# Petition for Writ of Certiorari — Speice v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0178%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 369 U.S. 848 ## Text oe ___LinRARY Sane Supreme Court of the United os - | October Tam, 1961. P me ‘No. 582 Tact ‘BRASILEIRO PATRIMONIO NACIONAL, Petitioner, “ - * a. 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. o 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. » « : oe 9- Ye : “ ‘ , “ : ; Cs =) . 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 - j S . . . . S: of é = aa ————— , OE eeneenaae : Py “ep / . * a >. - 4 . . ¢ ‘| August 23, 1961) ...------ eee cere rere ee Te 21 . 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 © Hugev v. D/S Internationale, 170 F. supp. OL, affirmed sub’ 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 oC S 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 oO 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 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. 6. 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. is 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 2 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 ((.A.8, 1948); 5 Moore's Federal’ Practice © 38.08(5), p 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.’’ a) 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 v. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0178%3A2. Public record. Not legal advice.