# Petition for Writ of Certiorari — Fleck v. Cleveland Bar Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0297%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 914 ## Text me keer =. g 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 | _ cr 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 v7 ‘ 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 oe / a / / ’ 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. © pETITION FOR WRIT OF CERTIORARI TO THE 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? | ' a 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 sa *, 6 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,’’ rt 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 8, 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. , * Wi 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 ~ “. © 14 Reasons ror Grantine THe Wait. 4 I. 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 16 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 | 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. v 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. “© ; 5 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- 1) 2 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 7 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. 6 - we _ 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- oe 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, Y “ . “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. 1) 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 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. © [Same Tit) 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? 8 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 \ , SF Nee onove the bonnet. * . A-7 | : 4 s 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.’’ > > 3. 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 9 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 2 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”’. 7. 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, r 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 Y 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, v. 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. © 18 January 1962 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, i) 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.