the proof of such statements can be separated from proof

of the effect of the statements on the mental processes of

the jurors. Smith v. Brewer, 444 F.Supp. 482 (S.D.lowa

1978). One prominent commentator has concluded that

generally it seems better to draw the line in favor of juror

privacy; in the heat of juror debate, all kinds of state-

ments may be made which have little effect on outcome,

“though taken out of context they seem damning and

absurd.” Weinstein & Berger, supra, at 606-636.

11

The general rule favoring the inadmissibility of juror

testimony to impeach a verdict on the basis of alleged

biased conduct occurring within the jury room is sup-

ported both by the language of Rule 606(b) and its legisla-

tive history. Smith, 444 F.Supp. at 489. The rule also

applies where a litigant seeks to impeach a verdict by

introducing evidence that a jury exhibited prejudice

toward a party during deliberations. Shillcutt v. Gagnon,

602 F.Supp. 1280, 1282 (E.D.Wisc. 1985).

Impeachment of jury verdicts on the ground

that a juror has expressed racial or other bias

would defeat the important interest of free and

open jury deliberations and the finality of judg-

ments. Jurors would be inhibited during deliber-

ations by the knowledge that their statements

might be disclosed to the public by a fellow

juror. The exposure of statements made during

deliberations would be commonplace since, if

courts were to recognize a party’s right to

prejudice-free deliberations, the law would also

have to allow all parties an equal opportunity to

vindicate the right.

Id, at 1282. Impeachment of jury verdicts on the basis of

prejudicial remarks would seriously undermine the final-

ity of the verdict and the public’s respect for them.

“Where deliberations are lengthy, counsel would fre-

quently succeed in finding an arguably prejudiced

remark by a juror, perhaps made in the heat of debate and

taken out of context.” Id. Thus, the result would be the

constant attack of jurors subsequent to a verdict in efforts

to get a verdict impeachment hearing after every unfa-

vorable ruling.

12

As Judge Learned Hand observed in Jorgenson v. York

Ice Machinery Corp., 160 F.2d 432, 435 (2nd Cir. 1947), the

defects in the jury’s verdict which the petitioner cites are

intrinsic to a system which uses lay jurors and cannot be

eliminated without eliminating the system itself:

It would be impracticable to impose the counsel

of absolute perfection that no verdict shall

stand, unless every juror has been entirely with-

out bias, and has based his vote only upon

evidence he has heard in court. It is doubtful

whether more than one in a hundred verdicts

would stand such a test; and although absolute

justice may require as much, the impossibility of

achieving it has induced judges to take a middle

course, for they have recognized that the institu-

tion could not otherwise survive; they would

become Penelopes, forever engaged in unravel-

ing the webs they wove. Like much else in

human affairs, its defects are so deeply

enmeshed in the system that wholly to disen-

tangle them would quite kill it.

o

REASONS FOR DENYING THE WRIT OF ARCASA

In 1972, the United States Congress amended the

LHWCA, thereby eliminating a vessel owner’s liability to

the longshoremen for unseaworthy conditions aboard the

vessel, but retaining the owner’s liability for its own

negligence. The extent of this standard of care was not

elucidated by Congress; rather, this task was left to the

courts to resolve “through the ‘application of accepted

principles of tort law and the ordinary process of litiga-

tion’.” Scindia Steam Navigation Co., Ltd. v. De Los Santos,

13

451 U.S. 156, 166, 101 S.Ct. 1615, 1621 (1981) (quoting, S.

Rep. No. 92-1125, p. 11 (1972)). The 1972 Amendments

abolished a vessel’s absolute liability to injured long-

shoremen under the unseaworthiness doctrine, but

retained the longshoremen’s statutory action against ves-

sels for negligence under 33 U.S.C. §905(b). Additionally,

the amendments barred vessels from seeking indemnity

from the longshoremen’s employer-stevedore.

The legislative object of these amendments was “to

place an employee injured aboard a vessel in the same

position he would be if he were injured in non-maritime

employment ashore, insofar as bringing a third-party

damage action is concerned.” House Rep. No. 92-1441,

reprinted in 1972 U.S. Code Cong. & Admin. News 4698,

4703. Sumrnarizing the purpose of the 1972 Amendments

to the LHWCA, the House Report concluded:

Permitting actions against a vessel based on

negligence will meet the objective encouraging

safety because the vessel will still be required to

exercise the same care as a landbased person in

providing a safe place to work. Thus nothing in

this bill intended to derogate from the vessel’s

responsibility to take appropriate corrective

action where it knows or should have known about

a dangerous condition.

Id. at 4704 (emphasis added).

Pursuant to the dictates of Congress, the courts have

accepted this responsibility, and set out to determine

what the vessel owner’s duties are under the LHWCA. In

Scindia, this Court granted certiorari to resolve a dis-

agreement among the circuit courts concerning the appli-

cable standard of care owed by a vessel to a

cer

14

longshoreman under Section 905(b). The Scindia court

laid out what a vessel’s duty of reasonable care under the

circumstances is to a stevedore and his longshoreman. In

so doing, the Court drew a line between “turnover”

duties (those which arise before the vessel is turned over

to the stevedore and his longshoreman), and the other

duties which arise after the vessel is turned over. The

instant case involves solely the first duty, that of “turn-

over.”

The Scindia court:

.. . determined that a vessel’s turnover duties

extend at least to: (1) having the ship, its equip-

ment, gear and tools, and the work space to be

used in stevedoring operations in such a condi-

tion that an experienced stevedore can by exer-

cising reasonable care carry on its cargo

operations with reasonable safety (“the turnover

duty of safe condition”); and (2) warning the

stevedore of hidden dangers that are known to

the vessel or should have been known to it in

the exercise of reasonable care with respect to

any hazards on the ship, in its equipment, gear

or tools, or in the work space (“the turnover

duty to warn”).

Riggs v. Scindia Steam Nav. Co., 8 F.3d 1442, 1444-45 (9th

Cir. 1993); see, Scindia, 451 U.S. at 167, 101 S.Ct. at 1622;

Bjaranson v. Botelho Shipping Corp., 873 F.2d 1204, 1207

(9th Cir. 1989). It is only the turnover duty of safe condi-

tion that is at issue here.

Petitioner ARCASA argues that the circuit courts are

in disagreement over application of the turnover duty of

safe condition. However, this turnover duty has remained

remarkably constant throughout all circuit courts, with

15

slight variations occurring because of the individual facts

of each case. Rather than espousing different tenets of

law, each circuit is deciding the cases within the applica-

ble Scindia duties based on their individual facts.

The Third Circuit in Derr v. Kawasaki Kisen K.K., 835

F.2d 490 (3d Cir. 1987), cert. denied, 487 U.S. 1007, 108 S.Ct.

1733 (1988), concluded that the turnover duty ordinarily

did not include insuring of the safety of the method of

the cargo stowage and, therefore, no corresponding duty

to intervene to remedy the dangers created by negligently

loading cargo.

The Fifth Circuit analyzed the issue slightly differ-

ently, but came to a similar result. The Fifth Circuit

extends the turnover duty of safe condition, within the

duty of ensuring the safety of “work space” in which the

stevedore will be performing his cargo operation, to

include responsibility for the reasonable safety of the

cargo stow in all cases. Woods v. Sammisa Co., Ltd., 873

F.2d 842 (5th Cir. 1989), cert. denied sub nom, Sammiline Co.,

Ltd. v. Woods, 493 U.S. 1050, 110 S.Ct. 853 (1990). Like-

wise, the Ninth Circuit in Riggs clarified the turnover

duty of safe condition to include dangers of cargo stow-

age which are open and obvious.

As a corollary of this duty to furnish a reasonably

safe vessel, the Fifth and Ninth Circuits concluded that

vessel owners are liable for negligent stowage of cargo

when the vessel owner knows or should have known of

the dangerous condition. Woods, 873 F.2d at 851-52; Riggs,

8 F.3d at 1445. In the instant case, the Louisiana Fourth

Circuit analyzed the facts and found ARCASA liable

because the evidence led to the conclusion that it “knew

16

or should have known that this method of stow presented

these [unreasonable] risks to longshoremen.” Because it

was found liable, ARCASA petitions this Court to grant

certiorari to resolve this “split” regarding the duty a

vessel owner owes to a longshoreman injured during

cargo offloading operations.

1. ARCASA FAILS TO STATE ANY REASONS

WHICH INDICATE THAT THIS CASE IS APPRO-

PRIATE FOR SUPREME COURT REVIEW

Supreme Court Rule 10.1 states that “{a] review on

writ of certiorari is not a matter of right, but of judicial

discretion. A petition for writ of certiorari will be granted

only when there are special and important reasons there-

for.” Rule 10.1 lists reasons for which the Court may

invoke its discretion. While petitioning this Court for

review to “resolve a split in the Circuit Courts of

Appeals,” ARCASA fails to mention that the instant case

is not a decision by a federal circuit. In fact, it is not even

a decision by the Louisiana Supreme Court; rather, it is a

decision from a state circuit court, with no precedential

weight outside of the bounds of its jurisdiction. Hence,

the “conflict” is not one that should trigger Supreme

Court interest or review. Rather, this conflict would fall

within the lines of what is known as a “tolerable con-

flict.” As the Honorable Justice Rhenquist stated in dis-

sent, “This Court can only deal with a certain number of

cases on the merits in any given Term, and therefore some

judgment must attend the process of selection.” Torres-

Valencia v. United States, 464 U.S. 44, 104 S.Ct. 385 (1983)

(Rhenquist, J., dissenting).

17

2. THE TURNOVER DUTY OF SAFE CONDITION

ENCOMPASSES THE METHOD OF CARGO

STOWAGE

ARCASA argues that once a vessel owner allows a

stevedore to commence loading, the vessel owner is

thereafter absolved of any responsibility or duty concern-

ing the stowage of the cargo. ARCASA emphasizes

greatly that the Scindia court “did not mention or refer to

-he duty extending to the cargo.” This argument is under-

standable, in that the Scindia case did not specifically deal

with cargo, but dealt with the defective equipment of a

vessel. Therefore, many of its tenets are couched in lan-

guage referring to equipment rather than other, more

general terms.

The rule of law which is distilled from the facts of

Scindia is quite simple: While the vessel has no duty to

inspect the cargo handling operations, it has a duty, prior

to the commencement of cargo operations, to provide a

vessel which is reasonably safe for the longshoremen to

load or offload the cargo. Consequently, once ARCASA

and the M/V LORENA arrived at port, prior to cargo

operations beginning, ARCASA had a duty to ensure that

no dangerous conditions existed, and if such a danger did

exist, to remedy it before turning over the vessel to the

stevedore.

Once cargo operations begin, the vessel owner is no

longer liable for new hazards that may arise as a result of

defective cargo, or dangerous loading or offloading pro-

cedures. ARCASA seeks to argue that a vessel should be

able to discharge to obligations by merely refusing to

18

examine a potentially dangerous situation, thereby avoid-

ing the specter of “actual knowledge.” This position is

simply unreasonable. ARCASA or any other vessel owner

cannot and should not be permitted to allow a stevedor

to begin unloading cargo, and then claim, once a long-

shoreman is injured, that the accident arose out of “cargo

operations,” and that since the vessel owner did not have

a duty to supervise these operations, it is relieved of

liability.

In the instant case, both the District Court and the

Louisiana Fourth Circuit concluded that ARCASA knew

or should have known that the stowage of the I-beams in

the “H” configuration increased the risk to the Cooper

longshoremen, including Young. In so concluding, the

Louisiana Fourth Circuit found that ARCASA was negli-

gent in failing to exercise due care to make safe the

portions of the ship that it turned over to the stevedore

prior to the stevedore beginning his work. Since the cargo

stowed aboard the vessel will be turned over to the

stevedore as well, it too must be inspected for safety.

The Scindia court did not address the issue of cargo,

as any discussion of this issue would have been neces-

sarily dicta. While ARCASA emphasizes the negative lan-

guage in Derr, it does not take notice that even Derr

admitted that in certain situations there is a duty for the

vessel owner to intervene to remedy dangers created by

negligently loaded cargo. Derr, 835 F.2d at 496.

19

3. ACTUAL KNOWLEDGE OF THE NEGLIGENT

STOWAGE OF CARGO BY THE VESSEL OWNER

IS NOT NECESSARY

It is a corollary of the turnover duty of safe condition

that a vessel owner does not have to have actual knowl-

edge of the negligent stowage conditions. While

ARCASA submits that this turnover duty should be no

greater than that owed to a longshoreman once cargo

operations have begun, the application of the “knew of

should have known” standard is correct. The duty is not,

as petitioner argues, with respect to the cargo, but rather

to the method of cargo stowage. The Third, Fifth and

Ninth Circuits are in accord that at times, a vessel owner

may be required to intervene to remedy the dangers

created by negligently loaded cargo. Derr, 835 F.2d at 496;

Woods, 873 F.2d at 850; Turner v. Japan Lines, Ltd., 651 F.2d

1300, 1304 (9th Cir. 1981). This holding is in accord with

Congressional intent when it enacted the 1972 Amend-

ments to the LHWCA. See, e.g., S. Rep. No. 92-1125, p. 10,

11 (1972) [Nothing enacted was intended to “derogate

from the vessel’s responsibility to take appropriate cor-

rective action where it knows or should have known about a

dangerous condition” as long as the vessel was not

“chargeable with the negligence of the stevedore or

employees of the stevedore.” (emphasis added)]

Additionally, ARCASA misstates the statements

made by this Court in Scindia. Petitioner states that “a

vessel owner has no general duty by way of supervision

of [sic] inspection concerning the work of the loading

stevedore once operations commence.” (Petn., p. 22)

ARCASA goes further, stating that Scindia holds “without

20

equivocation that the determination whether to proceed

with cargo operations is a matter of judgment committed

to the stevedore.” (Petn., p. 22) However, Scindia does not

say that the judgment of the stevedore is supreme; rather,

the converse is true. If a stevedore is proceeding improvi-

dently, the vessel owner has the right and duty to inter-

vene and prevent the unsafe practice. Scindia, 451 U.S.

175-76, 101 S.Ct. at 1626.

ARCASA also confuses the differences between the

turnover duty of safe condition and the turnover duty of

warning. In the instant case, ARCASA was not found

liable for any condition which arose “during the cargo

operations.” Rather, it was found liable for failing to

correct a defective cargo stow which existed prior to the

commencement of stevedoring operations. ARCASA

argues that if it does not know of an unsafe condition, it

has no duty to warn of it. This reasoning is inconsistent

with the mandate of the Scindia court that a vessel owner

is required to take steps, reasonable under the circum-

stances, to eliminate any hazards. Id.

If the actual knowledge standard is implemented,

then a vessel owner will be able to avoid liability by not

inspecting his vessel, cargo, equipment, work spaces or

gear at all. Thus, by failing to have “actual knowledge” of

a defective condition or situation, it could not be found

liable for any such defect. This argument is simply

wrong. The vessel owner should continue to be held

liable for any dangers that are within its ability to correct

and control, including the method in which the cargo it

carries is stowed.

21

4. THE OPEN AND OBVIOUS NATURE OF THE

DANGEROUS CARGO CONDITION DID NOT

RELIEVE ARCASA OF A DUTY TO CORRECT THE

CONDITION.

In a final attempt to provoke a question of law when

none exists, ARCASA claims that the Louisiana Fourth

Circuit erroneously found that ARCASA violated its duty

to warn of an open and obvious condition. Assuming

ARCASA is correct in that there may not be a duty to

warn (which is denied), the fact that a condition is open

and obvious does not relieve the vessel owner of the duty

to correct it, if the condition is unavoidable. An examina-

tion of the very cases that ARCASA cites evidences the

truth of this proposition.

For example, in Pluyer v. Mitsui O.S.K. Lines, Ltd., 664

F.2d 1243 (5th Cir. 1982), the court noted that when there

is an open and obvious danger which is unavoidable, the

plaintiff is entitled to recover. Id. at 1247. In fact, a vessel

owner can still be held liable when a longshoreman has

no other alternative except to work in a dangerous area,

but “he need only show that the circumstances made

safer alternatives unduly impractical or time-consum-

ing.” Morris v. Compagnie Maritime Des Chargeurs Runis,

832 F.2d 67, 71 (5th Cir, 1987).

Other cases which ARCASA cites are distinguishable

on their facts. For example, Taylor v. Moram Agencies, 739

F.2d 1384 (9th Cir. 1984), discusses a defective condition

of the cargo, not the cargo stow. When the nature of the

cargo itself is dangerous, there is no obligation for the

vessel owner to remedy the situation; rather, it must turn

22

over a vessel that is safe. In Taylor, there was not a dan-

gerous condition until the operations began and cargo fell

to the deck. This condition arose during the cargo opera-

tions, and it was the stevedore’s obligation to remedy the

danger, which it failed to do. In the instant case, the

problem with the cargo stow pre-existed the cargo

unloading operation.

Other cases cited by ARCASA deal with avoidable

hazards. See, e.g., Pollizi v. M/V ZEPHYROS NO. II MON-

ROVIA, 860 F.2d 147 (5th Cir. 1988). In the instant case,

the hazard was unavoidable in that if Young had refused

to proceed in the face of the danger, he would have lost

his job. In that situation, Young had no choice but to

proceed despite the danger.

The current state of the law is as it should be: both

parties bear a burden, with the vessel owner having a

duty to remedy open and obvious dangers which are

impractical or impossible to avoid, and the longshoremen

have a duty to avoid those open and obvious dangers

that are avoidable. This balance of duties is fair and

equitable. The balance which ARCASA proposes is nei-

ther.

CONCLUSION

In conclusion, a thorough examination of the facts

and law applicable to ENSIDESA’s writ indicates that

ENSIDESA was not denied due process of law at any

time. Courts have been very reluctant to disturb a jury’s

verdict based on sworn affidavits from certain jurors.

ENSIDESA has not met its burden to show that the

a i i

23

alleged jury misconduct was so egregious as to constitute

a denial of due process. Therefore, Cooper urges this

Honorable Court to refuse ENSIDESA’s writ.

Cooper further urges this Honorable Court to refuse

ARCASA’s writ. Both the District Court and the Louisi-

ana Fourth Circuit applied the appropriate law, and

found ARCASA to be partially liable for Young’s dam-

ages. Furthermore, ARCASA has failed to show why the

holding of the Louisiana Fourth Circuit merits discretion-

ary review by this Honorable Court. Therefore, Cooper

strongly urges this Honorable Court to refuse ARCASA’s

writ.

Respectfully submitted,

Rocu P. PoetMaNn

(Counsel of Record)

JoHN H. Musser, V

Hesert, Moutepoux & BLAND

1650 Pan-American Life Center

601 Poydras Street

New Orleans, Louisiana 70130

Telephone: 504/525-3333

Attorneys for respondent/intervenor,

Cooper/T. Smith Stevedoring

Company, Inc.