Appendix — Weinstein v. New York

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Appendix

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Opinion of the Distriet Court)... 66.50.55 ss sere se 1

Opinion of the Court of Agee < 3°

Orders of the Court of Appeals, “Seer - a Re "2s

Opinion of the Court of Abec ‘als on Re hearing. Sa ae |

Judgment of the Court of Appeals ........---, gi teseess 34

Order of the Court of Appeals Denying Rehearing... ... 36

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OPINION | ?

Kast, J. see Re SEE

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[Title of District Court and Cause]

Libelant was awarded herein agdecree of damages

against the Respondents and Claimant (Petitioners): i

compensation for personal injuries recejved while work-

ing as a dock-working longshoreman employee of Brady-

Hamilton Stevedore. Company (Stevedore), third-party

respondent herein, then engaged an loading and stowing

the M/V Belgrano (Vessel) with lumber eargo and in all

respects performing the stevedoring work on dock and on

board the Vessel pursuant to a stevedore contragt with the

representatives of Vessel. ei

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With the view of placing ultimate liability, if any, at

the deorstep of Stevedore, the Petitioners interpleaded the

Stevedore, petitioning for “indemnity and reparations for

all loss that they might sustain by reason of Libelant’s

claims. The Petitigners = inter alia:

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“2. As contracting stgvedore, jnapleadedg respondent

owed the bisitind contractual ‘obligation to perform: the

stevedoring work in a safe and proper manner, .

"6. [fet Petitioners) herein should ‘be held liable in

this case to libelant, then (Petitioners) have a right te

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recover over against-impleaded (Stevedore) for full and

complete indemnity because of said (Stevedore’s) failure:

perform its stevedor® contract in a safe and proper

manner * * *:’" | 15, y

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**4. The gear and inachinery of the vessel were i in good |

and seaworthy condition, and the accident was caused by

negligence of (Stevedore) -in failing to properly use said

gear and inachinery, and particularly in failing to prop-

erly secure the topping lift pennant ‘(pigtail line) to the

. winch gypsy head.

“5. If the gear and machinery of the vessel were un-

seaworthy at the'time of the accident, which (Petitioners)

deny, then said unseaworfhiness was either created by the

negligenee of (Stevedore), or was ‘brought into play’ by

(Stevedore’s) improper use of said gear and machinery

or by (Stevedore’s) negligence in using said gear and

machinery after knowledge of its condition.”’

C.

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**6. * © * and (Petitioners) are entitled to recover from

and against (Stevedore) for all damages that mdy be

- awarded herein and for costs and expenses, including such

reasonable attorney’s fee as may be incurred by (Peti-

tioners) in defending against the libel.”*

7

The issue of indemnity was segregated and reserved

awaiting adjudication of Libelant’s claims against Peti-

tioners. :

In connection with the segregated issue of Libelant’s

claim, the Court concluded! -that the Vessel Was unsea-

worthy in that her topping ‘‘lift gear’’ for the starboard

boom at No. 1 hatch malfunctioned and permitted the

'Court’s opinion upon the segregated issue of Petitioner’s lia-

hility to Libelant, entered April 14, 1960. 1960 A.M.C. 867: 189

Fed. Supp. 103.

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boom to fall uporf the Libelfint, and more particularly;

**(1) eee

eof

Rais : 7”

3. That ¢pawls) on the ratchet in the topping lift

gear was (were) defective, and inadequate in that it (they)

did not drop into each cog as the hoom was hoisted so as

to prevent the boom from falling."’

egy That (Petitioners) were negligent in: ,

Sey, Failing ‘to properly inspect said vessel and par-

gicalarly the said ratchet and (pawl) device to said hateh

. 2?

to determine the defective nature of same ( Reason-

able inspection would have disclosed the malfunctioning

of the pawls, known to the longstioreman the day before.)

“O. Failing to provide (the) libelant With a safe place

k * @ @°°9 -

to wor

“¥ .

“(3) That said unseawerthiness of the vessel and con-

. . . ‘ inf . °

curring negligence eof (Petitioners) were the proximate

causes of the falling of the boom and libelant’s resulting

injuries.”* ‘ af

The segregated and reserved issue of Petitioners’ clajm

for indemnity from Stevedore is now ripe for packaging.

. ¥ e

As will be later pointed out, the cirele of judicial legis-

lation is now compléte except for trinuning the loose ends

of the knot and making it shipshape. The longshoreman

who was deprived of a cause of action to recover damages

for personal injuries caused through the negligent act of

his emploving stevedore by the Longshoremen’s and Har.

hor Workers’ Compensation Act of 1997, 38 U.S.C.A.

£901, etseq., has now for all practical purposes regained

this comfort. : } Dire

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The first stage of this metamorphosis commenced by

clothing the longshoreman (seaman pro hac vice) with the

mantle of protection against unseaworthiness of the Ves-

sel in whose service he worked, all to the despair of the

shipowner.?

¢

stevedore to accountability for causing the unseaworthy

condition through the now out-of-favor theory of active

negligence of stevedore versus passive negligence of the

shipowner.®

Then the third stage, where a stevedore is now ulti-

mately liable to make reparations for loss@tesulting from

° ?

“There would seem. to be no aspect of judicial legislation in the

mere permission of suits by longshoremen and harbor workers

against shipowners or other third parties. Such suits are con-

‘templated by the Longshoremen's Act. 33 U.S.C. 933.

“However, criticism can validly be directed at the extension of

the doctrine of unseaworthiness to longshoremen whose employers

are wholly at fault, permitting recovery from the vessel. Seas

Shipping Co., Ine. ¥>Sieracki, 328 U.S. 80 (1946)." Excerpt

from an address by Edward C. Holden, Jr.. Esq., of New York

City, to the Federal Bar Association Convengon, Washington.

D. C., September 20, 1957.

@ The manifest injustice to shipowners leads to the permission

of recovery by the innocent: shipowner fron the employer of

longshoremen, making recovery from the employer by the em-

ployee, by indirection, possible in some instanees in plain contra-

vention of the Longshoremen’s Act, as was decreed in the Palazzolo

case.

‘ Co. v. Pan-Atlantie Corp., 350 U.S. 124 (1956). Black,

J.. df@fgting, at 141, stated: ‘Liability is thus imposed because

of the @#eligence of the emplover’s other employees. This the aet

forbids. Whether called “common law indemnity,” “eontribution,”

“subrogation,” or any other name, the result is precisely the same.

The employer has to paysmore “on account of” an injury to hie

employee than Congress said he should.’.

“Accordingly it must be conceded that the letter and spirit of

the Federal Longshoremen’s and Harbor Workers’ Compensation

Act receives scant attention, from the courts.” Exeerpt from

Mr. Holden's address.

,

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its breach of a pre-existing continuing contractual duty,

namely, the failure while performing its stevedore con-

tract to meet its contractual warranty to handle the cargo

and use the ship’s-gear incidental thereto with reasonable

safety in light of expertise gn the fidd. This is so even,

though the ship’s gear may have been mulfunctioning and

therefore unseaworthy when taken ‘over by a stevedore.

Smith v. Jugesalvenska Linijska Plovidea, 278 F.2d 1762

t p. ISO (4 Cir, April, 1960), c:ung Crumady v. The

Joachim Hendrik Fisser, BAS ULS. 423 (1959).

.

Will the evele be eventually completed with a fourth.

stage judicial, sanction of an-action by the injured tong-

shoreman directly against his defaulting emplover-steve-

dore, on the premise that the longshoreman was engaged

in ship's service and was a person who in the reasonable

contemplation of the parties to the warranty might be

expected to'be injured through failures caused by’ the

Stevedore’s breach of warranty to handle cargo and use

ship's gear incidental thereto with reasonable safety

‘Ir chas heen said that a stevedore’s warranty of workmanlike

servies is comparable to a manufacturer's warranty of the fitness

of its manufactured prednets. Ryan Stevedoring Co. v. Pan-

Atlantie SS @o 5 450 UlS. 124. Generally, she Prosser on Torts

(2 Ed. 1955), 5 4. iz

In DiVello v. Gardner Machine Co, 102 NEvd 9S (Ohio 195]

a manufacturer's warranty for the fitness ef its produet (erinding

wheel whieh exploded) was extended to the injured e:nployee of

the purchaser of the preduet, although not in privity of contraet

of purehhse, bat being a “workman of the vendee whe was in

jured im its ordimag” use heenuse of latent defeets.” For a like

holding, see ‘Peterson vo Lam Rubber Co... 343 P.2d 261) (Cal,

App. 1959).

Also see Henningsen vo Bloomfield Motors, Ine, 161 A2d 69,

99.100 (Sup Ct. NJ, 5-9-6000 wherein the Court: says:

“Tn the present matter, the hasie eomtraetual relationship Is

between Clans Hlenningsen, Chrysler. and Bloomfield Motors, Ine

The precise issue presented is whether Mrs. Henningseri, who is

6

In view of the ultimate holding to follow, it is not

neressary to deal with Petitioners’ contentions (B, above)

of a breach of Stevedore’s warranty by reason of negli-

is gent use of the Vessel’s gear (pigtail.line dog and gv psy

head locking devices) by a longshoreman-employee of

Stevedore, which in turn ‘*put into play’’ the defective

and unseaworthy “lift gear’’ was under the teachings of

Critimady. ;

in the way of prosecution of the injury suit against the defendant

(Chrysler. a

. “By a parity of reasoning, it is our opinion that an implied

warranty of merchantability chargeable to either an automobile

manufacturef or a dealer extends to the purchaser of the: ear,

members of his family, and toe other persons oeeup¥ing or using

it with his consent. [t would be wholly. opposed to reality to say

that use by sue¢h persons is net within the anticipation of parties

to such a warranty of reasonable suitability of an automobile for

ordinary highway operation. Those persons must be considered

within the distributive chain.

“Harper and James suggest that this remedy ought terran to

members of the publie, bystanders, for example, who are in the

path of harm from a defective automohile. 2 Harper & James,

The Law of Torts, 1956 Ed.. p. 1572."

Compare (iottsdanker, a minor, v. Cutter Laboratories, et al...

Phipps, a minor, v. Cutter Laboratories (consolidated cae s Nes.

18413 and 18414, Distriet Court of Appeals, First Appellate Dis-

trict, Division Two, State of California), entered July 12, 1960,

wherein it was held that the defendant manufacturer of Salk

vaccine whigh “contained live virus of, poliomyelitis” were held

liable for eausing the resulting diseases in each of the plaintiffs

when inoculated by physicians with the vaccine secured through

independent suppliers for the doctors. ;

Is it not logical to further suggest that since the Stevedore's

warranty to perform his work with reasonable safety runs to. the

protection of the Vessel, that it also and necessarily runs to the

protection of persons working in the ordinary course in her

service as “seamen pro hac’ vice”?

OS ar

a e

In passing, we might say there is strong suspicion of

such negligence” but suspicion ino and of itself is not as

vet cireumestantial evidence. of negligence.

The Rnable basis of Petitioners’ claim for indemnitiea

tion isximply the aliewed breneb ty Stevedore of the con

*tractual implied in-fact warranty in “its stevedoring con

‘tract to perform its contract with reasonable safety,

For the duties of the Stevedore to the Petitioners in the

porformance of its stevedoring contract, we find that:

“UP]n Weverhaeuser SS. Co. vo Nacirema Operating

Co. 1958, 355 U.S. 568, 467.78 S.Ct. 438, 44, 2 Ld. 2d

41, the Supreme Court, after stating that the stevedore's

contractnal obligation to perform his work with reasonable

safety related not only to handling of carge, but ylso fe

the use of equipment tnerdental thereto, said: ** * AN in,

that resard respondent rendered a substandard: pert Arn”

ance Which led te foreseenble liability of petitioner, the

latter was entitled to indemmity absent conduct on its part

sufficient to preclude recovery, * * *" While ao standare

to be applied te ‘eonduet * sufficient to preclide re

COVERS “has net been ereated, it hag been decided that the

mere tugpishine of defective canipment by the shin te the

stevedore does mat bar recovers Sover tinder. the contract,

cy

Crimady vo The Jeachin Hendrik Risser supra: Calmar

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S.S. Corp. ¥. Naecirema Operating (o., Cir. PM, van

The winelh driver, called. to a shin Tongshoreman and asked

for ‘a hand? in oe thegfires end ‘of the piatail line) to the

gvpsy lead The wine operator didi mot see this operat an, ane

the lonusharentan involved enn lve te savisfaeterc on fis aft

what be did in the way of fining the free end af the geatail line

to the wvpss hened In anv event, i we SEND Ne Tyas attuehed, boast

evidently net property” Exeerpt from prior opinion

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F.2d 79; American Export Lines, Inc. v. Revel, 4 Cir.,

1959, 266 F.2d 82.’’ [Emphasis supplied. ] eo

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‘Although the contraétual obligation of Stevedores in

this case arises through implication by the conduct of the

parties, we are of the opinion that such contract was

binding. ‘Restatement, Contracts §5 (1932). As is stated

in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956,

350 U.S. 124, 133,-76 S.Ct. 232, 237, 100 L.Ed. 1338:

:¢ © © This obligation is not a quasi-contractual obli-

ek implied in\ law or arising out of a non-con-

tractual relationship. It is of the essence of peti-

tioner’s stevedoring contract. It is petitioner’s war-

_ ranty of workmaniike service that is comparable to

a’ manufaciurer’s warranty of the soundness of its

manufactured products. ° ai

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‘© © © The shipowner’s action is not changed from

one for a breach of contract to one for a tort simply

hecals serecovery may turn upon the standard of the

perfokmance\ of petitioner's stevedoring service,*’

Smith \v. Jugosalvenska | inijska Plovidea, supra.

The full acceptance by the Supreme Court of the United

States in Crumady of the rationale of the foregoing con-

tractual-duty theory rather than the active versus passive

negligence theory of Stevedor’s liability for indem-

nity was anticipated and forecast by District Judge Wil-

liam C. Mathes in Hugev v. Dampskisaktieselskabet In-

ternational, 170 F.Supp. 601 (SD Cal. 1959), later adopted

as the settled rule for the Ninth Grcuit in Metropolitan

Stevedore Company V. Secasetulicenaie Interna-

tional, 274 F2d 875 (Jan.; 1960), (affirmal of Hugev.)

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The correlative -contkactual duty of Petitioners (ship-

owner) under the stevedoring contract is clearly set forth

in Hugev in the following language’

“*(1) oe f f e

f —™*(2) to give the stevedoring contractor reasonable

» warning of the existence of any latent or hidden danger

Which has not been remedied and is not usually encoun.

cw

tered or reasonably to be expected by an expert and ex-

perienced stevedoring company in the performance of the

stévedoring work aboard the ship, if the shipowner acne

ally knows or, in the exercise of ordinary care under the

circumstances, should know of the existence of such dan-

ger, and the danger is one which the shipowner should

reasonably expect a.stevedoring-contractor to encounter in-

the performance ofthe stevedoring contract."* {Citing

numerous cases, pp. 610-11. |

It is now settled that to have imerely turned over and

given to the use of Stevedore the malfunctioning and un-

seaworthy “lift gear’? was net in and of itself a breach of

Petitioners’ contractual duty. Crumady, supra. This al-

lowance, or qmaritime-license, of conduct) between- ship-

owner and stevedore is predicated pon these poley con. \

siderations discussed by Huyev:

‘“(a) the possibility, or even probability, of unsea-

worthiness after long voyages, and |

(bh) the expertise of the stevedoring company and its

employees." Metropelitan p. 876.

We learn from Hugev that there must be something more

on the part of shipowner, something in the wav of a want

of reasonable care, towards Stevedore.

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10 a NO

‘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 ofthe concurrent proximate causes of

Libelant’s injuries. Assuming that such negligence of

‘the Petitioners toward Libelant would also constitute a “ee

breach of their implied in-fact duty in favor of Stevedore .

to use reasonable care in diScovering latent defects in the

‘lift gear,’’ nevertheless such neglect can be of no avail

or solace to the Stevedore; the reason being that we also

find that the Stevedore, through a longshoreman and a

hatch boss, had actual_knowledge of the malfunctioning

and unseaworthy condition of thé ‘‘lift gear’? prior to the

accident.’ This actual ‘knowledge by Stevedore, even

though independently obtained, intervenes and washes out

any nonfeasance of Petitioners in performing their im-

plied in-fact contractual duty to Stevedore. The Peti-

tioners owed no duty to restrain the Stevedore from acting

or using gear in the face or 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-

“We held in Calmar vy. Nacirema, decided today, 1959 AMC. °¢

1083 F.(2d) . that a finding of negligence.in supplying

such equipment. js not determinative of the shipowner's right to

indemnity, His aetion is in contraet and recovery depends upon °

- whether his conduct has been such as to bar enforcement of the

contraet, and not whether he has been found negligent in regard

to the longshoremen. Weyerhaeuser S.S. Co. v. Nacirema Co.,

355 US. 563, 1958 A.M.C, 501." Cited in American Export Lines

v. Revel, 266 F.2d*82 (4 Cir. 1959): 1959 AMC. 1073,, 1081.

On the day before the accident. while in, the process of top-

ping the boom involved through the use of the lift gear, the

pawls had locked iran upright ‘position and failed to properly

function by falling under gravity into a Jocking position, and a

longshoreman had used a piece of dunnage to strike and knock

the pawls into position.” Excerpt from prior opinion,

e' “a

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handling of the ship's cargd-pursuant to‘its contract. The

tioning lift gear in pees with and incidental to the

inevitable failure of the gear and resilting injuries to

persons in ship's service Wis hiost probable and reason.

ably foreseeable by an expert stévedore. This foregoing

‘ conduct of Stevedore does Hot earry te nnd fall short of

meeting the requirement thay the Stevedore use gear

heceskary and incidental to the working of the ship’s eargo

with reasonable safety. as tested liv ates ‘edore expertise,

From tlie facts found in the opinion Upon the segregated.

issue of P ¢titione rs’ liability |to Libelant and this opinion,

this. Court concludes that Petitioners Were not short in

performing their obligations to Stevedore under the steve

~doring contract and that Stevedore, while engaged in its

Stevedoring contract to load and stew cargo, breached its

implied in-fact contractual o ligation to ise the ship's

gear, in preparation and ineillental to. the hendling of

cargo, with stevedore expertise dnd with reasonable safety

to persons engaged in ship's service, and that sueh breach

by the Stevedore was a proximate cause of the falling of

the boom and resulting injuries to Libelant. This Court

further concludes that the petipentes are entitled to “rep.

aration from the $ evedore fo. “the full extent of its loss.:

expense and damage on a oount of Libelant’s judgment

aforesaid. Hugey, at.P. 612.

In the event that the parties can stipulate as to the

aggregate amount of Petitioners’ reparations, proctor for

the Petitioners may submit proposed decree and judgment .

order adopting the mentioned Ppinions of this Court as

findings of fact and. conclusions of law of this Court

(FRCP 52 (a)) upon wae to predicate a judgment in

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favor of Petitioners and against Stev edore for the amount

“of stipulated reparations,

In the event of a failure of such stipulation, the Court

will, upon application of Petitioners, hear and de termine

the Petitioners’ contentions as to amounts of reparations.

Dated August 3, °T9I60.

{Endorsed}: Filed August 3, 1960,

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13

United States Court of Appeals ‘

‘for the Ninth Circuit

©

Partenweederei, MS Be ‘Igrano, and Rudolph)

A. eter, ‘

Appellants,

Va. ‘

George Weigel,

: g

° ° “Appellee, No. 17, 17s

Re ope

Brady- Hamilton Stevedore Company, Feb. 8, im

: Appellant,

Vs. .

Partenweederei, MS Belgrano, and Rudolph

A. Oetker,

A ppellees.

On. Appeal from the United States Distriet Court

for the District of Oregon

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Before: JERTBE RG, KOKI SC Ht a DUNIWAY,

Circuit Judges:

JERTBERG, Cireuit Judge:

George Weigel, libelant below, and appellee here, here-

inafter called *‘libelant.’’ was an emplovee of Brady

Hamilton Stevedore Company. hereinafter called *'Steve-

dore,”’ and acting within the course and scope of his em

ployment 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

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loailed with lumber, upon a pernianently fixed railroad

spurline on the dock along: shipside for the purpose of

placing the lumber under and within re ach of the " Vessel’ s

‘loading gear. |

ec Libelant instituted his libel in admiralty, in rem agamst

the vessel and in personam against its owner and opera-

tor, wespondents below and ‘appellants here, hereinafter

collectively called *‘respindents.’* The respondents denied:

liabil: Ly and impleaded Stevedore as third-party libelant

under’ Admiralty Rule 56 in a cause of indemnity.

The question of rhe claim of respondengs against Steve-

dore for, indemnity was segregated and reserved until

adjudication of libelant’s-cfaim against respondents.

_% Following trial on the segregated issue of liability on

libelant’ x clam and the aature and extent of his damages,

: the Disteiet Court: entered judgment in favor of libelant

from which judgment respondents appeal.

Following trial on the segregated and reserved issue of

indemnity, the District Court entered judgment togthe full

extent of libelant's judgment, in indemnity against Steve-

dore, from which judgment Stevedoré appeals.

We will: first consider respondent®’ appeal. The judg-

aaanent in favor of ibelant was based upon the findings and

conclusions of the District Court that }

(1) The vessel was unseaworthy in that her top-

~ ping “lift gear ’’ for the starboard boom at’No. 1

hatch malfunctioned and permitted the boom to fall

upon the libelant iia the pawls on fWe.xateHet in

‘the topping ‘‘lift gear’’ were defective and inadequate

in that they did not drop into each cog as the boom

was hoisted so as to prevent the boom from falling,

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and that at the time of the accident’ libelant’was en-

gaged in performing a part of the ship’s service as

a longshorenfan in the process of loading and storing

her cargo: , /

(2) The respondents were negligent in:

(a). Failing to properly inspect the vessel and

particularly’ the ratchet and pawl device to the

hatch to determine, the defective natire of same,

since a reasonable inspection would have disclosed

the malfunctioning of the pawls; and

(b) Failing to provide the libelant with a-safe

place to work. ‘

The ‘Distriet Court fursher concluded that the unsea-

worthiness of the vessel and the concurring negligence of

the respondents were the proximate causes of the falling

of the boom and libelant’s resultant injuries.

‘A detailed description of the’ mechanical features df the

gear which operated the boom, the principles. of its fune-

tioning while operating properly, the effects of its mal-

functioning and the human and mechanical factors which

caused the boom*to fall, weuld unduly and unnecessarily

extend this ‘opinion. For details concerning such matters,

we refer the interested reader to the opinion of the Dis-

trict, Court reported at 189 F. Supp. p, 108° (Apr. 14,

1960), which opinion also constitutes the findings of fact

-and conclusions of law of the District Court.

The facts surrounding the accident are stated in the

opinion (p. 107), as follows: ie

‘‘Immediately prior to the commencement of the

‘operation leading up to the accident, the ratchet

“notches and the pawls were in a locked position and

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the lift gear was steady under the weight of the boom.

The work .of bringing aboard the lumber at No. 1

‘hatch required a topping of the boom in order to

place the same ina working position, and the w ingh

driver called to a ship longshoreman and asked for

‘a hand’ in attaching the free end of, the pigtail dine

to the gypsy head. The winch operator did not see

this operation, and the longshoreman involved can

_ give no satisfactory account of what he did in the way

of fixing the free end of .the pigtail line to the gypsy

head. In- any event,,it Was somehow attached, but evi-

dently ‘not properly, The winch driver took up the

slack in the pigtail line, put strain thereon, and com-

mnenced the lifting of the boom. The winch driver did

not hear the ‘clanking’ of thé pawls (dropping of the

pawls in the notches in the ratehet rims). After rais-

ing 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 evpsy 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 putting

stress upon the same. The boom, une ‘controlled, fell

to the starboard side of the vessel across the dock and

struck the libelant.. From the commencement of the

raising of the boom, the unwinding of the drum, and

throughout the, fall of the boom, the pawls had failed

to fall into the notches by gravity or otherwise.

“On the day before the accident, while in the proe-

/ ess of topping the beom 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 the locking position, and a Iqne-

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shoreman had used a piece of dunnage to strike and

knock the pawls into position. sore. )

Before considering the errors unged upon us by the re-

spondents, we should state that respondents concede that

» the finding of fact, of the District Court that’ the vessel

was unseaworthy in that the pawls were stuck and failed

to operate properly, is supported by ample evidence. Such:

dinding is not challenged on this appeal by respondents

or Stevedore. ;

Respondents’ contentions are: (1) The District Court

erred as a inatter of law in concluding that libelant was

entitled to the warranty of unseaworthiness; and (2) The

conclusion of the Distriet Court that the respondents

were negligent in the respects above stated is without evi-

dentiary support and clearly erroneous.

es

° * -

In holding that libelant was engaged in performing a

part of the ship’s service and, therefore, ‘entitled to the

protection afforded seamep, the -District Court relied °

squarely upon the opinion of this Court in Pope & Talbot,

Inc. vo 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 stevedoring companies

in the cargo operation. Phe contract with oné stevedoring

—

compahy covered the operations pertaining to the dis- —

charge 6f cargo from the ship's hold to the ship’s side at

the dock. The contract with ghe other stevedoring company

covered the operations pertaining to the moving of cargo

from the ship’s side to place of rest on the dock. Cordray

,

}

.

& <m, 18

~

: —

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 doek work-

ing longshoremen with those of the ship working long-

shoremen in order to have terminal employees and: equip-

ment 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 tle

purpose of coordinating the cargo handling work of the

dock longshorémen with that of the longshoremew working

on the ship. The accident to’ Cordray happened when he

wept on board the ship to 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 the work. In the course of the opinion (pp.

917-18), this Court stated: ;

f2] In the instant case the appellee,. although

performing most of his work on the dock in the mov-

ing of the ship's cargo from ship's tackle to its first

place of rest (which was part of thes ship’s obliga-

tion), was on board the ship: when the accident hap-

pened. Under the testimony, he was coordinating the

unloading of the cargo from the 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, hether or not

appellee was on board the ship or on the dock. The

test is, what was the nature of his work? He was

performing a service for the ship.in the discharge of

t

We 19 :

@

its cargo. His employer was undér contract with 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 fhe work of a longshoreman and he was entitled

to seaworthy gear while he was performing his serv-

ice.’’ [Footnotes omitted. |

During the trial of that case, Counsel for the shipowner

stipulated, *** * * a that it is part of the obligation of the

‘steamship company as carrier to not offy raise the cargo

out of the hold and land it on the dock, but also to place

it in the ware shouse.”” Further, it appears in that case

that each of the stevedoring companies had the right to |

use the ship's unloading gear arid equipment and to go°

upon such places ‘under the shipowner’s control as were.

reasonably necessary in the performance by the employees

. of each stevedoring company of the work of discharging

the cargo from vessel hyld to point of rest on the dock

floor within the dock warehouse. :

It is clear under the facts of Cordray that it was the

contractual obligation of the shipowner to move the cargo

from the hold of the vessel to a place of rest on the pier

along shipside but, additionally, to move the cargo to the

dock warehouse. Cordray Was op hoard the ship when

injured performing his duty of coordinating the unload-

ing of the cargo from the ship’ s hold to its place of rest

on the dock. He was assisting in the unloading of the ship.

which is the type of Avork traditionally performed by sea

men. Clearly he was entitled-to the protection afforded

seamen. The statement in Cordray, *** * * that the duty

of providing a seaw orthy ship and gear at the time of this

?

oes 20

aecident extended to the appellee, whether or not appellee

was:on board the ship or on the dock,’’ (emphasis added)

must be read in the light of the facis of that case. The

Cordray opinion cannot be construed to extend to protec-

tion of the wifrranty of seaworthiness to any dock long-

shoreman 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 Cordray, the moving of the —

lumber from the dock to the vessel's loading: gear was

not part of the ship's service unless it can bessaid that

the work of libelant was of the type traditionally per-

formed 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.S. 613,

616-17, the Supreme Court stated :

“The eventful development of the doctrine — of

unseaworthiness in this Court ts familiar history.

Although of dubious ancestry, the doctrine was born

with The Osceola and emerged full-blown 40) vears

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 Mahnich :

. ‘**He [the seaman] is subject to the rigorous

dise ipline of the sea, and all the conditions of his

‘service constrain him to accept, without critical

examination and without protest, working condi-

tions and appliances as commanded by his superior

officers.’ 321 U.S. 96, at 103. 4 \

y

?

i

21

“With the nature of the duty thus defined, it re-

mained for two other decisions of the Court to amplify

its scope. Seas Shipping Co. o. Sterackt and Pope &

Talbot v. Hawn wade clear that the shipowner could

not escape liability for unseaworthiness by delegating

sto others work traditionally done by members of the

crew. Whether their calling be Labeled ‘stevedore,’

- ‘earpenter,’ or something else, these whe 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 whe were about to gon a

voyage,” Were entitled te a seaworthy ship. See 346

U.S., at 413."

In the Haleche case, recovery under the doctrine of unsea

worthiness was denied upon the cround that the work of

the ‘injured workman, Who had gone aboard to clean the

generators with carbon tetrachloride, was in ne way the

“type of work” traditionally dene by the shipes erew, and

it was held that te extend lability: for unseaworthiness

to the decedent would “‘distert: the law of Mahmich, of

"Hawn and Sieracki bevend> recognition.”

The evidence of this case relation: to the mature of he”

-belant’s work is net in dispute. “Phe tibelant was driving

a tractor on the dock. His job was te push or pull raal

road cars loaded with lumber up te a peomt oon the spur

track where the lumber could be reached by the ships

loading gear. He'did not participate in loading the lum:

ber. onte the vessel or im stowing it. Ele had nothing te

do with ship's tackle ner did chix work require him te

perform any service aboard the ship. His work was per-

formed solely on the dock. and in an Operation prelins-

nary to, but separate from, the work of loading the luntt

2

22

ber onto the vessel. Although libelant’s work brought him

close enough to the vessel to be injured by the falling

boom, liability arises not from the place of injury but

7

es

from the nature of the work being performed, \

Was the nature of libelant's work of the type ‘tradi-

tionally performed by seamen? The only affirmative tes-

timeny in the record on the subject is uncontradicted

expert testimony to the effect that libelaat’s work -was

not of the type traditionally performed by seamen, In our

view, the Distriet Court's reliance on Cordray was mis-

placed.

The burden of proof was upon libelant te show that he

was entitled to the protection afforded -camen, In our

view, he failed to do se. In so holding, we do not pur-

port to lay down a fixed line of demarcation between

‘senmen’s work’’ and ‘tshéreside work."* Our holding

ix simply that the libelant failed to meet his burden of

proving that the nature of the work performed by him

was the “type of wok” traditionally performed by sea-

men.

We will now consider respondent's second contention

that the finding and conclusion of the District Court with

: oe

respect to negligence on the part of respondents is with-

out evidentiary support.

The vessel was ef German design, newly-built, engaged

as a freighter, agd appeared clean. The vessel's star-

board boom at her No. 1 hatch was fitted with a topping

“litt gear’? of German design, semi-automatic in opera-

tion, and a permanently affixed appurtenance of the ves-

sel. The “lift gear’’ was ‘safe and in nowise an inher-

ently dangerous appurtenance when functioning properly.

SA

ee

The vessel had five hatches, each with at least two ‘‘lift

gears."’

The vessel had been to Vancouver, B.C. where it

worked on October 6th and 7th prior te its arrival at

Portland. The vessel arrived at Portland on the morning

of October 9th. Early that morning, before the ‘steve-

dores commenced working, the ship's erew used the top-

ping “‘lift gear?’ machinery to rajse the booms, including

the No. 1 starboard boom, from their cradles to a raised

position so that they would be ready for use by the steve-

dores.

From then until the accident on the following day of

‘October 19th, the booms remained raised. Later in the

morning of October 9th, while the stevedors were chang-

ing the position of No. 1 starhoard boom, they discovered

_ that the pawls were struck, 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 crew,

although known to the stevedore’s hateh boss. There is

no evidence that any officer orSmember of the crew was

aware of such malfunctioning. The ‘litt gear” at No. |

hatch was used throughout the rest of the day of October

Oth. The accident oce rred on the morning of October

10th, the circumstances of which have been previously

detailed. : ‘

There is no evidence in the record of any foreign ma-

terials in and about the working elements of the ratchets,

notches, pawls and the hearing of the pawl axle, nor

physical damage of the working parts unimediately prior .

to the accident, and the District Court so found, As to

the cause of the malfunctioning, the: District Court ~tated,

©

Qe

e . Ot

“The law of physits tells us that it is reasonable to infer

that some abstract and necessarily patent binding force

or Strain among the working parts prevented a normal

automatic mechanical action and function (dropping of

the pawls by gravity) and thereby destroyed the -useful-

ness and safety of the gear and rendered the same dan-

?

«

gerous 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 li-

belant to establish, by a preponderance of evidence, that

negligence on the part of respondents was a proximate

» >: : - ~>®_. i

eause of libelant’s injuries and damages.

The District Court concluded that respondents were

negligent in failing to.properly inspect the pawl and

ratchet device to determine the defective nature of the

same. It was libelant’s hurde nto establish that respond-

ents breached a duty owing to libelant. The District

Court did not mention the nature-of the duty owing by

respondents to libelant, but we assume in light of the

Court’s finding that the breach consisted of the 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 properly. \

There is no intimation in the written opinion of\ the

District Court that in reaching the conclusion of neglic

gence, the Court relied in any way upon the doctrine of S

~

‘

25

: a

res tpsa loquitur, nor does libelant make any such con-

tention on his appeal. Hence, negligence cannot be in-

ferred from the fnere happening. of the accident, nor

does the accident establish a prima facie case of negli-

gence on the part of the respondents. Notwithstanding

proof of the happening of the accident, the fT burden

of proof of negligence remained on 4 he> libelant.

Proof offered by the respondents, which we do ndt de-

tail in. this opinion, is of no help to libelant since allesuch

- proof tended to establish that the vessel's wear and equip-

ment were functioning normally and properly when the

stevedores tookxover the cargo loading operations. L.i-

belant argues that the trial Judge was not required to

accept such testimony in view of the. happening of the

accident and the discovery by the stevedores, shortly after

they commenced their cargo loading operations, of the

malfunctioning of the pawl and ratchet device. We agree.

However, disbelief by ‘the Court of such proof does not

establish a breach of respondents’ duty to make a rea-

sonable inspection to see thate the gear and equipment

furnished for the cargo loading was in geod condition and

operating normally, The burden ef proof was upon the

libelantSto establish negligence and not upon respondents

to establish treedom from negligence, :

What did libelant establish? He established: (1) That

the accident occurred; (2) That it occurred because of the

malfunctioning of the pawl and rachet device: and (3)

That the stevedores discovered the malfunctioning of the

‘device shortly after cargo loading ‘operations commenced

on the day before the accident. From these facts, libelant

contends that the District Court properly inferred that. a

26

reasonable inspection by respondents would have revealed

the tause of the malfunctioning. The vice of that argu;

ment is the absence from the record of any testimony es-

tablishing, or tending to establish, the stangard Wg conduct

which respondents were required to meetin di#tharge of

their duty to make a reasonable inspection to see that the

gear and equipment furnished by them operated properly.

There i8 no testimony in the record of what conduct on

the part of operators and owners of vessels of the‘ type or

similar to the! type of the BELGRANO and similarly

equipped, was usual or customary or required by good

practice or by law or regulation in making inspection of

gear and, equipment. Is the standard of conduct met by

a visual inspection of the gear and equipment? Does the

standard of conduct require an eperational test’ of the

gear and equipment of a Vessel! Does the standard of

conduct require cohstaht inspection?. Does the standard

of conduct> require daily inspection? Does the standard of

conduct require inspection before and after ach use of -

the ge&r and equipment?! The ree ord leaves us completel

in the.dark in attempting to find answers to these -ques-

tions. - 2 ; aa: k

On the record in this case, we ‘are constrained to held

that the libelant failed to meet the burden of proof resting

upon him.of establishing negligence on the part of the

’

respondents.

The Distriet Court also concluded that the respondents

were negligent in failing to furnish libelant with ‘a safe

place to work. This point is not mentioned in anyyof the

several briefs which have been filed. There is no evidence

in the record that the respondents furnished or were in

=

a

27°

any way obliged to furnish to libelant the place to work

where he was working. The District Court’s conclusion of

negligence on this point is wholly unsupported.

The judgment and decree from which respondents ap-

peal is reversed. \

-This disposition of the case makes it unnecessary to

consider the quéstion of indemnity since the’ decree of

indemnity rests up6n the judgment and decree which is

r

reversed by this —_ The decree of indemnity is like-

wise reversed.

5 gcse Opinion Filed Feb, 8, 1962.

Frank H. Schmid, Clerk.

United States Court of Appeals

for the Ninth Circuit

/ OR

> _ _ —— ee > scenes ————- —-—— _—— ———

Partenweederel, oe Belgrano, an Rudolph |

A. Oetker,

Vs.

George Weigel,

Appellee.

Brady-Hamilton“®tevedore Company,

Appellant,

Vs.

Partenweederei, MS Belgrano, and Rudplph

Appellants,

_a@

+

No. 17,178

May 21, 1962

_ i

A. Wetker,

Before: JERTBERG, KOELSCH and

Circuit Judges. |

On February 8, 1962, this Court entered

Appellees. J

DUNIWAY,

its judgment

reversing the decree of the Court below dated May 31,

1960 ine favor of appellee George Weigel

appellants Partenweederei, MS Belgrano, ane

and against

1 Rudolph A.

Qetker and reversing, without consideration on the merits,

the decree of indemnity of the Court below dated Novem-

ber 16, 1960, in favor of appellees Partenweederei, MS

Belgrano, and Rudolph A. Oetker, and against appellant

Brady-Hamilton Stevedore Company.

On April 9, 1962, this Court granted the petition of

appellees: Partenweederei, Ms Belgrano, and Rudolph A.

ORDERS ~~

29

Octker for A limited rehearing asx to that part of the

judgment of this Court relating te the-deceree of indem,

nity, and fixetL May 14. 1962 as the date forvoral avgument

on said petition, and on said day the matter was) sub-

. . ? ‘ . . . e

mitted to this Court, for decision.

It now appears that appellee George Weivel intends

to petition the Supreme Court of theadgnited States foros

writ of certiorari from the judgment. of this Court dated

February 1S, 1962 reversing the decree of the Court below

dated May 31, 1960,

IT IS THEREFORE ORDERED: ee e

1 ‘Phat pari of the judgment of this Court) reversing

the decree off indemnity dated November 16, 10a, is

Vaented and set aside, and resubmission: thereat te this

Court for decision is deferred until either the time for a

petition by appellee Weigel to the Supreme Court of the

United States has expired, or. if sueh petitien ts filed,

until final action thereon by the Supreme Court of the

United States:

2; . Tf the Supreme Court? of the United States shall

grant a petition for-certiorart and reverse the judement of

this Court relating to the decree dated May Oi, 1960, then

this Court will decidé, upon the inerits, upon the brie

and records heretofore filed and without further argument,

the appeal of Brady-Hamilton Stevedore Company fron

the decree of indenmity dated Noverber Ta. i960;

3= The submission to this Court on May 14. 1962 for

decision on rehearing of the petition of appellees Par.

tenweederel, Me Belgrano. and Redolph A. Oetker is vac

cated and resubmission thereof is deferre lo Uf the-time

* F .

é

©

_~

° 30

——

within which appellee Weigel can petitign to the Supreme

‘Court for a writ of certiorari shall expire, or if the Su-

preine Court shall affirm the judgment of this Court inso-

far as it relates to the decree dated May 31, 1960, then

this Court will decide, upon the briefs and record now on

file and without further argument, the question as to

whether appellees Partenweederei, et al., are entitled to

indemnity against Brady-Hamilton Stevedore Company

for their costs of defending the action of Weigel against

them in the Court below and in this Court.

DATED: May 21, 1962.

(Endorsed) Orders Filed May 21, 1962.

Frank H. Schmid, Clerk.

ed

te

3B

°

31

United States Court of Appeals

for the Ninth Crecuit

>

Partenweederei, MS Belgrane. ane Rudolph |

A. Oetker,

Appellants,

Vs.

(ireoruee Wetvel, : ? ;

Appellee, Noo TTS

Byady Hamilton Stevedore Company,

Appellant.

VS,

Partemweederel, MS Belgrano. and Rudelph

A. Oetker,

Appellees. ,

8

\ppeal Vrevyy Phie Lonited States: Dist riet Court

forthe Distriet of Oregon

l ;

On Rehearing

Before: FERTBERG, KORLSCHE and DENEWAY,

Cireuit Judges.

PER CURRIAM

Following our deeision in this qaatter (Partenweederer

MS Belerano ow. Weigel, 200 f.2d sot, February, s. P62),

Shipowners petitioned for a rehearing, on the ground that

they were entitled te judgment against Stevedore for im

deninity. for the

Abel. We

Districé Court, in stecessfully defending the

SY

Dee. TE. ee

\penses meurred, both boere unl in the

32

granted the petition for rehearing and thereafter vacated

the portion of our judgment reversing the decree of in-

demnity, and the submission of the matter on rehearing,

pending final disposition of libelant Weigel’s petition to

the Supreme Court for certiorari. (Partenweederei, MS

Belgrano v. Weigel, 302 F.2d 730, May 21, 1962). The

Supreine Court denied certiorari on October &, 1962 (........

U.S. .....), and on November 13, 1962, denied a rehearing.

We treat this denial as an affirmance within the meaning

of paragraph 3 of our order of May 21, 1962, supra.

As is there stated, the question now before us is whether

Stevedore must indemnify Shipowners for their costs of

defending the action of Weigel against them in the trial

court and in this court. ‘*Costs’’ as here used means

“expe nses,’ > not merely taxable costs.

Stevedore contends that the answer to the question is

‘uo,’ for two reasons: (1) that such relief Was (never

asked, and the question was never raised, until the filing

of the petition for rehearing, and (2) that in any fe

the expenses of a successful defense are not recoverable

by the Shipowner “under the implied warranty of work-

manlike service to which Stevedore, by fiat of the Supreme

Court, is subject.

(1). It is the fact that the relief which Shipowners now

claim was never requested in the trial court or here, until

the petition for rehearing was filed. They. point to the

‘tcuch other and further relief’’ language in the prayer

of their petition impleading Stevedore, but the pre-trial

order contains no claim for. this re lief: it states their posi-

tion to be that they are entitled to indemnity “‘if

(Shipowners) herein should he héld liable in this case to

libelant.”’ tr .

- 33

Ordinavily, claims for rehef or other hew matter cannot

he first asserfed on agri for rehearing. [iga Ve Trans

ocean Atrlines, OE ir. 71996, 250 B.vd TSO, 786, petition for?

cert. dismissed, WW56, 352 U.S. S02: General lus. Co. 0.

Pathfinder Petroleum Co., 9 Cir, W4A4, 145 Fe2d obs, hed.

cert, denied, WAD, B24 US. 8442 Mitchell ce. (ier Anough, §

Cir, 1989, 100 Ftd 1006, cert. di nied, WB9, BOG TLS. 659.

dut there may be exceptional eases. See Carter vc. Caited

States. > Cite 1943, 135 Ri2d Sos, S64. Phe question: is, is

this such acease? We Phink not.

lis sound policy to require that a'l claims be presented

to the trial court, and not raised for the first time lon

appeal, nor, a fortiori, as herein, ina petition for reheat

ing on appeal. ‘This requirement sets the seope of the

lawsuit, thereby preventing piecemeal litigation and con-

sequent waste of the time of both trial and appellate:

courts. Ho assures that-the-opposing party will know: the

claims he must meet. Tt gives the appellate court. the

benefit of the distriet court's wisdom, and it prevents a

litigant from asserting hefore this Court a elon which

he deliberately chose . for-reasons of strategy, not to assent

below. We find here no persuasive reason for making an

exception. y °. , .

(2) We therefore expressly refrain from, deciding the

question on the merits.

Tho! Final Deeree CRe: Indenmity 17 dated November

16, LOGO, ix reversed. i

(Endorsed), Per Curiam Opinion on Rehearing filed

December 11, 162.

Prank Eh Sehiad, Clerk.

viene

Ve rier!

.

ot

United States Court of Appeals

for the Ninth Circuit

tt

Partenweederei, MS Belgrano, et al.

Appellants,

vs.

=

George Weigel.

Appellee.

I a haa ge No. 17,178

Brady-Hamilton Stevedore Company, aeoiag

Appellant,

Vs.

Partenweederei, MS Belgrano, et al. -

Appellees.

4

JUDGMENT

Appeal from the United States District Court

for the Distriet of Oregon

Tris Cause came on to be heard on the Transcript of the

Record from the United States District Court for the

District of Oregon and was duly submitted,

Ox Coxsiperation Wrerror, It is now here ordered and

adjuged by this Court, that the ‘*Final Decree’’ of the

said District Court in this cause (Re: Indenmaity) dated

November ‘16, 1960 be, and wereby is reversed, with costs

in favor of Brady-Hamilton Stevedore Company and

against: Partenweederei, MS Belgrano and Rudolph \.

Oetker.

am

. 35 ,

r

It is further ordered and adjudged by this Court that

Brady-Hamiilton Stevedore Company recover against Par-

tenweederei, et al, for its-costs herein expended, and have

executiOn therefor,

It is further ordered and adjudged by this Court that

Partenweederet MS BELGRANO and Rudolph A. Oetker

‘have and recover of and from appellee George Weigel its

costs herein expended, including the portion of the cost of

transcript and printing record on appeal taxed against

them and in favor ef Brady-Haauilton Stevedore Con

and have execution therefor,

Filed and entered December T1962. as amended by

order of January 29, 1965,

Krank PL. Sehmiud, Clerk.

36 :

United States Court of ak

jor the Ninth Circuit \

a a

———— al

Partenweederei, MS Belgrano, and Rudolph |

A. Oetker,

Appellants, |

vs. . 3

George Weigel,

Appellee. ,

a : ee Ee Co Lk

Brady-Hamilton Stevedore Company,

Appellant,

Vs.

Partenweederei, MS Belgrano, and Rudolph

A. Oetker,

Appellees. ;

ORDER

The petition of appellees for rehearing on decision on

indemnity: filed herein on January 2, 1963 is denied.

It appearing that appellants Partenweederei, MS Bel-

grano and Rudolph A. Oetker on the one hand, and appel-

lant Brady-Hamilton Stevedore Company on the other

hand, each paid one-half of the cost of the reeord on

appeal, in this matter from the decree in faver of appel-

lant Weigel, it is

Orperep that there shall be inifluded in any costs

taxed in favor of Partenweederei, MS Belgrano and

Rudolph A. Oetker against appellee George Weigel the

portion of the cost of transeript and printing record on

Pad

37 »

?

e

be

appeal which may be taxed as eusts in faver of Brady-

Hamilton Stevedoce Company against said) Parten-

weederei, MS Belgrano and Rudolph A. Oetker. :

Dated: January 20th, W965,

Gilbert Hl. Jerthers

; M. Oliver Koelsch

Ben C. Duniway

United States Cireuit Judges .

‘

, e) oe . *.

(iEnddrsed) Filed January 2, 1465,

Frank HL. Sehinid, Clerk,

aL