Petition for Writ of Certiorari — Maddox v. Shroyer

CIATION, a ie peau

PETITION. FOR A WRIT OF CERTIORARI TO: A

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. or | yr Oftice Supreme out. -US. | z

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. “* JOHN F. DAVIS

IN THE

ten Cont uf the United States:

’ October Term, -

No. 2 33

-UXITED NEW YORK AND NEW JERSEY SANDY

HOOK PILOTS ASSOCIATION, a corporation and,

UNITED NEW YORK SANDY HOOK PILOTS ASSO-

-

Petitioners,

—against—

eas

ANNA IFALECKI, Administratris_ad—Prosequendum of

the Estate of Walter Joseph Halecki, deceased, and ANNA

HALECKI, Administratrig of the Estate of Waltér Joseph

Haleeki, deceased, : r

a Respondent.

ow.

ed

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

— - a

24

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: _ Lawrence J. MAnoney,

(Dougherty, Ryan, Mahoney & Pe lle ‘grino)

, Counsel for Petitioners

\ - 67 Wall Street

New York 5, New York _

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; aS. een Passe Inc. 421 Hudson Se. N. Y.—Okegon, 5 4540

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‘TABLE OF CONTENTS _

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‘ ° PAGE .

WEE nae xkoes HEPES Pe ey ey TE ey Pere Pree 1

* . ° . . . -

IN MER iho t ase neaees cure scs unre ced es A To Sey

Opinions of the Court Below .....+....... nas ae es 5 |

- Jurisdiction ery peek ee cu ciie es ince ons bab '9X's 6

Questions Piseusten ree tee ete eeee oh wee ei, Se

1. Whether the prior opinion of the Supreme .

Court of the United States in thjs case was |

" properly interpreted by two separate panels of . © = == —_

———the Court of Appeals for the Sec cond Cireuit . y=

z 2. Whether a-shipowner, which engages an inde-

pendent contractor to work aboard its vessel,

has a non-delegable duty to supply a safe place

i to werk to employees’ of a subcontractor ...... ae

3: Whether a shipow ner has a non-delegable duty: ie.

of providing a safe place to work when the work. pan Sadan Shes

itself makes the place unsafe.

4,W hether.a shipowner is responsible for the |

“manner in which ‘an independent contractor ed be

performs its specialized work - sa vsveveses oe 6

| Reasons-for-Granting ee er pre rere rere ; 6

ge at Fah auccscec acavcasé ose: 17

Opinion of the United States Court of Appeals ..... la’

Judgment Fear prea Rope PRCT OE Tree ee OTE 8a

oy <

8 Cases Crrep

r PAGE

“Amato v.U liited States, 167 Fed. one. 929. te Shree

Berti v. Compagnie de Navi égacion Cyprien, Fabre,

ee is Be hha us es te ce tilee decks fies vekaseces 14°

- Bruszewski v. Isthmian Steamship Linie, 163 F. 2d ‘

720 (C Ad 1957), cert. den, 333 U.S. 828 ........ 11,12

Byars v. “Moore MeCormaek Lines, 155 F. ad 587 .. aa

Cullings v. Goetz, 256 N. ¥. 287 33.5... Nap hmeep ee we 14

Fegles Construction Co. v. McLaughlin C ‘onstruction

Co., 205 F. 2d 637 (9th Cir. 1953) :.... Kia wie tar - 16

Filipek v. Moore McCormack Lines, 258 F. 2d 734

~~~ (CA-2 1958), cert. den. 358 U. S.927 ........... 1,16

_ Gallagher v. United States Linte, 206 hs eee =

_——— [ake ‘v. Standard Fruit Company,’ 185 .F. 2d 304

ke Re a ret Bay at en ee eee ie

a v. Empressona Hondurena de Paporen, 273 F. es

Se See St SD cbc nrkud cc aepadetocdsacet. 11

Lyon v. United States of America, 163 Fed. Supp. 206, !

fs aff'd 265 F.2d 219 (CA-2, 1959) desuevebacd vada’ 14

McKnight v. Patterson, 181 F. ‘Supp. | Bane ea 14:

West v. United States, Oi 0.6 18 ies. 12, 15

Srarvre

2828 U.S.C. §1254(1) Mares eres cos Marek ag 6

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+ Supreme Gourt at the United States a

October Term, 1962,

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“UU xe New York anv New Jensey SASpy. ae Piors.

Asgociation, a corporation and Unirep New Youk Sanpy

Hhox Priarrs i a corporation,

eek ; ; Petitioners,

_ * —against— ;

ee HALecK!, “Administratrix ad Prosxeque ndum of ail =

Estate, of Walter. Joseph Halecki, deceased, and Axxa

Maveckt, Administ ratrix of the Estate of. Walter Joseph

\

Halecki, deceased, N\A

a _Hesyg dent. \

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| PETITION FOR A WRIT OF CERTIQRARI TO —

THE UNITED STATES.COURT.OF APPEALS _

Versa THE SECOND CIRCUIT |

My V4

of

3 ‘To the Honorable’ the Chief Justice “of the United. States °

and the A ssociate Justices ofthe Supreme Cc ‘ourt of the

_ United States: |

*“-

. . Petitionets pray that a wfit of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Cirenif entered in the above entitled. case on,

- May 1, 1962

Facts - axe

o-

On or about September 22, 19: 51, the pilot -boat “Now

_. Jersey’? was turned over to Rodermond Tn dustriés, Ine. -

for the purpose of overhauling. The vessel was ‘moored at

a

a ‘

ee “ing and repairs were undertaken by Rodermond Industries

a mae in ‘one yard of Rode rmond Indust ries Ine. oft

North River, Jersey City, New Jersey: The ove raul -

in accordance with an agreement-with the defendant and

‘the vessel was im the custody of Rodermond on the day in

question.

Walter Jcseph Halecki, the plaintitt® s aelichieis was: an

electrician employed by K & S Electrical Company, a sub-

contractor engaged by. Rodermond Industries ‘to do elee- °

trical work aboard the vessel. On September 29, 1951, while

the pilot boat **New Jersey’’ was tied up at the foot of

Henderson. Street, Jersey City, the decedent came ‘aboard

the vessel together with a ss of K & §, one Don-

ald Doidge. —

According to Mr. Doidge, whose deposition was taken

by the defendant, he and the decedent came aboard the

ship in aceordance with the instructions of George Kuntz,

who was decribed as the owner of K & S Electrical Com-

‘pany. Specifications given to K&S Electrical Company oo

- Rodermond Industries Inc. included cleaning the. penee:

ators on the ship.

. Mr. Doidge testified that the bein, the time’ and the ‘

‘manner in which this work was to be done was left to his’

diseretion and that the customary method for cleaning gen-

. erators was by the use of carbon tetrachloride, and that

“he and Halecki were familiar with it use.

On September 28, 1951, prior to the day on Which the

actual work was done, Doidge and Halecki set up the equip-

ment. which - was necessary to. perform the work. Mr.

Doidge secured air hoses and an electric blower which were

attached to power lines running from the ship yards. The

* an

.

r .

air hoses, and blower were all supplied by Rodermond,

aml the power was supplied by shore generators owned by.

Rodermond.: At the time this work was done the pilot boat _

*New Jersey’? wiis a dead ship ie. it did not produce ite, -

own power. None of. the. crew took a in assembling the

e quipment. .

At the time ‘the actual w york was aa the wale represén-

fativ eof the defendant on or nd&@r-the vessel was a wateh-

_ man whose: duty it was to protect the v vessel against fire « or-

trespassers. Ile took no parPin the’work. -

Before the work was , started on the morning. of Septem--

ber 29, 1951, the: K&S employees, under the supervision

of Mr. Doidge, set up portable blowers to ventilate the en-

gine room where they were working, and also brought gas ¢-

masks with*them. The blowers and gas masks: were thé

‘property of K & S Electric Company. The actual cleaning

.of the genetators w as done. by spray ing carhon tetrachlor-

ide on the getierators, from a spray gun connected. to an.

air hose. As there was no power aboard the ship, the

spray gun, the air hose, the blowers and the ship’ s ven-

filation system were operated by power from the generator

on shore. An oséillating fan was also used by Doidge.

‘ In addition to the méehanical equipment, .there were twa

open sky lights in the engine, Toom and two open doors

leading” from the engine room.

Mr. i testified that the decedent did most of the

actuak spraying, and that he kept his gas — ou while he

- was engaged in this work. ae ag

The work continued uneventfully from 8: £30 A. Mw. to

4:00 P. M., when Mr. Doidge and Mr. Halecki finished

working for the day. All of the equipment. and ‘yeuiiation -

oO

o

.g

systems had operated “perfectly during the day, and therv

was no supervision of the work other than+ Mr. Doidge..

Mr. Halecki left Mr. Doidge without. making any. com-

plaint oth@s, than that he had a pectiliar taste in his mouth:

On October 2, 1951, Mr. Halecki was admitted to the

-Medical Center i in- Jersey City, where he expired on. Octo- ,

_ ber 12, 1951. "Phe hospital tecord stated that the cause of

death was carbon tetrachloride poisoning, and also _dis-

closed that the decedent had habitually consumed exees- .

sive amounts of aleohol. | fee

.

+ . 4 :

= e . . $ ai

Prior Litigation

This case was | previously: tried before the Honorable

- Edward Weinfeld in December, 1956 and January, 1957.

Over the ‘objections of the edefendant, the case was sub-

tpitted to the jury on the basis of both unseaworthiness and .

negligence, and a plaintiff’s. verdict i in the total amount of

$65,000 was ‘returned. - @

‘On appeal to the United States Court of Maite for

the Second Circuit, the judgment was.affirmed by Circuit

J udges Hand and Hicks, with the dissent of Circuit J udge .

-* Lumbard, 251 F. 2d 708. .

- Petition for Writ of Certiorari. on behalf of the defen- ° ~

dant was filed on April 28, 1958 and was granted on June

9, 1958. The appeal was argued at the October Term, 1958, °

and on February -24, 1959 the judgment in favor of the

plaintiff was vacated and remanded by the Supreme Court

of the United States (358 U. S. 613). The 5 to 4 majority

opinion was. delivered by Mr. Justice Stewart and held

‘ that the decedent was not éntitled te the warranty) of sea-

worthiness. It was directed that-a new trial be held to de- -

ermine the sole issue of negligence.

»

Subsequently, in October, 1959, the @ase was re-tied |

before the Honorable Archie 0: Dawson and a jury, on

the sole i issue of ne gligence and. resulted in’a jury verdict in’

favor of the defendant, ; coat : %

The * plaintiff appealed on the basis of the Trial Judge" 5:

charge, and also becans¢ of the Court’s refuval to conside +

~ the element of unseaworthiness.. The apped) was argue)

on May 10, 1960 before Ciremit Judges, ( Clark, Moore and .

Friendly, who reversed’ and remanded in an opinion dated

July 22, 1960. This opinion, reported at Qs2 PQ 137,

agre ed that the trial ‘should have been on the sole. qnestion |

of negligence, but held that the instructions to the jury

placed too much emphasis upon-the element of control.

The case was tried f{®the third time before ‘the Honor: .

able John F. X. MeGohey-and a jury in June’ * of 1961°> on

the issue of neéglivence, and resulted in a jury verdict in

fav or of the plaintiff. ©

Deke endants thereafter appealed to th ourt of Appeals.

fr the Second Circuit which affirmed the District Court.

This gpinion, written by Cireuit Judge Medina, with the

concurrence of Cireuit J udges Smith and. Hays, was dated

Moy 1, 1962, and er at 302 F. 2d 840.

| Oplilone of the Court Below

tion of the United States Court of Appeals . for

the Secon _Cireuit (Cireuit Judges Medina, Smith and .

Hays) is reported-at 302 F.2d 840, and is set out in the

appendix of this- petition (pp. la-7a). The judgment of

the U nited States Court of Appeals i is also set forth in the

‘ erie

eo

. Jurisdiction

The jurisdiction of the District Court was invoked be-"

cause of div ersity of citizenship, ‘the plaintiff being a citizen

‘of New. Jersey. and the defendant a New York C orporation.

The judgment of the United States Court of Appeals for

the: Second Cireuit was entered on May 1,1962. —

The jurisdiction of this Court is invoked under Title 28 ;

U.S. Code § sais ae

Questions Presented

1 W hether the prior opinion of the Supreme Court of

‘the United States_in this ease was properly interpreted by °

‘two separate panels of the Court of Appeals for the Second

Circuit. ; ’

—..

2. Whether a shipowner, which engages an independent

. contractor to work aboard its vessel, has a non-delegable

duty to supply’ a safe plaice to work to employees of a |

subcontractor.

3. Whether a shipowner has a nan-delegable duty” of :

providing a safe place to work when the work itself makes

the place unsafe. ik pe

_ 4. Whether a shipowner is responsible for the manner

in which an independent contractor performs i its a

work. — | |

Reasons eae Granting the. Writ.

1. They prior opinion of the Supreme Court of the U nited

States in this case has been interpreted inconsistently by

the J udges of the Second Circuit.

~]

.

The instant case was prev iously before the Supreie

‘Court, w hich rejected the plaintiff's action for unseaworthi-

ness, and returned the case for a new trial on the sole hasis

of nevligenee (358 U.S. 613). Mr. Justice Stewart stated —

at page 615 that ‘it was for the triers of fact to determine |

whether the defendants: were responsibly negligent in per-

- mitting or ‘authorizing the method or manner of its (carbon

2

b)

‘te trachloride) use, ea “

Two trials. and two appeals to the United States Court

; of Appeals for the ‘Second Cireuit have taken place since

that opinion of the Supreme Court, and there has been a.

considerable difference of opinion as. to the proper scope

of the jury's consider ation. ;

“The Second Cireuit, in an opinion written by Cireuit

Judge Moore, reversed a judgment in favor of the defend. |

ant (282 F. 2d°187) and stated that the, charge given by

- District Judge Dawson placed undue emphasis upon the

element of control. ,

A subsequent trial before District Judge Metiokey re-

sulted in a verdict for the” plaintiff, arftl the defendant’s

appeal was based primarily upon the contention that Judge

McGohey’s instructions were inconsistent with “Cireuit

Judge Moore’ 's interpretation of = Supreme coeer: S Opin-

7 ion in ‘the Halecki case.

It was contended by ‘the ‘aon that the instructions

' given to the Jury by Judge McGohey were completely incon-

- sistent with the law of the case as set forth by Cireuit Judge

Moore, and that the Jury was given no opportunity to

determine the issues which had been defined ‘by both the °

Supreme Court and the Court of Appeals. .

S

After rejecting the plaintiff’s contention that the ship-

owner had an ‘absolute duty to supply a safe vessel regard-

less of control or hotice, Circuit Judge Moore clearly set

forth the issues to be submitted to the Jury. He stated tliat

the. Jury should be permitted to determine whether the -

shipowner was justified in relying upon the safety measures

taken by the subcontractor, or whether it should have

checked the adequacy ofthe. ‘equipment used. The Court of

Appeals’ opinion at page 141 defined ee Jury: question as

follows:

‘“Meverthélees there is an area of facts for jury

_determination and application. Some responsibility

must. be assumed for the type of independent con-

_ tractor retained. “Where a dangerous operation is to ‘

be undertaken the law suggests that reasonable care

be exercised to ascertain how the work is to be ecar-

ried on. This does not mean that the ship owner

must undertake the directién of the actual operation.

The jury might find that the awner had done every-

thing possible to assure safety. On the other hand,

the owner knew the capacity of its régular engine

room ventilating ° equipment and its adequacies or

‘inadequacies to carry off heavy and dangerous fumes.

A jury could find that assurance by the subcontractor

that its own additional portable ventilators and: gas”

masks were sufficient to prevent injury was reason-

_able care or it might equally eonclude that the owner

should have checked equipment brought on board at. -

least’as to capacity and location for yentilating | pur- |

peas ’? (Italics ours)” ; neti he

This issue low ever was taken aw ay from the j jury by the

instructions of Judge MeGohey, who charged as a matter

of law that the shipowner should ‘havé taken additional

9

steps to prov ide a sate place to work. The following por-

tion of the charge determined as a matter of law the very

issue which the ( ‘ourt of Appeals had relegated to the Jury:

“The Avtoniaut: didn’ t baie how to do: this work:

They brought it to a shipyard. . Rodermond didn’t

feel competent to do it so they engaged K & 5,

‘Haleeki’s employer. The defendant was the one that.

ordered this work to be done by means of the carbon

~ tetrachloride and’ [ ¢harge you as a-matter of law

that the:defendant thereafter had a- duty to ascer-

. tain whether the subcontractor or Rodermond was

conipetent to do this work and they were further

charged with a duty to ascertain and ‘take reason-

able steps to be sure in so far as they could that fhe

manner and method employed by either Rodermond

or K & 8S was reasonably proper to keep the place in

“which this man had to w ork reasonably safe under

all circumstances”

. .

It is apparent that the.jury had no ‘opportunity to con-

sider: whether the owner was justiged i in accepting as sufi-

cient the safety: measures taken by the electricians. or

whether the ow tier ’s conduct was reasonable, as defined by

the opinion of Cireuit Judge Moore.

The Court of ‘Apecals for the Second Circuit, speaking

through Cireuit Judge Medina, rejected the appellant’s

-contention, and upheld the instructions given by Judge

MecGohey. It is_respectfully submitted that this decision is °

_ clearly inconsistent with the prior opinion, hahded down

bya panel of the same Court i in reviewing the same case.

Cireuit Judge Moore in the. earlier opinion, had elearly

* stated that it was for the Jury-to determine whether the

_shipowner acted properly in’ relying upon the preventive

oe

10

6

S

‘measures takén: by the subegntractor, The same Court, by

Circuit Judge Medina, stated.as a matter of law that the

._ Shipowner should have made some inquiry with respect to

the procedures followed by. the contractor.

The instructions be by J sige McGohey. and. uphe rm by

the Court of Appeals, gave the Jury no opportunity to

determine the issues as previously defined by Circuit J udge

Moore. | “

2, The United States Court of Appeals for the Seeond

Circuit in its most recent Opinion, :is in conflict with this

Court, and with other Circuits, and with previous decisions

_ of ‘its ow n, with respect to the sa ner’s duty te supply a

safe place to work.

In the most recent appeal, the defendant- -appe Nanturged.

that’ J udge@McGohey further contradicted Cireuit Judge

Méore’s holding with respect to the owner’s so called non-

delegable duty to supply a safe place to work. The plaintiff-

appellant in-that appeal had argued that this obligation

should be imposed upon the shipowner, but the Court of

Appeals rejected this contention, at page 141, by stating:

‘‘ Appellant offers a quick answer in its suggested

charge that ‘The defendant shipowner’s absolute and

non-delegable duty to supply .a vessel and appliances

adequate and sufficient for the work to be performed

imposes liability on the defendant for such condi- |

tions regardless of any absence of control by the

defendant over the vessel or.appliances, and regard-

less of whether or not the defendant had notice of

the inadequacy of the appliances.’ Any such princi-

ple of law would produce the anomalous result of

imposing absolute liability upon a shipowner in a

- hegligence action despite the fact that the ship owner

—_— ——-¥

11

was required to retain others to do the work because

' of its-own incompetence in this speeialized operation.

The Supreme Court has suggested an area of possi-:

ble liability but it does not include the principle.

~ contained in appellant’s, requested charge.”’

However, Judge MeGohey specifically placed this obliga-—

tion upon the shipowner by instructing the Jury that the

defendant had a duty ‘‘toward a business invitee to provide *

him with a safe place to work, and that nied of the de fe ned-

ant could not be delegated ta, any one else.’

This portion of the charge was in direct contradiction

with C ireuit Judge Moore’s-ruling in the same case. ‘This ca

opinion was rejected by a number of other decisions which

established that a shipowner has no non -delegable-dutyto

oo — idea safe place to: work under r these circumstances.

. The rule was cited by the. Court @f Appeals for -the

Sécond Cireuit in Byars v. Moore McCormack Li ines 8, 150. F.

2d 587, in which the Court held that the obligation of fur-

nishing a safe place to work-does not apply where the work .

itself creates a danger. The Court stated at. page 588: ‘*The -

reason for these exceptions to the general rule is that it’

would be manifestly absurd to hold the Master to the duty

of providing a safe plate when the very work in which the

servant is engaged makes the place unsafe.’’

Circuit Judge Clark reached the same conclusign in Lyéns

v. Empressona Hondurena de V apores, 273 Fe2d 317 (CA-2,

1959}, which also involved a suit for injuries sustained by a

contrgctor’s employee-aboard a vessel in a repair yard. |

- Please see Filipek v. Moore moninoenras Lines, 258 F.2d

734 (CA-2 1958), cert. den. 358 U.S. 927 and Brusze Ww ski ¥.

. / ® » - : | “

wp

Isthmian Steamship Line, 163 F. 24.720 (CA-3, 1957), cert.

> den. 333 U. S. 828. .

This judicial difference of opinion was widened when the 3

Second Circuit, in Cireuit Judge Medina’s opinion; upheld

these instructions on the part of Judge MeGohey.

Not only does this opinion conflict’ with well established -

law of ‘the Second Circuit and other Circuits, but the hold-

* ing-was inconsistent with the decision of the Supreme Court -

in the case,of West v. United States, 361 U.S. 118. This

; Court considered facts ver¥ similar to the instant case, ‘and

held that the shipowner had no. no. non-delegable duty to fi ur.

____nish a-safe place to work where the work itself created the

* danger.

3. Thé decision of the Court of Appeals for the Second

Circuit was inconsistent with the Supreme Court, with

-déeisions of the Second Circuit and other Cireuits with re-

. spect to the shipowner’s a for work done by

an independent contractor.

This conflict -has perhaps more far reaching effect than

any other aspect of the case. Most of the shoreside work -

performed aboard vessels is entrusted to independent con-

_- tractors, and the relationship “ati shipowners and con-

_ tractors has been a fertile field of litigation. ‘The entire

marine industry depends upon the clear establishment of

the responsibilities of the shipowners and contractors who

are engaged to work aboard their vessels.

After. the second trial, the jury verdict in lever of the

defendant was reversed by the Second Cifecuit, on the

ground that Judge Dawson’s charge placed too much em-

‘ phasis upon the element of control. However, Judge Me-

‘ 2 °

° ; P

“?

°

15

Gohey *s instructions went completely to the other extreme,

and omitted any consideration of control which is particu

larly important with reference to the work of an indlepwene!

dent contractor. : °

Although it was uncontroverted that the work which al-

legedly. injured the decedent was done by an. independent

cont ractor, the trial judge refused to give any instructions ;

“whatsoever as to the shipow ner’s responsibility for wyrk

done by cmiployees of an independent contractor. é far

.as this jury was instruct ted, there was no i be

tween a. shipowner’ s liabrlity for the actions uf his own

crew, and for the negligence of a contractors emplosers.

The charge given Jo this jury ‘had the inescapable effect of

; hoiding the shipowner respotisible. for the neghige nee om’

the part of anyone connec ‘ted with the. work.

--Necording io Cireuit Sel Moore’ s opinion, the jury

must be allowed to consider whether the shipowne r should

x

have taken additional steps to ascertaiy. if’ the preeautions

taken’ by the contraetor were adequate. This however, 1s

hardly tantamount to requiring the shipowner to: control

or direct the ‘work, C ircuit Judge Moore specifically stated

ut page 141: ©

‘Where a dangerous operation is to. be under-.

taken the law suggests tnat reasonable care be: im-

posed to ascertain how the work is to be carried: on.

This does not mean that the shipowner must under-

~ take. the direction of the actual operation. |. . Had

it attempted to do so, in view of its own lack of

. proper qualifications, this in terference alone would

~ have been considered negligence.”” — Fs

However, the subsequent opinion of the Second Circuit,

‘as. stated by Cireuit Judge Medina, upheld the instructions

_ rt

“stated that a shipowner which engages competent peaple |

of. ee MeGohey and stated that they were ** ene rally

©

14.

-

“ipplicablé to a situation where a shipowi her turns over -to

a subcontractor or the performance of an operation inher-

’ ently

This burden placed upor the shipowner is completely:

ous us to human nature’’.”

inconsistent with numerous decisions of the Second Cir-

cuit and other Circuits, which unanimously held that a ship-

owner is not liable for the manner in which a contractor se e

work. is perormed. Berti v. Compagnie de Nareqacion Cyp-

rien, Fabre, 213 Fel. 87. Gallagher v. United States Lines,

206 F. 2d 177

°

A clear conflict was set up with the Fourth Circuit which

to do the work in which they are specialists is not required

to verify for itself the effectiveness of the specialist's

maintenance of his specialized equipment, Roper vy, United

States, 282 F.2d 413 (4th C-1960) at 416.

It does not seem possible to reconcile this, decision. with

the following authoritigs : * eee

Cullings v. Goetz, 256 N.Y: ', 287 ; :

. Lyon v. ‘United States of America, 165° Fed.

Supp. 206, aff'd 265 F. 2d 219 (CA-2 , 1959);

‘Lake vy. Standard Fruit Company, 185 F, 2d

354 (CA-2, 1950) ;

Amato vy. United States, 16% Fed. Supp. 929,

McKnight v. Patterson, 181 F. Supp. 454. -

These principles, in a form of Requests to Charge were

rejected by Judge MeGohey, who was upheld by the Court

of Appeals for the Second Circuit.

The most important conflict exists between the decision

of the Second Cireuit, and the opinion: of the Court in

1b

West y. United States, 361 U.S, 118. This Court stated

__tlearythat the shipowner, who hired an inde ‘pendent con-

tractor to overhaul and’ protect the vessel Was in no way

‘required to protect the contractor's employee against risks

that were inherent to doing that work,

The Supreme Court in the West opinjon reférred to

Halecki, and pointed ont at page 124, that the situation was

dissimilar, because the shipowner had directed the use

of carbon tetrachloride. However, this ‘Court stated that

this’ required a remand on the negligence question, which

clearly directed ‘that the hh to determine whether

the shipowner’s actions were proper. .

on

Ay has been pointed out, the Distriet Judge and the

- Court of Appeals @ught to establish the Shipowner's lia.

bility ax a matter of law, and did not permit the Jury to

de ‘tefmine the extent of the defendant's obligation: -

Circuit Judge Medina held that the line of cases eited

above does not apply ‘where the shipowner required the °

work to be done ‘is inherently dangerous to human safety.

In.such cases the shipowner. is | ‘required by law to take

_ reasonable precantions to prevent injury to the employ COS,

of subcontractors engaged: to do the work.’ ~

“The appellant rexpeetfully contends that the Court of -

Appeals has misapplied the inherently dangerous ex¢eption

tu the general’ rule concerning | the responsibility of. an em-

ployer of an independent contractor. This exception has

regularly heen applied to liability to third parties or the

general public, and not to the persons actually "performing .

the work. ais |

That the aeooanliy dangerous work exception to the.

general rule on the liability of an employer of an indepen-

’ e ’ - oo” ,

16.

dent contractor is based upon a duty to third parties or

members of the public, or to those<w ho ‘might be. innoe ently,

injured, is illustratfed-in- Fe Ly & Construction Co. LMe-

‘Laughlin Construction Co., 205° ¥. 2d 637 (9th Cir. pear

cited and quoted by appellant on pages 29 and 30 of her

brief. The plaintiff’s property was damaged by the defen.

~ dant’s independent contfactor permitting hot rivets to fall

upon it. The hot rivets fell many times prior to the easu-

alty and the defendant was advised of the dangerous con-

dition. The a involved was one to third parties, to

those outside the activity of the work itself; the Court

applied the ¢éxeeption, holding. that the defendant could

not divest itself of a duty owed to the eonimunity at large.

We do not have a like situation in the instant ease. Halecki

was no,stranger to the work he performed ; he was not

“unknowing of the work he performed; he most certainty

could ‘not be said to be a niember of the public at large, or

of the community.

None of the Maritime cases which have sntihilaned this

fact situation has attempted to apply the suggested. excep-

tion to the general rule that one. who engages an indepen:

dent contractor is not liable for the negligence of that con-

tractor. The opposite conclusion was reached in Filipek vy.

Moore McC ormack Lines, 258 °F. 2d 734 a -2 1958).

This decision which has been continually cited. ‘with

_ approval by. the Supreme Court and by this Circuit,, ab-

‘ solved thé shipowner from liability for the manner in

which the work was done by an independent contractor, al-

though that work was dangerous. This is made ‘clear by

the language of the Court at page 737:

_ **Nor-is there any merit to the claim that Moore

\.° MeCormack Lines failed to see that the work was

.

-

; . 4 ‘ . 17 °

conducted ina safe manner. The defendant lent”

hired Eastern to test the booms admittedly a haz-

ardous tesk, was under no duty to protect the plain-

tiff from risks inherent in such Acdting. ee Italies

_ ours)

CONCLUSION

- sk Writ of Cettiorari should be granted in accordance

with the prayer of this Petition.

Dated: New York, N. Y. » July 19, 1962:

Respectfully eubenitted,

” Laidinii J. MAHONEY |

(Dougherty, Ryan, Mahoney & Pellegrino)

Counsgl for Petitioners

67 Wall Street ‘e

New York 5, ad York

‘APPENDIX | |

a \ Gatien

U NITED STATES A “OURT OF APP ALS

.

‘Fon THE SE-oND Cmcurr

No..2¢7—September Term, 1961.

(Argued March 29, 1962 Decided May J, 4962:) .

?

Docket No. 27216

£. 4.

oe a

ANNA Haeckt, Administratrix ad Prosequendum of the

- Estate of ‘Waiter Josérn HALeckl, deceased, gnd ANNA |

Haxgcxt, -Administratrix of the Estate of W Uren Jogers

HALECKI, deceased, °

: Plaintiff-Appellee, 7

—vV. —

Untrep New York and New Jersey Saxpy Hook Pivors

ASSOCIATION, & corporation and Ustrep New Yous Sanvy

. Hook Prots ASSOCIATION, a corporation,

Defendants-Appellant: 7

Before: al ~ 7 ,

© Mepina, Surat atid Hays,

oe

_ Appeal from a judgment of the United Stites District

CourtYor the Southern District of New York, John F. Xx.

““MeGohey, Judge.

‘

~ Steg

Circuit Judges + :

2a

A ppendix-—Opinion

Defendants appeal from a judgnient entered on a jury

verdict. in an action for "wrongful death alleged’ to have

been sustained through the nevligence of defendants. ~

Aflirmed. 2 ose Pe: ;

o

Bernarp Cuazex, Hoboken, New Jersey (Milton .~

“Garber and Nathan Baker, Hohoken, New

| Jersey, on the bifet') y for sei di th llve.

Lawn RENCE J. Manone¥, New’ York, x. )

* (Dougherty, Ryan, “Mahoney & Pellegrino,

- New York; N..Y., on the brief), for defend-—

apical

Mevina, Circuit Judge:

>: Walter Joseph Halecki ‘died of carbon tetrachloride

poisoning contracted + in the course of cleaning the genera-

tors in the engine room of the pilot boat owned by defend-

ants-appellants. After a third trial of the case, the jury

rendered a verdict of $70,000 and ‘the ‘shipowners again

appeal. The first trial resulted ‘in a judgment based upon

both. negligence and unseaworthiness. This Court affirmed

(251 F..2d 708), Chief Judge Lumbard dissenting, and the —

Supreme Court rev versed andsremanded for trial on’ the

negligence count alone! United Pilots Ass'n.v: Halecki,

1959, 358 U. S. 613. The second trial rite th a verdict

for defendants, and the judgment enter red on. this verdict

was revérsed by this ¢ ‘ourt and the ease again remanded

. for a new trial (282 F. od 137), on the eround: that the

trial judge in his eharge had erroneously left the jury with

“the impression that ‘liability was dependent almost en-

74,

‘9

3a

Appendiz—O pinion

‘tirely on control’’ of the operation of cleaning the genera-

tors. To avoid repetition we shall assume familiarity with

the facts as outlined in the prior opinions above cited. .

| The shipowners contend that we must again ‘reverse le-

~ cause Judge MeGohey is said to. have departed from the

controling stidiiskes stated by the Supreme Court, aml

by this Court on the last appeal, and in his instructions to

the jury enlarged the scope of the duty owed by the ship: —

owners to Haleeki to the prejudice of the, shipowners. The

gist of appellants’ argument is contained in the following

exception to the charge:

_ * Defendant further excepts to your Honor’s instrue-

‘tion that defendant had a duty to ascertain if Roder-

_ mond and K&S we re competent and also that defend-

ant had a duty to see that the manner and method

Was proper.”’

‘The evidenee had disclosed that the vessel was at Roder-

mond’s shipyard, that thie shipowners had’ ordered Roder.

mond to have the generators cleaned, specifically requiring

the use of carbon tetrachloride, a substance Know n to be

dangerous to human safety, for the. yurpose, and Roder-

mond had turned the work over to” ‘& S, Halecki’s em-

ployer. :

The portion of Judge McGohey’s instructions to which

“the above- quoted exception was‘noted, was as follows:

«The defendant didn’t know -how to iio this. work.

« They brought it to a shipy ard. Rodermond didn’t feel

competent to.do it.so they engaged K & S, Halecki’s

‘ employer. The defendant was the one that ordered

this work to be done by means of the carbon tetra-

oe

ae

4a

~<a smn

chloride and | charge you as a matter of law that the

defendant thereafte® had a duty to ascertail Ww hether

the subcontractor or Rodermond ‘was competent ta do

this work and they. were further charged: with a duty

to ascertain and take reasonable steps to be sure in-so

* — faras they could that the manner and method employed

by either Rodermond or K &S was rei tsonably proper

to keep the place i in which this man had‘to work reason:

ably safe under all the cireumstances.”’

The main thrust of the instructions, and the eontext in

whick this portion thereof must be read, is’ that Halecki

was a business invitee, that the shipowners owed him a duty

to exercise-reasonable. care to furnish him with a reason-

ably safe place in which to work, and that the basic ques-

tion was whether under all the cireumstances of the case

the shipow nerMook reasonable steps. to provide:a reasoni-

ably safe place in which to work.

.. The directions given by the. Supreme Court in this case

dre simple and.clear. ‘‘The defendants owed a duty of

exercising reasonable care for the safety of the dece dent.”’

308 U.S. iat pp. 618-9. And, at p. 619: ‘‘It wqs for the triers :

of fact to determine wliether the defendants were respon-

sibly negligent in permitting or ‘authorizing the method or

manner of its [earbon: tetrachloride] use.’’ .

There is no requirement: in justice or ‘eliainints sense

that the trial judge restrict his elucidation of the issues.

to the bare formula of the exercise of reasonable care

Carbon tetrachloride was known to be dangerous to balaat

life when used to spray ‘generators. The minimum pre-

cautions the shipowners could -have taken were to make

A ppe nd iv—O pi nion

~ some inquiry with respect to the compete ney of the con-

tractor engaged to do the work, unless they already pos-:

Sesse d reliable information on the subject, or make’ some

inquiry with respect to the proposed method and manner of

doing the work. Had the shipowners made some proper

_ inquiry as: to the competence-of either Rodermond or K & S

and received a reasonably satisfactory reply ; or had simi-

lar proper inquiry been made and a similar. response re-

ceived, with respect to the proposed method and manner

of doing the work, it would have been for the jury to say.

whether the shipowner had, under the circumstances, exer-

cised reasonable care to provide Halecki with a reasonably

‘safe piace in ‘which to work. What made the instructions .

so damaging to the shipowners, and properly 80, Was the

fact that: the evidence disclosed no efforts w hatever on the

part of the shipowners te ascertain whether either Roder-

mond or K&S were competeit to do this work.or to inform

themselves with respect to the method and-manner proposed

to be followed in doing the work.

made no difference that Judge MeGohey charged the sliip-.

owners with the duty.to make both such i inquiries. Against

such a background of fact ‘we cannot find any error in the

instructions as given. .

The vessel on which Halecki was working w hen he sus-

‘or the same Teason it

tained his injuries was at the time in the territorial waters

of the State of New Jersey; the action of which the District

Court had jurisdiction because of diversity was based upon

the New Jersey Wrongful Death Act, N. J. Stat. Ann.

2A :31-1:; and the case is governed by New Jersey law.

That New Jersey has to some extent adopted maritime law

has already been established. See the opinion of the Su-

‘ ~ . 6a

A ppeydix—Opinion .

preme Court in this ease; 358 U.S. 6138, and The Tungus

v. Skovgaard, Y959, 358 U. $..588. Moreover, the soundness

of the instructions giv yen by Judge MeGohey, is further ac-

tested by rulings on the same subject by American courts

‘generally. See, e.g., West v. L ‘nited States, 1959, 361 U.S.”

118, 124; We ye rhacuser S.S. Co. v. Nacirema Operating

Co., 1958, 355 U.S. 563; Anderson v. Lorentzen, 2 Cir.,

1947, 160° F. 2d 173; Vanderlinden vy. Lorentzen, 2 -Cir.,

1944, 139 F. 2d. 995, In any event, Fudge MeGohey has done

. ho more than apply the teachitig of the Supreme Court in

this very case. ; | ‘

Nor do we find anything to the contrary in the exposition

of the measure of the shipowners’ duty to Halecki in the

opinion of the Court, written by our brother Moore, on the

prior appeal. His comment that ‘the jury might-find that

the. owner had done everything possible to assure safety,”’

was upon the implied supposition, that there was proof of

‘‘assurance by the subcontractor that its own additional

portable ventilators. and gas masks were sufficient to pre-

. vent. injury. ’? Even‘upon this hypothesis, the opinion con-

tinues and states that the j jury m might ‘‘equally conelude that

the owner should have checked the equipment brought on

board at least as to capacity and location for ventilating

purposes,’’ and thus have concluded as matter of fact that

the shipowners had not exercised reasonable care to pro-

vide a reasonably safe place to work. Jn other words, just

as charged by Judge McGohey, the question of reasonable

care was one for the jury. Accordingly, we hold that the

instructions. as given were precisely those required by the

Supreme Court ‘and our Court in this case, and by the law: ’

generally applicable to a situation where, a shipowner turns

7a

Appendix—Opinion

over to a subcontractor the: performance’ of an operation

inherently dangerous to human safety.

Finally, the. shipawners contend that there is no. oblign-,

pacts

tion Olggt heir. part to provide a reasonably safe—place to

work ‘‘where the work itself creates a danger. ”’ It-is, we

think, a sufficient answer to say that the tule is’ to the

contrary in that class of cases, such as the one ‘now before

- us, where the shipowner requires the work to be’ done in

a manner inherently dangerous to human safety. In such .

‘cases the shipowner is required by law to take reasonable

precaution to prevent injury to the employees of’ subcon-

tractors engaged to do the work. B |

Affirmed. Go. hea : , ;

- Present:

8a .

~ UNITED ee cou BT OF APPEALS

OR THE SECOND Clucvuit

’ At a stated term of the United States Court.’

of Appeals, in and for the Second Cir-

- cuit held at = United ‘States Court-

house in the City of New York, on the’

first day of May one .thousand nine

hundred and sixty-two.

-

meas hens R. Mepina,

. Hox. Joserut Surru

ene _ How. Pave Re Hays

: te Circuit Judges

%

ANNA Haiec KI, Admisistratrix BENE eth coer of the

Estate of Water JosePu HaLeckt,. deceased, and ANNA

Hateckt, Administratrix of the Estate of WALTER Jose rH

_ Haxecki, deceased, ae o | Wa

Plaintiff-Appellee,

‘

»

; ( g — Tm i 2

rm ) a ;

Usitep New York.and New Jersey Saxpy Hook Pivots

AssaciaTion, a corporation and Unirep New York Sanpy

Hoox ere ASSOCIATION, a corporation,

tena hee: Defendants-Appellants

* = be -

= v ” .

”

Appeal from the United entree District Court for the

Southern District of New York.

Ya

> %,. ° é = . «€

A ppemtiz—J wire

me

This c cause came ort Lie-hetered- onthe transeript of record

District of New York, and was s argued by counsel. .

‘Ox Cisne: w HEREOF, it As now hereby ordered,

adjudged, ‘and deerced that the judgment of said District

from the United States District’ Court for the Souther

e

Court be and it hereby is affirmed ; with costs to the appellee.

ei - A. Datei Fvsaro

Clerk