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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1216

## Text

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
POG TLE, Ge cc ccecccccccccctoncecevessaseset 4,7, 11
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1191%3A4. Public record. Not legal advice.