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

No. 93-1068 MAR 18 1994

OBOE Ob TK BLERK |

In The

Supreme Court of the United States

October Term, 1993

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ARMADORES de CABOTAIJE, S.A.,

Petitioner,

versus

JERRY YOUNG,

Respondent

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Petition For Writ Of Certiorari

To The Louisiana Fourth Circuit Court Of Appeal

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SUPPLEMENTAL BRIEF FOR RESPONDENT

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LAWRENCE S. KULLMAN (#7884)

Lewts & KULLMAN

2615 Pan American Life Center

601 Poydras Street

New Orleans, Louisiana 70130

Telephone: 504/588-1500

Counsel of Record

FREDERICKA HomBerG Wicker (#6977)

434 Bellaire Drive

New Orleans, Louisiana 70124

Telephone: 504/482-1887

Attorneys for Respondent, Jerry Young

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-2431

TABLE OF CONTENTS

TABLE OF CONTENTS.....

TABLE OF AUTHORITIES...

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

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TABLE OF AUTHORITIES

CASsEs:

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

1987), cert. denied, 486 U.S. 1007 (1988)........

Howlett v. Birkdale Shipping Co., S.A., 62 U.S.L.W.

3441 (U.S. Jam. 32, TORR ces cdesctvcccvvccescs

Howlett v. Birkdale Shipping Co., S.A., 114 S. Ct. 681

(1994)... cocccvenceusteciangeiansuereeenatnene

Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992)...

Scindia Steam Nav. Co. v. De los Santos, 451 U.S. 156

C3GBE) ... cvccccesuss cneduauseudeeeneeneaaaens

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 (1990). ..........0.0 0 cues

Young v. Armadores de Cabotaje, S.A., 617 So. 2d 517

(La. App. 4th Cir. 1993) .....cccccccvccvcveses

Young v. Armadores de Cabotaje, S.A., 625 So. 2d 171

(La. 1998) 0... ccccuccecaseussduveseatuuesthenss

OTHER:

Longshore and Harbor Workers’ Compensation

Act, 33 USL. § FG4, Ob Whee sc sicevcevcevuccecs

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STATEMENT OF THE CASE

Respondent, Jerry Young, files this supplemental

memorandum in response to the supplemental brief in

support of petition for writ of certiorari filed by peti-

tioner, Armadores de Cabotaje, S.A., (hereinafter

ARCASA) specifically addressing Howlett v. Birkdale Ship-

ping Co., S.A., 114 S. Ct. 681 (1994), in which this Court

granted a petition for certiorari on January 10, 1994.

In Howlett v. Birkdale Shipping Co., this Court limited

its writ of certiorari to the issue:

Does not the shipowner’s duty of care owed to a

longshoreman under § 5(b) of the Longshore

and Harbor Workers’ Compensation Act extend

to unsafe conditions existing in a cargo stow of

which the shipowner knows or has reason to

know, and which are unknown to the longshore-

man and his stevedore employers, are not open

and obvious, and would not normally be antici-

pated?

See Howlett v. Birkdale Shipping Co., S.A., Petition for Writ

of Certiorari at i; 62 U.S.L.W. 3441 (U.S. Jan. 11, 1994).

On March 31, 1993, the Louisiana Fourth Circuit

Court of Appeal rendered its opinion in the matter

herein. Young v. Armadores de Cabotaje, S.A., 617 So. 2d 517

(La. App. 4th Cir. 1993).

On October 1, 1993, the Louisiana Supreme Court

denied ARCASA’s application for writ of certiorari. Young

v. Armadores de Cabotaje, S.A., 625 So. 2d 171 (La. 1993).

The Louisiana Fourth Circuit Court of Appeal, con-

sistent with its jurisdiction, reviewed both questions of

law and fact in this case, applying its own system for

reviewing factual determinations by juries of general

maritime law and Longshore and Harbor Workers’ Com-

pensation Act (33 U.S.C. § 901, et seq.) cases. Young, 617

So. 2d at 525.

In its factual review, the Louisiana Fourth Circuit

referenced testimony regarding the ARCASA vessel mas-

ter’s actual involvement in preparing and approving the

stowage plan, finding that the evidence heard by the jury

furnished support for a finding that it was more probable

than not that ARCASA’s conduct contributed to the plain-

tiff’s accident and resulting injuries. Young, 617 So. 2d at

523, 528.

While the Louisiana Fourth Circuit Court of Appeal

followed the rule enunciated by the United States Fifth

Circuit Court of Appeals in 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 (1990), in its review of the

questions of law, the Louisiana Fourth Circuit Court of

Appeal’s findings on review of the facts make it clear that

ARCASA is equally liable under the standard enunciated

by the United States Third Circuit in Derr v. Kawasaki

Kisen K.K., 835 F.2d 490 (3d Cir. 1987), cert. denied, 486

U.S. 1007 (1988), and more recently and expansively in

Kirsch v. Plovidba, 971 F.2d 1026 (3d Cir. 1992).

Even if the Third Circuit’s interpretation of the law

were found to be controlling, ARCASA would be liable.

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SUMMARY OF ARGUMENT

ARCASA’s writ application should be denied because

the resolution of any conflict existing between the United

States Courts of Appeals as to the standard of care owed

by vessel owners to offloading longshoremen is irrelevant

herein since ARCASA is liable to respondent under either

standard.

ARGUMENT

Apparently, in granting the petition for certiorari in

Howlett v. Birkdale Shipping Co., S.A., 114 S. Ct. 681 (1994),

this Court intends to address the conflict between the

United States Third Circuit Court of Appeals and the

United States Fifth and Ninth Circuit Courts of Appeals

with regard to the standard of care owed by the vessel

owner to an offloading longshoreman for harm caused by

danger arising from cargo.

As petitioner, ARCASA, is liable under either stan-

dard, upon the evidence presented to the jury and

addressed in respondent’s original brief at pages 2-6,

ARCASA’s writ application should be denied.

Petitioner, ARCASA, interprets Derr v. Kawasaki Kisen

K.K., 835 F.2d 490 (3d Cir. 1987), cert. denied, 486 U.S. 1007

(1988), as holding that the vessel owner has no general

duty to inspect or supervise cargo operations and thus

should be liable, if at all, for negligently stowed cargo

only upon attaining actual knowledge of the hazard.

More accurately, the United States Third Circuit held

in Derr, and more recently and expansively in Kirsch v.

Plovidba, 971 F.2d 1026 (3d Cir. 1992), that the vessel

owner owes a duty of care to offloading longshoremen

for harm caused by dangers arising from cargo when the

vessel’s own conduct caused or contributed to the dan-

gerous condition or when the vessel had actual knowl-

edge of a dangerous condition.

Here, the evidence was uncontroverted that

ARCASA was a co-participant with defendant ENSIDESA

in designing, causing, permitting and approving the man-

ner of the stow. The jury found the stow presented an

unreasonable danger to the offloading stevedore; further,

that the expert offloading stevedore could do nothing to

avoid the hazard and conduct cargo operations reason-

ably safely. Young v. Armadores de Cabotaje, S.A., 617 So. 2d

at 523-24.

Under either of the conflicting interpretations of

Scindia Steam Nav. Co. v. De los Santos, 451 U.S. 156 (1981),

ARCASA is liable under the particular facts and circum-

stances of this case.

Thus, ARCASA’s petition for writ of certiorari should

be denied.

CONCLUSION

ARCASA’s writ application should be denied and its

petition should not be consolidated with Howlett v.

Birkdale because the resolution therein of any conflict

existing between the United States Courts of Appeals as

to the standard of care owed by vessel owners to offload-

ing longshoremen is irrelevant herein since ARCASA is

liable to respondent under either standard.

Respectfully submitted,

LAWRENCE S. KuLLMAN (#7884)

Lewis & KULLMAN

2615 Pan American Life Center

601 Poydras Street

New Orleans, Louisiana 70130

Telephone: 504/588-1500

Counsel of Record

FREDERICKA HompBerG WicKER (#6977)

434 Bellaire Drive

New Orleans, Louisiana 70124

Telephone: 504/482-1887

Attorneys for Respondent, Jerry Young