# Petition for Writ of Certiorari — Maddox v. Shroyer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0447%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 825 ## Text CIATION, a ie peau PETITION. FOR A WRIT OF CERTIORARI TO: A Gyr ak . or | yr Oftice Supreme out. -US. | z j , Ae.‘ ¢ Fil Ki . “* 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 / : _ Lawrence J. MAnoney, (Dougherty, Ryan, Mahoney & Pe lle ‘grino) , Counsel for Petitioners \ - 67 Wall Street New York 5, New York _ 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: 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 ~ %,. ° 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0447%3A2. Public record. Not legal advice.