# Supplemental Brief — Armadores de Cabotaje, S. A. v. Young > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1191%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 1994 - **Citation:** 512 U.S. 1216 ## Text No. 93-1068 MAR 18 1994 OBOE Ob TK BLERK | In The Supreme Court of the United States October Term, 1993 r——*®@ ARMADORES de CABOTAIJE, S.A., Petitioner, versus JERRY YOUNG, Respondent - * Petition For Writ Of Certiorari To The Louisiana Fourth Circuit Court Of Appeal - > SUPPLEMENTAL BRIEF FOR RESPONDENT +. —_ 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 PIES Sev cccccccdecss COINNCLUISIOIN 2. 2c ccccccced “eee ene nenenenne eee eee ee ii 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 ocoke @ .2, 3-4 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. + 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1191%3A6. Public record. Not legal advice.