# Appendix — North Carolina Natural Gas Corp. v. McJunkin Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1962
- **Citation:** 371 U.S. 830

## Text

sy
/“APPENDIX |

UNITED STATES COURT. OF APPEALS
FOR THE N NTH CIRCUIT

PARTENWEEDEREI, MS BEgGRANO, and) |
RUDOLPH A. OETKER, Be
ae * Appellants,

vs. cris

)
)
)
GEORGE WEIGEL, ce
- | Appellee. )
' ) No. 17,178
faith ) Feb. 8, 1962

Brapy-HAMILTON. STEVEDORE. COMPANY; ) ieteyer
/ . Appellant, )
vs. : )
)
)
)

PAKTENWEEDEREI, MS BEL GRANO, and
RupoLPH A..OETKER,
ee . Appellees. :

On Appeal from the United States District Court
for the District of Oregon |

‘Before: JERTBERG. KOELSCH and DUNIWAY,
Circuit Judges :

JERTBERG, Circuit Judge:

George’ Weigel, libelant below, | and. appellee here, |
~ hereir. sfter called ‘‘libelant,” was an employ ‘ee of Brady- —
Hamilton Stevedore’ Company, hereinafter called “Steve- -
_dore,” and acting within the course and scope of his.
employment’ when he was struck by a boom of the”
‘vessel BELGRANO, as he was operating a tractor in
reverse motion and pulling with a towline a railroad
car, then loaded with lumber, upon a permanently fixed
- railroad spurline on the dock along shipside for the

18 -
purpose of placing the lumber under. and within reach
of the vessel's loading gear.

Libelant instituted his libel in admiralty, ‘in: rem

_ against the vesstl and in pefsonam against its owner:
‘, and operator, respondents ‘ betow.. and .appellants here,

hereinafter collectively called “respondents.” The re-
-spondents ‘denied liability and impleaded Stev redore as

third-party libelant under: Admiralty Rule 56 in ‘a cause. .°

of indemnity.

_ The question of the aim - of respondents’ against
- Stevedore for indemnity was segregated cfid ‘reserved
until adjudicaiion of libelant’s ‘claim: aga respon-
dents.

Following trial on the segregated - issue -of liability on’

libelant’s claim and the nature and extent of his dam-

ages, the District Court -entered judgment a of —

libelant from which judgment respondents. eppeal.

Following trial on the segregated and reserved issue

of indemnity. the District Court entered judgment to the .

full exterit of libelant’s judgment, in indemnity: against
Stevedore, from which judgment Stevedo:« appeals. —

We wit first- consider respondents’ appeal. The judg-

ment in favor of libelant was based upon the —e
and conclusions of the District Court that

(1) The vessel was unseaworthy in,that her.

topping * ‘lift gear” for the: starboard’ Loom at No.
1 hatch ° malfunctioned and permitted the boom
. to fall upon the libelant because the pawls on the

ratchet in the topping “lift gear” were defective and

inadequate in that they did not drop into each cog
as the béom was hoisted so as to prevent the boom
from falling, and that at the time of the accident

Pi

. : 19 -

ibelant was engaged it performing | a part of the
ship's service. as a longshoreman in the process
of loading and storing her cargo;

(2) The respondents were. negligent in:

‘ (a) Failing to properly inspect the vessel .
and pa articularly the. ratchet and. pawl device
-to the hatch to, determime the defective nature
of same. since a reasonable insnection would
have disclosed 5 sora as of the pawls:

and . « | .
(b) Failing |to provi in the libelant with a
‘safe place to work.

“the ‘District Court fur 1er par that the un-
seawcrthiness of the vessel and the concurring negli-
gence of the respondents wére the proximate causes of
the ‘fallirig of: the boom and jibelant’ s resultant injuries.

. A detailed description of the mechanical-features of
_ the gear which operated the boom, the principles of its
functioning while operating ‘properly, the effects of its.
malfunctioning. and the human and. mechanical factors
which caused the boom to fall, would unduly and un-
necessarily extend this opinion. For details _concerning
such matters, ae yefer the interested: reader to the opin-
ion of the District Court reported at 189 F Supp. Dp. 103
(Apr. 14, 1960). which pinion also constitutes the find-
ings of fact and conc]usions of law of the District Court.

The facts surrounding t socident are stated in the
opinion (p* 107), ‘as follows:

“Immedately prior |to the . commencement of
the operation icading up) to the accident, the ratchet
notches and the pawls were in a-locked position and
the lift. gear’ was stead undér the weight of the

boom. The. work of bringing aboard the Jumber at
No. 1 hatch required. a ti of — boom in

fe¥ at =
zu ts

order to plate: the same in a working postion, and
the winck driver called to a ship longshoreman and
‘asked for ‘a hand’ in attaching the free end of the
pigtail line to the gypsy head. The winch operator
did not see this operation, and the lungshoreman
involved can’ give no satisfactory account of what

he ‘did in the way of fixing the free end of. the, pig- - ri

tail line to the gypsy head. In any event, it was
somehow attached, but evidently not properly. The
winch driver took up the slack in the pigtail line, ’
put strain thereon, and commenced the lifting of
the boom. The winch driver did not hear the ‘clank-
ing of the pawls (dropping of the pewls’ in -the
notches in the ratchet rims). After raising the boom
approximately three-four feet, the driver stopped
the winch, braked it, and started astern to see what
was wrong. Under the weight of the boom, the
pigtail line’ started to slip on the gypsy head and
* the boom lift’ wire rope on the drum of the lift gear
started to unwind. The boom in its fall gathered -
momentum, and the flailing free end of the pigtail
line prevented the winch driver’from manually put-
ting stress upon the same. The boqm, ‘uncontrolled,
fell.to the: starboard side of the vessel across the
‘dock and struck the libelant. From the commence- .
ment of the raising of the boom, the, unwinding
of the drum. and throughout the fall.of the boom,
the.pawls had fajled to fall into the notches by
gravity or otherwise. ie
“On the day before the accident, while in the -
process of topping the ‘boom involved through the
use of the lift gear, the pawls had locked in an up-
right. position and failed to properly function by
falling under gravity into the locking position,
and a longshoreman had used 4 piece of dunnage
to strike and knock the pawls into position.”

- Before considering the. errors urged upon us by the
respondents, we should state that respondents concede
that the finding of fact of the District Court that the

21 iS
- vessel was unseaworthy-im_ that the pdwis were "stuck
. and’ failed. to operate properly, is supported by arhple
_ evidence. Such finding is not challenged on this appeal

by respondents or Stevedore. :

Respondents’ contentions are: () The District Court ©
‘ erred as a matter of law in concluding that libelant was
entitled to the warranty of Unseaworthiness: and ( 2%:
The conclusion of. the District Court that the Tespon-
dents were negligent in the respects above stated is .
without evidentiary support and clearly erroneous. — fae *

dn holding that libelant was engaged _in_-perform orming.
a part of the ship's service and, “therefore, entitled to
the protection afforded seamen, the District Court re-
lied squarely upon the opinion of this Court in Pope &
- Talbot, Inc. v. Cordray, 258 F. 2d 214 (9th Cir. 1958).
In the Cordray case, a longshoreman was injured while
“the ship was at dock and ‘engaged in discharging its
cargo. The shipowner ‘had contracts with two stevedor- -
ing companies in the cargo operation. The contract with
- oné steveddring company covered the operations per-
taining to the discharge of cargo. from the ship's hold
‘to’ the ship’s side at the dock. The contract with the
other stevedoring company covered the operations per-
taining to the moving of cargo from the ship's side to-
place, of rest on the dock. Cordray was an employee of
the second mentioned stevedoring company and was a
foreman of the dock longshoremen. It was one of his
duties to see that the cargo was moved to its. first place.
‘of rest from the ship’s tackle, and it was his duty also
to coordinate the activities of the dock working long-
"shoremen with those of the ship working longshoremen
_ in order. to have terminal employees and equipment

22

available at the end ‘of ship's tackle to keep ‘the cargo.
_ moving. While most of the work of. Cordray was done \ .
upon the dock, the evidence showed that Cordray was |

aboard the vessel at. the time of his injury for the pur-
pose of coordinating the cargo handling / work of. the
dock longshoremen with that of «the longshoremen
. working on the ship. The accident to Cordray happened

-when he..went -on- board ‘the ship fo ascertain whether ~~

“the gang of longshoremen.on the ship were going to go
home or shift to another hatch, so that Cordray could

determine whether or not he would keep his dockside °

longshoremen available to continue work. In the course
of the opinion (pp. 217-18), this Court stated:
“[2] In the instant case the appellee, although
performing most of his work on.the dock in the

_ moving of the ship's cargo-from ship's tackle to its
first place of rest (which was part of the ship's
obligation), was on board the ship when the acci-

dent happened. Under the testimony, he was co- _—

ordinating the unloading of the carzo from thé
ship’s hold to its place of rest on the dock. We hold

that the duty of providing a seaworthy ship and
gear ‘at the time of this accident extended to the
appellee, whether or not appellee was on board

_ ° the ship or on the dock. The test is. what was the
z nature of his work? He was performing a service
. for the ship in the discharge of its cargo. His em-

ployer was under conttact wth the shipowner to”

take the cargo from the shipside and -to put it in a
place of storage, and appellee was engaged in the

performance of this work. The appellee's work was
‘the work of a longsioreman and he was entitled, ©

to seaworthy gear while he was performing his
service.” [Footnotes omitted. ] .

During the trial of that case, counsel for the shipowner

‘3 stipulated, “% * * that it.is part of the obligation of the.

— eiieestc et 23

ho warchouse.” Further, it appears in that

j case’ that ea i the: stevedoring. companies - ‘had the
right’ to use i ship's. unloading gear ana equipment

2 ae i ‘and to go upon, such placés under the shipowner's con-|
trol as -were reasonably neces$ary in -the performance -
a by: the-employices. of ¢ each Stevedoring company of the
| “vork of discharging the cargo frotm-vessel_bold to point

st on. the deck floor-within the dock warehouse.

‘It is clear -under the facts of Cordray that is was
the contractual obligation ‘of. the shipowner to ‘move
the cargzc from the hold of the vessel to a place of rest
on the picr along shipside but,. ‘additionally. to. move

ac cargo to, the dock warehouse. Cordray. was on board

oe chip. w hen injured performing his duty of coordinat-
in* the unloading of the cargo from thefship’s hold to
ies place of .rest on the dock. He wdé assisting in the
unicading cf the ship, which is the type of work tradi-
-Conally ‘performed by seamen. Clearly he was entitled to
the Jiggs afforded seamen @fhe statement in Cord-
ray, “* * © that the duty of providipg a seaworthy ship
and gear at. the time of this accident extended to the
appellee, w Re ether cr not-appelice was on beard the ship

or on the dozk,” (emphasis added) must be read in the -

light of‘ the facts of that case. The Cordray opinion
cannot be constigied to extend to protection of the war-
ranty of seav ‘orthiness to any dock longshoreman whose -
injury’ results from. unseaworthiness of a ship without
regard to the type of work in which he is engaged.

Hence, unlike the facts in C6rdray, the. moving of

the lumber from the dock to the vessel’s loading gear -

-

Prd

rr ae

, Satine . #
was not part of the ship's seryice unless it can be said
that the work of libelant was of the type re
performed by seamen.. -

In the instant case, the test of libelant’s right to the
protection’ of the warranty of seaworthiness is whether
he was engaged in the type of work traditionally ‘done
by seamen. In United Pilots Assn. v. Halecki, 358 U. §.
613, 616-17, the Supreme Court stated:

“The eventful development of the doctrine of
unseaworthiness in this Court js familiar history.
Aithough of dubious ancestry, the doctrine was
born with The Osceola and emerged full-blown 40
years later in Mahnich v. ‘Southern S. S. Co. as an
absolute and’ nondelegable duty which the owner
‘of a vessel. owes to the members of the crew who

man her. The justification for this rigid standard
was: clearly stated in the. Court's opinion in Mah ;

nich: aoe

“He [the pam is subject to the rigorous
discipliné of the sea, and all. the -conditioris
of his service constrain him to accept. without
ae critical examination and without protest, work-
; ing conditions and appliances as commanded _
by his superior officers.” 321 ‘U.S. 96, at 103.

“With the nature of the duty thus defined, it
‘remained for two ‘other decisions of the Couft to
amplify its scope. Seas Shipping Co. v. Sieracki and -
- Pope & Talbot vy. Hawn made clear that the ship-
owner could not.escape liability for unseaworthi-
ness by delegating to others work traditionally done
by members of the crew..Whether their calling be
labeled ‘stevedore. ‘carpenter, or something else.
those whoa did the ‘type of work’ traditionally done
by seamen, and were thus related to the ship in
the same way as seamen ‘who had been,or who
were about to go on a voyage, were entit! led to a
seaworthy ship. See 346 U. S., at 413.”

\ 25 ins ‘

In the Hglecki case, recovery under the doctrine of un-

seaworthiness Was denied upon’ the ground that the

work of the injured workman, who,had gone aboard to

‘clean the generators with carbon tetrachloride was in

no wat the “iype of work” traditionally done by the
ship's crew, and. it was held that to extend liability for
unseaworthiness to the decedent would ‘‘distort the law

of Mahnich,.of Hawn and Sieracki beyond recognition.”

~

_ Tne evidence of. this. case relating to the nature of
libelant's work is not in dispute. ‘The libelant was driv-

ing a tractor on the dock.’ His job was” to push or pull

railroad cats loaded with lumber. up to a point on the

spur track where the lumber could be reached by the

“ship's loading gear. He did fot participate in loading

the lumber onto the vessel or in stowing it. He had noth-

ing to do with ship's tackle nor did his work require’

him to perform any service aboard the ship. His work
was performed solely on the dock and jn-an operation
preliminary to, but separate. from, ‘the work of loading
the lumber onto the vessel. Although libelant’s work
brought him close enough to the vessel tw» be injured

by -the falling boom, liability ariseg~not from the place ~
of injury but. from the nature of ¢he work being per-

formed. | ene a : v?

Was the nature of libelant’s wor} of the . tradi-_
tionally performed by seamen? / e only firmative,

testimony in the record on the subject is uncontradicted
expert testirnony to alo e effect _thatJibelant’s work was
not of the type traditionally pérformed by seamen. In

-our view, the District Court's reliance on Cordray was

_ misplaced.

_ The burden of proof was upon libelant to show that

4

26

" “he was entitled to the protection afforded seamen. In
our view, he failed ‘to do so. In so holding. we.do not
purport to lay down a fixed line of demarcation between
“seamnen’s work” and. “shoreside work.” Our holding
is simply that the’ libelant. failed to meet his burden

of proving that the nature of the work performed by
him was the “type of work” traditionally performed by
seamen, se ,

‘We will now consider. respondent’ s second contention

_ that -the finding and conclusion of the District Court

with respect to. negligence on the part of respondents |
is without. evidentiary support.

The vessel was of German design, newly-built, en-
@ gaged asa freighter, and-appeared clean. The vessel's
starboard boom at het No. 1 hatch was fitted with a
\topping “lift gear’ of German design, semi-automatic
‘ opération, and a permanently affixed appurtenance of
the vessel. The “lift gear” was safe and in nowise ap.
inherently dangerous appurtenance when functioning
properly. The vessel had five hatches, each with at
least two “lift gears.”

_- The vessel: had beén in Wiieiitite B.C. where it
worked’ on October 6th and 7th prior to ‘its arrival at
Portland. The vessel arrived, at Portland on the morn-
ing’ of October 9th. Early that morning, before the
stévedores commenced working, the ship's crew used
the topping “lift gear’ machinery to raise the ‘booms,
including the No. 1 starboard boom, from their cradles
to a raised position so that they would be ready for
the stevedores:

From then ufttil the accident on the following day of

2
27 -

October 10th, ‘the booms remained -raised: Later in the

morning’ of October 9th, while the stcvedores * were

changing the position of. No..1 starboard boom,’ they .
discovered that tlte pawls were stuck, and one: of the

stevedores used’ a board to pry them into place on the

ratchet. This fact was never reported to any of. the

ship's officers or créw, although | known to the steve-

- dores’ hatch boss. There is no evidence that any officer

or member. of the crew was aware of such realfunction-

ing. .The “lift gear’ at No. 1 hatch was used through-

out the rest of the day of October 9th. ‘The accident
occurred on the. morning of October 10th, the circum-

stances ‘of which have been previously detailed.

2 There is rio evidence in the record of. any foreign
_ materials in and about the working elements of the ©
_ ratchets, notches, pawls and the bearing of the pawl
axle, nor physical damage of the Working. parts’ immedi-
ately prior to the accident, .arid the Pistrict. Court so
found. As to the ‘cause of the malfunctioning, the Dis-
trict Court stated, “The law*of physics tells us that it
ofiable to, infer that some abstract and necessarily
patent -binding force or strain. among the workny parts
- prevented a ‘narmal automatic mechanicai action and
function (dropping of the pawls by gravity), and there-
by destreyed the usefulness arid. safety. of*the gear and
rendered the same dangerous. and unsafe.”

-The fact that the vessel was found to be unseaworthy
because the pawls in the “lift gear” were defective and ~
inadequate, does not establish negligence on the part of .
the respondents. The duty to furnish a seaworthy ship .
is absolute and non-delegable. It is a specie of liability ~
without fault.’ Hence, the burden of proof rested with

C3

°

28

‘ p ° -
libelant to establish, by a preponderarice of evidence,
that negligence on the part of respondents was @ prox-
imate cause of libelant’s injuries and damages.

The District Court concluded that respondents were

* negligent in failing to properly irispect. the pawls and

ratchet device to determine the defective nature of. the
same. It was libelant’ s burden to establish that.respon-
dents breached a duty owing to libelant. The District .
Court did not mention the nature of the duty owing by’

‘respondents to Jibelant, but we assume in light of the
Court's finding that the breach consisted of fie failure
‘of respondents to properly inspect the pawl and ratchet
_ device, that the duty owing by respondents was to make -
“a reasonable inspection: to see that the gear and equip-
ment furnished by them operated propertly.

There is no intimation in the written. opinion of the -
District Court that in reaching thé conclusion of negli-
gence, the Court.relied in any way upon ‘the doctrine !
of. res ipsa loquitur, nor does libelant make. any ‘such
contention on’ his appeal. Hence, negligence cannot be

_inferred from the mere happening of the : o¢
“(2) to give the _stevedoring contractor reason-

‘|

able warning, of ‘the’ existence of any latent or.
hidden danger which has not been remedied. and is -
-not usually’ «countered of reasonably to be ex-
pected, by an expert and experienced stevedoring -
-company-,in the performance of the stevédoring | 3.
work aboard the ship, if the shipowner actyally, :
knows, of, in’ the exercise of ordinary care under
the circumstances, should know of the existence of
- such danger, and the danger is one which the ship-
owner ‘should ‘reasonably expect a stevédoring con-
‘ tractor: to encounter in the performagge of the ~
- stevedoring contract.” [Citing numerous cases, pp.

ed 610-11.) 5 eae Ue at ae
‘It is now settled that-to have merely ode over a
: and given to the -use ‘of Stevedore the malfunctioning
and unseaworthy “lift: -gear’’ was not.in and of itself a AGF
breach of Petitioners’ contractual: -duty. Crur ady, supra.
This allowakice, or maritime- license, of conduct between
shipowner and stevedore is predicated upon these policy.
considerations | discussed by Hugev: | anos

. “(a) the possibility, or even probability, of un-
-seaworthiness after. long voyages, and

»(b) .the expertise of the stevedoring company

and tue ee. ' Metropolitan Pp. 876.
- We learn * Hugev ‘that there mist be something

more on the part%of the shipowner, something in the

way of a want of reasonable care, towards Stevedore.

This Court has found that in. failing to discover by
reasonable inspection the unseaworthy “lift gear,” the
- Petitioners were negligent towards Libelant and that
such negligence was one of the .concurrent proximate ‘© |
causes of Libelant’s injuries. ® Assuming that such negli- |
gence “of the Petitioners towards Libelant would also
constitute a breach of - ‘their implied in- fact _ duty in

!

53

favor of Steved ee to use reasonable, care in “discovering 7

latent defects ‘in the “lift: gear, " wevertneioen such: neg-~
lect can be of no avail -or solace to the Stevedore: the
reason being that- we also find that the Stevédore,
through a longshoreman and a hatch boss, had actual
knowledge of. the malfunctioning. and uriseaworthy con-.
dition of the “lift gear’. prior to the accident. ” This”
actual knowledge by Stevedore, even though independ-
ently obtained, intervenes and washes out any non-.

_ feasance “of. Petitioners in performing their implied in-~

“ fact contractual duty | to Stevedore. The’ Petitioners

| owed no duty to restrain the Stevedore from acting or .
using gear in the face of: disregard of a known defect or ©

\ danger. This is exactly what the Stevedore did when it
used with full knowledge of its condition the malfunc-
tioning lift: gear in connection with ° and incidental to
the handling of the ship’ s Cargo pursuant to its contract.

_ The inevitable failure: of the gear and resulting injuries:
to persons in ship's service was most probable and rea-
sonably foreseeable ‘by an. expert stevedore. This fore-
going. conduct of Stevedoie does not carry to and falls
short of meeting the - requirement that the Stevedore

_use gear nécessary and ‘incidental, to the working of the
ship's cargo with reasonable, safety as tésted by steve-
dore expertise... as

From the facts ee in the opinion upon the segre-
gated issue of Petitioners’ liability to. Libeiant and this
opinion, this Court concludes. that Petitioners ‘were not

_ . short in performing their ‘obligations to Stevedore under .

the stevedoring contract and that" ‘Stevedore, while en-
gaged i in ‘its stevedorinig contract to load. and stow cargo,

34

breached its implied in-fact contractual. obligation to
_use the ship's gear, in preparation and incidental to the

h« dling. of cargo, with stevedore expertise and with

_ reasonable safety to persons engaged:-in ship's service,
and that such breach -by the Stevedore was a proximate
‘cause of the falling of the boom. and resulting injuries

to Libélant. This “Court further concludes that the Peti-.

‘tioners are entitled to reparation from the Stevedore to

the: full extent ofits loss, expense and damage on ac-

count of, Libelant’s judgment aforesaid. Hugev,. at p.

612. ; . Og "Footnotes

1. Court’s opinion upon the segregated issue vk Peti-

tioners’ liability to Libelant, entered April 14, 1960. °
’ A. M. C., Fed. Supp.

“There. would seem to be no inapeet of judicial
legislation in the mere permission of suits by long-

be P

|

ee ee ere .
shoremen .and harDof workers’ against iownbes
,.or other third parties..Such suits are ——"
by the Longshoremen‘ s Act. 33 U.S.C. 933. °

“However, criticism: can validly ‘be dyected. at
the extension of the doctrine ¢of unseaworthiness
to longshoremen whose en{ployers are wholly at
fault, permitting recovery from the vessel. Seas
Shipping Co., Inc. v. Sieracki, 328 U.S. 80° (1946).”
Excerpt from an address by’ Edward C. Holden.
Ir., Esq.. of New Yofk City, to the Federal Bar
Association Convention, Washington, D. c, Sep-.
tember 206, 1957.

“The manifest injustice to shipowners leads
to a permissio@ of recovery by the innocent. ship-
owner from the employer of longshoremen, making
recovery from the employer by the employgf by in-
direction, possible in some instance. in plain contra-.

, vention of the Longshoremen’s Act, as‘ was decreed 2

in the Palazzolo case,

“Ryan Co. v) i Atlantic Corp,, 350 U.S. 124
(1956). Black, J., dissenting, ‘at 141, stated: ‘Lia-
bility is thus imposed because of the- negligence .
of the: employer's other employees. This the act

« forbids: Whether called “common Jaw indemnity,”

i “contribution, ’ “subrogation,” or any other name,
the result is, precisely the same, The employer has
to pay more ‘on account of” an injury to his em*

ployee than Congress said he shgu'd.’

ae “Accordingly it must be conceded that the letter
and spirit of the Federal Longshoremen’ s and Har--
bor Workers’ Compensation Act receives scant at-
tention from the courts.’ Excerpt from Mr. Hold- |
en's address. ry fe

- 4. It has Been said that a stevedore’s warranty of
‘workmanlike service’ is comparable to a manufacturer's
warranty of the. fitness of its ncatechine’ products.
Ryan Stevedoring Co. ¥. Pan- Atlantic SS Co., 350

. 56 ee 3 . | | F

US. 124. Generally, see. Prosser on Torts (2 Ed. 1955)
§ 84. : ae ees a
In DiVello v. Gardner Machine Co:, 102 NE2d ‘289 ~
- (Ohio 1951), a manufacturer’s warranty for the: fitness
- of, its product (grinding wheel which exploded) was
extended to the injured employee of. the purchaser of.
. the product, although not in privity of contract of
_purchasé, but being a “workman of the vendee who Was
injured. in its ordinary use because of latent defects.”
For a like holding, see Peterson v. Lamb Rubber Co.
343 P.2d 261 (Cal. Ap. 1959).

Also see Henningsen v. Bloomfield Motors, Inc., 161
A.2d 69, 99-100 (Sup.Ct. NJ, 5-9-60), wherein the Court
says: ee . aes

“In the present matter, the basic contractual re- .
lationship is between ‘Claus Henningsen, Chrysler,
-. and Bloomfield Motors, Inc. The precise issye pre-
' . gented is whether Mrs: Henningsen, who-is not a
; . party to their respective warranties [driver of
defective car] may claim under them. In our judg-
merit, the principles of those cases and the sup-
porting texts are just as proximately applicable to
her situation. We are convinced that the cause of
justice in this area of the law can be served only
by pork il that she is such-a person who, in
the reasonable contemplation of the parties to the _
warranty-might be expected to become a’ user of
the automobile. Accordingly, her lack .of privity
does not stand inthe way of prosecution of the in-—
jury suit against the defendant Chrysler.

“By a parity of reasoning, it is our opinion that
an implied warranty of merchantability chargeable
to either an automobile manufacturer ‘or a dealer .
extends to the purchaser of the ¢ar, members of
his family, aid to other persons occupying or using

it with his consent. It would be wholly opposed to
renlity to say: that use by such persons,is not ‘within
the anticipationsyf parties to such a warranty of
reasonable suitability of an automobile for ordinary
highway operation. Those persons must be. con-

sidered within the distributive chain.
j

“Harper and James sugg¢st that this remedy
ought ,to run to members of ‘the public, bystanders,

defective: automobile. 2 Harper & James, The Law
of Torts, 1956 Ed.. p. 1572."

{

|, Compare Gottsdanker, a_minor, v. Cutter: Labora-
tories, et al.: Phipps, a minor, v. Cutter. Laboratories
(consolidated cases Nos. 18413 and 18414,. District Court
of Appeals, First Appellate District, Division Two, State
of California), ‘enteréd July 12, 1960, wherejn it was.
held that the defendant manufacturer of Salk vaccine
which “contained live virus of poliomyelitis” were held
_ liable for causing the resulting : diseases in each of ‘the
‘plaintiffs when inoculated by’ physicians with the vac-

_ cine secured red through peer: suppliers for_the doc: ~_

for example who are in: thé/ path of harm from a °

tors.

*

Is it not logical to further suggest that. since the
_ Stevedare’s war@pnty to perform his work with, reason-
able \safety runs to the protection of the Vessel, that it

also and necessarily runs to the protection of persons.
working in the ordinary coursé in her service as “sea-.

men pro hac vice”? 7 . ) re
5. “The winch driver called to a ship longshore-

man and asked for ‘a hand’ in attaching the free
end of the pigtail line to the gypsy Head. The winch

- operator did not see this operation, and the Jong-
shoreman involved can give no satisfactory account
of what he did in the way of- fixing the free end ~

“@

58

of the pigtail line to the gypsy head. In any event,

it was somehow attached, but evidently no® P- Ne

erly.” ’ Excerpt from prior opinion.
‘6.:“We held in Calmar v. Nacirema, decided to-

day, 1959 AM.C. 1083, F.(2d)__, that a find-

ing of negligence in supplying such equipment is
not determinative of the shipowner’s right to in-

_ demnity. His action is in contract and recovery,
depends upon whether his conduct has been such.

‘as to bar enforcement of the contract, and ‘not

whether he has been found negligent in regard to |
the longshoremen. Weyerhaeuser S.S. Co. vs. Naci- ©

rema Co., 355 U.S. 563, 1958 A.M.C. 501.” Cited

in American Export Lines v. Revel, 266 F.2d 82

(4 Cir. 1959); 1959 A.M.C. 1073, 1081. -
7. “On the day before the accident, while in the

process of topping the boom involved through the~ ;
". use of the lift gear, the pawls had locked in an

upright position’ and failed to properly function

‘by falling under ‘gravity into a locking position,

and a longshoreman had used a’ piece of dunnage to
strike and knock the pawls irito position.” Excerpt
from prior opinion.

[Endorsed]: Filea August 3, 1960.

BRIE F OF RE SPONDE N TS
IN OPP OSIT. (ON T oO

‘PETIT ON FOR
| GERTIORART

a

CLERK

In the Supreme Court —
uf ie Huited States -

No. 3.0/ , OCTOBER TERM, 1968: 'y
4 .
GEORGE WEIGEL, . a :
; A " Petitionér,
‘ .v. . z
PARTENWEEDEREI, MS BELGRANO ;

and RUDOLPH A. ‘OETKER,
Respondents,

BRIEF OF RESPONDENTS PARTENWEEDERE! ET AL -
IN OPPOSITION TO THE

, -¢ PETITION FOR WRIT OF CERTIORARI

Erskine B. Woop

os *Céunsel for Respondents,
; _ ,1310 Yeon Building, .
, Portland 4, Oregon.
———

eTEVENS-NESs LAW PUB. CO.. PORTLAND. ORE. : . 6-42

‘seamen employees, has been ext

Sd the Supreme Court

GEORGE WEI
Petitioner, .
+ j e

PARTENWEEDEREL MS BELGRANO
and nip eajn A. OETKER, -

| Reisontliste,
2" ~ ; , : é
. “\ BRIEF-OF RESPONDENTS PARTENWEEDERE! ET AL
IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI t"

&

¢

REASONS WHY PETITION SHOUED NOT BE GRANTED

This case is of obvious importance to the individual

” parties involved. But it is not of great importance to any
* large class of workets. | }

The warranty” of seaworthiness - imposing liability
without fault, historically owed by a shipowner to its

to those workers

who, under modern conditignS, are not crew members,

Sacee rec Oi

tion ef law is involved here. The case merely ‘involves

e BO « . pone
but nevertheless perform the y

n and about ships

+. which was ‘traditionally done by the seamen, themselves..
The warranty does not extend to every ‘land» worker

who may come near a ship, regardless’ ‘of the nature of |
his work.

§
“This Court: in United New Vork and nm. J. Pilots
Assn. v. Halecki, 358 US. 613, 3 L. ed. 2d. 541 (1959),

defined. the class of workers to whom the warranty

extends. Regardless of the label on the job, “those. who

. did the ‘type of work’ traditionally done by seamen,

arid were thus related to the ship in the same way as
seamen ‘who had been or who were about to go on a
voyage,’ were erititled-to a a ais ship.”

_ The Court of Appeals applied | that, test. Opinion
Ct.. -Appeals, Appx. Pet. for Cert., p. 24-25). No ques-

the narrow question whether the particular job being
performed by petitioner met this test.

1. The Case is not Important to any Large Class’ of 7
Workers.

‘As vieion above, this case involves only the narrow

; question whether the particular. job being performed |

by — was “the type of work traditionally | done
by seamen,” so as to entitle him to the. warranty of
seaworthiness. “ | ;
, %

The ‘cutding principle of law has already sii estab:
lished. The great majority of. workers fall clearly” into

one . class or, another. Clearly, the longsh oremen who

- actually load and stow cargo are performing seamen Ss

©

fo FE Gna

s°

— es

work. ' Just as clearly, the taxi sinbeie who brings a pas-
= senger to the pier, or the truck driver who brings cargo
to’ the dock, are not performing seamen’s work. Only
in a-small number’ of cases will there be a serious issue
whether ‘the worker's job i is of the type to entitle him to.

the warranty,

_ This Court, having established the principles of ‘law,
can hardly be expected to review the factual details. of
every category of waterfront job to determine whether
that —s job meets the test of “traditional work ~ -
of the crew.’ sc ee

2. Petitioner's Fears of Confusion wai Administrative
Difficulties are Unfounded. :

Sipe a _Petitioger asserts that the Court of Appeals deci-
‘sion will -give_rise to battles of experts, confusion, and:
administrative difficulties—in. determining who is entitled
to the warranty. Such fears are wholly unfounded. oh

_ All that dine Court of Appeals held” was that peti-
= es tioner had not sustained his burden of proving that he
-‘was doing work such as togentitle him to the warranty.

The. pleadings raiged this issug¢ (Pre- Trial Order VI .

(2), R. 8). Thus, the normal burden of proof -was upon
petitioner as libelant. There was no dispute as to the .
nature. of his work. It is described by the Court of Ap-
' peals:
“The libelant was driving a’ tractor on the dock.
. ' “Historically the work of tohding and unloading is the work
'. of the ship’s service, performed until recent times by members of

the ¢rew.” Seas Shipping Co. v. Sieracki, 328 U.S. 85 at p. 96,
° 90 L. ed. 1099 wie 1107.

-

ss)

% -
“hg
> es

fe

His job ‘was to push or pulk-railroad cars loaded |
with lumber up to a point -om the spur track
‘where the lumber could ‘be reached by the ship’s
. loading gear. He did not participate in loading the
lumber onto the vessel or in stowing it. He- had
nothing to do with ship’s' tackle nor did his work
require him to perform any service aboard the ship.
His work was performed solely,on the dock and in’
an operation preliminary to, but separate from, the
work of loading the lumber onto the vessel. Al- -
though libelant’s work brought him close enough to —
the vessel to be injured by the falling boom, lia-
bility arises not from the place of injury but from
the nature of the work being performed. ;

“Was the nature of libelant’s work of the type
traditionally performed by seamen? The only af-
firmative testimony in‘ the. record on the subject is
uncontradicted expert testimony to the effect that
libelant’s work was not of the type, traditionally |

performed .by seamen.” (Op. Ct. Appeals, Appx.
Pet. for Cert., .p. 25)> sg is

The. only evidence in the case was that this type: ‘of
work has traditionally been done by teamsters, not °
seamen, Before the tractor, horses or mules were used .
to bring lumber cargo near enough to the ship. to ‘be
reached by its gear. Seamen were nevér employed as
drivers of teams of horses or mules (R. 473; 487-488,
495).

~

In the vast majority of ‘casés, this issue is not raised,
The plaintiff’ s work either falls clearly within, or clearly
without, “the test of “work traditionaliy cone by the

_crew.’ ’ In those few cases ‘where this issue is involved,

it is no more difficult to resolve than many other
factual issues. “8 Shae . ees.

C

~—

5 °

‘3. Court of Appeals Decision is not in Conflict with any
Decision of this Court, or Courts of Appeal.

As shown “shove, the Court ‘of ‘Appeals decision fol-

lows and - correctly applies the principles established.

by this Court. in United New York and N. J. Pilots
Assn. V. Halecki, 358 US. 613, 3 L. ed. 24 541..

The Conk. of Appeals decision in no’ way pee
with the various Court of Appeals cases holding that a

longshoreman engaged in loading and unloading the

vessel, but working on the dock, is entitled to the war-
ranty. Admittedly, it is not the place where the man ts

‘working that controls:—it is the type of work he was

‘doing. Even ‘members of the crew perform some tasks
‘on the dock, such as handling vessel's lines, rigging gang-
way, painting ship's side, and of couise they are entitled

to. the warranty. So are longshoremen who are engaged:

in loading or unloading the cargo, ‘as for example when

%

they are on the dock fastening the cargo gear to the.

cargo: Conversely, the warranty does not apply to werk .

- aboard the vessel if the type’ of work was not the tra-
dittonal work of seamen. That is the Halecki case.

» THe Court of: Appeals edecision is not based upon.
petitioner ‘being on o dock. The Opinion expressly _

states that “liability arises not from the place of injury
but from the nature of the work being performed.”
(Op. Ct. Appeals, Appx. .Pet. for Cert., p. 25).

_ Obviously, petitioner’s designation as a. “longshore-
‘ man” is not significant. It is’ not the label, but the type
of work that controls. United New York and N. J.
Pilots v.-Halecki. 7

ee ae ° 6

4, The Asserted Conflict with Salem v. ‘Uz S. Lines Does
not Exist. —

On the issue of negligence, petitioner asserts that the
Court of Aippeals decision conflicts with this Court's °
decision in Salem v. U. S. Lines, — US. ae, 61, 28. 34
313 (May, 1962). It. does not. _

The Salem case held that expert testimony from a
naval architect was not required to enable a jury to
decide, “upon Rher testimony and photographs ‘concern-
ing a simple physical structure, whether hand. railings .
should have been provided. . x

The present | ease is different.

First, it is an admiralty case. We have no ' problergp
of the Court invading the province of the jury. Under
M¢Allister v. United States, the Court of Appeals may —
reverse the judgment of the District Court if it is
“elearly erroneous.” It is clearly erroneous when “al-
‘though there is evidence to.support it, the reviewing -
cour, on the entire evidence is left with the definite

and firm conviction that a mistake has been commit-
ted.” McAllister v. United States, 348 US. 19, 99
L. ed..20.

Second, this case involves the asserted duty of in-
spection. And there. was simply no evidence that an ,

inspection ‘could ‘or should have been made which
would répeal the defect. ~ . : js

* The defect in the lift’ gear could not have been
discovered by visual inspection or examination. It was
apparently latent (Op. Ct. Appeals, Appx. Pet: for
Cert., p. 27). (Op. Dist. Ct., note 8, oe Pet. for Cert.,

p. bee

; | \ . Jd
Thus, whatever the. defect was, it cotild only be dis-
. covered by actual operation of using the lift gear to
raise or lower the boom. There were ten such sets of
‘gear, all in use by the stevedores. The lift gear had
worked properly when used at the last loading port,
a few days before,: but -was found stuck during actual
operation when used by the longshoremen the day
before the accident. There was no ¢\ dence whatever |
‘that the ship's officers or crew were aware of the defect.
And there-was no evidence whatever that thefship’s
officers or crew could or should have made an opetating
test of all ten lift gears every twenty-four hours.

The District Court's conclusion of a negligent fail-
ure to inspect was supported by no evidencé, and was
a non-sequitur. based only upon the finding that the-
gear was unseaworthy, * The Court of Appeals correctly
reversed this clearly erroneous coriclusioni of the District.

Court. 4 mi : hs Fadl “Gea
cy -
¥

—

fl : CONCLUSION

ia

For the foregoing reasons, it is respectflly sub-
mitted that the ‘petition for writ-of certiorari: should be
denied. BS , is =

*

SAOe _ ERSKINE B. ‘Woan,
Counsel for Respondents,
_ Partenweederei, MS Belgrano
* and Rudolph A. Oetker.

2 See the District Court Opinion “That there was a malfunction

. of the lift gear . . . is self-evident . . . Therefore, the Court °
_ concludes: °
“Q) That the. respondents and the’ claimant were ‘negligent. .
_ 4 Obviously, the conclusion of negligence does not necessarily follow
frorn the finding of uneepuerenness. (Op. Dist. Ct.. 7 Pet.
for Cert. p. 37).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0470%3A3. Public record. Not legal advice.