Respondent Brief in Opposition — Maddox v. Shroyer

. | Office-Supreme Court, U.S.

LIBRARY FILED

SUPA COURT. U. 2 |

| s RUG 28 1962»

JOHN F. DAVIS, CLERK

Supreme Court of the ited States

Ocrosex Tee, — . —.

_

“ow,

No. 273°

UNITED NEW. YORK aid, NEW JERSEY SANDY HOOK

PILOTS ASSOCIATION, a corporation and UNITED NEW

YORK SANDY HOOK PILOTS ASSOCIATION, a corpora- “

é tion, aes

Mame gr “Petitioners, A

ANNA HALECKI, Admin‘stratrix ad Pe ttcteid -

Water Josep Harecxi. deceased, and Anna Hacecki, Ad-

ministratrix of the Estate of Watter JosepH HALECKI, deceased,

Bis Respondent.

ON PETITION FOR WRIT-OF CERTIORARI TO THE UNITED ©

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

NATHAN BAKER,

° Counsel for Respondent,

Baker. Garser & CHAZEN, 1 Newark Street, °

_ Attorneys for Respondent! =. Hoboken, New Jersey.

Bernarp CHAZEN, ,

ee Tih od Tae

Adame Press Corp., 62 Beckman Street, N. Y.—Beekman 3-1050-51 <Q 110

~~

.

. TABLE OF CONTENTS

| =

COUN TER-STATEMENT or F Ne Se be eeeecees

CouNTER-QUESTIONS PRESENTED. ......0.000cececaceee

Y ; Ane

Ancumext—There is no conflict or in onsisteney in

the opinions of the Court of Appeals for the Second -

Cireuit rendered after the decision of the U nited

States Supreme Court in this case........ Peryrity

Coxe SE Na wuvsAn ere has a rss W be Sade Veer nese us és

ee Cases Cited

Anderson v, Lorentzen, 160-F. 2d 173, (2 Cir., 1947). .

Byars v. Moore MeCormack Lines, 155 F. 2d 587 (2°

te np aed Heda, TREE EEE 5

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

(2 Cir. 1958)\ oc2..03.4: Se Wishes ikea:

Gallagher v. U nited States Lines Co., 206 F. 2d 177 —

(2 Cir., 1953). elodcooe él Srovevrders tessa pon deteah eas

Guerrini v. U ‘nited States, 167 F. 2d 352 (2 Cir., 1948)

Halecki v. United New York & New Jersey S. H. P.

Ass'n, 251 F. 2d\708 (2 Cir., 1958)........3 tats

Halecki v. United New York & New Jersey Sandy’

Hook Pilots Association, 282 F. 2d 137 (2 Cir., 1960)

- Lyons v. Empressa, 273 F. 2d 317 (2.Cir., W59)......

Palazzolo v. Pan-Atlanti¢ S.S. © orp.. 211 F.2d 277

(2 Cir., 1954), aff'd 350 U.S. 124, 76:8. Ct, 232, 100.

L. Ed. 133 (19356)......::. op auae was ap ewan bien

"©

, oe ae TABLE OF CONTENTS

: Pct ; PAGE

Puleo v. H. E. Moss, 159-F. 2d 842 (2. Cir., 1947 Be -eot’ AB

Skovgdard v. The M V Tanaris, 292 F, 2d! 14 (3 Cj ir nr

1957), aff’d 358 U.S. 0. 79 8. hs ee 3 L. Ed.

es erry nee (igvevedwees bees ees

The Wisconsin. Electrie Company v. The Dunmore

Gompany, 282 U.S. 813, 51S. Ct. 214, 75 L. Ed, 728

Li) Meyer rr ree SW LES WERKE ROR SURE ER RES

. United New York and New Jersey Sandy Hook Pitots

Association v. Halecki, 357 U.S. 903, 78 S. Ct. 1149,

2 Lz Ed. 2d 1154 (1958), reversed 358 U. 5. 613, 79

S. Ct. 517, 01, Ed. 2d 372 ,._, WDNR Ghyr ear

United New Y ork & New Jersey Sandy Hook Pilots

of Association v. Halecki, 364 U.S. 941, 81 S. Ct. 459,

a L. Ed. 2d 372 (1961): oy Pea a ae ee ea ee Pee a ee sees

¥: anderlin \- Lotentans, 139 F. 2d 995 (2 Cir., 1947)..

Company, 282 U.S. 813, 51S. Ct. 214, — Li Ed. :-—

‘Skougaard v. The M/V Tungus, 252 F. 2d 14 (3 Cir,

. = ° oe

ve

1

° 12

Supreme Court of the United States

Ocrober Term,. 1962,

No. 273

UNITED NEW YORK and NEW JERSEY SANDY HOOK

PILO ASSOCIATION, a corporation and UNITED NEW

YORK SANDY HOOK: PILOTS ASSOCIATION, a corpora-

tion, : Side, j

‘Petitioners, +,

vs.

ANNA HALECKI, Administratrix ad Prosequendum of the Estate of

Wa ter JosepH HALEcKI, deceased, and ANNA HAtcecki, Ad-

. _ Ministratrix of the Estate of Watter JoseEpH’ HALEcKr, deceased,

- Respondent.

rs ws

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED -

. STATES COURT OF APPEALS FOR THE SECOND CIRCUIT °

BRIEF FOR RESPONDENT IN OPPOSITION

Counter-Statement of Facts

This' case has been tried’ before a judge and jury three

times in the United States District Court. It has been ar-—

gued once in the United States. Supreme Court, with ap-

plications for certiorari having been made on two ocea-

_ sioris. The present petition is the third application tu this |

‘court. The case was tried the third time on the theory of .

hegligence against the defendant shipowner for death’ re-

>»

sulting from carbon tetrochloride poisoning of the deceased,

an electrician, . employe «l by a subcontractor to: clean the ,

vessel’s-generators in the confined spaces of the engine

room with carbon tetrachloride.

The first time the case was tried before: Judge We EINFELD

and a jury, the jury rendered a verdict of $67,500.00 in fa-

vor of the plaintiff. The ease was submitted to the jury

on the grounds of negligence and unseaworthiness. On

appeal the judgment was affirmed with Clief Judge Lom-

BARD «lissenting on the ground that the claim for unsea-

“worthiness should not have been-submitted to the jury.

Halecki +. United New York & New Jersey S. HW. P. Ass’ n,

951-F. 2d-708 (2 Cir. 19: 58). (Pla). Judge LomsBarp did

not dissent insofar as negligence was concerned, Certiorari

was granted by the United States Supreme Court. United

New York and New Jersey Sandy Hook Pilots Associa-

‘tion vy. Halecki, 357 U. 8. 903, 78 S; Ct. 1149, 2 L. Ed. od

"1154 (1958). A closely divided court reversed and ‘remanded’

for a new trial on the issue of negligence alone. 358 U. S.

613, 79 S. Ct. 017, 5 L. Ed. 2d 372 (1959): (P3a).

THis const. divided only on whether the issue of unsea-

worthiifess should have been submitted to. the jury. The

entire court agreed that the issne of, negligence properly

had been submitted to the jury. ;

, Mt no point during the course of the first appeal was

any attack made by any judge on the verdict of the jury in

so far as the catise of action based’ on negligence was con-

cerned. Ail judges agreed ‘that if the verdict had been

based on negligence alone, it would -have -stood. Judge

WeixreLp in the first trial had charged in terms very

similar to those charged by Judge McGoney at tho third

trial (Pla). ;

Judge LrarNxep Haxp, w hove opinion was not eballenged

with respect to the issue of negligenee, declared that the

deceased was‘a ‘‘ business guest’’.. He stated (P19a) :

'. *As to.the claim based on inegligence, so far as

the’ defendants mean to argue that the engine-room

equipped as it was, Was a reasonably safe place in-

which to work, we hold that the evidence created an

issue-that could be décided only by a verdict.—”_

Judge Haxp went further. and stated that the defendant

was under a duty ‘‘to exercise’ ’ reasonable’ care - to

ascertain the method and manner in which the concession-

aire or independent contractor carries on his ‘activities,

not only at the time when the concession 4s tet, or ‘the °

contractor employed, but also during the entire period

in which the concessionaire or contractor carries on his

activities (P19a). ** Mr. Justice Srewarr stated (P8a):

“As to the claim based upon neglige nee, for which

the New Jersey Wrongful Dealth Act clearly gives

- a right of action, 2 we agree with the-Court of Appeals

that “the evide ‘nee created an issue that could be

decided only by a verdict.’ The defendants owed a

duty of exercising reasonable care for the safety of

the decedent.” They were charged with knowledge

that carbon tetrachloride was to be used in the con- -

- fined spaces of the engine. room,. It was for the triers

of fact to determine whether tlie defendants were

responsibly negligent in permitting or authorizing the

method or manner of its use.”’ (Ttalies ours)

Mt the scnoe tr ial in te District C ourt, the jury brought

in a verdict for the defendant., Plaintiff appealed and this

court. reve? bee 4 on the basis of the. court’s ¢harge to the

jury. Halecki v. United New York & New Jersey, ete.

282 F. 2d 137 (2 Cir. 1960) (D8a). Judge Moore com-

mented (D1la): ;

eT a ae cco study of the charge leaves a.

definite’ impression that the jury was told that lia-

-

bility was dependent almost entirely upen control.

Under-a less restrictive charge the same jury might

~ well have found that the ship owner had fuifited its —

. ‘duty of exercising reasonable’ care for~the safety

“of the decedent, but the plaintiff was entitled to have —

the jury reach its conclusion upon an instruction that

emphasized the defendant’s awareness of the danger-

ous .substance to. be employed and of the capacity of

the ventilating equipment in the engine room so that

it could determine ‘whether the defendants were re-

sponsibly negligent in pe rmitting | or authorizing the

: method or manner of its use.’ * * *”’

-Following this decision, a petition for certiorari was ~

denied. United New York'& New Jersey Sandy Hook

_ Pilots Association y. Halecki, 364 U. S. 941, 81 S. Ct. 459,

5 L. Ed. 2d 372 (1961). The case was pest a third time.

- This time the jury returned a verdiet for $70,000.00 (D67a).

The defendant appealed again from the judgment ren-

-dered.

It is important to note that the ship’s erew also worked

on the, vessel at the time it was undergoing répairs at Roder-

mond.. Captain Goetz, defendant’s marine superintend:nt,

testified for the first time at the third. trial. He stated -

(D46a) : -

ie “Were there various types of work-to be done

while the boat was in } the repair yeent A. Yes, many

_ types. . i

Q. By -whom were the various types of work done?

A. The shipyard. :

‘Q. You are referring now to Rodermond? A. Yes,

Q. At the same time did the crew of the sis boat:

have some work to do? A. Yes.”’

Walter Thompson; a witness for defendant testified that

_ the ship’s engineers were repairing the engines while the

5

vessel was at RRodermond (P67a).. With reference to the

work done on the vessel while it was at Rodermond, Mr.

Doidge, a K&S employ ee, testified (P35a) :

‘“‘QeWere the ship’s officers there too? r* ‘Yes.

What were they doing. Tell-me, from what you

“observed from Monday. ‘to Friday, what the ship’s

officers and’ crew ‘were doing? A. Most of the work,

the work involving me, was in the engine room, and

-* * the engineer and crew were down therevemoving heads

_ from the diesel engines.

He also testified (P36a) : :

“QQ. Did you see the ship's crew doing any other

work about’ the vessel, other than what you just

deseribed?) Ag [| wasii’t’ particularly interested in

what they were doing. F know they were thére work-

ing’ around me all the time.

- YQ. Was the veonpl in the water or ona | drydock?

A. In the wateér.

- With reference to the role of the defendant's chief en-

‘ gineer who has never testified, he stated (P40a) : ; 3

“Q. Did you diseuss with him the other -work you

had been doing” prior to Saturday! ? A. On the specifi-

cations, yes.

Q. What was the purpose of thse discussions? A.

Actually he is.the boss ‘in the: engine -room on the

ship and any work that has to be done has got to he

_O.K.’d by ,the chief engineer and we have to consult

with him all the time.

d * *

Q. With reference to the time, the day before when

you were making these preparations, was the .chief

engineer present while you, were making preparations

on the Friday before September- 29, 1951? A. Oh,

yes.

- . 6 * i y p -

Q. When was he- present? A. He was present all

day.

ie ; Ee a . e ,

Q. ‘Did you diseuss with ‘him the niethod or manner

of ‘the use of the carbon tetrachloride and thé work.

to be done? A. No. He didn’t ask and 1 didn’t tell

him what was ‘going on.

it * . .

/

Q. What did he say? A. He said as long as every- .

- -

- -body was out of there, it was OK, as far as he was

concerned,

(). Did you discuss < with him the method and manner

in which you were going to use the carbon tetra-

chloride? A. No.

—@ Did he say anything about it at all? A. No.

. . ‘°

-

Q. On behalf of the vessels who was in charge of

the repairs being done on that vessel during the week - —

when you, started, Monday? A. In the ease. of the

engine room, we always went under the supervision

of the ‘chief engineer. If we are up on deck doing

overhead work, then we went’ to the first mate or the - -

captain.’’

Gerald: J. Horvitz, testified as an expert, having been’

produced by plaintiff. He stated (P49a):

ee

“Q, Considering the fact that, this took place daring

the year 1951, could you tell us whether or not carbon

tetrachloride was known in industry and in the busi- -

néss world to be a darfgerons substance and that the

use of it was dangerous? A. Itw :

Q. Were tucre substitutes avai ‘lable in 19512, A.

Yes.

Mr. oidge testified ‘that something other than carbon

. tetrachloride would have been used if ‘it hadn’t been

specified by defendant (PSia). » Mr. Horvitz also: stated

(P5la): |

*Q. peers We year of 1951 and based upon

-. your experience that you have described with shipping

and with the American Bureau of Shipping 1 think

you said, and based upon your knowledge of the

dungers of carbon tetfachioridg ; and the knowledge in

the industry at that time, 1951, what was the usual

custom and practice where carbon tetrachloride was

prov ided to be used for the cleaning of ue nerators at

‘that time, in 1951! ?

The ¢ ‘our: Aboard ships, you mean?

Q. Aboard ships. A. Well, the same rule sprites to

carbon tetrachloride that applies to any oMer mate-

rial giving off noxious fumes. ‘In other words, the

~ owner of thé vessel, when he gives out his work order

or contract for repairs will stipulate and state: or

require in that contract that a certified chemist be

ealled in. to go-over and investigate afd make sure

that wlien “that particular noxious material, carbow

‘tetrachloride in this éase, is used, that adequate means

oS » be taken to eg te: for the safety of personnel using

_ that material.

Now, then the next thing that when tliose recom-

‘mendations are made by the inspector, and that man

of course is properly qualified and lieensed by the

American Bure ‘au Of Shipping, then.it is the duty of

the ship-owner tu see that those regulations are car-

ried out.”

— The Courts Mr. Horvitz, you were not asked

about the duty and | will instruct the jury to ‘disre-

gard that expression, ‘it is the duty.” You were ‘asked

+, What is the usual custom and practice. —

>

8

The Witness: Yes. That is the practice and calls —

for an inspection. The next step is that -proper per-

sonnel employed by the owner sees to it that those

instructions are carried out and proper means made

A further point is when work is in progress, a

_ chemist is called in to check to see ‘whether the condi-

tions are neve. .

Mr. Horvitz; stated on cross-examination (P53a) : -

- *Q, In your experietice, Mr. Horviiz, was this work.

done by the shipowner or by the repair.yard?, A. Well,

the shipowner in many cases stipulates in his contract

that certain safety: precautions are to be made. In-

“many shipyards a certified chemist is employed. May-

be more than one.’

-

Mr. Finkenaur, the expert produced by defendant, testi-

fied (P70a) :

**Q. When it came to the use of carbon tetrachloride

in the confines of the engine room, you do recognize *

that it would be necessary-to ‘have auxiliary equip-

ment for ventilating of the vessel. A. That is correct.

). That was absolutely essential? A. = sir.

_ Q. You know that? A. That is right. ©

' Q. And the shipowner knows that or should know

ef.

*

Mr. Mahoney : Objection.

‘The, Court: The witness testified to the need for

‘auxiliary equipment ip the ship’ s-engine room and

stated that the use was generally known in the ma-

rine trade. an .

The Witness: Yes, sir.’’ :

° y

A

_ Captain Goetz conceded that even though he had been

on board the-i vessel prior to the day the spraying was to

be done he made no inquiry concerning the manner in

which the work. was to be done (72a). He also confirmed

‘the fact that he knew of the dangerous nature of the

work specified by the defetdant to be done in the engine

room (P71a). . .

‘The plaintiff tendered the testimony of Stanley Tenu-’

siak, a Chief engineer, as an expert to establish as a

matter of fact that the deeedent was doing work tradi-

tionally dene by seamen ‘at the time of his death. ‘This

was. the same testimony given at she seeond trial (P46a).

The court below refused to submit the issue to a jury

(P47a),. and dismissed the unscawosthiness count ‘on. the

ground that the rulings of this court on the second appeal

controlled the District Court (D67a). Plaintiff had eross-

appealed i in order to preserye his right to proceed on the

issue of wcaworthiness in the event there are any fur-

ther proceedings. ‘If, as plaintiff contends, the judgment

below should be affirmed, this issue.is moot. The defendant

“now seeks a writ of ¢ertiorari from the judgment of the.

Court of Appeals, 302 F. 2d 840 12 Cir. 1962), which af-

firmed the judgment rendereal-ow the third trial.

Counter-Questions Presented — __

Whether or not the defendant having directed that a\

dangerous chemical be used in the confined engine room of

its vessel,-owed to the deceased. a duty to exercise rea-—

sonable eare to provide him witha rez isonably safe place

to work? spre as

ar See Pie o

W. ilies or not the duty of the defendant existed regard--

less ‘of any concurrent duty owed by the shipyard or the

employer of the deceased?

10°

Whether or not the defendant had a duty. to exercise

. reasonable care under the circumstances to ascertain the

method or mauner of use of a poisonous gas in the confined

spaces of the engine room of ‘its vessel where it direefed

that such gas be used?

Whether or: not in view of the factual evidence _sub-.

mitted to the éffect that the deceased was doing seaman’s

-work the case should not‘have been submitted to the jury

on unseaworthiness as well! | .

ARGUMENT

There is no conflict or inconsistency in the opinions

of the Court of Appeals for the Second Circuit rend-

ered after the decision of the United States upon

Court in this case. ©

Judge Mepixa writing for x court in the. last alae

(third appeal) in the United States Court of Appeals spe-

cifically answered pétitioner’s argument that the instrue-

tions of the trial judge (at the third trial) were incon-

sistent with the opinion of this court and with the opinion

of Judge Moore writing for the.Court of: Appeals after

_the second appeal. Judge Masynp sta stated (Pet. 6a):

‘Nor do we find anything to the contrary-in the ez-:

position 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 every-

thing possible to assure safety,’ was upon the implied

supposition that there was proof of ‘assurance by the

. « ‘subcontractor that its own additional portable ventt-

_lators and gas masks were sufficient to prevent in-

jury.’ Even upon this hypothesis, the ‘opinion eon-

tinues and states that the jury might ‘equally con-

. Nae

elude that ‘the owner should have cheeked the equip-

ment brought onboard at least as to capacity and lo- -

‘eation for ventilating purposes,’ and thus have con-

eluded as matter of\dact that the shipowners had not

exercised reasonable care to provide a reasonably safe

place to work. ln otlier words, just as charged by

Judge McGohey, the. question of reasonable care w as*

one for the jury. Accordingly, . we hold that the’ in-

structions as given were precisely Ghose required by

the Supreme Court and our Court in this case, and”:

~ by the law generally applicablesto a situation where

a shipowner turns over to a subcontractor the per-

formance of am operation inhere ntly dangerous to ‘hu-

man safety.” (Italies ours.)

The alleged diserepaney: or. inconsistency does not exist.

‘This case which has been reviewed and expounded upon

numerous times should not be brought again before this

. court for a review of facts and principles of law already *

extensively yeviewed’ and established. Cf. The Wisconsin

Electric Company y. The Dunmore Company, 282 U.S. .

813, 51'S. Ct. 214, 74 L. Ed. 728 (1931). \

The trial court at the third trial very carefully charged

in aecordance with the opinion of this court and the opin- °

ions in the Court of Appeals (57a). The’ court in its

charge stated several times that the standard was-that of

‘reasonable care’’ and a ‘‘reasonably prudent person’’;

that the duty involved a ‘‘reasonably safe place to work’”

and that the defendant had a duty to ‘‘take reasonable’

steps to be sure insofar ‘as they could’’ that the ‘manner

and method employed was. ‘‘reasonably safe under All the .

eireumstances”’ (D58a; D59a; D60a’). Among other things

the court stated ( D60a) :

“That really is the. main issue on liability in this

ease, as to the defendant’s liability. Because if you ~

/

%

‘

Ce find that. the defendant did nom breach any duty tt

Ay ae owed Halecki, if you find that under all of the cir-

cumstances the defendant was not negligent, if you find

@ - that it did discharge its duty to take reasonable steps

to make this place reasonably safe under the gircum-

stances, then you must bring in a verdict for the de-

fendant.’’ (Italics ours.)

* The court also’ specifically charged * * * ‘*They didn’t

insure his safety in there.’’ * * * (D62a). Reviewing the 4)

entire charge, the trial, court fairly set forth the law ap-

“plicable to this ease in the ccna of the facts established at

te the trial. pe ;

Wier See, also, Skovgaard y. The M/V Tungus, 952 Pr, 2d 14,

\ 19 (3 Cir. 1957), aff’d 358 U.'S. 588, 79 S. Ct. 503, 3 L. Ed.

\° + 2d 524 (1959); Palazzolo v. Pan-Atlantic, S.S. Corp., 211

F. 2d 277, 279 (2 Cir. 1954), aff’d 350 U. S. 124, 76 S. Ct.

\ . 232, 100 L. Ed. 133 (1956); Guerrini v. Uniterl States, 167

- - FY 2d 352, 355 (2 Cir. 1948); Anderson vy: Lorentzen, 160 ~

\ F. 2d 173, 174 (2 Cir. 1947); Puleo-v. H. E. Moss, 159 F.

fags 2d 842, 845 (2 Cir. 1947); Vanderlin v. Lorentzen; | 139

we 2d 995, 996 (2 Cir. 1947). ;

On the basis of the defendant’s own evidence it was

established that the defendant did nothing ‘‘to fssure

_safety’’ and neither asked or received any assura by

the independent contractor.concerning the safety measures

taken for the performance of the dangerous operation

‘ordered by the defendant in -the confined spaces of its

vessel. Captain. Goctz, defendant’s marine superintendent,

tesfified (D41a). He had not appeared at either of the

two prior trials (P7la). He stated (D43a) :

; ‘‘The Court: In other words, the specifications p

vided that the cleaning of the generators shonutd be

ate done by the carbon tetrachloride ?{ ,

| a oa The Witness: That is right. , 4

Pa

A

_. 5a ;

‘Q Now which member -of the Association, if any,

had provided or specified that carbon tetrachloride was

to be used?" A. The chief engineer.

Q. The name please! A; C ‘arl Ebling. ”

On cross-examination Captain Goetz stated that the chief

engineer was still. alive although retired (P7la; P66a).

The chief engineer, who had the most intimate knowledge —

~ of the arrangements nade, if any, has never testified. Cap-

_ tain Goetz admitted that in 1951 he knew that carbon tetra-

’ chloride was a dangerous substance and that cleaning gen-

erators in an engine room. was a (langerous operation

_ (P71a). He testified that (P72a):

“Q. No conversation concerning ventilating equip-

ment fo‘use carbon tetrachloride to clean generators |

on the next day, SAturday ? A. No, sir.

Q. You had no discussion with anybody? A. None

at ail.

Q. Did you make any inquiries from anyone ‘how

this work was to be done? Yes or no. A, No. .

. . Were you familiar in.a general way, at that. time

with the use of carbon tetrachloride! A. We had used

it for several years. ; aoa

Q. Prior to that time! A. Prior to this time.’’

Captain Goetz eoriceded that he knew that carbon tetra-

chloride *‘ was a dangerous substance’’ at the dime the work

was ordered (P7la).. He also conceded that he knew that

the cleaning work in the engine room was a ‘*dangerous

operation’’ (P7la). lle did not talk to anyoné abont. the B

equipment to be used (P72a). He made no inquirigs con-

cetning the methods to be used in doing the work (P72a).

The defendant in its brief and i in support of its requests — ‘

to charge repeats cases, which have been reviewed and -

distinguished by Judge Moorr. in the second appeal in the

Court of oe (D12a): :

14:

‘“* * * However, as in practically all these cases, .

slight factual differences call for slightly different.

‘treatment. Referring to its own decision in this case

(United Pilots Ass’n v. Halecki, 358 U.S. 613 (1959)),

the Court in West pointed out the distinguishing ele-

‘ment here, mamely, ‘In that case the shipowner 4di-

rected:the use of carbon tetrachloride in the confined

‘spaces of the engine 1 room’ (p. 124) iid

The defendant in its brief f and in support of its requests. --

° to charge depends upon Byars v, Moore McCormack Lines,

155 FY 2d 587 (2 Cir. 1946) ; Pilipek v. Moore McCormack

Lines, 258~E, 2d 734 (2 Cir. 1958); Lyons v. Empressa,

273 F. 2d 317 (2 Cir. 1959); Gallagher vy. United States

Lines Co., 206 F. 2d 177 (2 Cir. 1953). Each of\these cases

» - was\ distinguished by Judge Moone in the second opinion

. of the Court of Appeals (Dila to D13a) and they’ were not

‘even discussed in the third opinion of the Court: of Ap-

peals.

The defendant alleges error in the portion.of tlie charge

where the court. stated that the duty the defendant owed

to plaintiff ‘‘could not be delegated to any one else’’

(D58a). The ‘defendant alleged that this -is contrary es

the ruling of Judge Moore in the second appeal. How-.

ever Judge Moore’s remarks were directed to a suggested :

charge of the plaintiff which was rejected by the trial court

at the, second trial. Judge - Moore _— the. requested

| charge (D9a) :

««* © * <the defendant shipow ner’s absolute and non-

delegable duty to supply a vessel and appliances ade-

quate and sufficient for he work to-be performed im-

poses liability on the ‘defendant for such conditions -

regardless of any absence of control by the defendant

". over the véssel or appliances, and regardless of wheth-

er or not the defendant had notice of the inadequacy

of the appliances’. ee

15

A mere reading of the rejected charge shows that it was

> not in any way similar to’the charge of the. trial ¢ourt at

the third trial. The charge diseussed in the above quota-

. tion speaks of an absolute and non-de ‘legable duty imposed

regardless of notice, ete. It is essentially a charge based

‘on unséaworthiness. It. makes no mention of rea: able

care and a reasonably safé place to work, ete, Th lis is

entirely different from charging that the-de ‘fendant couldn't

. delegate its own duty, which the court defined, to anyone

else and: that the defendant's duty continued fo exist even

though the shipyard ov plaintiff ’s employer also had duties

‘with respect to this matter (D58a). The remarks of the

trial court at the third trial was fully consistent with the

appellate opiniois in this cise and’ with established law. |

‘The defendant seck» another review of this ease by this

court on the ground ti.at there is an alleged. inconsistency

in the opinion of the Court of Appeals following the sec-

ond trial and the opinion of the Court of Appeals fol-

lowing the’ third trial, .The three judges of the Court of

- Appeals who heard the Jast appeal did not find any con-

flict between their own opinion and that of the other mem:

bers of the Court who heard the secon appeal. On the

-eontrary the court found that the charge of the trial court

- on the third trial was in \accord, with the decisions of this

Court and the Court of’. ppeals. Not only does the al-

legation ‘of alleged conflict in the decisions of the Court

of Appeals for the Second Cir cuit lack substance, but ‘the

alleged conflict with the decisions ‘of othér circuits is not

established eithér. This. case should -now™ be permitted

to come to a terminal point. If for any reason certiorari

ig granted, however, petitioner respeetfully requests that

this court also consider whether the issue of unseaworthi-

ness should have been submitted to.the jury in.view of the |

factual evidetce offered at the second and. third trials of

this action to prove that the deceased at the time of his

death was doing work traditionally performed by seamen,

16

‘CONCLUSION

The law involved in this case has been exhaustively re-

viewed and set forth in an opinion of this court and in ©

three opinions of the Court of Appeals. . There is no spe-

cial or important reason for this court to exercise its, gudi-

cial discretion to review the matter further.

For the a reasons, it is reopectially urged that

this petition for a writ of certiorari should be denied.

Respectfully submitted,

: Nata Baxer,

Counsel for Respondent: -

Baker, Garser &.Cuazen,

Attorneys for ~iegagl

Bernarp CHAZEN, ~

Miuton GarsBer,

On the Brief.