# Petition for a Writ of Certiorari — Porrata y Veve v. Fajardo Sugar Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0496%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 876 ## Text , Ottice Supreme Court, U.S. Evie | FILED -. tee . * oe PA a } AUG 10 1562 * Pp ree ani of " ss United ’ ates F. DAVIS, CLERK | ¢ OcToBER TERM, 1961 f. “5 : % - - me ‘7 B20 -E. J. Lavino and Company, Petitioner | ion i ; . Vv. *~ - F ° _ ° UNITED STATES LINES CoMPANY, Réspondent / ; A ——__, . ~~ see ee PETITION FOR A WRIT OF -CERTIORARI TO THE | UNITED STATES COURT OF.APPEALS FOR ‘THE THIRD ; CIRCUNT | > MICHAEL A. FOLEY, — 721 Western Saving Fund Bldg. - Philadelphia, Pennsylvania Counsel for Petitioner, = . | E, J. Lavino and Company Martin & Lyle, 1025 Bonkers Securities Bidg.: Phila. 7, Pa. \ | ° i ere 3 nei 3 eens Page Opinions Below A Se eee ‘. - Jurisdiction Sey ae | Questions Presented + bes - Statement of the Case - - Reasons for Granting the Writ | x : : ; Appendix | Sse eae ar .*. CITATIONS, - Cases: - American Export Lines v. Revel, 266 F.2d 82 10, 12; ee Crumady v. The J. H. Fisser, 358 US. 423 10, 12, 13 Rogers v. United States Lines Co., 205: F.2d 57, 347 _——S-964— 3 Ryan Stevedoring Co. v. . Pan-Altlantie § Ss. Corp, 350° U:S.124 ae oss a hy 1m, 18 - Waterman Company v. Dugan: & McNamara, 364 as US, 421... - een eg Weyerhaeuser S.S. Co, v. Nacirema Co., 355 U.S." 563 - 3 10 as A a Statutes: Se 3 United States Code Title 28; Sec. 1254(1)- a 4 . P : 7 oat “ia 7? + aaae: INTHE _ Supreme C Court of the United States. —— - OCTOBER TERM, 1961 co me - | ey No. oC EB. J. LAVINO ard COMPANY, Petitioner KAY / ' fed Unfep STATES LINES COMPANY, Respondent oe : PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES | COwRT OF APPEALS FOR THE THIRD CIRCUIT —— ——_— | ‘Petitioners pray that a Writ of Certiorari i issue to review the judgment of the United States Court of Appeals for the Third Circuit entered i in the above case on May 15, 1962. + "+ OPINIONS aa ———— ——— —$——— . ——_—————S —_————~~The opinion of the United States District Court for the ; Eastern District of Pennsylvania is reported at 198 F, has "Supp. -483. se The opinion of the United States Court of Appeals ee the. Third Circuit is teperted at 303 F.2d ——. 1 F - an e " 2 . "JURISDICTION eS ns The judgment - the United States Court of Appeals for, the Third Circuit: was made and entered oh May 15, 1962, and a copy thereof is appended to'this petition in the appendix at pp. 14 to 20. The jurisdiction of this Court is invoked under 28 U. S.C. 1254" 1). ia ‘QUESTIONS PRESENTED FOR REVIEW - This is a maritime action for indemnity ex contracto brought by a ship owner against the consignee of a-portion — : of the ship’s cargo to recover damages, together with in- .. terest, costs and attorneys’ fees, which it was compelled to pay to a longshoreman who was injured while assisting in _ _ the discharge of the eargo involved. The injuries resulted from the use of. inadequate equipment by the’ stevedoring contractor. — There was.an “integrated contract of carriage between the parties (under an F.J. & O. Bil! of Lading) which re- * . quired the cargo owner to pay the stevedore’s charges but imposed" no other or duty en the pcomanee | in regard to the unloading. | The cargo owner contracted directly with an independent stevedore for the removal of this, and: prior cargo, and this — arrangement bétween the cargo owner and independent stevedore was known beforehand and at the time of booking of the cargo by’ plaintiff, the respondent herein. On this -basis the District Court ruled that the consignee (peti- tioner) was under: an implied contractual duty to arrange A for the discharge of its own eargo and therefore on a - tf . . ‘in dealings. The Court ruled that the sation followed betw een the consignee and’ ship on previous occasions that consignee K. would engage a specific indépendent. stevedore to ‘unload \, the cargo imposed. an implied contractual duty to employ | the steveddre in the present. shipment. - The Court reasoned that this implied contractual duty : was the equivalent. of the consignee agreeing to “arrange — _ for the discharge of its own cargo”. The Court then equated ‘these words" with: an agreement by the consignee to “be responsible for the discharge” of its own cargo and finally, carrying semantics to absurdity, rephrased the implied duty ‘? into obligation to perform the discharge of the cargo. _ The District Court then declared : “Wherever an agreement has been made with an owner or operator.of a.ship requiring a party to be responsible for the unloading, that party is obligated to see that it * is done i in a safe, workmanlike manner and to indem- nify such owner or operator of the ship for failure to™. ‘comply with that undertaking. See Ryan Co. v. Pan-. Atlantic Corp., 350 U.S. 124 (1956) ; Weyerhaeuser’ S.S. Co.'v. Nacirema Co., 355 U.S. 563 (1958) ; Cru- mady v. The J. H. Fisser, 358 U.S. 423 (1959) ; Water- man Co. v. Dugan & McNamara, 364 U.S. 421 (19607. (107a).’ ee iN The Court of appeals concurred i in this t reasoning, stating in part: ° ren “This is a matter of contractual indemnity which need. not be in writing and may, as in this instance, be im- plied. Weyerhaeuser SS Co. v. Nacirema Co., 355 U.S. 563 (1958); Ryan Stevedoring. Co. v. Pan-Atlantic Corp., 350 Us S. 124 ( 1956). As we see it, appellant’s Fy failure to make the stevedore employer a third party defendant in no way delimits the application of the _ above — to this appeal. , “What remains is whethes indemnifi sation should be defeated solely because appellant did not directly un- load-its cargo but had that attended to by its stevedor- - ing division. We are satisfied that it should not. There is no longer any guess concerning the relationship ‘of : the parties. Appellant, in accepting responsibility for - the unloading of its cargo, eritered into “a contractual ° ‘undertaking to perform ‘with reasonable safety’,”’. '. Weyerhaeuser, supra. p..565. This suit comes’ well within the qppreme Court’s description of the Ryan claim.” : « “ ; The opinion of the Court of Appests contains several errors of which note should be taken: In the above quotation from page 5 and at page 2-the Court mistakenly states that : “the Stevedore, Lavino Shipping Co-..is a division of E. J. Lavino Co., Petitioner; at P 2 the Court states that Wolcott Heyl is a Vice President of Petitioner and quotes part of his testimony. Heyl i is a Vice-President-of Lavino Shipping - ‘Company, the Stevedore, and his testimony was that the stevedoring division of Lavino Shipping C ompany tLavino . Shipping. Co., hag ateaipatdaad Div. ) discharged the cargo. See ' 25A. , “Fhe Court of Appeals also refegs to the stevedoring con- tractor as 2 subsidiary of Petitioner. The Findings of Fact "of the District Court. Nos, 8, 9 and 13 (99a’‘and 100a) are to the direct contrary. eae from the word “Laviro” in their corporate titles, there i= 1S~no_connection whatever be- . tween these companies. There is no~identity of interests | between them and they are.insured by different liability insurance companies, The ev idence reveals — Sd ial e- =} ee ‘Court found in fact that they are separate and distinct | corporate entities 42, 100a.+3, 105a. Nor is there any guestion in this case of agency or of a master-servant: relationship; the stevedore was an independent contractor ; (p. 994 =8, 100a +9 & 12; 105a) ; indeed, if jt were other- . wise, the prior judgment in favor of the stevedore w ould "be a bar to the present action. care On page 3 the Court states that “E. J. Lavino, repre- senting Lavino Shipping Company, actually directed the manner and method of :the cargo’s discharge”. This is a . Misstatement—the work was done by the stevedore. Peti- tioner took no part whatever in these arrangements or dis- charge; it is not a stevedore, nor is it equipped to do any — work (99a, +8; 100a =9 & 13, 105a). REASONS FOR pecs WRIT The United States Court of aed for the Tuird Circuit ° has decided an important question of ‘admiralty i iaw which the Supreme Court has not but should rule on, which is in conflict with the opinions of the Supreme Court in Ryan . Co. v. Pan Atlantic Corp., 350 U.S. 124 (1956) ; Weyer- haeuser S.S.-Co.%, Nacirema Co., 355 U.S. .563 (1958); _Crumady v. The.J. H. Fisser,.358 U.S. 423 (1959) Water. may Co. v. Dugan & McNamara,. 364 U.S, 421: (1960), | which tends to vitiate basic and traditional concepts of the” law. of contracts in the area of maritimé indemnity, and © which conflicts with the opiriion-of the United States Court gr the Fourth Circuit in American Export Lines ” v. —_ el, 82. ey ea The opinions below stand for the proposition that. a cargo owner who contracts with an independent stevedore - ok 11 for the removal of its cargo thereby agrees to indemnify the ship against ~: loss caused by the stevedore’s negli- gence.. In effect, they gave the ship the right, at its lection, to recover from the cargo owner or’ the stevedore damage ~ paid by the ship. toa third party injured by the stevedore’s ° ‘ substandard performance. The stevedore’s duty ‘to indemnify ~ been set sopshaa 2 clearly in the Ryan cases: This Court has not éonsidered the question of the liability a the cargo owner where the latter directly engages the 'stevedore. This is a question prebably of greater importange and wider applicability-than that considered in the Ryan cases. There are many reasons why a ship owner would. prefer to look to the cargo owner rather than the stevedore | if it has this clection: solvency, preference as to a forum, amenability to service, preference as to a party defendant, _and other reasons arising from relations between parties. The question is of significance in the maritime industry and . should be decided by this Court. » 2. The lower Courts while sion to base their deci- sions on the authority of the Ryan cases are in direct con- flict with the express language, the reasoning and the underlyi ing principle of those cases. Ryan expressly and emphatically rejects the theory of quasi contract as the basis for granting indemnity. In those cases the Supreme Courg reasoned that a skilled contractor who undertook to render a service did, .by virtue of his -expertness, impliedly warrant that he would perform his+ work in a professional manner and the Court held the. steve- doring contractors liable for a breach of this w arranty. In the instant case, the consignee is not a stevedore, it did not undertake any service, it had no part at all in the 12 unloading of the ship; at most, it agreed prior to the con- tract of carriagé to employ a specific independent stevedor- ing contractor. If the consiznee is liable to the ship owner in this case, its liability can rest only 0 on a duty imposed by law.’ | 3, Indeed, the effect of the decision below is ta impose the " duty to indemnify notwithstanding the written contract of carriage. The bill of lading purported to be an inte- grated contract was so recognized by the ia eaea g it - was drafted by respondent: Yet, the case was decided on the basis of an alleged con- tractual obligation arising from prior dealings from which — the quasi-contractual obligation to indemnify was implied. The findings of fact do not support this conclusion. The decisions in Ryan and Crumady_may represent a step in the evolution of the law of con actual indemnity but they are not authority for abandoning the fundamentals of contract. law as the Seriaton 1 in this case suggests. 4. Revel is similar to this case in the following’ respects: a ship owner paid a longshoreman who was injured while unloading the cargo as a result of the stev vedore’ s negligence; _. the cargo owner engaged the stevedore directly ; the ship sued. the cargo owner for vce 4 and the District Court _ found for the ship. Revel is distinguishable in tie following cals: the _ cargo owner expressly agreed in the charter party to “per-. 'It should be noted that although tort concepts played tio ‘part in the Ryan, Weyerhaeuser, Crumady and Waterman decisions the re- sult of each case was to require.a wrongdoer to bear the burden of his wrong. In the ease at bar the. shipowner who. was at least pas- sively negligent and who was in a position to prevent, the accident chas been granted indemnity as against a party who was not negli- gent in any sense or degree. =¥ \ lo, > form” the unloading; the cargo owner, United States ’ MLS.T. s. was probably the world’s largest master stevedore;. the case was decided by the District Court before Crumady. and the cargo owner's liability was not directly decided by _ the Court of Appeals because the appeal of cargo owner was - withdrawn. However, in noting the question of the liability of the cargo owner the appellate Court said: “It appears from the District Court’s opinion that judgment w as entered for ‘Export against the United States and for it against White- hall, simply because the Court was uncertain whether judg- ment could be entered. directly for the owner against the . stevedore, omitting the charterer. This uncertainty has been - resolved by the Supreme Court in Crumady.” — In the case at bar the lower Courts cite Revei as authority for their decision. To the mind of Petitioner the quoted language indicates that the Fourth Circuit would go the other way were the question squarely raised. But if Reve! - does support the opinion below it is a mere compelling reason for the Supreme Court to decide this question than would be a ‘conflict between circuits, as it would : siderable authority-te-this perversion of the Ryan dation .: which imposes liability without _ and without consent. WHEREFORE, petitioner pray: s that aw rit of certibrari _iskue.to review the judgment of t! ie United States Court of Appeals for the Third Circuit in this cage. MICHAEL. A. FOLEY Counsel for Petitioner 14 Appendix eh _ UNITED STATES COURT OF APPEALS For THE THImp CIRCUIT No: 13,666. FAMOUS ROGERS -* ; wv. ‘ UNITED’ STATES LINES c OMPANY, Defendant and Third-Party Plaintiff, on E. J. LAVINO & COMPANY, _ | Third-Party Defendant-A ppellant: — - ee > _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA . Argued December 19, 1961 Before McLAUGHLIN, KALODNER and 7 cw ary Judges. OPINION OF THE COURT (Filed May 15, 1962) a, MCLAUGHLIN, Cireuit Judge. The base of the present action is a final Solace in favor of Rogers, a longshoreman. for damages arising out id Peat et, ood, IY of personal injuries against United States Lines Company. The latter is the owner of SS Pioneer Tide. Rogers was helping to discharge the Pioneer Tide's cargo: ‘when he was -.” hurt. E. J. Lavino & Company was the consigriee of the cargo. The trial court, sitting without 4 jury, found that _E. J. Lavino & Company had the duty and responsibi lity, " {0 arrange and pay for jhe discharge of the cargo which it. did through its subsidiary, Lavino Shipping Company, a stevedore contractor by whom Rogers was employed.’ -The court held as a matter of law that the ship’s liability to . Rogers arvve from the fact that the discharge of the cargo was not carried out. in a reasonably safe, proper and work manlike manner: thet E.J. Lavine & Comeaniv was under a duty not to expose Tri A tle Lies to damage or Joss arising out of the ua of the cargo; that FE. J. Lavino © - & Company failed to perform that dons through its agent; tha: E. J. Lavino of erga impliediy warranted to United states Lines the careful: proper and workmanlike . performance of yHe discharge; that E: J. Lavino & Fom- _ pany breached/that duty and that United States Lines -is entitled to indemnity agair&t E. J. Lavino & Company for the amount paid by the former to Rogers in satisfaction of his claim. with interest and for reasonable counsel fees and expenses incurred in defending against Rogers’ claim. Appellant attempts to restrict the contract between the parties solely to the hill of lading. However, the trial judge ‘found that, ‘in addition. to the bill of lading, “* * -* the ptactice followed between plaintiff .( Umited States Lines) _and defendant ‘ E. J..Lavino € Company) on previous ocea= - | Sions that. defendant would arrange for the unloading’ by ‘the Lavino Shipping Company on its behalf became j an im-— 1 Wolcott M. Heyl, Vice President of E. J. Lavino & Company, testified that Lavino Shipping Company “* * * is # s#parate division - - of the company.for handling stevedoring.” o 16 plied term of each contract of F. I. O. shipment of ore from . the Philippines to Philadelphia and was a term of the con- tract. covering this shipment, only part of such agreement being integrated into the F. 1.0. bill of lading" * *. The agreement that defendant would’ arrange for the discharge ‘of wih cargo became firm at the time the booking letter was .” The record justifies the finding. Lavino, by point- ‘ing a references to the bill of Jading in the ship’s pretrial memorandum and a comment by the judge, seems to be con- tending that the case was tried on the bill of lading alone. Actually, United’ States Lines pretrial memorandum as- serted several grounds in support of its claim for indemnity among them: “4. In vieqgof the: relatiofiship of the parties, E. J. - Layino & Company impliedly warranted to U. S. Lines’ _ ‘the careful, proper.and workmanlike performance of the discharge by the persons or parties selected by E. J. Lavino & Company ‘to do the work. E. J. Lavino & Company breached this warranty. if ; United States Lines, through its pier ea super- intendent, presented evidence that F. I. O. on a bill of lad- _ing, standing for the phrase “Free In and Out”, meant that the carrier had nothing ‘to do with the loading or un- loading of the specified cargo. With reference to Lavino chrome ore shipments, the type here involved, the United States Lines had nothing to do with arranging for the dis-. ; charge of Gargo. E. J. Laving & Company representing _Lavino Shipping Company, actually directed the manner - and method of the cargo’s discharge, even notified United | States Lines where it wanted the vessel, arranged for its | berth. and for railroad cars to receive the cargo. Said the - witness “When .that vessel docked at the st they des- - > aa ignated where they wanted their cargo, it was delivered as far as we were concerned, according to this bill of lading.” - ~ Mr. Heyl’s testimony on cross-examination was of sub-. stantial assistance to the ship’s above quoted theory ‘of indemnity. He had said on direct examination that it was the carrier's obligation under an F. I. O. bill of lading to both carry and deliver the cargo. On cross-examination he stated “In this’ particular instance the discharging was ar- ranged ‘by Lavino Shipping.Company because of the fact - that the expenses were not for account of the vessel. * * ‘* In this specific case, due to the fact that we have our own stevedoring setup, the ship says ‘Go ahead,’ and we can do that, it is all right, take it off, and that’s it. * * * Well, we just. might say this, that ingsmuch as there a number of ~ these parcels of ore being gularly carried, and it is all _ done on the basis of what—-in each case the same, it was ‘known beforehand that it would be elected that the Lavino Shipping Company arrahged to take it free of expense to - the vessel.” .- | Set After the completion of the trial evidence the court : "_ acéepted a proposed conclusion of Jaw from the ship plain- tiff reading: : aN . Fae “Under the evidence and the applicable law,-the~~ — relationship between the parties ‘was such that E. J. - Lavino & Company impliedly.warranted to United States Lines Company the careful, proper and work- manlike performance of. the discharge. E. J. Lavino & * Company breached that warranty.” : _ Plainly, the question whether the parties had agreed that the appellant discharge its cargo was properly before the trial court for decision. - — - : This brings us to the main point, whether under the facts as found by the court, United States Lines was en-, 18 '- tithe to indemnity from its consignee. Certain funda- mentals can be disposed of quickly. We are not dealing here, as is suggested, with a claim for indemnity By atort- | feasor on a theory of passive negligence.’This is a matter . © of contractual indemnity which need ne. be in writing and may, as in this instance, be implied. Weyerhaeuser SS Co. v. Nacirema Co., 335 U.S. 563 (1958) ; Ryan Stevedoring Co. v: Pan-Atlantic Corp., 358 U.S. 124 (1956).2 As we see~ it, appellant’s failure to make the stevedore employer a _ third party defendant in no way @limits the — of the above principles to this appeal. What remains is whether indemnification should ‘ de- feated solely because appellant did not directly unlload its cargo but had that attended to by its stevedoring diivision. We are satisfied that it should not. There is no longer any guess concerning the relationship of the parties. Appellant, in accepting responsibility for the unloading of its cargo, ° entered into “a contractual undertaking to [perform] ‘with reasonable safety’,”. Weyerhaeuser; supra, pp. 565. This suit comes well within the Supreme Court's dlescrin- tion of the Ryan claim. “It is a simple action to recover, under a voluntary and self-sufficient contract, for a sum measured by foreseeable damages occasioned to the ship- 9 owner by the injury or death of a longshoreman on its ship.” Ryan Stevedoring Co., Inc. v. Pan-Atlartic Steam- ship Corp., supra, p. 130. i _ \A strikingly similar situation to the one beforé us was - - passed upon by the Fourth Circuit Court of Appeals in American Export Lines, Inc. v. Revel, 266 F. 2d 82 (1959) — which affirmed an award of indemnity by the district court, Revel v. American Expoft Lines, Inc., 162 F. Supp. 279 A rtrd There the ship had space-chartered a portion of © "2 See also Crumady v. The J. H. Fisser, 358 U.S. 423 (1959) ; “Waterman Co. v. Dugan ard McNamara, 364 U.S. 421 ( 1960). 5 . _19 * its: cargo space to the United States. The loading and Qn charging of theparticular cargoavas the responsibility of- * the Government. There was no specific provision for in- demnity to the vessel. The Government- had an independ- ent contractor perform the stevedoring services. He re- eovered against the ship: The district court found that ‘the - ship had the right to be indemnified by the United States.” The court said pp. 286-287: | . “While itis manifest that the United States is rot responsible for the negligence. of*an independent con- tractor such as Whitehall, there would seem to be an implied contractual agreement between Export and the United States wherein the United States agreed to provide the stevedoring services’to such extent as they would be\pérformed ‘with reasonable safety’. This is the import of Weyerhaeuser which disclaims the neces-. sity of an express indemnity clause.” — Speaking of the shipowner’s claim for indemnity Judge Sobeloff in his cireuit opinion said p. 87: “His action is in eontract and recovery depends upon whether his conduct kas been such as to bar enforce- _ment of the contract, and nét whether hé has been * found negligent in — to the longshoreman.” Appellant has not éalled our’ attention. to any reported opinions. which indicate that, recovery’ should be denied - under the factual and legal circumstances, involved. The agreement found to exist between Uffited States Lines and a appellant in essence is no different from contracting Lo sup | 3 Jt should "be noted that i in Revel ‘the United States had made the stevedore contractor a third party defendant and was allowed re- : ony over against it. | ¢ ° “ Oo. =) . OR YE * 4” — iar a ete ae ee, ply a suitable ship’s berth as upheld in .Ciffes Service-Go——_ - v. Gulf Refining Co., 79 F.2d 521 (2 Cir. 1935). See also » ° Kirk v. Are Steamship Company, 21 F.R.D. 293 (S.D.N.Y. » ,, 1958); DiMeglio v. The Black Condor, 1” F. Supp. 865 ~_ (S.D.N.Y. 1954). United States Lines was sictei