Petition for Writ of Certiorari — Fleck v. Cleveland Bar Ass'n

Supreme Court brief1962

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SUPREME COURT, UL By

2. Supreme Court of the Unite oT deca

OcToBER Term, 1961. | c /

818 |

UNITED STATES LINES COMPANY and ©

SS. AMERICAN HARVESTER,,

Petitioners,

—

EMANUEL VAN CARPALS,

} ; Respondent. .

\ ‘

PETITION FOR WRIT OF CERTIORARI TO THE

“UNITED STATES COURT OF APPEALS -

FOR THE SECOND CIRCUIT. a

Tuomas CoYNE

Counsel for Petitioner

120 Broadway

New York 5, N. Y xj

CHARLES N. FIppLer,

‘Rosert P. Hart.

Of Counsel

2 f ;

gh - TYDFX

5 ARENT 2 eROe 5 ROMS RENE MARRS Seay

QUESTIONS PRESENTED ..00....000.0-200c00-2-- = TT Pe ak

= .

UTR RWG OW nian ene

SPaTEMENT oe. "th. .Papneipaeoen Seater nl ee preannier -s

Reasons ror GRrantine THe Writ oo eee

I. Txsoran A> IT OLDS THAT THE TRIAL COURT'S

FINDING OF SEAWORTHINESS IS IMMUNE FROM THE

STANDARD REQUIRED BY McAtutster v. Unsirep

STATES THAT THE: LOWER COURT'S JUDGMENT MAY

-. NQT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, THE

DECISION IS IN CONFLICT with THE Court or

AprraLs For THE Ni&tu Circvir aNnp 31s ALSO IN

CONFLICT | WITH A CURRENT: DECISION BY ANOTHER

“PANEL OF THE COURT .o2c--0c0--2-0-0cececeeoee- aN Oae veteran

~ TT. Tur resection or tur Cover or Apreats or THE

' TRIAL COURT'S FINDINGS OF KEASONABLE FITNESS

FOR THE SPECIAL USE FOR WHICH THE VESSEL AND

HIER APPURTENANCES WERE INTENDED, AS PART OF

THE, STATUTORY BI-ANNUAL INSPECTION BY THE

BETWEEN THE RELATIVE FITXéss—POr USE BY: A

SITORE BASED PERSON ENGAGED IN THE SPECIAL TASK

OF ASSURING THE EXISTENCE Far FUTURE Use IN

es : NAVIGATION AND A-+PERSON ENGAGED IX A TASK

3 INVOLVING THE NAVIGATION OF A VESSEL, MAKES A

af NULLITY OF THE REASONABLE FITNESS STANDARD

-prescripep Ix Mitchell v. Trawler Racer, Ine.

THe EXTENT OF THE AUTHORITY OF THE THIER

OF THE FACTS TO DETER MINE SUCH REASONABLENESS

IS THE SUBJECT OF AN INTENSE INTEA-CIRCUIT CON-

‘FLICT WHICH CALLS + Pa REVIEW BY THIS Cover.

’

» Coast GvARD, AND ITS FAILURE TO DISCRIMINATE | _

il *;

Hid. Tie HOLDING THAT A Ww AKKANTY OF SEAWORTHI-

NESS EXISTS IN FAVOR OF A SILOKE-BASED WORKER ‘

NINN oi sicsasnepincnsnnpninlinnsen’ shiney AIC ALE SM ORL

ENGAGED IN TESWNG THE SHIP. FOR THE BI-ANNCAL

INSPEC eraghs reguiInED BY 46 U.S. Cope, Sections

391, 392, 399, anv 46 Cove or Freveran Reoura-

tions, Parr 91, AND THE FURTHER HOLDING THAT

A VESSEL MUST BE OUT OF NAVIGATION TO NEGATE

SUCH A WARRANTY, PRESENTS AN IMPORTANT QUES-

¢, PAGE

TION WHICH’ THIS COURT LEFT OPEN IN West v.:

United States as UNNECESSARY TO DECIDE BECAUSE

IN THAT CASE THE STATUS O& THE VESSEL WHOLLY

OUT OF NAVIGATION PRECLUDED A WARRANTY TO

“ANYONE WITHOUT REGARD TO HIS PARTICULAR TASK

‘ iil

: | Tasce oF Cases. :

Fee / . PAGE

Commercial Me lasses urp. vi New ork Tank Barae

Corp. 114 KY, 2a 448 ee cee has Soa ge, Se ee |

+. Dickinson v. 1's trols um Corp., do0S Us. Oe. Ra

; Ezekiel ¢. Volisia Steamship Co., 297 F.2d, 215... pecans - JO

~ Filipek we Moore- Met ‘ormack, 2 a & rr. 2S FF. 217 Ae $4:

cert, denic i OO OO, OF ne lee $2, 23, 4

- Hoope rv. Te ‘yminal Steamship Company, 206 F, 2d,

281 Scewcecccscsbscccoccosacsegocecseseesessoees ee ee “ a aeeeee , 29

“tape rial Oil, Ltd. ve Peli, 6 Cir. 1956, 234 F. 2d 4,

10, eortiorari denied, 1£ JO gh 92 U,S. 14°. 4t.

261, 1 L.Ed, 2d 256 aatenekgen psoralen Rea caesarean Beh 16

Krey v.U nited Stttes, 123 Fe 2d 1008... Ee ROLE Pe HOO - 12

- Lind v. American Trading and Production C Or.» 294

F209 oy 2-7 Pe ee ip’

McAllister y. U sited State si 348 U. ee Sean PERM 314

Mitchell v. Trawler Racer, Inc., 362 US. 539... i 0, 11,

: 12, 14; 17, 1s, 19 , 20, 21, 22

Morrell v. United States, 297 F. 2d aE io 1d

\ °

Pace ific Tow Boat.€o. v. States Marine opie. of

Delaware, 276 F. 2d 75...” SE ee ay

‘Pinto v. States Marine’ Corporation, 2 Cir., 206° F, |

2d 1 “soccecepe8occcosoccocore seetareceees petcceeereeeeeeeres ya chtaasseaurquneeent 16, 19, 1)

Richter v. Mathiasen’s Tanker Industries, 207, FP. 24,

ne Moka ee BbeebeeN Cente tee St SAE RE 22

Romero v. Garcia & Diaz, Inc,, 286 F * 2d 347.3 309, dd,

cort. dom: 365 U. B. ROB gh 2n--ocpenrvvenrene- panes. Sanne > 16

Roper v. United Ee LE en 23

Seas Shipping Co. v. Sieracki, 28 U. 5. ”__Saavelbooeeese 4,.135 25

U nited States v. pe com Dredging € ‘orporation, 2 2

Cir., 289 F. 2d NG ee Ce A tes ME oy pale ea en Fe 23

/ ’ sat,

(, | ; 4 ; - ; gt __ ae

iv ~

: . - PAGE

Van Carpalsv. SS Américan Harvester, 2 Cir., 297

, 9 _—_ 9

F. 2d, Qapeet eee Scsansgauemndian 21

West+ United States, 361 U S ___ Ey Renn nero 22, 23

.. - ort’ on ‘

‘Federal Rules of Civil Procedure,

Rule 46%, .......... EAD ecto. BNE oe APE Na i

Rule RNID Bicccnsctncativastinge Li Meas Sees pecncnndion 3,6

. Sratvres.

Title 28 United States Code,

‘Section 1254 i... van are Deere dO Te Bea RAC 2

46 U.S. Code, }-

| _ ATN OPEN EO isaaceamaeaainans : 4,5

: .

"Section TD icicditadiiiess FEN. _ RET, NEE OREO 4,5

Section 399 ci Kanan poe sasiiiamene 4,5

. Ixpex To Aprexpix. " ¢@ oe

Origin: ul ‘Dpinion of the U hited States scout of

Appeals ......... a Fm eR OEE SEE OEE A-1

f Opinion of the District fe eee ae For Sones ‘ AD

Petition of United» States Lines Company for _

‘Rehearing ” Seems cg AR aie cree! “Vaae INE A-9

_ Opinion of the Court of Appeals Denying stints A-18

‘Meernndion of the Court of Appeals Denying

Rehearing i OO aol ata ieailhie escorts els ecccamieedis A-20

Pertinent Provisions of 46 United States Code... A-21

Pertinent Provisions of 46 Code of Federal Reeula-

EIR eh ODS DN PR Pr Leth ae Ava Pn A-29

Supreme Court of the United —

Ocrosen Tee, 1M,

- No

—Usirép States Lrses Compasy and

- * SS. American Harvester,

Petitioners,

‘against _

Exaxver Vax Canpats,

Wie Respondent.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

Petitioners pray that a writ of certiorari issue to re-

_ view a judgment of the United States Court of Appeals

for the Second Circuit entered on December 13, 1961, which ©

-reversed the dismissal, after trial, of a libel in admiraltf

‘and awarded damages to the libelant, the respondent

herein. The Court of Appeals de nied their petition for

re-hearing on January 10, 1962, and their prayer for a

ré-hearing in banc on January 15, 1992. .

T his petition seeks a review of a holding that, in effeet,

requires a shipowner to furnish an accident- free ship to

an employee of a shipyard engag zed in testing for safety ‘

the very appliance-which caused his injury, as part of a. .

-Coast Guard inspection which the law requires, and dis-

regards the determination hy the finder of the facts, that

the vessel: and its appurtenances were reasonably fit for

. their intended use by the samurd and, ‘Serger not

unseaworthf. ;

—™ ; _ OPINIONS BeLow.

- The opinien « of the United States ‘Court of Appeals for

the Second Circuit (R. Ia), pages A-1 to A-5 of the Ap-

pendix hereto; is reported at 297 F. 2d 9.

The words. ‘‘and it erupted’ at 207 F. 2d 11 were not

- : eontained in the original opinion of the Court of Appeals.

not yet been reported.

Contrary to the statement in the opinion, of three.asserted

‘‘eonceded physical facts’ serving as the single premise —

for the court*s concdusion, neither these words, nor. the ”

horrendous advocate-inspired language for which they

were substituted, are ‘‘eonceded physical facts.’’

The Appellate Court’s opinion (R. 36a) denying the ~

petition {pages A-1 16 A-o of the Appendix hereto, is not

yet reported, nor is the memorandum decision (R. 41a),

page A-20 of the — hereto, denying the re- -hearing

in ‘bane. ‘=

The opinion of the United States District Court for

the Southern District of. New York (R. 2a), printed at.

pages A-5 to A-S of the Appendix hereto, stated as con-

stituting its findings of fact and conclusions- of oid has

JURISDICTION. -

_ As heretofore stated, the judgment of the United States

Court ‘of Appeals for the Second Circuit was entered on

December 13,.1961 (R. 25a), and the petition fora re-

hearing and for a re-hearing in bane (R. 27a) filed by the

petitioners on December 28, 1961, pages A-9 to A-17 of the

Appendix hereto, were denied -by. orders entered on Janu- °

ary 10, 1962, and January 18, 1962, respectiv ely (R. 39a, °

43a).

‘The jurisdiction of this: Court 1 is invoked under Section

"1254 (1) of Title 28 United States Code.

ad ESTIONS Presenten.

In. MeAllister v. United State s, 348 U. S. 19,° 20, this.

court said that “In r@riewing a judgment of a trial court -

sitting without a jury in admiralty, the Court of Appéals

may not set aside a judgment below wiless it is clearly |

‘erroneous,’ and that ‘*no greater scope of review is exer-

cised by te appellate triliunals in admiralty cases! than’

they exercise under Rule 52(a) of the Federal Rules of

- Civil Procedire.’ Because the. Coart of Appeals delib-

erately and specifically refused to apply the McAllister

“standard in reviewing thé judgment of. the district court,

particularly to the express finding of the trial court that |

the vessel and her appurtenances were reasonably fit for.

their intended use by the libelant and, therefore, sea-

worthy, the following are the first two se predented:

be Is a finding by the trial fuiige sitting in admiralty,

that a vessel and its appurtenances were reasonably fit

for their intended use by the libelant and that they were,

. therefore, seaworthy, a finding which may not be aside

unless clearly erroneous? | '

2. May the Court of” ‘Appeals set aside the judgment

of the court below and the findings of the district judge,

who ‘saw and heard the’ withesses, without applying the

-elearlg erroneous standard, on the ground that unsea-

worthiness is a question of law which is not subject to

that standard? .

In Mitchell vy. Trauler Racer, lie., 362: U. s. 539, 550,

| this court said that a shipow ner is not obligated to furnish

an — nt-free ship, and that while. the duty is absolute,

it is *‘a duty only to furnish a vessel and appurtenances .

- reasonably fit for their intended use.’’ Since the judgment

* 1

es “9

of the. district court held tliat the shipowner discharged

that absolute duty, a furthes question is pan:

3. May Yeo: Court of &ppeals itis elise for

_ reasonableness the circumstances of the particular use -

of an-appurtenance of a vessel by an employee of a ship-

yard engaged in testing such appurtenance for the pres-

ence of steam and hot weter and safety, as part of the’

Coast, Guard inspection required by law, and, without. proof

of any defect whatsoever, hold that. the libelant is con-

clusively entitled to recover damages. for unseaworthiness

as a ‘matter of law’ for ‘‘unfitness’’ (not the omission of

" reasonable fitness and contrary to the finding of the district me

- judge’ that the vessel and its appurtenanees were reason-

ably fit tor their intended use), Solely by reason of’ the

mere happening of an accident and the presence of steam

in such appurtenance, together with an incorrect assertion

of a conceded fact that ‘‘it erupted, ss although it.emanated ,

- from the appurtenance without any finding of unreason-

able pressure.

In Seas Shipping Co. v. Steraki, 328 U. S. 85,.95, 96,

. this court held g. shipowner could not avoid, its obligation

to warrant the seawortlriness of a vessel and its appurte-

nances to a person performing seaman’s work by parcelling

— out such work, to obtain the advantages ‘of modern Git

‘sions of labor. Consequently, the following questions are

presented by yeason of the status of libelant, the particular

-work he was performing and the status of the vessel:

4. Is there a warranty of the seaworthiness of a cargo

vessel and its appurtenances, urider the doctrine of Scas

_ Shipping Co. v. Sierackt, 328 U.S. 85, to a shore based

shipya d worker engaged in testing sucl? appurtenances

for iy Guard inspection and certification required

by law (46 U. S. Code, Sections 391, 392, 399 and 46 Code

te ae

ek oe

“K

S-

of Federal Regulations, Part 91) to e's cargo vessels

‘to engage in nav igetiont

5. (a) Does the absence of a warranty of seaw orthiness

to such a shore based worker require the vessel to: be

completely out.of. navigation and a ‘‘dead’’ ship. whereby

there is no warranty of seaworthiness to any person work-

‘ing on the vessel? (b) Is ‘it sufficient for such absence to

hold that the work performed by: such a shore based

worker is note a seaman’s work parcelled out to obtain

the adyantages of modern divisions of labor but is, instead,

work required to meet the standards of the Coast Guard

“inspection and certification for the vessel’s right to

navigate? |

STATUTES INVOLVED. :

The pertinent acetinn’ “of 46 UL S. Gode for, the in-

spection and certification of the cargo steam vessel in

suit are: 46 U. S. Code, Section 391, subdivision (b), re-

quiring inspection of steam vessels to be made at least ’

once in every two years to determiie, among other’ things,

that — inay be used in navigation, with safety to life,”

46 U. S. Code, Section 392, requiring inspection at least

once in every two years of the boilers of non- passenger

vessels to. show that they may be safely employed’ and

requiring that such boilers and main steam pipesgbe sub- .

ject to hydrostatic or other tests to determine their work- |

ing pressure, and 46 U. S. Code, Section 309. (certificate

of inspection). These are plied at — s A-2Uto A-2S of

the Appendix hereto.

The pertinent regulatory provisions ‘of the Coast |

Guard are contained ‘in. Sub-chapter I (Cargo and Miscel-*

laneous’ Vessels) ‘commencing at Part 90, of 46 Code of-

Federal Regulations, particularly Part 91 (Inspection and

Certjficdtion). .

‘ a g , - 7 7 -

, | | Y q |

. ‘ - Po

Section 91.15 provides that the .'andards ,of inspection a

of hulls, boilers and machinery are those .established by

the American Bureau of Shipping and that the certificate

of such American Bureau of Shipping shall be accepted

as standard by, the inspectors, and Section 91.25-10 pro-

vides that the inspection for certification shall insure the

fitness of boilers and their equipment for the purpose for

which such appurtenances are intended. Section 91.27-1

et seq. provides that reinspection shall he made every two

years for such tests as ‘‘necessary to be assured of the

seaworthiness of the vessel.’ They are printed at ‘pages

A-29 to A-30 of the Appendix hereto,

The extent of the applicability of Supreme Court Ad-

miralty Rule 4614 and Rule 52(a) ‘of the Federal Rules

a Civil Procedure findings and their review) to admiralty

cases has. been elucidated in McAllister v. United States,

supra. ,

Rule 4614 requires that in cases of Admiralty and

Maritime jurisdicticn, the district court shall make -find-

*-.ings of fact.and conclusions of law and Rule 52(a) pro-

vides that ‘‘in all actions tried upon the facts without a

jury’’ the court shall make findings of fact and conclusions

of law, which may appear in its opinion, and that such

findings ‘‘shall not be set aside unless clearly erroneous

-and due regard shall be given to the opportunity: of the

trial court to judge of the credibility of the witnesses.’’

STATEMENT.

The opinious of the Court of Appeals embody a previ-

ously stated view by the opinion writer of “strict lia-

bility,’’ bordering on advocacy, which makes a nullity of

this court’s, determination that the only requirement for

seaworthiness is ‘‘reasonable fitness”’ for ‘‘intended use,’’

a view that regards the actual application of the ‘‘reason- |

able fitness’ ’ measure of liability as’ a: species. of the

_ impermissible application of the ‘‘reasonable care’’ negli-

- gence concept in appraising seaworthiness.

This is a suit in admiralty tiled oe ren avainst the steam-

ship, Amerigan Har rester, A cargo vessel, and in personam

against United States Lines’ Cofipany, its owner (ineor-

‘rectly referred to in the appellant’s Appendix as United

States Lines Co., Ine.). .The libel was “filed on Novem-

ber 16th, 1959.

As stated in the opinion of the district. court: (Ht. 2a)

(pages A-5 to A-S of the Appe ndix hereto), the libelant

is an employee of Todd Shipyards Corporation who filed

his libel for injuries sustaiie “don July 30, 1958 on the —

steamship American Hurvester, while removing a valve

froma port boiler, allegins (as found by the district court)

that in the course of exercising his duties he was burned

"as a result of steam and. hot water gushing from the valve.

The work being pe ‘formed by libelant was part of the

bi-annual Coast Guard inspection required by law, 46 U. Je Se

Code, Se etions 391, 392, 399, and 46 C. F. R. Part 91.

United ‘States Li ines Company defending the suit both

as claimant (owner) of the steamship American Harvester

and as the respondent im personam, filed a petition pur-

suant to Admiralty Rule 56 impleading Todd Shipyards

Corporation on the ground that if the libelant were’ in-

jured, as alleged, the gushing of the steam and liot water

‘was the result of unwérkmanlike services of employees of

Toild Shipyards ‘Corporation and that, therefore the

claimant- respondent was entitled to be indemnified. .

‘The suit came on for trial on March 24, 1961 before

‘Honorable Charles M. Metzner, United States District

Court Judge, sitting in admiralty without a jury.

Libelant testified that he was employed by Todd Ship-

yards Corporation doing outside machinist work and that

aia

an accident occurred on July 31, 1958, when the vessel

was in the Brooklyn Army Base, while he was. working

'* with a supervisor (referred to us a ‘‘snapper’’ in the-

trade), and in his answer-to one of the questjons he de-

scribed ‘his work as follows (R. 7a) : |

“A. We supposed to take the boiler valves off

for a check by the Coast Guard. So we usually start

loosening them and then. testing if steam comes out

- or anything like that, water come out:’’

It is clear from the above that libelant was aware that

“as part of his testing operation steam or hot water could

come out of the boiler valve, and this, at the outset,

negated any warranty that steam or het water could not

possibly come out. oF ie

He also testified, in effect, that he did not rely on any

warranty that there was no steam in the ‘valve for he,

himself, as part of his work, checked the valve for the

presence of any water or steam, and that. his own super-

visor checked the. valve for the presence of such water

Libelant’s supervisor testified that the job was to over-

haul the boiler valves for the United States Coast Guard

inspection and to open them up end that he checked the

gauge to make sure that_the gauge was not faulty, and

that his various tests sh owed no pressure.

before they started work. — ae

The marine engineer of the respondent. testified that

the United States Coast Guard inspection was an American

Bureau of Shipping examination that, as part of the in,

spection procedure, the American Bureaw of Shipping

would have to certify the condition of the ship’s equip-

ment, that’ ‘the boiler was‘subject to the hydrostatic tests

for gauging the safety valves on the boiler, that such tests:

“had been passed satisfactorily, and that all of the tests

showed that there was no pressure in the boiler.

e > ‘oe

9 | >

>»

At the conclusion of the trial the district judge filed-

an opinion constituting his tindings of fact and conclusions

‘of. law and dismissed the libel. His findings indicate that

the libelant proved no det ‘oct whatsoever in any of the

‘ship’s appliances and that, although in the district court’s’

view of the law, the libelant éould invoke the doctrine of

unseaworthiness, he was unable to show that the‘ vessel

was unseaworthy. The trial court found, in aceordance

with the definition of seaworthiness contained in Mitchell

. Trawler Racer, Inc., 362 U.S. 539, that the vessel was

os unseaworthy as the libelant was ‘furnished a vessel

and appurtenances reasonab ly fit for use by libelant. i

The impleading petition was dismissed, but this was

academic in view of the dismissal of the libel,

Libelant appealed from fe dismissal of the libel to the

United States Court of Appe ‘als, Second Cireuit, and a

protective appeal’ was filed hy the shipowner from. the

dismissal of the impleading petition so that an opportunity

would be afforded to prove that any ‘presence of steam

_and hot water in the pipes Was due To the “inworkmanlike’

services of the libelant’s employer, in the event of a re-

mand for further proceedings. “ aa

' The United States Court of Appeals filed its opinion

on December 13, 1961, written by Judge ¢ ‘harles E. Clark,.

reversing the district court's implicit finding of failure to

show unseaworthiness as well as its affirmative finding of -

“geaworthiness, and awarded the libelant his damages. The.

ceurt affirmed the dismissal of the impleading petition,

declining to remand the cause for further proceedings.

‘Of course, the Appellate Court epuld omy affirm or

remand the previously: academic dismissal of the implead-

ing petition in view of the barren proof of libelant and

this petition is directed only to the reversal of the dis- .

missal-of libelant’s claim.

The Court of Appeals, ignoring the finding that the

libelant had failed to prove any unse paworthiness in fact,

held that the vessel was unse “aworthy as a matte roof law.

The holding of unseaworthiness as a matter of law

was based on three asserted conceded plrysieal faets:

(1y the accident cecurred, (2) there was steam in the valye,,

and (3) it (the valve) exploded, a non-existing physical fact.

When it was brought to the attention of the Cougt in —

the petition for rehearing that the horrendous word ‘*ex-

ploded’* had a bearing on reasoniible fitness and was

merely a parroting of language used by libelant’s counsel

in his brief, the’ Court relented, but instead of striking

that entirely, substituted the worg ‘‘erupted’’ in its place,

which was also not a conceded fact. How know ledgeable. |

counsel would eve r concede such a chameleon-like **fact’’ -

is beyond _understanding, since an *‘eruption’? can be

“‘wdeate (as the eruption of a pimple), or tremendous (as

the eruption of a voleano). The fact found by the district

judge (and accepted by thé Court of Appeals) was: that

steam and hot water ‘‘gushed forth,’’ obviously without

any unreasonable or great pressure, or the trial judge

who saw and’ heard the witnessés would have <0 found.

Apart from the interpolated tliree so-called *‘eonceded

physical facts,’ the findings. and testimony recognized by

the Court of Appeals and set forth in its eas of De-

cember 13, 1061, are:

‘The boilers of claimant’s steamship were

being subjected to a periodic examination by the

Coast Guard. The libelant was removing a bonnet

from a valve preparatory to its being examined.

There were & bolts connecting the bonnet to the

valve. After he looseried up four of the nuts, some

water escaped, and libelant notified his snapper.

Tie snapper said he would have the water shut off.

In the meantime, the libelant and the snapper went.

to luneh. Wien they returned the snapqer told the -

libelant that the lines were cleat, and the libelant

unserewed LS nuts and pried tie bonnet loose

from the valve with the aid of a screwdriver. Noth-

ine ennfecout at the time.

Litelant went up on top of the boiler to be in a

Letter position to pull the bonnet off. When the |

bonnet came off, steam and ther hot water gushed

forth from the valve, burning the libelant.’

— ** There was also te stimony from the "snapper r’?

or foreman, as well as ffom the first engineer, that

wifh the gauges disconnected after Lhe ms yeor pres-

sure had been noted, a cheek then sLowed no pres-’

sure on the line; and the ‘y Ipth appear at a loss to

understand how the water. later could «scape from

the valve. So the trial. judge -aid,. “This appears

to be the type of une \plained avcident for which

liability cannot be predic ‘ated on negligence’; and

he held that, since the checks showed an absence

of “pressure, the vessel was" not unse ‘aworthy. Ac-

cordingly he Catatasee. the tibet. bs

Judge Clark, loath to assent the definition by this court

of “unseaworthiness, in Mitchell v. Trawler — Ine.,

supra, as “reasonable fitness"! for ‘intended nse,”’ virtu-

ally ‘tswept it under the bed’ by failing to analyze. the

particular intended use and finding ‘*untitness”’

modification, yet it is obvious that an appurtenanee may

be reasonably fit for-one use and not reasonably fit for

another use.

His view of an absolute duty Seems to he *tabsélute lia- |

bility,’ for the opinion stresses such phrases as **fiability

without fault.’ the independence of ‘‘unseaworthiness’”

from ‘‘reasonable esre’! and, solely on the basi< of three

asserted *‘conceded. physical facts’’ holds that ** Under the

circumstances here diselosed of substantial injury from a

without *

ee .

12 -

failure of the ship’ 8 machinery, which demonstrated that

it was unfit for its intended use, the breach, of duty is -

clear’’ (italies, araneé4, tlius dropping the concept of ‘‘rea-

sonable fitness’ for the particular use, altogether, by. its

categorical ‘‘unfit’’ characterization in absolute terms.

The petition for re-hearing, and for a fe-hearing “in

banc, was denied in an opinion disposing of its four basic

consideratiohs as follows: '

I. The request that the horrendous words **and it ex-

ploded”’ he deleted from the opinion as contrary to fact,

not a ‘conceded physical fact.” and a mere echo of the

brief of lbelant’s couttsel was Mite to the extent of

substituting the, broad and imprecise ‘erupted, ” a word

plucked out of “the air, since it was neither a conceded

physical fact nor contained in the trial judge’s findings.

2. The contention that the finding that the vessel and

its appurtenances were reasonably fit for use by the libel-’

vi ant, as well as the implicit finding that the libelant failed

to prove any defect in the ship's applianee could not be

disregarded without application of the ‘clearly erroneops”?

standard was rejected out of hand with a cavalier state-

ment that the ‘‘appellee seems not to réalize’’ that ‘un-

* supported only by

. the opinion writer’s early precedent in Arey v. United

States, 123 Fo2d 1008, made before this Court’s clear cut

- detinition of unseaworthitiess in Mitchell v. Trawler Racer,

inc., supra. 7

seaworthiness is-a conclusion of law,

3. The Court of Appeals apparently rejected the con-

tention that liability for unseaworthiness to-a person who

‘ may assert such a warranty is a relative concept which

' must take into consideration the particular use of an ap-

purtenance and its relative use by and the Status of the

person using it, by confusing this relative concept with

the existence of the warranty ifself, for it failed to con-

sider the factual disparity involved in different intended

uses and con¢luded. that a warranty éxists without dis-

cussion of that concept. That failure is emphasized by its

comparison with a Vited case of proved defects resulting

in injuries to a member of a crew, where the appliance

‘was obviously not reasonably fit for use by a crew member.

« “4. The last contention that ther is no warranty of sea- -

‘worthiness under the doctrine of Seas Shipping Co. ,v.°

Sieracki, 328 V.S. $8, t0 & person employed in accordance

with the requirements imposed by law to test a vessel in

order to assure its seaworthiness, and that this is not a

* parceling out” of a seaman’s work to obtain the “‘ad-

yantages of more: modern divisions of labor’? if rejected

‘by suggesting that a ship must be completely withdrawn

from navigation to negate a warranty, a curious ‘‘all or

n¢éthing’’ view which would require all on board to, be,

excluded from the warranty if anyone on board ix to be

exempted.

Contrary to the apologetics in the opinion denying re-

hearing, the bi-annual inspections required by law are far.

from *‘routine,’” as indicated ‘by the statutes and detailed

‘inspection regulations, and the removal of the valve bonnet

as part of the major dismantling operation involved in

testing the boilers and valves. of the vessel pirsuant to

their requirements, can hardly ‘be regarded as ‘‘an ordi-

niry maintenance operation.’ "Ss

The denial with respect to the impleading petition is not

involved om this application. , ; :

_The petition for rehearing in bane was denied on Janu-

‘ary 18, 1962, and the opinion writer did not, as requested,

suggest in bane action, although he has urged such action

‘with vehemence when his views “were not accepted.

® ° . ;

“.

Reasons ror Grantine THe Wait.

Ixsorar AS IT HOLDS TIJAT THE TRIAL COURT’S PYSDING OF

SEAWORTHINESS IS IMMUNE FROM THE STANDARD REQUIRED BY

McAuuster v. Unitep States THAT THE LOWER COURT’S er

MENT MAY NOT BE SET ASIDE UNLESS CLEARLY ERRONEOUS, THE ©

DECISION 13 IN CONFLICT wit THE Court or APPEALS FOR

THE Nixtu CIgcvit AND IS ALSO IN CONFLICT WITH A CURRENT

»*

DECISION BY ANOTHER PANEL OF TIE COURT.

McAllister v. U nited States, 348 U. S.'19, teaches us

that ‘‘In reviewing a judgment of a trial court, sitting

witliout a jury in admiralty, the Court of Appeals may

not set aside the judgnient below unless it is clearly erro-

neous’’ and that its holding of negligence (which the Court

of Appeals has equated on‘scope of_review—with the hold-

ing of seaworthiness) may not be disturbed when ‘there

was substantial evidence from which the District Court

could and did find that respondent was negligent.’’,

Yet the Court of Appeals sloughed off the McAllister ,

requirement and held in its opinion denying rehearing that

-sseaworthiness was not subject to the, ‘‘clearly erroneous”’

standard. This is particularly egregious in view’ of the

trial judge’s finding in accordance with the standard of”

seaworthiness prescribed in Mitchell v. Trawler Racer,

Inc., 362 U.S. 539, that the vessel and its appurtenances.

were reneuaal fit for the intended use by the libelant,

the ready acceptance from a brief of an unfound and non-

existing fact. affecting reasonableness (later withdrawn),

and the characterization of the bi-annual Coast Guard test-

and inspection as ‘‘a routine inspection’’ and the work

involved in that statutory inspection as ‘tan ordinary.

)

“eo

15 *

maintenance operation,’’ although the trial judge who saw

‘and heard the witnesses-madé no such ‘Sordinary”’, and

‘*routine’”’ findings.

The United States Court of Appeals for the ‘Ninth

Cirenit in Lind vy. American Trading and Production -

Corp. 2904.-F. 2d 342, 345, J46, and footnote 7, held that.

the rexiewing court4rad no.more authority to set aside a

determinations that a vessel was seaworthy than it had to

set aside % determination of negligence without the appli-

cation of the ‘‘clearly ergoneous’’ standard required by -

the Me.Allister case, citing its previous holding as to negli~

gence in Pacific Tow Boat Co. v. States Marine Corp. of

Delaware, 276 F. 2d 749. !

In the latter case it was noted at page 752 that the

Second Circuit view was contrary to the Ninth Circuit

rulings and ‘‘has long prevailed in the Second Cireuit.”’

Recently the Ninth Cireuit in Morrell ¥. United States,

297 VF. 2d 662, again-held that seaworthiness isa question

. of fact.

__ The opinion writer in the case at bar insisted that his

“holding ‘that McAllister does not apply to rulings of sea-

worthiness, was the prevailing view of the Second Circuit,

in his discursive dissent in the ease of Frank Puddu v.

Royal Netherlands Steamship Company, from a denial of _

a petition for a rehearing in banc. The original Puddu —

opinion of the Court of Appeals for the Second Cireuit

(decidéd January 3, 1962, Number 119—September Term,

1961, Docket No. 27095) has not yet been reported, nor

has Judge Clark’s ‘aforesaid dissent (decided February

.20, 1962) been reported. On page 1209 of the slip opinion,

in contending that his colleagues deviated from the Second

— .

Ciréuit view, he asserted: ° ; ‘

«“@ * © Moreover, the district judge _ treated the

question of unseaworthiness @s one of fact, thus

‘a

going directly against our rulings that unseaworthi-

ness (like negligence)-is a question of law. Van

Carpals vy. 8.S. Atierican Harvester, supra, Jan. 10,

1962 (rehearing denied); Arey vy. United States,

2 Cir., 123 F. 2d 1008. Cf. Romero y. Garcia & Diaz,

‘-Inc., 2 Cir., 286 F42d 347, 355, certiorari denietl 365

U.°S. 869. And the parel seems to agree- with the

trial judges for its opinion, too, treats the appeal as

‘ Yaising only questions of fact, not to be reviewed

under the rule in McAllister v. United States, 348

U. 8. 19.” :

In teal ¥. ere & Diaz, Inc., 286 F: ad 347, ° 355,

396, cert. den. 365 U, S. 869, which Judge Clark cites above,

doubt is voiced regarding the soundness of the Second

Circuit view that negligence is not subject to thé clearly

‘ ertoneous test, and that this view may no longer be per-

mitted ‘‘as our colleagues in the Ninth and Sixth Circuits

tell us, Pacific Tow Boat Company y. States Marine Corp.,

9 Cir., 1960, 276 F. 2d 745, 752; Imperial Oil, Ltd. v. Drlik,

6 Cir. 1956, 234 F. 2d 4, 10, certiorari denied, 1956, 352

U.S. 941,77 S. Ct. 261, 1 L.Ed. 2d 236.""

The Puddu case reflects the intra- circuit coullics i in the

_decond Circuit on the extent of: review 0 unseaworthiness:

findings.

While the-Second Ciréait has taken thd view that sea-

worthiness, i is not for the trier of the facts. when the trier

is a judge, it took the contrary positiot(over the objection .

of Judge Clark) that it is for the jury as the ‘trier of the

_ facts’? to determine whether a vessel is ‘‘reasonably

suited for her intended use’? in Pinto vy. States Marine Cor-

poration, 2 Cir., 296 F,. 2d 1. In either éase, the role of

determining such reasonable fitness should be left to the .

fact trier, whether it be a judge ora jury. Judge Clark’s

objection will be discussed, in the second “reason for

granting the writ’? since its principal concern is that the

“2 i

a |

. 1 6 -

determination of ‘treasonable fitness’? by the fact finder

is, in effect, applying the negligence standard of reason-

able care. Ilis view, which prevailed in the case at -bar,

would’ nullify the Mitchell standard of reasonable fitness

for intended use. ae

Furthermore, the iniplicit finding by the District Judge

that the libelant did not prove the existence of any defect

amounting to- ‘unseaworthiness and that the underlying

-eause of his accident is left.in doubt, is. not onl¢ a finding

subject to the clearly erroncous test, Commere ‘ial Molasses

Corp. v. New York Tank Barge Corp., 114 i 2 245, but

also, as this Court held in affirming, 314 U.S. 104, a party

secking to prove a’ breach of warranty “7 accra

has the burden of persuading the court of the existence

of a defect. amounting to unseaworthiness.

II: : ~y

THE REJECTION OF THE Court OF APPEALS OF THE TRIAL

COURT,’S .FINDINGS OF REASONABLE FITNESS FOR THE SPECIAL

USE FOR WHICH THE VESSEL AND HER APPURTENANCES WERE

INTENDED, AS PART OF THE STATUTORY BI-ANNUAL INSPECTION

BY THE Coast GuARD, AND ITS FAILURE TO DISCRIMINATE BE-

TWEEN, THE RELATIVE FITNESS FOR USE BY A SHORE BASED PER-

SON ENGAGED IN THE SPECIAL TASK OF ASSU RING: THE EXISTENCE

FOR FUTURE USE IN NAVIGATION AND A. "PERSON ENGAGED IN A

TASK INVOLV XG THE, NAVIGATION OF A _VESSEH? MAKES A NUL-

LITY OF THE REASONABLE FITNESS: STANDARD PRESCRIBED IN .

Mitchell v. Trawler Racer, Ine. :

: Ge.

THE EXTENT OF THE AUTHORITY OF THE TRIER OP THE FACTS

TO DETERMINE SUCH REASONABLENESS IS THE SUBJECT OF AN

INTENSE [NTRA-CIRCUIT CONFLICT WHICH CALLS FOR REVIEW

BY “THIS COURT

° .

5 %, e: .

While the Court of Appeals mentioned ‘the reasonable-

ness standard, this was only lip service, for it completely

rejected the trial court’s findings and — instead,

a standard of perfection.

Nowhere did. it pose the requisite question: “How fit

was the vessel for the particular task?” Nor did it assess

any degree of fitness. Settiig aside the trial court’s judg-

ment -of reasonableness, it coneluded that the three: so-

called ‘‘eonceded physical facts’? required a finding of

‘‘unfitness’? far the task and that (in effect) the accident

alone, emanating from: part of the vessel, made the ship

* &Unfitness jand ‘unfit’? are total words pre’

cluding the* interjection of reasonableness. ,

Clenrly, the very. work contemplated the presence of

steam in the appurtenance. As the libelant himself testi-

‘unfit.

“©

;

re ] : )

_ fied, part of the work was ‘testing if steam comes out, or

anything like that, water comes out.”

The failure of the Court of Appeals to consider. un- .

seaworthiness as a relative. concept raises an important.

question of law with respect to the ‘‘intended usé”’ portion

of the definitign of unseaworthiness set. forth in the

Mitchell y. Trawler Racer, Inc., supra.

In the case a® bar the Court seemed to construe “un-

_ seaworthiness as a gene! ral concept determined withont

; regard to the special and unusual use involved. Yet in.

Pinto v. States Marine Corp. of Delaware, 2.Cir., 296 F.

_ 2d 1, at page 3, it approved -a charge that ‘‘unseaworthi-

ness.is a relative concept.’’ In this case it seems to have

avoided the relative epneept altogether. In determining

whether a district court had properly held that the ship-

owner had not ‘breached a warranty of seaworthiness to

the libelant, the court was required to take into considera-

tion the fact that the purpose of testing the appurtenances

of the vessel in accordance with the requirements of law’

for inspection, by the U nited States Coast Guard, was to

assure and make tlre Vessel seaworthy, and totally differ-

ent fronya use bya member of a crew of the appurtenances

of a vessel while being operated as a vehicle for trans-

portation.

The use of a vessel for testing appliances to determine

fitness for later use by crew members and others similarly

‘situated, leaves considerabie latitude with respect to rea-

sonable fitness as distinguished | from such later use.

There isa strong intra- circuit conflict in the Second

Circuit concerning the thrust of the phrase ‘‘reasonable

fitness for their intended use’? as egpints in Mitchell

. Trawler Racer, Inc., 362 U. S. 539. Judge Clark who :

wrote the opinion in this ease has pe that he advocates

“the view of “strict liability’? aad apparently urges that

permitting the trier of the facts to eee reasonable-

ness for intended ‘use is in effect applying the negligence

doctrine of ‘freasonable care.”’ ats

In Dickinson v. Petroleum Curp., 338 U.S. 507; this

Court held that certiorari could. be grantéd to’ resolve an

intra-¢ircuit conflict. Apparently the use of the im bane ~

‘procedure cannot résolve the Second Circuit conflict, for

Judge Clark, .as hereinafter indicated, has heen unsuc-

cessful in obtaining rehearings in banc in eases where

claims of unseaworthiness have been disallowed and, i

this case, he refused to request a hearing in bane when

his view prevailed.

In Pinto v. States Marine Corporation of Delaware,

(2 Cir.) 296 F. 2d 1, the majority, at page 6, stated that

they read the Mitchell case -as holding that the trier of

the facts (a jury) is to determine whether a vessel was.

‘*reasonably suitable for her intended use.’’ On the denial

of the petition for a rehearing in banc Judge Clark dis-

sented and suggested that-his, colleagues were really fol-

‘lowing the minority, opinion of this court in the Mitchell

v.eTravler Racer, Inc., supra, and seemed to urge that it

Was not the duty of the judges of the Court of Appeals to

_follow the decisions of thi Court as they read them but

rather to ‘enforce the shipowner’s responsibility by strict

liabitity.’’ Natucally, a test of reasonableness would be

contrary to a view that suggests ‘*strict liability.”’

Judge Clark noted that in banc procedure would only

be a temporary palliative in resolving conflicts of views

- and that the permanent corrective > could - supplied gnly

by this Court.

In Esekiel vy. Volusia Ste amship Co., 207 F.2d 215, the

majority affirmed the dete rmination by a judge sitting in

admiralty ang held that a vessel met its responsibility for

seaworthiness by making goggles available to crew mem-

bers for use in chipping rust and that there was no lia-

bility to a erew member who failed to avail himself of

these gogules, although they had been issued to him, for

his use and he did not put them.on. Judge Clark dissented,

at wae 217, and im effect rejected the concept of reason-

- ableness? In citing, among other cases, his decision in the

“case at bar (Van Carpals v. SS American: Harvester,

2 Cir. 297 F. 2d, 9), he urged his extreme views on lia-

bility for unse: aworthine ss, stating that a shipowner is

liable even if the’ asserted unseaworthy condition is created

by the plaintiff himself, and while again giving lip service.

to the standards of the Mitchell case, he reject ted the hold-

ing of the majority on the ground that even if frogzles were

available and furnished to the crew member the: shipowner

is liable / simply beeavse the seaman “is not Wearing

gogyles while engaged imrust chipping’? and that *tis itself

an unseaworthy ‘condition’? no matter what steps the ship-

owner took *tunsuccesstully to see that they were worn.’

In the, as vet. unreported case of Puddu-v. Royal

Netherlands Starmship Company, supra, decided Janu-

ary: 3, 1962. denial of the petition for rehe: ring iv Laue

dec cleat February 20. 1962. the original panel, after sus-

taining the findings as not being clearly erroneous, held

that the longshoreman, the plaintiff in that case, had failed

to prover that any unse “aworthy condition caused his in-

“juries, that the shipowner was hot Jiable for negligent

conduct of pl: uintiff” s fellow workmen. ! ,

In his dissent from the de nial of the petition: for a

re he caring iv bane, ludge ¢ dark reiterated the view that they’.

should be resolved as far as feasible | wa cons sideration

iv bance and urged that the shipowner should be lial le eyen

for conditions cre ated during the work by the negligence

of a le neshoreman’s fellow worker ny matter bow short-

lived, thus rejecting the concept of reasonableness,

» ,

Other decisions of the Second Circuit, such as Hooper v.

Terminal Steamship Company, 296 F. 2d, 281, and Richter

v. Mathiasen’s Tanker Industries, 297 F. 2d, 494, apply the

‘concept of ‘reasonable fitness for intended use’’ by con-

struing this court’s ‘‘reasonable fitness”’ admonition in the

Mitchell case as, meaning exactly what it says

TIT. ;

é ; Pa

THE HOLDING ‘THAT A WARRANTY OF SEAWORTHINESS EXISTS

IN FAVOR OF A SHORE-BASED WORKER ENGAGED IN TESTING THE

SHIP FOR THE BI-AS NUAL INSPECTION REQUIRED BY 46 U. S. Cove,

_ SECTIONS 391, 392, 399, anp 46 Cope: or Ferprrau Recvu-

LATIONS, Part 91, AND THE FURTHER HOMDING THAT A VESSEL

MUST BE OUT OF NAVIGATION TO NEGATE SUCH A WARRANTY,

PRESENTS AN IMPORTANT QUESTION WHICH THIS COURT LEFT

opEN In West v. United States AS UNNECESSARY TO DECIDE:

BECAUSE IN THAT CASE THE STATUS OF THE VESSEL WHOLLY

“OUT OF NAVIGATION PRECLUDED A WARRANTY TO ANYONE WiTH-

OUT REGARD TO HIS PARTICULAR TASK.

This court should Teview the important question left

open in West v. United. States, 301. U. 5.118, as to whether-

the owner of a ship not wholly out of navigation “nee:

her seaworthi ‘ness to a shoreworker engaged in a task

Which is not regarded as parcelled out seaman’s work, in

this case testing the ship for the purpose of obtaining a

certificate of inspection that would entitle it to continue

in navigation. —. S

In denying the petition for rehearing, the Court of Ap-

peals held that Filipek v: Moore-McCormack, 2 Cir., 258

F. 2d 734, cert. denied 309 U.S. 927, and other cited cases,

did not suppert petitioners’ position, because, there, the

ship was out of navigation. However, the Filipek case was

not decided on that ‘basis, although the West case was.

_ Apparently the Court of as concluded that unless

the status’ of the vessel is such that no warranty exists

as to all, nothing in the nature of the work being per-

formed negates the existence of sneh acwarranty. Surely

this ‘‘all or-nothing’’ attitude is not the law.

In West v. United States, supra, the libelant was an

employee of an independent contractor engaged in testing

a vessel for defects while the vessel was undergoing a

complete overhaul and wholly out of navigation. As the

court said, at page 122, there was no necessity for deter-

mining whether there was a warranty to a workman doing

a specifie type of work because there was no ‘‘warranty of

seaworthiness to any person.”’ .

In Roper v. United States, 368 U.S. 20, this Court held

there was no warranty of seaworthiness to the workman

because the status of the. ship was such (dead) that there

was no warranty of seaworthirress to anyone. As the Court

indicated in a footnote at page 24, there is no warranty

of seaworthiness simply because ‘*those working on vessels

not in nav igation. are not seamen (or doing seainen’s work)

and consequently not among those employees protected by

the warranty of seaworthiness. 2

One of the considerations im Roper was that the vessel

had “lost her Coast Guard safety certification’? which was

a requisite to a vessel in navi ation, .

Th the case at bar, the vessel could not continue. in’

navigation until she obtained’ a fitness certificate from the

Coast Guard es rtifving as to the ifispection of her ‘boilers

and. other equipment.

In F ilipek ve Moore-Mcl ‘ormac K,.2 Cir, supra, (referred

to with approval in the West ease), the Court of Appe als_

held, at page 736, that a shipowner did not warrdut the

--gseaworthiness of a Vessel toa workman ¢ Cneaged in testing

a vessel,-not because she was out of navigation, but be-

cause such testing was required by law and had to be done

by outside experts and not by erew ie Wivers. As in this

ease, a-certifieation had to be obtained from the Ameriean

* Bureau of Shipping in order to obtain cloaranee- fron: the

Coast Guard. and’ “the American Bureau of Shipping.

would not have issued a cerfificate approving the - sts if

conducted by any member of the defendant's crew.

It is submitted that there was no Warranty’ of sea-

worthiness to libelant in this case for his status is similar

to that of the workman in the Filtpek case, engaged in

task which is neither routine nor one of ordinary mainte-

nance.

£0.38. ‘ode, Section Sob, requires that the boilers

of a al be inspected by the Coast Guard at least onee

_ every two years, and sub-division do requires hydrostatic.

tests, as in this case, be made to all Loilers and main steam

piping as eae as other tests required by the Coast Guard.

46 UL S. Code, Seetion 599, provides that no yessel + shall

he ieaovlech Without a certificate of inspection.

46 UL S. Code, Section 291b, requires a general Coast |

Giard:i oats ani of non-passenger vessels at heast once

every two years, thee purpose of wid sh. among others, is

to warrant that® the ship may bé used in navigation with

safety to lifes ,

on Was oursuant to these statutes that the vessel in

question was being inspected and also puretiant to the

Regulations of the ‘Coast Guard set forth at Part 91 of

46 Code of Federal Regulations (inspection and Certitien-

tien). Seetion PLAST provides that the standards estab-

lished by the American Borean of Shipping shall be used

and that the certificates of the American Burean of Ship-

ping shall be accepted as standard. and Seetion 427-1

\provides that at tenet one re inspection, shail be made on

ach Vessel holding a certificate of inspection valid for

Wwe vi ars,

“

“As appears from the record CR. Wai, the inspection

in, this’ case Was an Ativetiv an Burean of Shipping inspee-

tion which results i in certification te the Coasf Guard as a

won nnn acim anaes feo Lied isstance of the eortitieg itecto pernmut the vessel

to eng ive in nav ivation. Pte (aon. stspaning

° (it, DO FF. 2a G0 at page O4D, it-is emphasized dhat

the very prurpitse oof thi- type os TS ea t= te prreteat

lives and property that onicelit dee ondane ered bs the an

; seaworthine ss of the Vessel renagess iyed fers ioe itis pronto |

How. aiden these enfenumestatioes, can it bee Naabiedls fede

that a shipowner warrant - the seuwertiines= of it vessel

te these shoreworke ys whe are te revel Sor the ve ry purpose

of testing ‘the Vessel forse avorthine once WL Ge stators Atel

fiat it is net meeessary that eo vessed fee ant of nav ications

to hexate a Warrant\ of se amerthines-. yet if eotilel be

urserd that ao Vessel in the status of the SS fwerean

Harvester. im the pitencess of bettie pris per tesk in order

to navigate, is pro fant. mt ot navigation ats to those pred

Sots testing it for ~ -aworthiness, ~hreottle | the evil oft Way beat

tien Se aed dae cher sruatioally sapepeltecd ais the only -tanedared.

But surely that standard bas ne nivnepoly, for if there is

no pareeling oft of seaman’s work te obtam “ihe ad-

“vaniages of imore modern divisions of labor?’ as this Court,

saicl itt Sede Shippin sd (io. ve Nee vae he, ols, c', s. mO, the

, purpese of 20% uit ne that warrants ix vet fsltilled. How

cum suelo a persen hatver or rely or steel: a Warrants when

biix seolee cdusty bs te seertain the Vers existence of sea-

worthines=? ba . .

’

---

‘Ip United States. v. Gehagan.. Dredging ( ‘orpyration,

ad BS

CONCLUSION:

The writ of certiorari should he granted, the Court of

Appeals judgment reversed, and the decree of dismissal -

reinstated in aceordance with the trial court’s’ finding of

seaworthiness. :

If this Court does not summarily grant such reversal

and reinstatement of the distriet court’s decree of dis-

missal, then it is respectfully requested that the Court

review all of the questions presented. .

Dated: Mareh 23,1962.

Respecttully * biitted,

Tnomas Coyne,.

Counsel for Petifioner.

Ciuartes N. Fippier,

—Rosexr P. Hant,

Of Counsel.

oO.

7 f A-l

APPENDIX TO PETITION. “2

Original Opinion of the United States

Court of Appeals.

UNITED STATES COURT OF APPEALS

Fon tur Secoxp Crnevit

2 pe ewe 4

No, 51—September Term, 1961.

* (Submitted November 2, 1961/ Decided December 13, 1961.)

: Docket No. 27046

‘ Emaxcer Vax Carpars,

Libelant- Appe lant,

SS Americ aw Tlanvester, Usiiep Srares Lixes Company,

‘ - Claimant-Respondent-A ppellee,

Tr,

‘Topp Sripyvanps Conrvonrtion,

Re spondent-Impleaded.

- Before: %

Crank, Hisewks and Friexpry, i

- Circuit Judges.

Appeal from the United States District Court for the

Southern District of New Pgrk, Charles M. Metzner, Judge.

Emanuel Van Carpats appeals from dismissal of his

* libel for damages for personal injuries against the SS

** fmerican Harvester *. and United states Lines Com-

pany, the claimant shipowner, takes a ‘*protective’’ appeal .

from the dismissal of its claim over against Todd Ship-

*, . .

- - .

° -

¥ -

A-2

yards Corporation, the impleaded respondent. On the first

appeal, reversed and remanded; on the second appeal,

affirmed. . feo

Sisox NJ Gazax, New York City, for libelant-apellant.

Rosest P- Harr, of Kinwis, Aamesecs. & Keatinc, New

York City (Parnick J. Gitmartix and Cuakies N.”

_Fworer, on the brief), for claimant-respondent- *

at nae appellee.

Paruick E. Gissoxs, of Texnuse, Gisboxs & Meiye-

nia, New York City, for respondent-impleaded.,

: ‘ ‘ ded $ - : . - -

Cc LARK, Circuit Judge:

‘ , P

Libelant Van Carpals appeals from. dismissal of his

libel fur damages for. personal injuries sustained on the

SS “American Harvester” while he was working as a

shore méechanie for Todd Shipyards Corporation, which

had been employed by United States Lines Company, the

shipowner, to prepare the ship's pipes and valves for in- _

spection by the Coast Guard. The district judge found

the facts as follows: ; A -“° ;

“The boilers of claimant's steamship were being

subjected to a periodic examination by the Coast

Guard. The libelant was removing a bonnet from a

‘valve preparatory to its being examined. There

were 8 bolts connecting the bonnet to *the valve.

After he loosened. up four of the nuts, some water

escaped, and libelant notified his snapper. The

snapper said he would nave the water shut off. In

‘ the meantime, the libelant and the snapper Went to

lunch. When they returned the snappef told the

libelant that the lines were clear, and the libelant

unscrewed all 8 nuts and pried the bonnet loo’e from

the valve with the aid of a serewdriver. Nothing

‘eame out at the time.

“>! *Libelant wept-up on top of the boiler to bein a

better position fo pull the bonnet off. When the -

an) a ;

A-3 °

Se 5

. bonnet came off, steam and then hot water gushed

forth from the valve, burning the libelant.’’

There was also te stimony from the ‘*snapper”’ or fore-

man, as well as from the firet engineer, that with the

gauges disconnerted after the initial pressure had been

noted, a check then showed no pressure on the line; and

. they beth appear at a lass to understand how the watet

dater could escape Trom the valve. So the trial judge sai

“This appears to be the type of unexplained accident for

. which liability cannot be predicated on negligence’; atid he

held that, siner the checks owed ail absence of pressure,

the selec! Was not unseaworthy. Accordingly be ‘disinisséed

th Ribot. ~ .

We disagre and hold that tinder prevailing law the ves-

sel must be held unse “aworthy. ' Though the ‘cause of the

accident may be inexplicable, yet if, and the way it ve-

curred, alemoustrated that tiie valve was_actually not in a

safe condition for the Work teesded to be done upon it. The

trial epyurt believed that the independent tests made to

double check the gauges and the fact that libelant saw no

sigtis of pressure negated an thse aurorthy condition. But .

we dy not think that follows. The ace fident «cecurred; there

erupted.

-was steam in the valve, and it eseplgeded. These coneeded

physical facts imperatixely required a tinding of unfitness -

for the task in hand» Tifus a conclusion of dnseaworthi-

ness should have been reached irrespective of te proofs

tending tu absolve the owner of negligence.

Thus the situation falls within the.**absolute’’ duty of «

the shipowner to furnish a seaw orthy ship which **is ¢ saeli-

° . tially a species of liability without fault, analogous to ther

well known ee in our law."’ Seas Shipping Co, v.

Sierachs, 325°U. 85, MS quoted in Mitchell’ y. Trader

Rarer, Inc., 362 Ms s: 530, 540, which has now se Atlee the

: tn his memoranda of decision the trial judge com plasts that

here was no allegation of uuseavorthiness in the Jibel, seit in

federal pleading there ts ne need to plead lewal ange thene

are for the court toapply. Awd the question became acadhie when

@he court reopened the case expressly for the purpose of consider-

ing the claim of anseaworthiness. ;

©.

Pepa in

law we must apply. The Mitchell case points out that since

Sieracki the Court’s ‘decisions ‘‘have undeviatingly re-

flected an understanding that the owner’s duty to furnish a

seaworthy ship is absolute and completely indépendent of

his duty under the Jones Act to exercise reasonable éare’’;

that it applies equally to’ a condition arising after, the ves-

‘Sel leaves _her home port us Lefdre, or to one which may

bé dnly temporary; that it app}ies to defective equipment

temporarily brouglit.on board by an independént contrac-

tor over which the owner had no control; and, that the

latter's actual or constructive knowledge is not essential

to his liability. ‘‘What has evolvedis a complete divorce-

ment of unseaworfhiness liability’ from concepts of negli-

gence. To hold otherwi isqqhow would be to erase more than

just a page of history. 9 '369 U.S. 539, 549, 550.2 See also

* Michalic y. Cleveland T ankers, Inc.,.364 U.S. 325, 327, and

our own decision in Sprague v. The Texas Co., 2 Cir.,, 250

F. 2d 123. ° ' : :

It thus appears clear to us that the inigieecals cannot ;

wipe out this ‘‘absolute’’ duty by saying that he does not

know what caused the~particular accident or suggesting in

effect that it was an act of God. Libelant claims reliance

' upon the tort doctrine of res ipsa loquitur. That doctrine

may be applieable in ship cases, cf. Johnson-¥. United

| States, 333°U, 8. 46, 49; but here resort to it as normally

_ conceived is not necessary. For it is customary to state

_certain requirements for or<limitations upon the applica- °

tion of ‘res ipsa loquitur—sueh as that the aecident would

not ordinarily occur without negligenec, that the defendant

has excinsive control of the injuring agency, that the acci-

2The Court went on to say: ** What Aias been: said is not to

stiggest that the owngr /i> obligated furnish an aveident-free

ship. The duty bs Otolute. buit-it os a duty only to furnish a vessel

and. appurtenaners reasonably fit for their intended use. The

standard is not perfection, but reasonable fitness; not awhip that

will weather every conceivable storm or withstand every imaginable

peril of the sea, ye a Vessel reasonably suitable for her intended

sery jee,’ 362 mY aM, TMD, Lut ans the ourt is at pas ns to point

out, this has reference metely to the standards set for the ship arid

its appliances, and not to the duty, which rtanains absolute. Thus

wit is an absolute ditty to furnish a reaumably tit ship-—a duty not

performed here.

Mowe

Aap i

dent would have happened without any act by plaintiff, and

that it-only creates something in the nature of a perinis-

sible inference, 2 Harper & James, The Law of Torts 1075-

21107 (196)—whieh baye ne place (or are automatically

supplied) in the absolute duty ofthe slipowner. (quite

apart from thedries-of negligence) to provide a seaworthy

ship. Under the cireumstancgs here disclosed of wiibstantial

injury from a failure ‘of the ship’s machinery, which dem-

onstrates that it was unfit for its intended use, the breach

of duty is clear. The dismissal of the libel must therefore

be reversed and the action remancesl for the fixing of the

‘amount of libelant’s damages. ,

Claimant, United States Lines Company, bas taken what

it terms aw ‘protective”’ appeal from the dismissal of its

claim for indemnity against Todd, which it cited in as

third-party defendant. We see no basis upon which the

shipowher here may pass on its liability for the unseéa-

worthy condition of

Weyerhaeuser SS. Co. y. Nacirema Operatang Ce, yoo

U.S. 565; Crumady v. The Joachim Hendrik Fisser, 398 |

U.S. 425, 429-429; and Calderola vy. CunardS.S. Co, 2 |

Cir.. 270 F. 2d 405, 477-473, certiorari denied Cunard SS.

Co. vy. John T. Clark & Son, 304 U.S. S84.

* 1ismissal of libel reversed, and action remanded for

award of damages to libelant; dismissal of claim for in-

os against impleaded defendant, Todd Shipyards

Cérporation, affirmed.

(50)

- Opinion of the District Court.

s. r : °

Merznen, D. J: .

;

The libel alleges that TY libelant was employed by the

“Todd Shipyards. On July doth, 1958 he was aboard the

claimant’s steamship ‘American Harvester’, etigaged in

removing a valve from the port boiler. In the course of

exercising his duties, libelant alleges that le was burned

its vessel to the repairer. Compare:

°o?

A-6 ede .

as a oer of steam and jot water cides out of the

valve, which resulted in the injuries iplained of. The

libel alleges that the libelant: is seek Fare the doctrine

of res ipsa loquitur.. There is no-.allegation of unsea- *

’ worthiness.

(51) Whe hotlers of claimant’ s stes imship were being

subjected to a periodic examination, by the Coast Guard.

The libelant was removing a bonnet from a valve prepara. |

tory to its b&g examined: There were 8 bolts connecting .

the bonnet to the valve. -After he loosened up. four of.

the nuts, some water escaped, and libelant notified his

‘snapper, The snapper said he would have the water -shut .

off. In the meantime, the libelant and the snapper went

to lunch. When they returned the snapper told the libelant

that the lines were clear, and the libelant unserewed all 8.

nuts and pried the bonnet loose from the valve with the

aid of a screwdriver: Nothing came outeat the time.

Libelant went up on top of the-boiler to be in a befter

position to pull the bonnet off. When the bonnet came off,

steam and then hot water gushed forth from the valve,

burning the libelant. He spent. two weeks m the hospital~

and:then an extra week at home before going back to work.

He testified that he suffered pain for about 7 weeks and

‘received treatments up until December of 1958. He c sims

a permanent, disability ‘in that he cannot completely. close

his right hand and finds it difficult to properly “use the

tools necessary in his’ work. * ‘ 2

(52) Dr. Friedman, called by libelant, has found per-

- manent searring on his right hand due to second and third

degree durns ayd a permanent defect of 15° in the flexion

of. the right hand.. The. doctor also testified that, while

there’ is present an’ osteoart ritie condition in the right

hand, it is not severe enought 0 affect its mov ement. The

hospital record showed second and third degree burns of

the left fingers, second degreg purns of. the right hand,.s

second degree. burn of the left lower leg and first and

second degree burns of the body.’ , os

Mr. Christiansen, employed hy the Todd Shipyards as

the snapper on thé job, was called as a witness by libelant

{

me \

Nee

onove the bonnet.

* . A-7 | : 4

and testifiéd that when, libelant opened the four nuts he-.

fore Iuneh vapor and steam appeared, indicating pressure

in the line. He personally , cheeked the gauge, which

showed that there was-no pressure in the line, and ‘then

disconnected the gauge. to see if it was working properly.

With the gauge discomneeted, the cheek showed no pressure

x in the’ line. He went to luneh with. the libelant. When

he returned he asked the port engineer and the first as-

cistant- engineer if it was all right to proceed and they

told hime that everything was in vood order, He confirms

libelant’s -story-as to what happened thereafter.

(53) John Boyle, the first engineer on the vessci, testi-.

fied on behalf of the claimant that the inspection of the

—

oiler had been/eompleted by the Coast Guard and thes

water let ont of the boiler; that the gauges read zero, in-

dicating there was uo pressure in. the lines.. In addition,

an independent master ganze used by the inspector showed

no pressure in the line. Boyle is as much at a loss fo

ainderstand how the water could eseape from the valve as

is Christiansen, He, however, disagreed with Christiansen

on the question of avhether Chafstiansen had made te

‘complaint before lineh. Christiansen told him’after luneh

that he saw seme water dripping from the valve, bit Bovle

testified that this was a normal process of eCaporation.

Woiile the libelant in his libel stated that he was reliving

on the doctrine of ges spe lagtiten, the proof proceeded |

onthe theory that notice of a possible defective condition

had actually been given to the claimant. In any. event, |

claimant has shown that everything was done that a reason:

able. person could do to determine if there was wafer in

the line. (Libelant’s own testimony, was that the aysual

signs of pressure were pot present when he loosened the’

bolts in the afternéon, which led him to attempt to re-

(ad) This appears to be the type of, unexplained acel-

dont for whieh Hability cannot be predicated on regliwence, |

The claim for judgment over against Todd Shipyards

wipittremisscd at the close of the trial on tie evound that

“olaimant failed to adduee proo; to show any basis for ree

covery if a judgment: wis awarded dibelant.

‘

4 ; : “

. A-S

At the close of the trial libelant’s proctor argued for

reeovery based on unseaworthiness. _This was the first

indication that this theory of recovery was in the case.

In fact, in ‘an-informal conference | fore trial the existence

‘of such. a theory was negi itived by the proctor. In any’

event, the court reopened the. ca#e pursuant to Rule 23

of the Rules of Practice in Admiralty, and direcied both

sides to submit memoranda. The ease of Sprague v. Texas

Co., 250 F. 2d 123 (2 Cir. 1957), was brought to the atten--

tion of the’ proctors by the court.

After reviewing the memoranda sulniuitted ‘and the tes- °

timony adduced on the trial, I find that the libelant was

performing: such duties as to permit him to invoke the

doctrine of unseaworthiness. However, I also find that the

Sprague ease, supra, is. distinguishable from the case at

‘bar. In Sprague a reading of the gauges indicated the

absence of pressure, but there was an (55) explosion when

all but two of the nuts had been removed from the heater.

The court said that, — . 7

“The conclusion is inescapable that the valves of the

gauge were hot in proper working condition.’’

Here not-only did the gauges show: no pressure, but

‘ checks, independent of the gauges, made by the Coast

Guard inspector and libelant’s superior who testified on his

behalf, also showed no pressure. [Lastly, libelant, as indi-

cated above, did not observe the usual signs of pressure

even after he had pried loose the -bonnet.] The «doctrine

of unseaworthiness has not been expanded to permit. re-

covery just bee¢ause someone who may ¢laim its benefits

has been injured.. I find that:the’ claimant furnished a

vessel and appurtenances reasonably fit for use by libelant.

Mitchell vy. Trawler Racer, Inc., 362 U.S. 539 (1960),

Libel dismissed. ‘The above decision shall constitute the

findings of fact and- conclusions of law. So ordered,

Dated: New York, N. Y., May 11, 1961.

" Cuaries M. METZNER,

U.S. D. J.

AD ..

- UNITED STATES C¢ JURT OF APPEALS

‘. ; For THE Secoxp Cincvit.

No. d1,

Seprember Term, 1961

Docker No. 27046

Exrascet Van Carpars,

Libelant-Appellant,

‘against

SS, American Harvester,

Usirep Staves Lives CoMPany, |

Claimant-Respondent-A ppellee,

against

Topp Surpyarps Corporation,

' Respondent-Impleaded.

. «

Petition of United States Lines Company

for Rehearing.

To tur Honorapie Tite Jupcres OF THE Unitep States

-Crrcevir Court oF Appeals For THE Seconp Cineuit:

United States Lines Company, claimant-respondent- °

appellee, respectfully prays that this Court grant a rehear--

ing of the above entitled appeal ‘and also a rehearing in

bane. ee

Be f

The December 13, 1961 opinion of this Court, instead of

respecting the findings of the District Judge that the proof |

showed no pressure in the valve of the boiler and that there

was no showing that the valve or gauge was either defec-

- tive or unseaworthy, adopts an outrageous statement from

A-10

the libelant’s brief’ that there was an ‘‘explosion’’, as a

‘conceded’? physical fact.

Clearly, the law has not raised statements by an advo-

cate to a ‘‘finding’’ status, and, clearly, the statement in

the opinion that the valve ‘exploded’? is not conceded. On

the contrary, on page 5 of the brief -of the petitioner, it-is

- stated ‘we do not have steam under ‘high pressure’? and

‘‘there was no explosion’’.

Should the petitioner deem it hecessary to apply for a

writ of certiorari it will be exceedingly difficult, if not

impossible, to explain away a concession that was never

te eee - . .

Since there was no defeet shown in the ship’s pipes and

valves, which had been tested and examined by the vessel’s

personnel, by appellant’s superior, by the United States

“Coast Guard and by the American Buréau of Shipping and

tested against a master gauge for accuracy and e¢ ililiration,

ail shortly before the accident, the Coart could not find and

did not find any defect whatsoever amounting to unsea-

worthiness ‘which could have caused libelant’s injury.

In-Pinto v. States Marine Corjporation-of Delaware, 2a

Cir, . KF. 2d , decided October 26, 1961, this Court

said (paige 40, slip opinion), that it read Mitchell vy.

Trawler Racer, Inc., 362 U.S. 930, as holding that **the

trier of the facts is to determnine’’ whether a vessel. is ‘*rea-

sonably subst: ih le for her intended service’’, citing its previ-

ous decision in Blier ve United States Lines C OM Pan, 2d

Cir., 286 F. 2d 920, cert. denied 568 U.S. 856,

The trier of the facts in this case made such a specific

finding, as follows:

T find that the claimant furnished a vessel and

es reasonabty fit for use by libelant.’’

The Supreme Court spoke out in “MeAllister ve U.

348 U.S. 1%), against the practice of oyerturning the ra

ings of a district judge, Yet the findings of ‘the district

judge in this case were clearly correct, and not, clearly

CTFONCOUS,

A-11

’ The aforesaid finding of the District Judge, as well as

his holding that the cause. of libelant’s injury could not be

traced to any detect whatsoever in the ship’s gear were

clearly correct. As stated by Judge Learned Hand in

Commercial Molasses Corp. v. New York Tank Barge

Corp., 14 F. 2d 248, 250 42 Cir.), aff'd. 314 U.S. 104, a

finding that the ‘teanse of the accident has been left in

doubt’? is as much a *tlinding’’ as an affirmative finding.

The writer of this Court's opinion complained, when

dissenting in bikipe key, Moore-Met ‘Orimae k,-2 Cir., 2s F.

%1 735, at 738, cert. denied 350 U.S. 927, that the majority

had: taken “tits cue from plaintiff’s brief and argument’’,

-yet liis opinionshas not only taken dts *teue’? from libelant’s

brief, but it has also taken ‘tan ‘eplosion’? as a ‘fact’,

although the **faect’? existed only in a dissertation of libel-

ant’s counsel. | oe | ,;

- Removing the assertion of an ‘texplosion’’. from the

Court’s pinion, the solé bagis of its holding is that every

ship must be an ‘taccident-free’? ship, regardless of the

absence of a‘showing of any defect in any of its appurte- |

nances and in spite of the finding by the trier of the faets—

of their reasonable fitness for their particular use. Surely, °

this is not the law. x

Inc Mitefelt v. Trawler Racor, lue., supra, 362 US. 6359,

our highest Court flathy leld that it is not even sugested

“that the owner js ‘obligated 4o furwsh an accident free

ship’? and that the duty is *to#ly™ to furtish **appurte-

hances reasonably ft for their intended use’’, It did not

say that the mere happening of an aveident created lin-

bility. Nor did it hold, as this Court secms to suggest, that

. “the liability is absolute’? despite the failure of the libelant

‘to prove any breach of any duty whatsoever, Striking the

horrendous Phrase ‘and it.exploded”? all that reniains is

an accident which occurred despite the overwhelming,

factual proof that the, apptirtenance in question wis rea-

sonably fit for its intended use. ‘*Intended use’’ here was _

A-l2

not the ordinary use of a ship’s boiler*in the operation of a .

vessel, but, on the contrary, a use by outside experts in

performing services required by Jaw in testing a vessel

for inspection by the United States Coast Guard.

‘*Intended use’’ is obviously a relative concept since

it must take into consideration both the manner of the use

and the function and status of the person using the appur-

tenance. In linto v. States Marine Corporation of Dela-

ware, supra, this Court approved (page 35, slip opinion)

the charge that, ‘‘unscaworthiness is a- relative -concept,

dependent in each instance upon the circumstances in which

the ship's fitness ig drawn into question’.

The .“‘use’’ in this case was not a dismantling of a

heater or other minor appurtenance of a vessel while being

operated as a vehicle for transportation, such as the use

by the crew member in Sprague v. The Texas Company,

2 Cir., 250 F. 2d 123, who was misled and deceived by a

defective gauge. This was an extraordimary dismantling

and inspection by experts (involving and creating extraor-

dinary hazards) of a major part of a vessel (a boiler)

shown not to be defective in any respects by all tests made

by all the experts. To hold that there is liability in such a

case is to strike the words ‘‘accident-free ship’’ and the

words ‘‘reasonably fit for their intended use’’ from the

measure of liability prescribed by the Supreme Court in

the Mitchell case. }

An essentially reasonable ingredient of this extraordi-

nary use was’ a likelihood that,steam and hot water could

be presented in a boiler valve and couid come out. As

libelant testified (Libelant’s Appendix, page 7a) :

‘* We were supposed to take the boiler valyes off

- -for a check by the Coast Guard. So we usually

start loosening them and then testing if steam comes

out or anything like that, water come out.’’

In West v. United States, 361 U. S. 118, the decision in

Filipek v. Moore-McCormack, supra, 258 F. 2d 735, cert.

+ 28

denied 359 U.S. 927, was referred te with approval, and

the Supreme Court emphasized fhat where the work of an

Independent cantractor, by its very nature, eredtes the

danger, liability ofa shipewner to its emir lovers lars not

attach. : |

The relationship of the libelant in thivenss tor the ship

owner, as an expert (a shore mechenie fora shiptard cor-

poration), invelved in the work of preparing aSvessel for

inspection by the Coast Guard, owhiel required a certiti-

veate by the American Bureau of Shipping) phices hin in

tlie same position as the rigger in the Filipe I case, **test-

inse*, the ship's booms. amd the shiovard worker in the

Wiest case, engaged in the work of reconditioning ane

“testifa a vessel. In botli cases the Cort held that there

Was ne warranty of seaworthines. to the independent eat

tractor’s employees,

Luibelant’s task was that of assisting in the process

required by law to make a vessel as seaworthy as a Coast.

Guard inspection can accomplish. Yet the Court’s opinion

stivvests that even more fitness is required for the expert

engaged intmaking a vessel seaworthy than that reanired

for use by the member of the erew, Sprague v. The Teras

Company, sapra, 200 PL ob V2 Tn Spee the Court

Liisedd its liability, net on the mere happening of the acci-

dent, but of a proved misleading détect, riz. a defective

gauge Whieh registered a aen existing ‘vere’? preseure,

while in fact there was S'great pressure’, se Stereat’’ as to

cause an ‘explosion’? whieh propelled the two renaintiy

nuts from the heater.

Michalic v..Clerclind Tankers, lue., WA VS. oe, salsa

cited in justifieation of this Court's decision, is hardly

pertinent. That case merely held that plaintiff had adduced

enough testimony by witnesses in support of Lis claim that

a wrench had defective teeth so as to require his claim to

go toa jury. Here, not only was there no proof’ whatever :

of any defect, but the trier of the facts actually found that

the appurtenances wére reasonably fit for their intended

use by the-libelant. =

4.-

~The Supreme Court, in Seas Shipping Co. v. Sieracka,

328 U.S. 85,05, 96, held that a slipoaner is required to

warrant the seaworthiness of a vessel to a longshoreman

simply because the owner should not be free to unnllify its

liability by ‘*parecelling out his ope rations to intermediary

emptove rs whose sole business ix tu take over portions of

the ship's work’%, in ordypr to obtain the ‘advantages of

more ‘modern divisions of labor’ In the ease at bar,

however, there is no **parcelling out’ “of the ship's: work

to ‘the ie miplovees of Todd Shipyard ( ‘orperation, flie inde-

pendent contractor, to obtain ‘*the advantages of more

modern division of labor’’, but rather the duty and neces-

sity te comply with the compuisory requirements of the

law. Only experts familiar with such structural parts of —

a vessel as boilers and the ship's pines and valves could

_ properly prepare the Vessel for inspection hy the Coast:

“Guard, and as in Filipek v. Moore-McCormea: k, supra, 258

F.2d 725, cert. dem. 290 US. 027, a certificate would not be

furnished to the Coast Gu ard by the Ameri¢an Bureau of

Ship pine ‘Winless such ¢ sperts made the test.

A basic holding of the Filipel and West cases is that no

warranty of seaworthiness exists in faver of an eniplovee

of an ‘ Sport iaedepootident eomtractor Whose sole PUT pose ix

to make a vessel -caworthy by various ‘test. and whose

very work ceveates the hazard. d

Ths. _ from the relative consequences implied in

a tduty ony ‘to furnis!: avessel reasonably fit’ for the

lntended use’. appleabie to the Hhelant (in performing:

O finedons Tnpesed on the steamship owe r ‘by law-and not

hy ae oben of “mode rh divisions of luber?’), it is manifest

: cat the s ¢ ‘ourt ove rlooke d the siege conelusion from

_#F qe pe i? ane We taf cases that the law does not iinpose

“any obligatron on the shipewner to warrant to the libelant

tie se avorthine ‘ss of the rete nanees involved in this

case,

e ° '

oo.

The viee inherent in the Court's imposition of liability

on the petitioner for the first titne, on the mere happening

Pa)

ANS ‘ | \ *.

- of an aceident, without any showing of any defect whiatso-

ever in the appurtenances, is shown by the injusties created |

With respect to the claim of the petitioner r against ‘Todd, |

Shipyard Corporation for indemnity. |

Since the only fact proved by Tibelant is the eseipe ‘of |

steam and bet water from an appurtenance found by all

experts to be without any defeet, embellished bya law Yer- |

-asserted nomenisting ‘explosion’, it is evident that this |

Court is hard put to see any **hasis’* in the record to ** piss

on”? such a liabilitv.. Plow vould tit petitioner sires on the

present record. that the third party caused a non-proved

defect or brought inte play’? this yudieially imposed

unseaworthy condition’, when the libedant produced no

proof whatsoever-of any «pfeet in the ap purfepane oor the

underlying cause of his accident?

It is submitted that this Court is bound by the District

Judge's finding that the vessel was reasonably fit’ for use

by the libelant despite the presénee of steam and hot water

in the’appurtenance being tested for fitness by the libelant

yet it is conceivatie that some ¢ mploye ¢ of the third party

may have done something te the } pipe connections While the

Valve Was being disnjai Al, resulting i in the entry “ob steam

and lot water, Of “cours this concept, on the pres¢nt

proot, would be just as t*immiteulate’’ as the coneeptAhat

the shipowner breached a duty t6 and-is liable

employee of the shipyard when it pertgree allowed such

hot water to escape frofi an appurteimhee found to be

perfect so far as any ‘mechanical and human fests could

find it.

In any event, if the Court continues to Hokd that the

shipowner is liabie. despite. the District Court's, finedlings,

it should also remand this ease to allow the petitioner to

adduce proof that the ‘tcause’’ was-the result of unwork-

manlike services by the shipyard depiration, notwith-

standing the failure of the Court to” require any ‘*eause’?

proof w hatsoever by the libelant. “

Perhaps the judge who rendered the opinion, charging

this petitioner with absolute liability, may have been

spurred by his dissent on the rehearing in Lane application

A-16.

‘

in Ponts v. States Marine Corp. of Tk laware, F. 2d .

, decided November 2871961 (slip-opinion 204, 205).

There he suggested that other members of this Vourt were

‘ following the minority er in Mitchell -s. Trawler

Racer, lic, supra, 362 U.S. 539, while he was following

the maiprity opinion which, ia his view, required this Court

te enforce the **shipowner’s responsibility by strict lia-

-hil'ty’. “Does sueh ‘‘striet liability’? -mean ‘‘tabsolute

liability’? without proof of any breach of any ‘‘absolute

duty’? and does it inelnde an “explosion”? existing only in

the imagination of an advocate whe inserts the same.in his

bridf’ ? It seems evident that such ‘‘strict liability’’ emas-

éulates the *‘obligation’’. and ‘*duty’’ preseribed in the

Mit: hell ease which states that it is not even suggested that

a shipowner is obligated to furnish an aeccident-free ship

tha the ‘‘absolute duty’’ ‘tis a duty only’’ to furnish

appliances ‘‘reasonably fit for their intended use’’. Refer-

ring to the préscribed obligation and duty as ‘‘merely to

the standard set for the ship’’*does not require a different

conclusion and does not justify the imposition of strict

liability, ie., absolute liability.

Itonicalty, although the very work performed here by

athe independent contraetor was required by law in order

“to safeguard human lives at-sea’’ (a phrase used in the

atoFesaid dissent to justify ‘strict liability’’), this Court’s

‘decision holds that the-performance of such ‘*safeguard-

ing’? work also ereates liability to an employee of such an

independent contractor for ** ngeaworthiness”’ even though

his function is to assure ‘‘seaworthiness”’.

It is respectfully submitted that this Court grant a

rehearing, that it delete the words ‘‘and it exploded”’ from

the opinion, a# well as the statement that it” is a ‘*eon-

‘ceded?’ fact, that it vacate its judgment of December 13,

1961, and affirm the deeree be ‘low dismissing the libel, and,

' if the decision on the libelant’s appeal is adhered to that

it remand the case on the appeal of the petitioner as

against Todd Shipyard Corporation so as to permit further

proot against it for indemnity.

ae oe 0s eee

9: o. Ali

° g. ,

As sugvested by the aforementioned into dissent, it

is requested that the Court resort to the ix hang device to

Tesolve any differences of views as to what is meant by _

“*striet liability a 7

Dated: lesmibes 26th, 1961.

ep Kitiix, Camppens. & Keatixg,

By TuomisSCorse, -

| A Member of the Firm, °

/ _ Proctors for Claimant-Respondent-

Appellee.

* Rosert P. Harr,

Cranes N. Fivprer,

~ Counsel.

I hereby certify that the foregoing petition is presented

in good faith and not for delay.

CERTIFICATE

, Rosert P. Hart, .

Counsel for Claimant-Respondent-

Appellee.

. oO

a ; *

A-18

Opinion of the Court of Appeals Denying Rehearing.

UNITED STATES: COUR T OF APPEALS -

For tue Sec onp Circvit

No. Senha Term, 1961.

(Petition filed December 28, 1961.

Decided January 10, 1962.) i

/ +» Doeker No. 27046

o -_—---- ——

EMaxven Vax CanpaLs,

: Libelant-A ppellant,

SS Ameritas Harvester, Usitep States Lixes Company,

Claimant-Respondent-A ppellee,

Vv,

Toop Suipyarps Conroration,

mt Respondent-Impleaded,

Before: ;

Crark, Hixcks and Frexpey,

Circuit Judges.

PETIT IN FOR REHEARING

THomas Coyne, of Kinuix; Campset. & Keatixnc, New

Yerk City (Ropert P. Harr and Cuarces N.

- F IDDLER, of counsel), for petitioner.

Per Curiam: : ne

Respondent-appellee American, Korvosias now claims

that Van Carpals, the employee of an independent con-

tractor, was hot within the reach of the doctrine of Seas

4 .

Rota / sn A-19,

f * *

Shipping Co. v. Sieracki, 328 U. 8. 85 (1946). Fer this

contention it relies chiefly on United Pilots Assn. v.

Halecki, 358 U. S. 61% (1959), West v. United States, 361

U. S. 118 (1959), and Filipek v. Moore-McCormack Lines, .

258 F. 2d 734 (2d Cir. 1958). The reliance is misplaced:

in all three cases the work being done and the functional

relation between ship and worker were in no way analogous

to that between ship and seaman. In contrasf with these

cases, the ship here was not withdtawn from navigation;

the inspection was routine; and the removal of a valve

bonnet is an ordinary maintenance operation. Cf. Spraque

y. The Téras Co., 250 EF. 2d 123 (2d-Cir. 1959).-

In another aspect, of its petition,’ the respondent-.

appellee seems not to realize that upon the ascertainment

of the facts that deduction of unseaworthiness is a conclu-

sion of law, reviewable as suet. Krey v. United States, 123

F. 2d 1008 (2d Cir. 1941). ar

Agreeable to the petition, our opinion is amerided by

deleting the word ‘‘exploded,’’ first line, page 352 of the

slip opinion, and substituting ‘‘erupted.’’ In all other Pe-

spects the petition is denied. at |

oa tt

CCL

HAI.

U.8.C. 9. J.

4-20

‘Memorandum of the Court of Appeals.

Denying Rehearing in banc.

‘UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

EMANUEL VAN Canpats,

Libelant-Appellant,

SS American HAnvesteR,

Uxitrp States. Lines Company, '

Claimant- Respondent- ‘Appéllee,,

‘ v.~ e

Topp Suipyarps Corporation,

Respondent- fanptented.

PETITION FOR HEARING IN BANC ”

Kreis, Campseiry &-Keatrxc, New York, N. Y., for

claimant-respondent-appellee.. :

, a . ¢

No active e'reuit judge having requested that the case

be reheard.in Janc, the petition is denied.

J. Eowarp Lumparp,

.. Chief Judge.

A-21

Pertinent Provisions of 46 United States Code

Mode, Manner, and Extent of Inspection;

Certificates; Records

§391. Hunts aANb EqQuipMENtT — STEAM VESSELS CantyING’

‘PasseNGERS; ANNUAL INSPECTION

(a) The head of the department in which the Coast

Guard is operating shall require the Coast Guard to inspect

before the same shall be put into service, and at least once

in every year’ thereafter, ‘the hull of every «steam vessel

carrying passengers; to determine to its satisfaction. that

every such vessel so submitted to inspection is of a structure

suitable forthe service in which she is to be employed, has

suitable accommodations for passengers and the erew, ‘and.

is in a condition to warrant the belief that she may be used —

in-navigation, with safety to life, and that the vessel is in

full compliance with the applicable requirements of this

title or Acts amendatory or supplementary thereto and reg-

ulations thereundér; and if deemed expedient, to direct the

vessel to be put in motion or to adopt any other ‘suitable

means-to test her sufliciency and that of her equipment.

‘Srram VesseLs Not CarnyinG PassenGers;- BreN NIAL

| _ INSPECTION

(b) The head of the depaffment in which the Coast

Guard is operating shall require the Coast Guard to inspect

before the same shall be put into service, and at least once

in every two years thereafter, the hull of each steam vessel,

not carrying passengers; to determine to its satisfaction

that every such vessel so submitted to inspection is of a

structure suitable for the service in which she is to be em-

ployed, has suitable accommodations for the crew, and is in

a condition to warrant the belief that she may be used in

navigation, with safety to life, and that the vessel is in full,

compliance with the applicable requirements of this title or

Acts amendatory or supptementary thereto and regulations

thereunder; and if deemed expedient, to direct the vessel to

A-22

be put in motion or to adopt any other suitable means to test

her sufficiency and that of her equipment. .

Sau Vessecs Over 700°Toxs Or Orner Vessets axp Barces

Over 100 Tons: Carryine Passéxctus; ANNUAL INSPECTION

ReqvuineEMeENrs AND ENrorceMentT; AVreags

(d)-Whenever it is found on board any vessel subject

to the provisions of this tithe, or any Aets amendatory or

supplementary thereto, that any equipment, machinery,

apparatus, or appliances do not conform to the require-

ments of law or‘regulations promulgated thereunder, the

owner, or master of said vessel shall be required to place

the same in proper condition; and if there shall be found

on board any such vessel any life -preserver or fire hose

-so defective as io be incapable of -repair, the owner 6r

master shall be required to destroy the same in the pres-

ence of an official designated by the head of the department

in which the.Coast Guard is operating. In any of the fore-

going cases the requirements may be enfereed by revoking

the certifieate of said‘vessel, and by refusing to issue a new

certificate until the requirements have been fully complied

with. In any ease where the head of the department in

which the Coast Guard is operating has delegated te a

Coast Guard official the anthority to enforce ,the said

requirements by revocation of certificates of inspeetion, the

action of sak] Coast Guard official may be reversed, modified,

or set asite by. the head of the department in whieh the

Coust Guard is operating on proper appeal by the owner

or master of said vessel. Appeals shall be made to the head

of the departinent in which the Coast Guard ‘is operating

within thirty days after the final action of the aforesaid

Coast Guoerd official.

, EXeMPtTions

(e) Vessels subject to inspection under this title or Aets

amendatory or supplementary thereto while laid up and

dismantled and out of commission may, by regulations

established by the head of the department in which the

Coast Guard is ojférating, be exempted from any or all)

inspection under this section and sections 392, 404, and 405

of this tithe, M.S. S417: Dee. 21, Dsus, 6. 29,94, 50 Stat.

765; Mar. : hy 105, «. 1404, 0) oe Stat. 1022; Mar. 4, 1015,

e141, 1, 37 Stat. 736: 1946 Reorg. Plan No. 3, (109-104,

eff. July 16, 146, 11 BL OR. 7875, GO Stat. 1007; June 4,

1956, ¢. 250, 61, Tu Stat. 225. jot Sens

Hisronteat. Nore

Dinivation, Act Feb. 2s, S71, ¢. 100, $11, 16 Stat. 445.

Reriaincrs in Texv. The words this tile’ referred to in tie

text, a the expression Cumderetias tile or Aets amendatory or

supplementary thereto", mean tithe 52 of the Revised Statutes.

For distribution of tithe O92. seetions fi 450, of the Revised

Statutes, of which this section is a part, see uete under sv ‘ection a0)

of this title.

Comprcation. The sections as enaeted in the Revised St wttites,

wis as follows: °° The Iyeai Inspectors shail, onee im every year, at

least, upon application in writing.et the master, or owner, carefully

Inspect the hulloi each steam ve-,el within their respective districts,

and shall satisfy themselves that every such vessel so submitted to

their inspection iswof a structure sattable for the serviee in which

she is to be employed. has suttalde accommodations for passengers

and the crew, amd is ina condition to warrant the belief that she

may ‘be tised Im navigation o 2 steamers, WITH safety to life, and

that all the require ments of Liwoin regard to fires. biats. pumps,

hese, life preservers, oats. anchors, eal bers, and other things, are

fiath, fully complied wath; amd of they ceeme it expedient, they nay

direct tlie Vessel tebe putin motou. amd may lop wis other

suitable means to test her suMietenes ane that of her equipment °’

It was amettded, by Aet Dee. 21. Tes, by adcing thereto the

following words: The Mheal inspectors shall. once in every secur,

at least, or upon applic: tion in writing of the master or owner,

carefully iiispeet the hull at each sail Wessel of over seven hun tred

tons and all other vessels and barges of over one hundred tons

burden earrying passengers for hire wethin their ‘respective dis.

triets, and 1 shall satisfy themselves that every such vessel sq suub-

mitted to their inspection is of a strie ture suitable for the service

in which she is to be employed, has suitable accommodations for

the crew, and is in a condition to warrant .the belief that she may

be used in navigation with safety to life.’

It was further amended, by Act Mar. 3. 1905, which amend-

ment consisted principally. in the omission of clatises of the original

section and of the provision added by said previous amendment,

providing for inspection **upon application in writing of the master

or owner,’” and in the addition,” at the end of the seetion as pre-

viously amended, of the proviso beginning with the words, ‘**Pro-

vided, That vessels while laid np and dismantled,’ ete., and of

the several provisions following said proviso, to the end-of the

section.

Upon incorporation into the Code, ‘the words **Seeretary of

Commerce’? were substituted for ‘Secretary: of € ommerce and

Labor.’’ See note under section 362 of this title. — .

The former provision of this section providing for’appeal from

the decisions of the local inspectors, to the supervising’ inspector

within ten days was rendered obsolete by 1946 Reorg. Plan No. 3,

which abolished both offices and transferred, the functions of both

‘to the Commandant of the Coast Guard. The Coast Guard has

authority, under its general regulatory powers, to provide for

appeals and appellate procedure.

1956 AmMenpMeNT. Act June 4, 1956, provided for biennial

rather than annual inspection of hulls of cargo vessels, and amended

section generally, dividin, it into subsees. (a) (e), and changing

language to reflect the transfer of Coast Guard functions to the head

of the department in which the Coast Guard is ee and to

mike certain other tec ‘hnical changes.

TRANSFER or Frxctions. <All dunetions of all offieers of the

Department of the Treasury, and all funetions of all ageneies and

employees of such Department, were transferred, with certain excep.

tions, to the Secretary -of the Treasury, with power vested in him

to authorize their performance or the perfor manee of any of his

functions, by any of such officers, agencies, and “gg ay 4 ees, by 1950

Reor®. Plan No. 26, §SL. 2. eff. Fulw 31, 1950, 15 + R. 49235.4.64 Stat.

12589, set out in note ander seetion 241 of Tithe 5. Exee ce Depart-

ments and Governnenrt Officers aad Employee ‘s. The Coast Guard,

referred to in this section. is generally a service in the Treasury -

Department, but sneh Plan excepted, from the transfer, the fune-

tions of the Coast Guard. and of foe Commandant thereef, when

the Coast Guard is operating os a part of the Ns ary utder seetions

Land of Titie 14. Coast Guard,

". Referenees to local ws ‘ops and essistent insreetars swore

changed to ‘Coast Guard’’ or “Coast Gnatd offi-ials”’ . ‘fwithin

their respective distriets’’, words ‘tin the performance of his duty’?

were omitted, and ‘Commandant of the Coast Guard <’ was opb-

stituted for “‘hoard of SIpervis sing? inspeetors with the approval

cof the Secretary of Commerce’ on anthority of 1946 Reore- Plan

No, 3. See note under section 1 of this title. 2

ADMINISTRATIVE DeLrcation or Fuserioxn~ py Sre aeTARY’ oF

tur Trrasery. Administrative delegation of fiunetions liv Scere.

tary of the Treasury, see note under ceetion 1 of this title.

Lrots SLATIVE Histor: ny: For Jecis!: itive history and purpose af

“Act June 4. 1156, see- 1956 VS. Code Cone. and Adm. News,

p. 2641.

“A-25

Cross REFERENCES »

Section as applicable to foreign private steam vessels, see section

362 of this title. a

‘

6392. Botcers, Usrirep Pressvre Visseis, axp Apruere-

naxces: Macuixnery anp Piveerrican Eqviemest—

Passexcer Vessers; Annvan [Nsrecrion °

.(a) The head of the department Yn which the Coast

Guard is operfting shall require the Coast Guard to inspect,

before the same shall be put into service and once at least

in every year thereafter, the boilers, unfired pressure ves-

sels; and appurtenances thereof, also the propelling and

auxiliary machinery, electrical apparatus and equipment,

of all passenger yessels subject to inspection.

Vesseits OTuer Trax Passexcen V FSSELS; Bien ntat.

IxspecTION

(b) The head of the department in which the Coast

Guard is operating also shall require the Coast Guard to

inspect, before the same shall be put into serviee and at

Jeast-once in every two vears thereafter, the boilers, uniire’d,

pressure vessels, and appurtenances thereof, also the pro-

pelling and auxiliary machinery, electrical apparatus foe

equipment, of all vessels subject to ins spection other than

passenger vessels.

EXAMINATION FoR CoN PrOEMITY

Guard is operating shall require the Coast Guard to deter-

“mine to its satisfaction by thorough examination that the

boilers, unfired pressure vessels, and appurtenances there of,

also the spropelling and auxiliary machinery, electrical

apparatus and equipment of alls vessels which are subject

to inspection under subseetions (a) and Cb) of this’seetion.

are in conformity with law and the rules and regulations of

the head of the department in which the Coast Gusael i-

operating, and may be safely employed in the servies pro-

posed, No hoiler, untired pressure vessellor appurternay rod

thereof shall be allowed to be used if constructed in whole

. or in part of defective material or which because of its form,

design, workmanship, age, use, or for any other reason is

‘unsafe. .

I{yprostatic Tests

(d) At each original inspection and at each annual or

- biennial inspection thereafter, whichever is applicable, all

boilers, unfired pressure vessels, and main steam piping

shall be subjected to hydrostatic tests or such other tests

as may '2 prescribed by the head of the department in

which the Coast Guard is operating. The ratio of the

hydrostatie test to the maximum working, pressure shall

be determined by action of the head of the department in

which the Coast Guard is operating. R. 8. 4418; June 19,

ISs6, ¢. 421, (14, 24 Stat. 82; Mar. 3, 1905, ¢. 1456, 41, 33 Stat. -

1027; June 12, 1933, .¢. 61, 48 Stat. 125; 1946 Reorg. Plan

No, 3, £5101-104, eff. July 16, 1946, 11 F. R. 7875, 60 Stat.

1097 ; June 4, 1956, ¢. 350, 62, 70 Stat. 294.

Ilistoricau Nore

Dertvarion. Act Feb. 28, Is7l,¢. 10), £11, 16 Stat. 443.

Coptriation. The section, as enacted in the Revised Statutes,

‘was as follows: ‘*The local inspectors shal! also inspect the boilers

of all steam-vessels before the sa.ue shall be used, and onee at least

in every year thereafter. They shall subject all boilérs to the

hydrostatic pressure; and shall satisfy themselves by thorough

exaniination that the boilers are well made, of good and suitable

material; that the openings for the passage of water and steam,

respectively, and all pipes and tubes exposed to heat, are of proper

dimensions and free from obstruction; that the spaces between and

arovnd the flues are sufficient; that the flues are cireular in form:

that the fireline of the furnace is at least twe inches below the _

preseribed minimum waterlin, of the boilers; thatthe arrangement

for deliverimg the feedwater is such that the boilers cannot be

—imyjired thereby; and that such boilers and machinery, and the

appurtenances, may be safely employed in the service proposed in

the written applicat.on, without peril to life. They shall also satisfy

themselves that the safety-valves are of suitable dimensions, suff-

cient in number and well arranged; and that the weights of the

safety-valves are properly adjusted. so as to allow no greater pres--

sure in the boilers than the amount prescribed by the inspection cer-

tifitate; that there is a sufficient number of gauge-cocks properly

. 7 ar

inserted, and to indicate the pressure of steam, suitable steam-

registers that will correctly record each excess of steam carried

above the preseribed limit and the highest point attained ; aud that

there are reliable low-water gauges; and that the fusible metals

are properly iisérted sv as to fuse by the heat of the furnace, when-

ever the water in the boilers falls below its prescribed limits; and

that adequate and certain’ provision is made for an ample supply

of water to feed the boilers at all times, whether such vessel is in

motion or not, sv that in high-pressure boilers the water shall not

be less than four. inches above the top of the flues; aud that means

for blowing out are provided, so as to thoroughly remove the mud

and sediment from all parts of the boilers, when they are under

pressure of steam. In subjecting te the hydrostatic tests boilers

usually designated and known as high-pressure boilers, the inspee-

tors shall assume one hundred and ten pounds to the square inch,

as the maximum pressure allowable as a working-power for a new

boiler of forty-two inches in diameter, made in the best manner, of

inspected iron plates, one-fourth of an inch thick, and of a quality

required by law, and shall rate the working-power of all high-

pressure boilers; whether-oJd or new, according to their stremth, -

compared with this standard ; and in all cases the test applied shall

exceed the working-power allowed, in the ratio of one hundred and

sixty-five to one hundred and ten, In subjecting to the hydrostatic

tests boilers usually designated aml hnown as low-pressure boilers,

the inspectors shall allow as a working-power for each new. boiler,

a pressure of only three-fourths the number of pounds to the square

inch to whieh it has-been subjected by the liydrostatie test, and

for-which it has been found to be sufficient, Should the Wispectors

be of the opinion that any boiler, by reason of its construct ion or

material, will not safely allow so high a working pressure as is

‘above described, they may, for reasons to be stated specially in their

eertiticate, fix the working-pressure of such boiler at less than threa-

fourths of the test-pressure All boilers used on steam-vessels and

constructed-of iron or steel plates, inspected ander the provisions

-of section forty. four hundred ane thirty adage lw stubiewtedd to a

« hydrostatic test, ia the ratio of one hundred and fifty. pounds to the.

square inch to one hundred pounds to the square inch of the work-

ing steam-power allowed - NG hoiler or pritoe: ner any of the ceon-

nections therewith. shall be approved, which is made. in whole or

in part, of bad material, or is unsafe in its form, or dangerous from

defective wéirkmanship, age. ust, OF other eanse.”’ :

It was amended by Act une 14, “Ts ti, hy strik ing ont, after

the words ‘that there is a saudieient numbe oof wane cocks properly

imse rte dd’ the words ‘‘amd. te infdiento the presstre of *sfe re sthift-

able steam-registers that w i correctly record each excess of te am

_ earried above they 1 preseri ile Vinit aafied the hi chest jot oa a ea

and insert ib 4 in lien thereor the word “ted suits while ste am vanuges

to indicate the pre-sure of steam.”’

It was further amended gene ‘rally by Aet, Mar. 3. 1005. °

“AO

1956 Amenpment. Act June 4, 1956, provided for a biennial

rather than annual inspection for cargo vessels, and amended ‘sec-

tion generally, dividing it into subsees. (a)-(d), and changing its

language: to reflect the transfer of Coast Guard functions to the

head of the department in which the Coast Guard is ties and -

to make certain otber technical changes.

1933 Amexpmenr. Act June 13, 1933, amended section gen-

erally to extend inspection to unfired pressure vessels, appurte-

nauces, propelling and‘ auxiliary machinery, and electrical

apparatus aud equipment, ‘among other changes.

Teansrer or Functions. All functions of all officers of the

Department of the Treasury, and all functions of all agencies and

employees of such. Departme nt, were transferred, with certain

‘exceptions, to the Seer ary of the Treasury, with power vested in

him to authorize their performance or the performance of any of

his functions, by any ef such officers, agencies, and employees, by

1950. Keorg. Plan No. 26, $$1, 2, eff. July 31, 1950, 15 F. R. 4935,

64 Stat. 1250, set Gut in note under seciion 241 of Title 5, Executive

Departments and Government Officers and Employeés. The Coast

Guard, referred to in this section, is generally a service in the

Treasury Department, but such Plan excepted, from the transfer,

the functions of the Coast Guard, and of the Commandant thereof,

when the Coast Guard is operating as a part of the Navy under

sections 1 and 3 of Title 14, Coast Guard.

References to-local inspectors were changed to ‘‘Coast Guard”’

_and ** Commandant of the Coast Guard’’ was substituted for ‘board

of supervising inspectors”’ on authority of 1946-Keorg. Plan No. 3.

- See note under section 1 of this title.

Apsinteteative Dececation or Fuxcrions py Secretary or

_ THE Treastry. Administgative delegation of functions by Seere-

tary of the Treasury, see note under section 1 of this title.,

Cross REFERENC ES

Exemption of vessels laid up and dismantled, see section sone

of this title.

Inspection of foreign vessels admitted to American reyistry, see

section 366 of this title.

Section as applicable to foreign private steam vessels, see section

362 of this title.

“429

Pertinent Provisions of 46 Code of Federal Regulations

“Subpart 91.15—Inspection of Vessels.

§91.15-1 Standard in inspection of hulls, boilers, and

machinery. (a) In the .inspection of hulls, boilers, and

_ machinery of vessels, the standards established by the

American Bureau of Shipping, see Subpart 90.35 of this

subchapter, respecting material and construction of hulls, .

boilers, and machinery, and the*certificate of classification

referring thereto, except where otherwise provided for by

the rules and‘regulations in this subchapter, Subchapter E

(Load Lines), Subchapter F (Marine Engineering), or@

Subchapter J (Electrical Engineering) of this chapter shall

be accepted as standard by the inspectors. _ .

Subpart 91.25—Annual Inspection

§91.25-10 Scope of inspection, (aj The inspection for —

certification shall include an inspection of the structure,

‘ boilers, machinery, and equipment. The inspection shall

be such as to insure that the vessel, as regards the structure,

boilers, and their appurtenances, piping, main and auxiliary

machinery, electrical installations, lifesaving. appliances,

fire detecting and catinguishing equipment, and other

equipment, is .in-eetisfactory condition and fit for the ser-

- vice for w'tich it is intended, and that it complies with the

_ applicable regulations for such vessel, and that the radio

installation is in compliance with the requirements of the

Federal Communications Cominission. If equipment is

installed that is not required.-such as fire detecting sys-

tems, te... such equipment shall be inspected and tested as

required by Subpart 71.25 of Subchapter IL (Passenger -

Vessels) of thit chapter.

‘Conmriestios: (91.25-10 was revised by CGFR 52-25, 18

F. R. 7554, Dee. 5, 1955, Subsequently, paragraph (a) was

amemled to read as sect forch above by CGFR 57-15, 22 FL RB.

2469, May 17, 1957.

A-30

Subpart 91.27—Reinspection [Added]

Source: §§91.27-1 to 91.27-15 contained in panes 57-18,

22 F. R. 3469, May-17, 1957.

'€91.27-1 When made. (a). At least one reinspection shall

. be made on each vessel holding a certificate of inspection

valid for two years. This reinspection will be made, where

possible, between the tenth and fourteenth month~of the

period for which the certificate is valid.

‘(b) No written application for reinspection will be

shat

* §91.27-5 Scope. (a) The inspector shall examine all

’ aecessible parts of the vessel’s hull, machinery, and equip-

ment to be assured that it is in a satisfactory “condition.

(b) In general, the scope of the reinspection shall

be the same as for the inspection for certification, but will

be in less detail unless it is determined that a major change

has occurred since.the last inspection.

§91.27-10 Deficiencies in maintenance. (a) If the rein-

spection reveals deficiencies in the maintenance as called.

for by the regulations in this subchapter, such necessary

repairs or improvements shall be made as may be ordered.

§91.27-15 Inspectors not limited. (a) Nothing in this

subpart shall be construed as limiting the inspector from

making such tests or inspections as he deems necessary to

be assured of the seaworthiness of the vessel. - ;

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.