# Petition for Writ of Certiorari — North Carolina Natural Gas Corp. v. McJunkin Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0470%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 830 ## Text MIZE RARY (oncccome fut. 0k 4 re : y. q ! i J } : ) S . | AdG 6 A962 : - | : ae ‘ “] yyy F. DAVIS. CLERK | Ju the Supreme-Comrr—— of the United States | : é nae ~ No. 3 0 I OcTOBER TERM, /1961 —_ j GEORGE. WEIGEL, | | co Petitioner, Vv. - PARTENWEEDEREI. MS BELGRANO -and RUDOLPH A. OETKER, Respondents, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT © a . Currorp D. O'BRIEN, : Counsel for Petitioner, \ ' 822 Cascade Building, \ - * Portland, Oregon. o FRANK PoZZI, * Puiup A. Levin, _ 806 Cascade Building, Portland, Oregon, © Of counsel. STEVENS NESS LAW PUB CO wk, PORTLAND. OFe ° ° ae _ INDEX: = 9 | | » Page Citations to Opinii Below . 7 - I Jurisdiction -’ : . 2 Questions ns Presented a | : 2 : Statement i > teh es 2. Reasons for Granting the Writ : . 7 Importance of Question Presented. 7 Conflict with Decision of this Court ~ 12 Conflicts in Principle. wi Decisions of Other _ Courts of Appeal ; ta, The Decision Below Is Erroneous 15 Conclusion Bo tt ee ee 16. Appendix. : A “9 “47. Opinion of United States Court of Appeals for the Ninth Circuit . . er een oe _Opinion-of District Court.on Issue of Liability “31 ' Opinion of District Court on Issue of Indemnity 46 Phone A CITATIONS oe bee f Page tN Tt a _ CASES ae American’ Export Lewes v. Revel, 266 ie 2d 82 a 4 13-14 Atiantic Transport v. Lmbrovek, 234'US. 52: : id. Butler v. Whiteman, 356 U.S. 271 era sci os ca : Crumady v. 5: 4. Fisser, 358 U.S. 423 a ' De Van v. Pennsylvania Railroad Co., 167 F. Supp. 336 ve Vote ae Di Salvo v. Cunard Steamship Co. 171 F. Supp. ° ne 14 _ Fitzmaurice v. ..Calmar Ss. S. Co., 198 F. Supp. 304 15 . Florez v. The Scotia, 35°F. 916 \ 10 ' Hagans v. Ellerman & Bucknall Steamship Co.,.196 * F. Supp. 593. | | 15 Hagans v: Farrell. Lines, 237 F. 2d'477 : a _ 13 ‘ Halecki v. United N. Y. & N. J, ete., 358 US. 613 9 1>ternational Stevedoring. Co. v. Haverty, 272 US. eS ern : 10 se Klimaszewski v. Pacific- Atlantic Steamship Co., 246 F.2d 875 ae 13 Litwinowicz v. Weyerhaeuser ‘Steamship te 179 F. Supp. 812. an, SOR; 14. McKnight v.. N. M. Patterson, Ltd. 181 F. Supp. — -. 434 , a a ~ O'Donnell v. Great Lakes Dredge & Dock Co., 318 - “1 US. 36 oe Pope & Talbot, Inc. v. Cordray, 258-F.2d 214... 14 Pope & Talbot, Inc. v. Hawn, 346 US. 406 .- 9 . Robillard v. A. L. Burbank & Co., 186 F. Supp. 193 14 ¢ 8 Salem’ v. United Sai Lines, — U. Ss. > 8 L. Ed. CITATIONS 3 (Cont:) Bae Page : 2d 313 (May 28, 1962) or se Seas aitestcd Co. v. Sieracki, 328 U.S. 85 7,9, 10; 10n, 11, ma: Senko ‘1 v. Lacrosse Dredgins Corp., 352 U.S. 370 * 7 - . 41 Stat. 1007. Z- | Norris, Maritifne Pe . Strika v. Netherlands waned of Traffic, 185 F.2d 555, : ; 13 The Oniore’ 6 Ben. 564, Fed. Cas: No. 10, 538 - _ 1} The “Seguranca, 58 F. 998 se ward " Valerio v. American President Lines, 112 F. Supp. ~ 202 os) | : en ‘ — . i ae ne ~~ Statutes . ~— he of ene 29, 1948, c. 646, 62 Stat. 931, Pema Vy May 24, 1949, . 139; § 79, 63 Stat. 101, 28 US.C/ § 1333". | ‘bt : eee of Admiralty Jurisdiction Act, e 506 6a . Stat. 496, 46 USC. §:740 © ALi ae. Pi 50, § 33, : 8,10 Longshore and Harbor Worker’ s Compénsation Act, 44 Stat. 1424 et seq., 33 U.S.C. y 901 et seq., 44 Stat. 1432,. as amended July 3, 1961, 75 Stat. ~ Jones Act, 2 153, § 20, 38 Stat. 1185: c. 203, 33. U.S.C. § 914 (m) > -. Bn Oregon Revised Statutes 656. 214 (2), (4). 8n ye a A sree "MISCELLANEOUS | sonal sound = 48A, PP. 122- | 125, (1959). . 10 ae and RUDOLPH A. OETKER, Bu th e Supreme | Court of the United States, Cm No. — , OCTOBER TERM, 1961 GEORGE WEIGEL, - + i tp 2 “s : Petitioner, +e Weapc PARTENWEEDEREI, Ms BELGRANO _ Respondents, _ PETITION, FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ; / Petitioner prays: that a writ of certiorari issue ‘ to review the judgment of the United States Court of Ap- peals for the Ninth Circuit, entered i in the we entitled case on February 8, 1962. CITATIONS TO OPINIONS BELOW | The opinion of the District Court on the issue of lia- bility as between petitioner and respondents (R. 16-3F),- printed in appendix A hereto, intra, P. 31; is reported in ~ ¢ o> ‘ te “6 y ; 189 _ ts jn. 103: The opinion. cl the District Court | on the issue .of indemnity bétween” respondents and 4 ; third- party (R. 38-52). printed in in Appendix . A hereto, _ intra, p- 46, which issue is not involved’ in. this petition, - “is reported in 188 F. Supp. 605. The opinicn of the Court. _of Appeals (R. 589- 599), printed in Appendix A hereto, . infra, p. 17,*is reported in 299 F.2d 897. The orders of «. ’ the Court of Appeals (R. 603- 604), holding in “abeyance further - proceedings , between respondents and: third-- -party pending determination’ of this cause in this Coyrt are reported at 302 F.2d 730. : | Licales * JURISDICTION The judgment of the Court of Appeals v was entered ~on February 8, 1962 (R. 588). A timely | petition for reheari g was” filed and was denied on March 12, 1962 aed Transcript of Record). On May 4, + 1962, by. order of «the Chief Justice: the time. within ° which ‘a .petition for ‘certiorari might be filed. was. ex- -. tended to and: including August 9, 1962. The jurisdiction <; of this Court is invoked under 28 US.C. J 1254. q): QUESTIONS PRESENTED 118 a longshorerrian dita on, tie dock. engaged in moving cargo under the ship’s tackle to. bé loaded ‘— _ aboard the - ‘vessel, entitled to a warranty of the . sea- worthiness of the vessel? (The Court of Appeals: held -- that he is not.) z. Does a workman claiming the benefit of the war- se One H es apres ees cag $ ranty agaist Gieaplvcelaiail have the salen of intro- ducing evidence to prove that the work he did was tra- x ‘ditionally done by ‘se@pen? (The Court of ‘als held that petitioner had failed to meet his. burden of f proof, - id reversed the trial court's MF iste that eee . . “ ; . eo . 3. Doés ipowner wea duty to”a _longshoreman - j dock, engaged | in moving: cargo under be ads. provide him with. a safe place to work? (The ‘eid pf Apeals “held that the ship yuper owed no duty to pro- —_— petitioner with a safe plate to work.) » “4(a). Was the Court of Appeals correéét in holtiing "that there was no evidence to sustain the trial court's rat * finding of f that ‘the shipowner_ was negligent / in ~ failing to ne a proper inspectiork of the anphagey which cause the injury to the petitioner? (b). Is thé decision of the: Court of Appealé i in con- . flict witf? the subsequen cision’ of this Court tn - ‘Salem v. United States Lihes/ — U'S. —, 8 L. Ed. 2d 313 (May 28, 1962) in holding that the petitioner (gps _ obligated to introduce. evidence to establish a standard ‘of inspection? | 8 ; o aa 7 es | ; 42 STATEMENT ss +. | On Otkcber 10, 1958, petitioner was eilicas as a | ae : longshoreman (R. 472) by a stevedore company engaged in loading and discharging. cargo for the M. v. ‘ Bel- « * ‘deeaian (R. 16-36) holding ay + grano “(R. 3), ‘a ‘ship lying in iiiileeabete. waters of: the United States ( R. 4). Petitioner was assigned to a gang 7 at hatch no. 2 (R. 229) He was driving a tractor’ on the dock. delivering a -carload ‘of lumber under ship's tackle. for loading’ aboard the’ vessel. ia 472, 477), when one of the ship's booms at hatch no: 4 fell. (R- 89), striking him and causing him severe injuries (R. 24). _ Petitioner instituted ° this, “action. in admiralty in: the United States District Court for the District of Oregon as a libel. in rem agains st the .vessel and ‘n -personam with foreign attachment against - ‘the ship-_ owner (R. 4, 5). The ‘District’ Court had jurisdiction of: ‘the cause as an admiralty matter -by reason of’ the provisions of c. 646, 62 Stat. 931, amended May 24, 1949, c. 139, § 79, 63 Stat. 101, 28 U.S.C. § 1333: and. by c. 526, 62 Stat. 496, 46 U.S.C. -§ 740, extending the admiralty jurisdiction: to include: cases of ‘damage to _ person occurring on land, when. caused by a vessél on. navigable water. The operating manager of. the-.vessel. appeared as ,claimant (R. 4). The shipowner and the claimant (hereinafter “respondents” ») -impleaded the ~ stevedore company as a third party, claiming indemnity — (R. 4). ra ; oS +“. iia: William G. East, wrote -an itioner ‘was entiiied to. prevail, and entered a: decree - which awarded* him — . damages of $41; 207. 55 (R. 36- 38). Ina subséquent opin- ion, the court decreed that respondents ‘vere entitled. to indemnity ‘from the third pany f P. 38- 52). ‘The trial court found that ‘the ee of the boom was caused. by the failure of a pawl and ratchet device ‘to operate properly, because the pawl was stuck tight. and failed to fall freely into the notch provided for it, as it was supposed to do (R.°21- 22). He therefore found ~ the vessel unseaworthy. He also found that ° “petitioner cat the time of the accident was engaged in perforining 7 a_part of the ship's service as a ‘longshoreman in the process of loading and stowing_ her cargo’ (R. 22- 23). and was entitled to a warranty of the seaworthiness ‘of the vessel. eiciee —_ The evidence regarding the condition of. the pawl . (also referred to as a dog) at the time of the accident ' on October 10 is not now in dispute. It was not func- tioning properly (R: 184- 187). When the boom is being on raised, the clicking. sound which should be made by the pawl, if. operating properly, is clearly’ audible (R. 184- 187). The paws - were ‘all in good working order and fell: freely into the: notches on October 6 and 7, when. the ‘vessel was ‘in Vancouver, B. C. ((R.. 525, 562). From ° Vancouver, the vessel proceeded to Portland, where it ' arrived early on the morning SF Oc October 9. On that day, "the boom in question was raised by members of the crew. They testified phat it operated properly and they could hear the click (R. 467, 468; 5.15, 517). Later that same morning. howeve?, when the longshorerhen working that hatch had to move the boom, : they found --the pawl jammed stuck so tight that it could not be . -moyed by hand, and had to use a 2x4” to pry it down into the ratchet (R. 84-85, 130). we ; ae ie dt rae / . 6 Nothing further veas done. shoei the condition of- the. . pawl, however, and ‘petitioner was hurt when the boom’ was ‘raised-on the following day, and- the pawl: failed to drop into place (R.. 184. 187). The trial court concluded” that, “Reasonable inspection would have dis- 2 ‘closed the malfunctioning of the: pawls know:n to the longshoremen the day before” (R. 22). Respondents and the third party both appealed to ‘ the Court of Appeals for the Ninth Circuit which re- versed the judgment in favor of petitioner (R. 599). A timely petition for rehearing’ was denied without opinion (Supp. Tr.). Subsequently, the. Court of Ap- peals entered Orders suspending further proceedings on the indemnity issue pending the outcome of the instant petition for certiorari, (R. 603-604). : On appeal, the finding of the trial court that the “vessel was unseaworthy was not challenged by the re- spondents (R. 592)..The Court of Appeals held that petitioner, as’ ‘a dock- working longshoreman, .who “did | _ not participate in loading the lumber onto the vessel or ‘in stowing it” (R. 595), was engaged © in “an operation preliminary to, but separate from the work of loading lumber onto the vessel.” (R. 595). As such, he was* held not entitled to the benefits of the warranty against” “unseaworthiness (R.° 596), The Court of Appeals also * held, without intending “to lay down - ‘a fixed line of . demarcation between ‘seamen’s work’ and ‘shoreside work’,” that the burden was upon petitioner to prove - that “the type ‘of work he was doing was traditionally done by seamen, and that he had failed ed meet ~ tt burden (R. 596). 3 es 7 es : ; On the isstie of ; pr Ween the Court of Appeals held that the shipowner had no duty to provide the pefi- tioner with a safe place to work (R. 599), and that - there was no evidence to support the trial court's finding of fact regarding icone (R. 999). es REASONS FOR GRANTING THE WRIT | Importance of Question Presented . . The correctness. of this Court's decision in Seas’ Shipping Co. Vv: Sieracki, 328 US. 85, holding that the benefits of the doctrine of seaworthiness are available to persons doing the work of seamen, has been much “debated, but no one questions the importance of the — doctrine to. those whom it: ‘affects. This case squarely” «presents the question of whether, the protection of that doctriné ‘is to be available to a substantial class. of workmen; namely, those who participate ir the process of loading (or unloading) the vessel by transporting cargo between its last place of rest and ship's-tackle. The trial Court found that petitioner was entitled to a-war- ranty of seaworthiness because he was engaged in -the work of loading the vessel, but the Court of Appeals . held that the work he was doing was “preliminary to, but separate from’”’ loading. ' 3 “ .The question is peculiarly important to.these affected because workmen injured ashore by an unseaworthy condition. of a vessel are not entitled to the protection of the Longshore and: Harbor Workers’ Compensation ’ Act, 33 U.S.C. § 901 et seq. Instead, they are relegated to the varying and eer ee remedies af- . -8 ' “forded by- state law,' although their injuries are subject . to the maritime and pad jurisdiction by. 46 USC. § 740. | ad Because state compensation is often inadequate, a third-party recovery is.a matter of the utmost concern to a ‘workman? injured on the dock. As exemplified in ‘this case, in which unseaworthiness of ship's gear 13: admittéd. but’ the Court of Appeals holds that there is no evidence of negligence, the protection of the doctrine _ of unseaworthiness is frequently. crucial to recovery. We are thus dealing with an‘ issue of law—namely, is a dock-working longshoreman, entitled to the war- ranty—which is of major importance to a substantial number of workmen. This Court, in O'Donnelt Vv. Great Lakes Dredge & Dock Co., 318 US. 36 @emed an analogous issue arising under the Jones’ ‘Act, 46 U.S.C. § 688, to be of sufficient consequence to justify ’ the granting of certiorari. Similar .considerations justify _ the granting of the writ. in the instant \ case. In addition to the question whethe: petitiorier -1S—— S entitled to the, benefits of the warranty, the decision - below has wider implications, raising fundamental ques- ” . 1 a this: case, for example, petitioner suffered serious and per- ’ manent injuries, which were not ‘totally disabling (R. 24-25). T hey were of such a nature as to be ‘rated as unscheduled injuries under -° both the State and Federal Compensation Acts. Had petitiqner been covered by the Federal ‘Aét, the maximum amount he could have received for* his permanent injury was at that time $17,- 289.00, and is now $24,000.00. 33 U.S.C. Sec. 914 (m). Uhder the applicable Oregon statute, the maximum which can be awardéd .. . ~ for an unscheduled permanent partial disability is $6,742.50. ORS 656.214 (2), (4). 9 : an a tions concerning the applicability of the doctrine which have not yet been decided by this Court. In Haleckiv. United N.Y. & N. J.; etc., 358 UB. 613, this Court held that. the plaintiff was not entitled to the. protection of the doctrine, because he was not doing work .tradition- ally performed by seamen. The opinion fails to suggest the criteria to be used i in determining that issue. In this case, the Court of Appeals holds that the ; burden was on petitioner to prove—psesumably by oral, , expert testimony—that he was engaged in work -tradi- © ‘ tionally done by seamen (R. 596): The Court of Appeals comments that the uncontradicted expert eters Was . to the contrary (R. 595). It refers to testimony intro- duced by the third party that, in the period since 1910, seamer. did not work si dacs woe tackle oe 473, 483, 493). 3 : If the applicability of the warranty to a particular task ig to be determined by expert testimony, ‘as a dis- puted issue, the conséquences to litigation in this field are extreme. There’ is_no’ reason_-why-every~case stoté not become a battleground of expert testirnony con- cerning. the. traditional work of seamen. If the’ defend- ants can produce witnesses to testify that seamen did — not “traditionally” do the- work of loading and ‘unload- ’ ing the vessel (Seas Shipping Co. v. Sieracki, 328 US. 85), of, carpentry aboard the vessel (Pope & Talbot v. Hawn, 346 U.S. 406) and the numerous other employ- e ments which have been held by lower ‘courts to be en- titled to the warranty as a matter of law,’ it -will be a jury question in every case. based upon conflicting is devermined upo: o 2 . . . \ . testimony. whetiter the doctrine applies.” If it is to be the-rule that the w tesla 3 must prove that his work was “traditionally done by seamen. ae. is clearly necessary that some content be given to that phrase. What is meant by ° ‘traditional’ in this context? One commentator’ suggests that the period from 1910 to 1920 should be adopted as the index (Norris, ‘Mari- time Personal Injuries. § 435A. pp. 122-123 (1959)). and the evidence introduced by third party in this case. ‘was apparently ‘based, upon that suggestion (R. 473, 483, | 493). This Court, however. by its citations, in SiefAck: to Florez y. The Scotia, 35 F. 916 (D.C.} and The Seguranca, 59 F. 908 (D.C.). as -well-as by its decisions in International Stevedoring Co. v. Haverty, 272 US: 50. 52, and Atlantic Transport v. Imbrovek, 234 US 52, 62, evidently had reference to a period of time at. . least well before the turn of the century. But if the issue” of “tradition —is-to be-on¢ of fact. some standard against which evidence can be judged must be supplied. In a closely parallel, context. that of determining who is a member of a crew of a vessel, so as to be en- titled to a cause of action under the: , Jones Act, this Court has taken a differ bership in a crew ha en held to be one of. fact, but 1e basis’ of duties and functions of 2 The ready availability ‘of such cncnnle is illustrated by Litwinowicz v. Weyerhaeuser SS Co., 179 F. Supp. 812,- 818 (E.D. Pa., 1959). in whi¢h,. more than a decade after Sieracki, the _ defendant submitted a/me morandum ‘ ‘which purports to demon-. _strate- ‘the fallacy of the rather widely’ beld concept that the . work which’ is today performed ‘by lognshoremen | was formerly eupemane by members of the crew.’ ” it approach. The issue of mem- - a ae _ the injured, workman. rather than upon expert testi- / mony as to who was “traditionally” a member of a crew. ‘Senko v. Lacrosse Dredging Corp., 352 US. 370; Butler v. Whiteman, 356..U.S.. 271. This appears ‘to ‘be the line Lae taken by the trial court fiere. He concluded ( 22-23) . | T]hat the libelant at r the time of the accident was engaged in performing a part of the ship’s service as a longshoreman in the proce ss of toading | and, stowing . her cargo. Particularly he was engaged -. in moving or bringing this Jumbes, cargo from its last place of rest following handling by. others to a : position on the dock shipside in order to bg reac hed - “4 the ship's gear and tackle.” es The test of what constitutes a ‘Ship s service Appears _ to be a Jogical one to adopt in dete “higies the work» traditiondlly done by seamen. It is the, test suggested by the ‘language of Sieracki (328 U. at 93-97), which repeatedly adverts to the fact that unseaworthiness lia- | bility arises “as an incident | we of performing the ship's . ? wrviice with the owner's consent.” See also, C rumady — Vv. J.-H. Fisser, 358 US. 423. For its statement’ that. “historically the ‘work of loading and unloading is the p-work of the ship's service, | the Court in Sieracki | cited early decisions on mati- : time liens. which adopt~ a similar criterion. If the work done forthe vassel is maritime in nature, it give# rise. _ to a lien: if not, it does not. And whether the work is - mnaritime in‘turn depends upon performing a service for the vessel with the owner's consent, even if performed ‘on land, as in The Seguranca, 58 F. 908 (D.C) or The } Onore, 6 Ben. 564, Fed. Cas. No. 10,538. ec -12 4 The ‘decision of the Court of Appeals_in this: case could intrédyce serious confusion into this area of liti- gation. Even thougi petitioner proved to the satisfaction of the trier of fact that he was performing the ship's service in loading the vesel, he was held not entitled | to recover because he failed to introduced any evidence as to what seamen “traditionally: ° ‘did. So far as peti-’ tioner’s :research has ° disclosed. no opinion of this or “any other court has requjred such evidence. If such evi-. ‘dence is to be required, what is the criterion by which jt should be ‘judged? The Court of Appeals vives no indication what evidence would meet .this burden it imposes. : | : “Conflict with Decision of this Court . wer: , The principal reason for overturning the trial court's finding of negligénce appears to be that petitioner did not introduce expert testimony to establish a standard of conduct for inspection (R. 598). The device which ‘failed was a simple one (R. 64-65), pictured in Figuge 2 of the trial court's opinion (R. 26) (189 F. Supp. at p. 105) following p. 40. of the Appendix, infra. When the pawl fell into the notches, as it. was supposed to do, the drum could not turn and the boom could “not fall. The pawl. was jammed, and had been. ammed for more than a day. If it’ was’ jamined, the - fact should have been immediately apparent when the _ boom. was raised the previous day. The trial court de-. . termined that the respondent should have discovered the defect. It is suomitted that this was within his prov- ‘ince, ‘and that the decision of the. Court: of Appeals to’ f > is , ig the contrary is directly in coriflict with the decision in Salem v. U. S. Lines, — U.S. —, 8 L. ed. 2d 313 (May 28, 1962). In that case, the Court held: that where a simple device was involved, expert testimony was not necessary ‘to enable a jury to decide whether it was reasonably safe for use, . and, - if there were reasons. not: immediately apparent, which: prevented making the device safe, the burden Was” upon the defendant to establish them: Precisely the same rule should ely. ‘The trial ‘court, fully understanding the nature of the device in ques- . tion, held that a reasonable inspection should have dis - closed its malfunctioning. known to the longshoremeti the day ‘before (R. 22). He was entitled to reach: «this . conclusion without the aid of expert testimony. He could, for example, have concluded that it was the duty of the seamen to make imquiry of the longshosemen re- garding the condition of this safety device. Conflicts in Principle with Decisions -- ‘of Other Courts of Appeal Every other Court of Appeals -which has conside:ed the applicability of the doctrine of unseaworthiness to longshoremen, engaged. in loading or unloading the ves- sel, but working on the: dock, has concluded that the doctrine is applicable. Strika v. Netherlands Ministry of ’ Traffic, 185 F.2d 555, 556-558 (C.A. 2, 1950), cert. den. "341 U.S. .904: Hagans vy. Farrell Lines, 237 F.2d 477 (CA. 3, 1956): Klimaszewski V. Pacific- Atlantic Steam- ship Co., 246 F.2d 875 (C.A. 3, 1957) (longshoreman on . hae aid Américan ere Lines, Inc. Vv. 6d 266 F.2d 7 / 14 82, 86 (C.A. 4, 1959). A completely different panel of the Ninth Circuit went out of its way to hold that the doctrine: was .applicable to a dock-working longshore- man. whether aboard the ship or on the dock. Pope & Talbot, Ine. Vv. Cordray, 258, F.2d 214, 217-218 (CA. 9, 1958). The District Courts have been equally unanimous. ‘Valerio V: American President Lines, 112 F. Supp. 202 (S.D. N.Y/ 1952); De Van Vv. _ Pennsylvania: - Rail- road ‘Co., 167 F. Supp. 336, 342 (E.D. Pa., 1958) (longshore an on carfloat): Di Salvo v. Cunard Steam- - ship Co, 171 F. Supp. 8t3, 819 (S.D. N.Y.. 1959): — v. Weyerhaeuser Steamship Co., 179 F. ‘Supp/ 812 (E.D. Pa., 1959): Robillard v. A. L. Bur- bank & Co., 186 F. Supp. 193, 195-196 (S.D. N.Y, 1960). See also, McKnight 'v. N. M. Patterson, Ltd., /181 F. Supp. 434, 438, n. 5 (N.D. Ohio, 1960) (dictum). Because of the ambiguous nature of the decision here, | it cannot be said to be squarely in conflict with any of the foregoing. The Ninth Circuit refrained from lay- ing down a “fixed ‘line of. demarcation” between sea- “men’s work and shoreside work: instead it appears to distinguish between those to whom the warranty is available as a matter of law, and petitioner, who was beyond the pale. because he had not proved that he was entitled to the Protection of the’ warranty. - - Insofar as: none of the foregoing decisions appeats to | have required a dock-working longshoreman to prove that his work was traditionally that of seamen, it may ~ be said that this decision is in confijct. Since it is entirely . sd . x * ere) “impossible tg tell from the, opinion of the. Court of Ap» peals what evidence petitioner . lacked or whether any amount: of. evidence would Have changed its opinion, little more ‘can be said concerning conflict, except that — a reading of all the foregoing opinions cannot Help but leave the impression. that the Courts of Appeal above i cited would not have arrived at the result. reached in this case, ea 7 ‘Two recent decisions of District Sisets in the Third Circuit appear to .present direct conflicts with the de-.— cision here. Hagans .v. Ellerman & Bucknall Steamship - Co:, 196 F. Supp. 593 (E.D. Pa., 196), is presently. pending on appeal and is expected to be argued in the fiall. Plaintiff there worked beyond ‘the reach of ship's tackle; but the court held that he was in the ship's » service and was entitled to a warranty of seaworthiness. It does not appear ‘that there was any evidence intro-. duced that mémbers of the crew in former times ‘did the type of work which plaintiff there was doing. The other case, Fitzmaurice v. Calmar S.-S. Co. "7 198 F. ‘Supp. 304° (E.D. Pa., 1961), is awaiting ‘trial, and als8 involved a longshoreman working beyond the | reach of ship's tackle. _The Decision Below Is Sivas Enough, has .already been said to indicate generally * the errors which petitioner asserts that the Court of Appeals has committed, If the question of whether -or | not petitioner was entitled to the warranty is one of fact, the trial court's factual decision that petitioner 5 oO Pr: | . ceftiorari should be grarited. oon { 16 was engaged im the ship's service ,in loading: ‘its cargo tS amply: supported by. evidence.” If it is one+of law, the Court of Appeals i is in error in holding that the peti- tioner Tailed to meet hiss burden of proof. In any event, neither in the Sieracki case, lior in subsequent cases, has it been necessary. for a shore- based workmari claim- ing the benefits of the doctrine of unseaworthiness to introduce expert testimony as to the traditional work of seamen. The suggestion that. such a battle of. experts is necessary to decide an issue of this kind is a extremely *% undesirable development of the law in this’ area. On the issue jitiaaies the Court of Appeals has once again inydded the trial court s domain, to hold ‘that he could n6t reasonably have decided that respondent _ should have. discoyered the ‘defect, because he had no expert testimony to establish ‘the standard of conduct. The error in this ruling has already ‘been discussed. Respondent could have. discovered the defect itself, or. could have made inquiry of the longshoremen who kriew ees: -3-4 ps ” cn CONCLUSION For the foregoing reasons, this petition for. a writ of re submitted y, . CLIFFORD D. 0 oe Counsel’ for petitioner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0470%3A2. Public record. Not legal advice.