Petition for Writ of Certiorari — Speice v. Illinois

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oe ___LinRARY Sane

Supreme Court of the United

| October Tam, 1961.

P me ‘No. 582

Tact ‘BRASILEIRO PATRIMONIO NACIONAL,

Petitioner, “ -

3 MURPHY-COOK & COMPANY,

‘\

Banpende: Z

PETITION FOR. A WRIT or CERTIORARI TO. THE oe

- UNITED STATES COURT OF APPEALS —~ TER ciaeaiieae

_”—s« FOR THE THIRD CIROUIT.

T. E. Byrye, Jr.,

21 South ‘Twelfth Street,

Philadelphi’ 7, Pa.,

Attorney for Petitioner.

JosePH P. Greex, = . °

Krusen, Evans axp Brenn, : ,

: Of Counsel. e

International, 711 So. Sth St., Phila. 43, Pa.

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oye .

by INDEX. “ |

Orixioxs Betow ...-.----- s PF i ee oes ana nee

JURISDICTION ©0006 -- Pe a res ess Mt een ie okapewmns

STATEMENT OF QUESTIONS levVOLVED ...... age anus 4

STATEMENT OF THE CASE ...-- Dida awe Cree ey pues

REASONS rok GRantinc THE WRIT: .- se Se aeeececssenegers

APPENDIX : | . :

Interrogatories to Jury .---- ie a ek ae eawcenecnsetncr=

Opinion of the Court ( Filed July 6, 1961) ..-------+-- .

Opinion of the Court on Petition for. Rehearing ( Filed

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. . S: of é =

aa —————

, OE eeneenaae :

Py “ep

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August 23, 1961) ...------ eee cere rere ee Te

. hy

TABLE OF CITATIONS.

hime sek he Cases. ;

: See ee eras Page

Berti v. — de Navigation Cyprien Fabre, 213 F.2d

392 [C. A. 2, 1954] ...... ere frre PPeepenT 10-

* Caldorola v. Cunnard s. S: Co., 279 F. 2d 478 [C. A, &, bed 8 |

Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423 . 5,6,9

“ Hagans v. Farrell Lines, Inc., 237 F. 2d 477 [C. A. 3, i956) .. 9,1

nom. Metropolitan Stevedoring Co. v. D/S Internationale,

Ghes F.2d 875 [C. A. y, loi} certiorari denied, 363 US.

SM kane eeendsdecseneeSipbeeviveraa» seb pes basa be Pe, hese

: . Oleszcuk vs Catmar v. Nacirema, 164 #. Supp. 628; reversed

266 F.2d 79 (GC. A. 4, 19 Js cert. denied, 361 U.S. 810... 10

Revel v. American I xport Lines, 162 F. Supp, 209; affirmed ine

ely. SPOS TEER TTP OT EDT terry rope 10

Smith v. Jugosalyenska | oe Plovidea, 278 F.2d 1764C. A.”

_4, 1960) ..... ease peo cael on nes ee ;

Waterman S:°5. Corp. « Dugan & McNamara, Inc., 364 UL S.

Mosier ee eave cebakecs pialina as ae

Weigel ¥: The Belgrano, 18S FP: Supp. GOS... 2.22002 eee oe 9

Ww eyerhaeuser 5. 5. Co. v. Nacirema Operating Co., 4 t::

BR re oka t Gee ee phen aR PE Ee eyes Oe ee 6

F U. 8. Code

Se ee. an Page

Pe ee RR RROD fo rdenseccSeeci get scncarrnne hae 2

28 U. 5. ©. Wl, BEE 5.6 van ve evess edbeGenebecsvostcsoe . w-

28 U.S. CA. 2101[c] - SRE Pee eee aera! ata

IN THE

Supreme Court of ‘the United States.

ew Teen, 1961:

. . No. , ; ; ; 7 =

LLOYD BRASTLEIRO eee ae NACIONAL, —

- Petitions tT.

v.; :

—— 7 =

MURPHY COOK & COMPANY, =.

: of Respondent:

co ‘ /

———$_ —_—_———

‘ PETITION FOR. A WRIT OF CERTIORARI TO. THE

UNITED STATES COURT OF APPZALS

: YOR THE THIRD CIRCUIT.

The pel tient r. Llewd Bi: as silane Patrimonio Nacional,

herein: iftey?* Brasileiro’, respect firly prays that this Hon-

orable Bart may crant a Writ of © ‘ertiorari to the® United

Stati@Conrt of Appeals for the Third Cirenit tu Fevie WwW

at a fivgll jue aient of that court ente ‘red July 6, 1961, in w hich ~

L petition for rehearing, timely filed, was denied —Angust

. 23, 1061--with a dissent by ¢ ‘hiet Judge Bisys.

rere OPINIONS BELOW. —

The district court filed no opinion npen the motions of

the defendant for judgment notwithstanding the verdict

and er for a new trial. It simply entéred an order denying

these motions [ ssa}. The opinion of the court of: appeals is

reported 204 F. 2d 82 and i ix set forth in an appendix to this

petition. . iii

- ?

_ fee Petition fora Writ of Certiorari

. The original decision of the court of appeals was filed

July 6.1961. A-petition for rehearing was-denied August

23, 1961, with a dissenting opinion by Chief Judge Biggs. .

__ JURISDICTION.

The judgment of the court of appeals for the third cir-

cenit affirming the judgment in favor of the respondent and

against this petitioner was entered July 6, 1961.

Pursuant to the rules of the court of appeals for, the

third cireuit a petition for rehearing was timely filed and

was denied August 23, 1961. ,

The time within which this Petition may be filed was

extended pursuant to.28 US. (. A..2101[e] until December

1, 1961 by order of M > Justice Brennan entered November

18, 1961. Jurisdiction Jo consider the within Petition is

conferred upon this Court by 28 U.S. C. A. 1254(1).

STATEMENT OF QUESTIONS INVOLVED.

In an action for damages by reason of personal injuries

wherein a longshoreman has recovered a verdict against the

original defendant { shipow ir | upon grounds of alleged

* unseaworthiness | of a piece of ship‘s- equipment [eargo-

winch}, in “which action the stevedore ‘ha¢ been joined as a

__-third patty defendant by the shipowner. seeking indemnity :

A. Is the shipowner precluged from indemnity as

against the stevede use ie ‘shipowner defended

against the plaintiff's claim upon the ground that the

claimed unseaworthiness did not in fact exist? [An-

swer is in the affirmative by the court below.]

B. Is not indemnity recoverable by a shipowner,

from a stevedore where, with knowledge that a mal-

functioning condition has arisen, the stevedore con-

tinues- to use the malfunctioning equipment and it

< ~

eo % ® : “#*

Petition for a Writ of Certiorari © 3

eventually ‘causes injury beeause of itx defective eon-

= «dition? hel Answe red in the negative by the court below. ]

(. Under the fact~ of this case, Was not the. ship-

owner entitled to have it< cause of action for indem-

wity submitted to the Snry under an instruetion ineor-

poraling the s bringing tuto pay” * concept approved

by this Court in Cramady c. Fissért* | Answered in the

‘ negative by the court below.} ;

e. * P

+ STATEMENT OF THE CASE.

The original suit was browcht* by Hodeson, a long-

shoreman, against Lloyd Brasileiro Patrimenio Nacional

[ Brasileiro}, FN shipowne r. Hodgson sought damages for

personal injuries reevived while working on bward Bra-

’ sileiro’s ship Lowe Cena on Decensbe or 19, Of ys, Hee salberscead Z

that his injury veearred because. one of the ship's winehes

did not operate properly. Brasileiro joined the stevedore,

Hodgson’s employer, Murphy-Cook & Company {| Murphy]

as a third party defendant and alleged it was entitled to

indemnity beeause Hodgsén’s injury was caused by the

failure of Murphy to per rform properly the work it had un-

‘dertaken to load eargo’ upon Brasileire’s ship. |

Brasileiro’s ship arrived in-the port of Philadelpbria

the previons day, December 1s, 1956, a <it Murphis

worked on it all night and aerate the loadine Shieh wa-

“to be done at that ‘particular pieroy 4250 tn om Deen

ber 19th. The last hatch to’be loaded at the first pitr wa-

the one at which the aceident later occurred. The hip

shifted to‘another pier within the Philadelphia harbor area,

from Philadelphia to its suburb, ¢ thester. The same winches

were used at, both Philade Aphiia aml ¢ ‘he ter.

——

1. Crumady v. The Joachim Hendrik. Visser, “338 U. 8. 423 at

427 429.

2.. Federal Court civil jurisdiction was properly founded upon

28 u. S.C. A. 1332(2). Plaintiff was a citizen of the United Mates;

defendant 4 Lraziliah corporation.

™

4 Pelton fora Writ of Certiorari

The plaintiff" s evidence was that when he und his fel-

low employ ees at Chester began to use the winch at 9:00 -

a.m. on December 19th, the winch did not operate ‘properly.

Plaintiff’s evidence was thata member of ,the ship's crew

was called; that he did some work about the winch and then

signalled **O.K."".. There was no allegation of any exten- -

sive conversation. because of the language barrier between

the Portugese-speaking crew members and the English-

speaking longshoremen.

As soon as the longshoremen bi-gan using the winch

after the attempted repair thiey le: arned that, whitever ad-

justmemts umay ‘hive been made-by the erew member, the

_ condition of which they had complained Was not corrected.

Nevertheless, they continued to use the winch. © These lonz-

shoremen, all employees of Murphy, admitted that all dur-

*ing this period no further atiempt Was made to notify any —

‘of the ship’. crew that the -attempted adjustment of the

“wineh had not successfully corrected the condition of which

.‘they had complained earlier. After the expiration of a

period of time, the aecident occurred, and it Was allegedly

due to this same condition of: the identical winch.

_ Brasileiro’s evidence contradicted that submitted by

the plaintiff. It denied that any comiplaint had ever been

made to any ‘of its officers or crew concerning the winch in

ytestion; denied that any adjustments or re pairs had* been

_ requested or made; and alleged that the injury to the plain-

tiff was due entirely to improper ope: ration of the wine ‘h by

Murphys employees:

At the trial the court submitted a seties of written in-

terrogatories * to the jary. In ‘answering theni,‘the jury

found that the win ‘+h was not in safe working order at the

time of the accident; that this rendered the shijy unséa-

worthy; and that the unseaworthiness was a substantial

factor in causing the plaintiff's injuries. The jury further

found that>the defendant- shipowner was not negligent, and

v LA

3. Reproduced herein at p13. 9.

- _ +... Petition for-a Writ of Certiorari

that Murphy-Cook, & Company had performed its work

properly. The court.of appeals ignores the fact. that the

juty finding of proper performance by Murphy is meaning:

oa Jess because of the charge aml because no one ever contended

: that Murphy caused the unseaworthiness. _ a.

In charging the jury the court had said that it could

find in-faver of Brasileiro and against “Surphy apon the

indemnity claim if the jury found shat the unseaworthy

condition of the Wineh was caused or created by the actions

of the*longshoremen in the-employ of Murphy. 294 F.2d

“32 at 36. Ut specifically refused a request to chia we [67a-

68d] that Brasileiry would be enfithed to indemnity if **their

work brought into play an wisceaworthy condition that may -

have existed”’, See? ed eis se

‘ The jury having found in faver od the injured plaintiff,

7: oe ; Brasileire paid the judzment and took an appeal only as to

| jt< jndemnity.avtion. She cirenit court apparently pro-

ceeded to make findings of its own. It held that because’a _

» erew member had said,: *O.K. go ahedd’ ‘affer the at-

_tempted repair of the winch, the <hipowner Was precluded

~ ° from indemnity because’ of what that court said was the

: ‘assurance’? by the shipowner to the stevedorins company

that the known defectsshiad been repaired. 294 F. 2d at 35. °

Such a question Had never been submitted to or passed upon

-" ‘by the jury. Onthe contrary, the jury had specifically found

that thy shipowner had not been netligent.

The cotirt Of appeals further held that the shipowner

a, was pot entitled to a jury instruction upon the concept of

, “bringing into play’’* beeanse it had defended again-t the

| plaintiff's original claim npon the ground that an unsea-

wofthy condition did not in fact exist. U4 F.2d at 36..

- 2 & Crumady v. The Joachim Hendrik Fisser 358 U.S. 423 at

428429. « < ; ,

O°

= % S .

i) ; Petition fora Writiof Certiorart.

REASONS FOR GRANTING THE WRIT. "O°

In Crumady ve. The Joachim’ Hendrik Fisser, this Court.

; said: ; a)

“We. conclude, that since the negligence of the

stevedoress which brought the unseaworthiness of. the

vessel-into play, amounted to a breach of the warranty

of workmanlike service, the vessel may recover “over.”

In Weyerhaeuser S.S. Co. 1 Nacirema Operating: Co$

Bt ae :

this € ourt said:

“Tin that regard’ respondent {the stevedore] rendered

a subst andard) performance whieh led to foreseeable

liability of petitioner [shipywner}, the latter was en-

titled to indemnity absent ‘conduct on its part suffieient

to prechuide recovery.” :

In our case we start with the proposition that Brasileiro

was held liable to the injured plaintiff solely upon the

ground of-unseaworthiness, The jury finding that the ship-

owner Was not negligent has taken that possible ground of

liability out of the case. - There is, therefore, no finding that

the events and the conversation quote «l ffom the testinkany,

294 FL 2d 34 and 25, upon which the court of appeals relies,

ever took place... The conversation had been asserted by one,

side and denied by the other. Tf the jury had accepted it,

it is at least diffieult to reconcile a jury finding of no negli-*

genes, Even assuming,-arguende, that the conversation in

fact took place, the court of appeals was not entitled to-place.

its own interpretation upon it in view of the specific finding

of the jury that the shipowner . including its crew mernbers,

had not been euilts of neetigence, Assuming, again ar-

vendo, the very worst interpretation that can he placed.

upon the testimony which the court of appeals*quotes in its

opinion, a winch which had been in wood condition and oper-

ated properly all during the evening of December Tsth and

355°. 3. 503 at 567.

eae Petition for a Writ of Certioran wy

the early morning hours. of December 19th began to mal-

function, A foreien-speakig ercow Tiember was called who

made afi adjustment or repair but was not negligent in doing

so and was not negligent in advising, the operator of the

winch that it was then all right te operate it. Thereafter

the employees of Murphy, with positive knowledze,that the

winch was not operating properly, and was so operating

that it Was likely to cause injury to longshoremen Fanding

heavy drafts of cargo in the ship's hol, continued to work

with this same winch for a period of dime variously esti

mated from a iminimum of ‘ten to fifteen minutes” [| 28a,

Bhals St perhaps twenty minutes’ * [20a] and up to thirty:

minutes, and that during that time ‘they made M0 attempt:

to recall the repairmanor to bring the fact of malfunetion

of the winch to the attention of the ship's offigérs or crew.

» Nevertheless, the court of appeals held rf toonly that

this precluded the shipowner from obtaining iidtemmnity by

operation of law, but alse that the shipowner was preeluded.

from having submitted for jury determination the question

whether, Murphy was performing its stevedoring contract in

a workmanlike manner when its employees continued to,

operate a winch: which they’ knew) was not operating

properly. = -

The holding in the ¢ “aise at har is not only in 5 duel’ with

the decisions of this Court but isvin clear confliet with deéi-

sions in other cirguits. For example, it conflict. ‘with the °

statement of the law made by the court of appeals for the

fourth cireuit : ame

“In short, he [stevedore] must not assume that a safe

Peondition exists when he has notiee that such may not

he the ease’. Sith s Jugqesalrenshe Linijaka

Plovidea, 208 Kd FO LO” Se 160]. .

The court’ of appeals ‘for the second éirenit re wersed a

district court which had: enfered judgment for indemnity’

avainst a stevedore, Its rens& lM for the reve rend Is stated i In

the following language : *

8 "Petition for a Writ of Certiorari

‘‘Absent ‘knowledge or constructivé notice .-. ., the

stevedore could only: have breached -its contractual

duty if the conduct of its employees ereated the dan-

gerous, condition.’ *Caldorola v. Cunnard S. S. Co.,

279 F. 2d 475 at 478 [C..A. 2,-1960]. .

In Hugev v. D/S Internationale, 170 F. Supp. 601, the.

factual backgr ound’ [exeept such differences as arise because

that case involves a hatch beam and our case involves. a

_ winch] is indisfinguishable from that of the case at bar.

" The court there said:

‘*The stevedoring company’s implied i in faet contrac _

obligation to perferny its duties with reasonable safety

embraces not only the handling of cargo but ‘the use of

equipment incidental thereto’ as well. 355 U.S. at page

567, It.ineludes also the duty to suspend the loading or

‘unloading operations on its own initiative, and thus to

avoid injury or damage, whenever the stevedore real-

izes that it would be-unsafe under the cireumstances to

_ proceed.”? 170_F. Supp. 601 at 608.

The decision in Huger was affirmed sub nom. Metro-,

politan gg Co. rv. D/S Internationale,. 274 F. 2a

i A. 9, 1960] and this Court denied certiorari, 365

U.S. 803. :

“The distriet court for Oregon understands the law quite

. differently, as demonstrated by the following:

“This actual knowledge by the stevedore, even though

2 . independently obtained, intervenes and washes out atiy

nonfeasance of petitioner in performing their. implied

in-fact contractual duty to stevedore. The petitioners

{[shipowner] owed no duty to restrain the stévedore

from acting or using gear inthe face or disregard of a

‘known defect ‘or danger. This is exactly what the

~ stevedore did when it used with full knowledge of its

-eondition the malfunctioning lift gear .in connection

with and incidental to the handling of the ship’s cargo

: .

Petition for a Writ of Certiorari ‘\- 9

pursuant to its contract. The inevitable failure of the

gear and resulting injuries to persons in the ship's

service was most probable and reasonably foreseeable

by an expert stevedore. This forezoing conduct of the

steveddore does not carry to and falls short of meeting

the requirement that the sfevedore use gear necessary -

_and incidental to the working of the ship's cargo with

reasonable safety as tested by stevedore: expertise.’”

Weigel. vi The Belarano, 188 F. Supp. 605.

It is implicit. from the dissent by Judge Biges npow

petition for rehearing that He recognizes that the third eir-

cuit ‘continues to eperate under a misconception of the law

Japplicable to a shipowner’s action against a stevedore for

indemnity. and that the misconception stems from ¢hat

court's earlier decision in Hagans ©. Farrell Lines, Ine., 237

F.2d 477 (COAL 8, 1956]. This Court has had occasion to

examine and reverse several third cirenit decisions upon the

indemnity question. See Crumadi vr. Kisser, 8358 U.S. 423

and: Waterman SoS. Corp. c. Dudan & MeNamara, Ene..

364UL 8.421. Inthe latter case this Court said:

“The warranty may be breached when the stevedore’s

negligence does no more than-eall inte play the vessel's

‘unseaworthiness. Cromiady vo The HL Baeser. 358

TS. 428, 420° 2640S. 421 at 428.

If this is the law, and we submit that it is, then the ~hip-

owner is at the very ieast entitled Jo have the jury consider

the point under proper instructions. This the district court

failed to do and the third cirenit has upheld that refusal

upon the greund that the shipowner defended the plaintiffs

action against it upon the ground that the accident was not

due to unseaworthiness. But this i< contrar® to the jury's

special finding which ‘wi as the bisis of the judement w hich

was entered for the plaintiff and has been satistied. The

defense to plaintiff's. claim here was exactly the same as the

shipowner’ ~ defense in Cromady ov. Fisser, See 142 F.

Supp. 389 at 391 [2nd column] where the district court sets

10 ‘Petition fora Writwf Certiorart

out the contention of the vessel owner in that ease, yet this

Court awarded indemnity. We submit that the hotding

below is at variance with prior decisions of this Court and

with decisions in other cireuits.. Ln addition te those already

cited, the following are examples of cases which are con-

trary to the holding below: hid rhiv. Compaquie de Navigae,

tion Cypron Fabre, 213 F.2d 302 at 401 [C. A. a, 1954).

but it [stevedore] was fully aeare of the con.

* dition of the ship’s equipment and failed to take proper

precautions. . 9.9. Cyprien [shipowner] Was: legally

entitled to indemnity 2... 0.77 °

Where a district-court has relied specifically upon the

third cirenit’s holding in Magans v. Farrell Linesy Inc., it

has been reversed. See Oleszenk vr. Calmar v. Nacirema, 164

EF. Supp.’ 628; reversed 266 F. 2d 79°(C. A. 4,19 J; cert.

denied 361 U.S. 816 and where a district-eourt refused to

follow the third cirenit’s decisions, it has been affirmed.

Revel v. Américan Export Lines, 162 F. Supp. 299; af-

firmed 266 F. 2d 82. See partieularly the specific dieap-

proval of the third « circuit's Hagans doctrine, 162 F. Supp.

288, ; ana

Now the court bitiosd hao ‘arried the coneept a step

further. It has not onl aceepted and based a ‘holding upon

testimony which was apparently rejeeted by the jury, but

has written a completely -mwarranted exeeption into the

law of indemnity where a shipowner has defended hy a de-

nial of unseaworthiness. , ?

If this is io be the rule, it will have a direet*and sig-

nificant bearing upon a vast volume of litigation pending in

lower courts where maritime actions are brought in great

numbers. Is every defendant who denies initial’ liability

to be thereby preeluded from an action for indemnity? If

not, what Ts the basis for the se Jectivity? > Phe court below

provides no answer Actions such as this, longshoreman

versus shipowner versus stevedore are ‘prolifig of litigation

in the maritime field, vet the results of litigation within the

third circuit are drastically different than in others circuit

— Petition fora Writ of Certiorant 11

\ . ;

because different rules are #pplied. “Now the rule is that

if the owner deries unseaworthiness,‘he is precluded from

indemnity. It does not matter that the jury founel an un-.

seaworthy condition to exist. If the ownér defends by

“denying the existence of an anseaworthy condition that

could have been called into play’’* he is not even entitled

to jury-consideration of his indemnity action.

Because of the large number of cases ofthis sort origi-

nating within the third cirenit, it is respectfully submitted

that the rules it applies, in apparent contravention of hold-

ines of this Court, should be examined and the judgment

below reversed,

Respectfully submitted,

T. BE. Byese, Jr.,

Attorney for Petitioner.

. Josepu DP. Green, .

Kresex, Evans axp Byrne,

i OF Counsel. ‘

6. Opinion below. 204 F. 2d at 36, herein at p. 20.

10.

| "Appendix:

INTERROGATORIES 3 TO JURY.

De vou find that the winches at No. 4 hatch were in

safe working order at the time of the accident? No Xx

If von find that the winches at No.4 hateh were hot in

safe working order at the time of the accident, did their

unsafe condition make the ship-unseaworthy? Yes X

If vour answer to No. 2 was ‘tyes’, was the unsea-

_ worthiness of the shift a substantial factor in can-ing

the injuries sustained by the plaintiff? Yes X

> De vou find that the shipowner Was negligent in failing

“to provide the p Haintitt with a reasonably sete Thier: te

work? a \-—- acgfaat No X

If-veur answer te Xo. \ was tyes was this negligence

he proximate cause of the accident? Not answered

, Yes ——No

Dyes yond finned saa ih plaintiff himself was negligent?

No X

If sour answer te No. @ was ttyves*, was his own new "gs

licenee ajcontributing factor in the accident?

_ Not answered

Yoes——No

If vour answer to No. 7 was even”, what po reentage

of his ow nes lis cone contributed to the aecisle ut?

: : Not answe red

«4

“4C

Did the third-party defen lant., Mgrphy Cink & ("rg

through its agents, servants, empioyess or representa.

lives perform theis werk in a workmanlike, safe agi

proper manner? aon ae Yes X

If your, answe rte Ne. 0 was ‘‘no’’, was their failure

Ww prepe rly performs thes ir, work a substantial factor i

making the ship unse ‘aworthy! ; Not answered

| To——Ko——

(13)

14 Opinion

UNITED STATES COURT OF APPEALS ©

; For tue Temp Cirecet.

= -

No. 13,397

JAMES HODGSON

; . v.

LLOYD BRASILEIRO PATRIMONIO NACIONAL,

Ts Appellant,

e oe,

MURPHY-COOK & CO. |

Ox Aversa Feom tae’ Usiren States Disrricr Cover ror’

rie Masrees Disraict or Pex Ssvivanta

: , e ’

* - ;

Argued March 21, 1961

Before Karooxer, Sracey and Hasrir, Circuit Judges.

OPINION OF THE COURT

(Filed July 6, 1961)’

; By Sraue @ Cure nit Juda -

2° Om this appeal we are called on to determine a. ship-

owner's right to indémnity from’a stevedering company

‘Tor damages paid to a longshoreman for personal injuries

sustained during the loading of-a ship.

p : . .

i aye Be Opinion 15

* James Hodgson, a longshoreman employed by Murphy-

Cook& Company, the stevedoring company, commenced an

action against Lloyd Brasileiro Patrimonio Nacional

(**shipowner"*) for personal injuries inflicted on him aboard

its ship during a loadingoperation. The theory of Hodg-

son's suit Was that the ship was unseaworthy and that -

the shipowner was hegligent in failing to maintain or in-

speet a wineh used in loading, or to warn him of its danger-

ons condition. The winch, operatéd by an ‘employee of the

stevedoring company, was part of the gear supplied by the

shipowner under its written stevedoring contract. The

evidence showed that on the day of and immediately prior

to the aceident, the brakes of ‘the winch failed to héld,

causing drafts to drift qost their, target. Podgson was

injured when a erate bei ‘ing lowered into the ship’ s hold

struck him as the draft failed to stop when the brakes were

applied,

The shipowner joined the stevedoring « company iis

third-party defendantwand maintained in the district court’

that Hodgson’. injury was caused by a failure to properly

use the winch, Le. that the stevedoring company failed to

perform its work ina safe, proper and workmanlike man.

ner. Hodgson introduced evidence to show that the aeci-

dent wits caused by a defeetively operating winch. ~The |

jury. ih answer to-a special iMerrogatory, found that the

shipowner-was not guilty of neglige mee but, based upon a

finding of unseaworthiness, made. an® award in’ favor of

Hodeson against. it. That award has been satisfied and is

not now before us. However, the distriet court's refusal

to grant the shipowner’s motion to enter judenfent in its

behalf against the stevedoring company or, alternatively,

te erant a new trial form the basis for this appeal.

_ ‘The shipowner contetids that it is entitled to indem-

nity as a matter of law because the stevedoring company,

once it becamesaware of defeets in the winch, should have

ecoused using it until repaired, Relying on several reeent

Supreine Court decisions, the shipowner also asks this court

16 - Opinion

to overrule its decision in Hagans’ vy. Farrell Lines, Inc.,

237 F.2d 477 (1956). In this regard, it asserts that the

issue here is not whether @ contractual, right of indemnity

. existed, but, more precisely, what is the ‘‘effect of the

admittedly existing contract.”’ Inthe alternative, the ship-

owner contends that it is entitled to a new trial bee ‘Ause of

an erroneous charge to the jury. :

Under the contract, the stevedoring company was re-

quired to ‘‘ provide all necessary stev edoring labor, i includ-

ing winchmen, * * * and such oger stevedoring supervision

as are needed for the proper and efficient coriduct.of the

work.”’ It also served to impose upyn the shipowner the

duty to supply ‘*booms and: adequate winches, in good

order and with sufficient steam or current for their efficient

operation * * *."* Under this agreement, the stevedoring

company was not required to act as an insurer against

any loss that the shipowner might suffer, or to maintain

_ the winches. Calderola v. Cunard S.S. Co.. 279 F.2d 475

(C.A.2), cert. denied, 364 U.S. 884 (1960). Rather, such

language constitutes a contractual undertaking by the steve-

doring company to perform its-serviees in a, workmanlike,

proper and reasonably safe manner, Ryan Stevedoring

Co. v. Pan-Atlantie S 3B. Corp., 350 US. 124 (1956); Wev-

erhaeuser S.S. Co, v. Nacirema Operating Co, 255 US.

563, 565 (1958); ¢ talderola v: Cunard S.S. Co.,° supra.

‘Whether the stevedoring company's conduct constituted

a breach of this provision ‘was, of course, a question of fact

for the jury. Weyerhaenser S.S..Co. v. Nacirema Oper-

_ating Co., supra. ae

; The shipowner candidly concedes that if our decision

in Hagans ‘tis still good law,"’ its contention, that the

judgment must be reversed ax a matter of faw, cannot pre-

vail. What makes this case os however, is that in

Haagqans we held, as a matter of laf, that there was no right

. 1. The shipowner refers us to Waterman S. 5. Corp. v. Dugan

& McNamara, Inc., 364 U. 5S. 421 (1960); Crumady v. The Joachim,

Hendrik Fisser, 358 U. S. 423 (1959) ; and Ryan Stevedoring Co. v.

Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956).

_, Opinion ° es 17

: 6

to indemnity, whereas here, the eontractual right te indent.

“Dity is admitted, but-the jury, in a special interrogatory,

submitted to it, found that the stevedoring company had

performed its services in a ‘*workmanlike, safe, and proper

manner.’’ Faced with this fact, the shipowner in effees

then takes the position in its reply brief that thi< finding

s against the weight of the evidence. The «hipowner for-

ets that an appellate court will not interfere with a jude-

iment entered on a verdict returned by a jury «imply because

of its opinion ax to the weisht-or preponderance of the

evidence. Liberty Matual Insurance Co¢v. Thompson, 171

F.2d 722 (LA.5, 1948); Harniek v. Lilley, 167 F.2d 19

89. In any event, that finding it fully supported by the

record. In light of this, we certainly cannot say that the

shipowner was entitled to judgement as a matter of law.

The accident occurred at approximately 9: ON. M. won

December 1), 1956. Danelli, the winch operator, testified

that shortly after ho commenced work on that day it became

apparent that the brake on the winch was not properly

functioning and that it slipped, causing drafts to drift past

their target. He immediately notified one Horan, a hatch

foreman f6r- the stevedoring cofipany, who,.in turn, ob-

tained a member of the ship's crew to repair the wineh.

Tt will be reealled that the shipowner was obliged to main-

tain the winches under the stevedoritiz contract. Another

longshoreman, called “as a witness for Hodgson, t&stified

that the following then occured: |”

“(. What did you see with respect toranyone work-

ing on- the winches?

**A. One of the crew members, whether he was the

electrician or not 1 don't know, but you ordinarily do

net get an electrician to repair the winches when ou

‘have difficulty with them. So one of the erew me mibers

wax working on the winches and he was talking.te Mr.

Danelli at the time; to-keep working them so he could

make the proper adjustment.

‘

Opinion +

“Q. Did you observe approximately how long he

worked. on fhe -winches?

‘*A. We weren ‘t held u uy over five or ten minutes at

—~the most.

*Q. Did you see where he was working on the

‘winches? -

’ +4. Yes, he was directly behind the wine ‘h on the

_ opposite side from where I was standing.

e * al . .

*Q. Did you see what if anything he did?

“A. No, i couldn't. 1 know “he had the cover off

of it, which lie had to take off to work on it. Whether

he worked on the brakes or ‘the pleet ric al part TL don’t

know, but-they are both in the same place w he ‘re he

Was standing and working on. ly

*Q. Did you observe whether he used: “any: tools?

‘A. He had tools in his hand when he went there,

"yes, sir. “*

“Q. Were you present after he performe “l his work

on the winch? .

op “| Sr ‘

“Q. Did you observe what if anything ¢ he did-or

‘remarked in your presence after he had worke d on the

winches? _* . ee ee

. e e ,

“om He was talking to the winchman while he

Was operating and he told him it was OLK.

‘*By the Court: ' Ps ‘

as iP ~. ote

*Q@. This was in your presehee? Pe

“+A. Sirt

*°Q. This:was in your presence ?

“**A. Yes, sir.

“Q.: ‘And he was a member of the crew, lid vou

sav? : ” nie

“+A. Yes.’’

e -

“#8

The winch operator testified as follows on what the crew.

. membdr who repaired the winch sagd to*him: °

(fe A, That’s right.”’

Q. Did he have any words With you at any time;

“did he speak with you?

‘A. He all the time—when he epoke | to me—when .

he said—he said, *O.K., go ahead.’ he said.

| . sarc ar os 19 -

J 2° Q. When he said, *O.K., go ahead,’ did you then i

/ operate the winch?

“a

- 8 .

He also said that the accident happened either after the

Very first or segond attempt to raise a load following these

events. He went on to say that the winch continued to drift

after the repair Work had béen*done, and that only ten or ,

fifteen minutes elapsed before the accident vceurred. There-

after, a deck engineer repaired the winch which then op-"

erated properly and efficiently for the remainder of the

loading operation. a

It was for the jury te determine whether it. was an-

"workmanlike for’ the stevedoring company 1% continue

‘operating the.winch, which it knew had been defective,

de fective and that efforts atore pair had been” unsucersst ul.S

-affer receiving a categorical assurance from the ship:

owner's crew that it was “*O.K."" The sa same fan he said

ih the shipowper’s argument that the stevedoring com-

any, Fon before the acgident, knew that the winch was

At tnost, it.éan he said thaf these are questions over which

reasonable men could differ.and that, as such, they were

properly refe rred to the jury. “

The shipowner refers us i Calderela v. Cunard S

(o., 270 Pld 475. Smith v. Jugosalvenska® Linijska op.

videa, 278) Fi2d- 7 HE, A.4. 1960), Weigel’ Vv. The M Vv

Belgrano, ISspF. Supp. 605. 0D. Or. 1960), and Hugev v.

Danipskisaktieselskabet International, 179 Fo Supp. 601

(S.D. Calif. 1950). affirmed. 274 F.2d S75 (CLA), ert.

denied. 363° TLS, S08 11960), which can le readily. dis-

ting ctished, for in note_of those Cases did the shipowner, -

2000- » - t, Optnion : ca

as was true here, ‘assure the stevedoring company that the

known defects had been repaired. OF xs

' In the ‘alternative, the shipowner-seeks a new. trial,

contending that the- district court’s charge was prejudicial

beeause it allegedly limited’ the jury to? finding the steve-

déring company liable only if it caused’ the unseawerthy

condition, when the jury, under the holding in Crumady v,

The Joachim Hendrik Fisser, 358 U. S. 423 (1959), could

have found liability: if the. stevedering company brought

into play the unseaworthy condition and the injury resulted

as a foreseeable consequence thereof. But we think that

, the charge given was fill and correet, for the district court

* specifically said,

“Then you come to the other problem. If you

-should conclude that this ship was unseaworthy. be-

‘ause the winch Wal not. in proper order, or for some

other reason, or that the shipowner was negligent in

the manner in which he maintained the ship or pro-

‘vided a place for this mango work, then and only then

would you come to the problem of the stevedoring

company, If that condition existed, did something that

the stevedoring company do—and when I say ‘com-

pany,’ of course | mean the company's employees, its

representatives, anyone there on behalf of the com-

pany—have anything to do with this?) Did any of them

do anything which-caused this. unseaworthy condition?

Or did they. create a sitnation by which the ship be-,

came liable for these injuries to Mr. Hodgson ?”’

Thie shipowner, In any event, was not entitled to a charge .

in this regard, for it defended in the district court on the

theory that ‘improper operation ‘by Murphy's employees

of a sound and properly operating winch was the respon-

sible cause of the accident.’ and ‘there was nothina what-

ever the matter vith the winch,” thereby denying the ex-

ixtenee of an unseaworthy condition that eould have been

xilled into play. (Emphasis supplied.) ;

_ The judement of ihe district court will be affirmed.

hd Dad -

”

* Opinion on Petition for Rehearing — 21

UNITED STATES COURT OF APPEALS |

—* For THe Tigo Circuit

9 — oT

No. 13,397

JAMES saccamuinns

Ld oy D BRASILEIRO P ATRIMONIO NACIONAL,

; Appellant,

Vv,

MURVPHY-COOK & CO.

_Os Peririon ror Reneanina

Before Bicas, Chief Judy, and MeLateunty, KALODNER,

Srabky and Haspir, Coral Sudaes.

OPINION OF THE COURT

— (BPiled August 23, 1961)

. Per Curiam. . . ts ‘

The petition for rehearing tiled in this case presents

nothing that was not fully argued anid briefed heretofore

and will be denied.

Chiet Judge Bises, dissenting. -

* In view of Crumady v. ia J. HL. Fisser, 358 U.S, 423

(1959), and Waterman Co. v. Dugan & MeNamara, 364

U.S. 421 (1960), it ier Puy inevitable that we reappraise

our decision in -Hagans ‘v. Farrell Lines, 237 Flzd 477

(1956). Sce also Cahnar Steamship Corp. v. ‘Nacizema

Operating Co., 266 F.2d 79 (4 Cir, 19959). The case at har

is One wherein ‘tthe bring into play’ doctrine is applicable

and Tagans should be overruled. Judgment shoul 1 be

engered'in favor of Brasileiro and against Murphy, ora ew

trial granted. ' ‘

For these reasons | must dissent from the order deny-

‘ing rehearing en bane. 5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.