Petition for Writ of Certiorari — Spinelli v. Isthmian Steamship Co.

L I ra ads « Othce-Supreme Court, US.

a FILED.

_APR 11 1964

JOHN HN F DAVIS. CLERK

r IN THE

| Supreme Court of the 3 Anited utes

OcrosER TERM, 1963 —

—6 0) 1. '

ALF ONSO SPINEL LY,

: ‘Libellant- Petitioner,

epetee

ISTHMLAN. STEAMSHIP COMPANY, a corporation,

ae -Respondent,

—against—- at

oe : ere ¢

INTERNATION; L TERMINAL OPERATING

CO., INC...

ono os | . Respondent.

~

is

— — — —

PETITION F FOR WRIT OF : CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

: +, SECOND CIRCUIT

————— oe ————

Natuan Baker,

Counsel for Libellant-Pctettaner, |

1 Newark Street, ° :

‘Hoboken, New Jersey.

. Baker, Garber & CHaZeN,

Pyoctors for Libellant-Petitioner.

- Adams Press Corp., 11 Commuitrce Street, Newark, N. J.—Market 3-8611-12

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TABLE OF CONTENTS -

Tie. UpixtoNs OF THE Lov nts BELow’y “ ror cas % 1

JURISDICTION Be OO IE Ee a SeiiebGterseanne a

Questions PRESENTED ......7.., bas Peco eeu 5

STATEMENT OF THE Case PNG sake een phany dees ek. ae ae

~-" Reasons ror ALLOWANCE OF tHe Wrir.........£03. 5

\, CONCLUSION «2.0... 6... Peake e ee cin ere ere eo

Appasp1x A: om ww ae

Opinion ¥ PLO ae, eee ; . ee ee ag

Appenpbix B: | | | | .

« Judgment ....... of err een A Tyee ——

sous aera SS Cate Gea

‘nf Ballwanz v. Isthmian “Lines,. Inc., 319 F. 2d 457, (4

CP Weed sixteen ss Prcchik« Seer Dae gts “*10%3

Benjamin Noble, 244 Fed. 95 (6 Cir. 1917). ae aa 9

3g apitok Transpoftation ‘Co. @: © snibrin Steel € 0.. —

U.S. 334, 39'S. Ct. 292, 68 L. Ed. 631 a eee

C _ Crumady-xThe-Jonehig Hendrick Fi Fisser, 308 U.

ay 23, T9'S. Ct. 440, 3 L. Ed. 415 (1959)... 20... ‘ . 513

Giiduligy. American Hawaiian, Steamship C ompany,

224 F. 2d 746 (5 Cir. 1959) eee NO PRES Ser er ee y 10.

Grillea v. Unite States, 239 F*. ah 919 (2 Cir. 1956)... 6, $

Ktistakis v. United Cross NaVigation Corp... 204 F.

ee Bee Ce. Oe. WT. PO Ss ices ieee. ee

u TABLE OF CONTENTS

i PAGE

Mitchell v. Trawler Racer, Inc., 362 U.S. 530, 40'S. ;

924, +L. Bl. DA OEE (UDGD) ooo: os scence asset CAT

Morales. v. City of Galveston, Texas, 370 U.S. 160, 82 -

S. Ct. 12268 L. Ed. 2d 1226 (1962)...... ere 7,8

Oddenes v . Universe Tankships, Inc.; 188 F. ——

“177 (1960). DOR Ae IDE Pare nen tayeg BL es 14

- Paliaga v. Liekenbach Steamship Company, 301 F. 2d :

— 403 (2 Cir. 1962). ...... Per eee Peer area ey 8

| Puddu v. Royal Netherlands Steaniship € ¢ ompany, 303

" F, 2d 752 (2 Cir. 1962), cert. den.,-371 U. S. 840, 83

ee eR eg ol | ere ‘°.43

Reed v. Steamship ‘Yaka, 373 U. S. 412, 83'S. Ct. 1349, Caen

10 L: Kd. 2d 448 ae we ee Pe en le a. oe

‘Rich v. Ellerman & Bucknall S 3S. Co., 278 F. 2d 704"

(2 Giv.-1960). 0.0000 URAL is Culge 2 eeu ee oes 9

Ryan ‘Stevedoring Co. vi | ’an-Atlagtie Steamship

Corp., 350 U.S. 124, big S.Ct. 232 100 Ed. 433

Seen PROT Eee go SEE TEE ET Ee

Scott v. Isbrandtsen Co., 327 F. 2d 113° dual 1964). . -10-13 -

Vega v: The Malula, 291-F. 2d 415 (5 Cir. 1961)...... re

; " Statute Cited — *

#28 U.S.C.: hs e . SF ls

Sees. 1254(1), 2101(e), ......... Pe Moncey: a

a

,

IN THE. ‘

Supreme Court of the Muited States

- Octonen Tens, 1963 ol Sat aug

No. Mi hese WA ‘ a

| .: °° Auronso Sprneuu, 4

; & r . ° rd as

“ j Petitioner,

- against a

‘ &/

~/ .

Isreratax STEAMSHIP ComPany, a corporation, ,

7,4 °

. Fr Respondent,

: agaist * nig rs

A

7 INTERNATIONAL Tego x an ‘Opeaarixc Co. Inc. =

ee

y Respondent ie

‘ i i :

al Sf : * . S en

ne Te A @ é .

Pane oF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS ;

bagels pi CIRCUIT. Bs ene

> i eee eee

Petitioner, Alfanso Spinelli, prays that ‘a writ of. cer-

tiorgti issue to review the judgment of the United States

‘Court of Appeals ‘for the Second ( ireuit in the vomve -el-

Aitled matter.

3

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The Opinions of the Courts Below

The opinion. of Judge Epwarpv,C. McLean, dismissing the

libel (15a) is printed im the Appellant's Appendix in the

Court below, amd is unreported... an

s° -@ e e

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2 Gack hy ‘a va

, The opinion of the Court of Appeals. for the Second Cir-

cuit, printed as Appendix: A hereto, is — in 326 F.

Susiediction }

‘The decision and judgment of the Court of Asie ‘als for

‘the Second. Cireuit, sought to be reviewedy printed as Ap-. ..

pendix B hereto was decided and-entered on January 15,.

1964. : A

The jurisdiction of thid Court is found in 28 U. S, Code,

Sections 1254(1) and 2101(c).

Questions Presented

1... Whether or not an ungeaworthy condition for which

a shin owners held liable may be created hy longshoremen

in the performance of ship’s work and in their method of

operation. a* e ;

2. Whether or aot a vessel or ‘any part ines, including

a draft, which is in all ov vevloaded’ ‘condition. sO as to he we ~:°

_ . Safe, is unseaworthy.—

‘

Statement of the Case

7 This actio as brought to: recover damages for injuries :

‘sustained or Seftemiber 17, 1957 by the libellant, a long-~ |

-shoréman entployee of Intérnational Terminal Operating

Co. (ITO),:which was engaged in loading’ ca tgo aboard the

defendant’s vessel, the SS Sreetmaker at Shed No. 4, Erie

Basin Terminal, Brooklyn, New York (4a). He worked on

‘the stringpiece alongside the vessel (4a). The cargo at the

‘time ‘consisted of steel pipes (10a)... The: trial -court ‘de-

~ seribed the accident (15a) : ;

sh ballad

A draft of steel pipe which was being hoist d -

in a sling from the dock to the vessel fell back to the

dock and struck Kbellant, injuring flis foot. The draft

F ’

‘fell back because the brake onte ship’s winch slipped

~

The court found that in ‘sitet with. pérenal | Practice .

the brakes on the winch wa’ set to hold. three tons (17a).

_ This setting was fixed and checked by the ship’s electri-

cian (16a).' The loading of pipes had started at about.

7 00 p.m. on the ‘evening of the accident ( 17a). The trial

court found furthér (18a) :

; «Along about. 10:00 P. M. the gang ves to load the.

“* shorter pipes. At first they put six or seven pipes in °

each draft. These were hoisted and stowed away with-

Eaignioenom tout incident. At about 10:45 P.M. the dock: foreman,

i Tony the Gump, tald the dock gang to put. nine pipes.’

‘in eaeh draft. Libellant and other longshoremen pro-’

tested; saying that ‘they feared that to do so would

over load the winch. Tony the Gump explained that *-

_ he was the boss and’ that he expected his orders to be

obeyed. Libellant and the others complied.

‘*Two drafts of nine pipes each were thereafter

pulled up without mishap. Then came a third draft. -

It was hoisted to.a height of 3 or 4 fect above the dock,- .

where it paused. This was normal, as it was the prae-— .

tice to hold each.at this height momentarily to stop

any swaying. This particular draft did not continue

on its upward way, but immediately after the pAuse

the front end of the draft came back down to the dock.

The sling on the front end opened up when it hit the

dock and one of the pipes came out_and struck libellant

on his left foot.’ - te ; 4 ;

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In reviewing the. physical facts concerning the “drafts

lifted - court concluded (2 2a):

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oes : ‘

«“@ * © -A draft of seven of the shorter pipes is

clearly within the capacity of Ahe equipment and a .

"9 draft of nine of the shorter pipes is clearly beyond it.’’

‘In dismissing the libel the court stated (23a):

oe a ee most probable explanation of this : acci-

dent is that the slipping was caused by. ov erloading:

AY

for ats intended use; and which would. not have filed

if it had beerf properly used. . a: is the explanation

pA ie which-I adopt’* * *.”’

Tn applying the law to the facts in this. case, the court

a winch which was: in a sound condition, reasonably fit ae

proest that ITO alone was negligent and its’ negligence was -

_ the sole cause of the injury to plaintiff ( waiel As tc un-

seaworthiness the. court’ ‘concluded (25a) :

com e ship was not unseaworthy. On this point. I.

maz say that I do not-believe that the cases have as

. -yet reached the point of hoiding that a vessel is un-

seaworthy merely because one of its appliances — fails

_ when it is used by a stevedore in a. manner for which

it was not designed or intended. 1 do not. understand

that Crumady v. The Joachim Hendrick reel 358

US. 423 (1959), relied upon by libellant sé holds. ‘In

*that’ case, ‘the negligent operation of the stevedore ‘did

-nio more than: bring into play the unseaworthy condition

| of the’vessel’ which had previously existed. Here there

was ne such rovmeny existing unseaworthy condi- .

tion. ae

“On pn to the Court: of eer for wa Second Cir-

cuit, the decree was affirmed.

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|} -@e this Court in C rumady v. The Joachim He udrick Fisoer,

Reasons for Allowance of the Writ

* The decision of the Court of Appeals fur the Second Cir-

‘cuit is erroneous and is ot in accord with the decisions ©

ell

358 U.S. 423, 79 S. Ct, 445, oa Ed. 413 41959) and Mitch

- vy. Trawler Racer, Inc., 362. U.

2d 941 (1960). |

In the case of C rumady v. The Joaehin He ndrick Fissen,

supra, this Court held a, vessel liable and granted indem

- nity over where a ‘ongshoteman. was injured. A boom fell

while a load of umber was being lifted out of a hold, The

ship’s equipment was specifically found te be ‘in good

condition’. However, the cut-off .device én the rigging had

been adjusted. The stevedoring company overloaded the

boom, causing ‘the unseaworthy condition of the vessel”

to come into play. Thé vessel was allowe to recover over.

_ It is to be noted that if the stevedoring ¢ompany had not

‘been negligent, i.e., had not’ ov erloaded te boom, the ves-

. sel’ ’s — would have been safe for juse. °

a

In thie’ present ease also, the accent occurred when the

stevedoring company overloaded, the winch as a result of

Pare the vessel’s winch did not fanetion properly. The

urt below found (23a): | 9

oot ee most probable explanation of this Saicin

539, 80S. Ct. 924, 4L. Rds

is that the Slipping was caused by ove ‘rloadimg a winch ©

ae which, was in-a sound cougition, reasonably fit for tx

- intended use, and which would not have failed if dtvhacds

thee properly u used. This is the explanation 1 adopt

oe oF . ‘ ; ; . hate

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*- The trial court found thatthe brak son the Wrich Were

set by tHe ship’ s electrician (16a). Libellant*~ gang -tarted .

. towork at 7:00 P.M. (17a). At about 10:45 P M.. the J.7.O.

~ foreman ordered the men to ingrease the ly: ital to Hine pipes ~-

N-

x

~': x i,

(18a). Two.drafts of nine pipes were polled up Without

—ineident—As_the ‘third ; alraft Avas being raised, the -brakes

on the winch slipped and “the draft fell back, causing, plain-

tiff’s injury W8a). The Court specifically found’ that the

‘‘winch was Overloaded because the1.T.O. foreman insisted

that nine pipes be placed fn the draft’? (24a). The condi- |

tion, therefore, was-not a momenta ty or fleeting one,

Iti the cae of Grillca v. United States, 332 FF. Jd 919

(2 Cir. 1956), the Court disting lished a fleeting condition

which arises simultaneously with a negligent act ‘ajul is

part of it, from a condition which exists as a separate 5 State

for even a relatively short time on a vessel, It is not the

time that the conditfn exists sehich is the significant fac-

tor; it is ie distinct- t-status of the condition. .

Judge Learxep Baxp discussed the distinetion at page

922: he

“«* *.* However, it is at times hard to say whether a_

beards in hull or gea¥,that arises as u momentary step

hase in ‘the ‘progress of work on board should bé

sortidered as an incident in a continuous course of

operation, which wiil fasten liability upon the owner

“ease it is’ negligent, or ‘as an unfitness of the

at makes her pro tanto unscaworthy.- The re-

s plausibly argue, for instance, that when a

strongbark is dislodged by the negligence of a winch-

fof those who direct him, or when,some one of

ew carelessly turns a lever that’drops a boat

vits, there’ is a moment, however, short,

during which Me ship: ix untit and during which her

unlitness causes the injury; vet on such occasions she

is not deemed unseaworthy. On the other hand, if the

wrong hatch. cover had been placed over the *pad-eye’

the day betore the tibelant steppede on it, this ships

would have: been uifseaworthy ; " ;

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Since-the Grillea decision, this Court has stated .defina-

tively that since notice is not a faetor: in fixing liability

for unseaworthiness, thy time during which ‘a defective

condition exists does not control the i issue in any way.

In Mitchell v. Trawler Racer, Inc., supra, “Mr. . Justice

&* Srewarr*reviewed the nature of a shipowner’s duty to pro-

vide seawortliy vessel,, He stated at page 549: |

‘*There

the duty i is less onerous with respecte an unseaworthy

condition arising after the vessct leaves her home port,

or that the duty is any less with respect to an unsea-

worthy condition ich may be only temporary. Of

fe. ‘particular relevance here is Alask: St@amship Co. v.

oe Petterson, supra. In that case the Court affirmed a

caused by defective equipment temporarily. brought

on board by an independent contractor over which the

ownér had no control. That decision, is thus’ specific

= - authority for the pr opositiqn that the shipowner’ s ae;

fra tual or constructive .knowledge of ‘the unseaworthy

nd & condition is not essential-to his liability. That dectsion -

also effectively disposes of the suggestion that liabil-

ity for ate mporary unseaworthy condition is differcut

from the liability that attaches when the condition is

er nt”? (Italics ours.) ; : ae

- « —- Tf a longshoreman’s injury is caused iis-a result of eitrgo.

~-y improperly stacked by caerigne a hold, there would

~ Be no diffieulty in finding that anoWhseawurthy condition

existed 6n the vessel. In,dLorales v. City of Galveston,

Texas, 370 U.S. 165, 82S. C4. 1226, 8 L. Kd. 2a 1226 ( 162),

Mr. Justice Stewart commented at page 170:

‘A vessel’s unseaworthiness might arise {Pom any

number of individuakZed) circumstances. Her gear

- might be defective, her appurtenances in disrepair, ter

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no suggestion iv any of the decisions that

judgment holding the shipowner’ liable for injuries |

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crew unfit. The method of loading her cargo, or the

_manner of its stowege,-imight be improper. * * *, For

any or all of these reasons, or others,°a vessel might |

not be reasonably fit for her intended service, oe ee

( Italics ours.)

_Paliaga.v. Luckenbach Steamship Company, 301 FB. 2d

403 (2 Cir. 1962) is signifiecant.. In that case ‘a longshore-

man brdught an action based om both negligenee and un-

seaworthiness. He was injured when a ninety pound car-

ton of petroleum wax fell from a draft which was being

lowered into a tank with the ship’s boom and winches. At

the close of all the évidence the District Court dismissed .

the negligence claim of the plaintiif and submitted ghe issue

_of unseaworthiness tot the jury on whether the vessel ‘* was

unseaworthy beczuse there had been a failure to secure the

loose cafton'or a failure to use a circular pallet instead of

a rectangular one in the draft!’? The third-party stevedore

-settled with the plaintiff before the jury game in with a

verdict. The Court refused: to permit the shipowner to

pursué its action over following the settlement. On ‘appeal

this was reversed. However, in dis@issing the applicable

-law, Judge WaTERMAN stated at page 409:

«* * * But the question of the unseaw orthiness of. the

S.S. Edward Luckenbach was’ under consideration by =

the jury at the time of the announced ; settlement, and

we are told that a stevedore’s breach may create the |

unseaworthiness of-a ship or the breach may activate

a ship’s pre- existing unseaworthy eondition, and ip

either case as.a result:of the stevedore’s: igiealions

the likelihood exists of the shipowner’s liability to per-

sons. who stand in the shoes of seamen, Crumady v.

The Joachim Hendrick -Fisser, 358 U.S. 423, 79S. Ct.

445, 3 L. Ed. 2d 413 (1959) * * *.’’ (Italies ours.)

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lads

‘In ties case of Rich v. Ellernian & Bucknall S.S. Co., 278°

. 2d 704 (2 Cir. 1960), the plaintiff longshoreman was in-

jured when.a chassis stoaved on the vessel tilted when he

stepped on it. The charge of the trial court was held to

. be in error and a verdict for the defendant was reyersed

on appeal. Among other things, Judge Smiru stated at

707:

‘«* * * Moreover, the portion of the charge whieh’ was

J

intended to apply to the unseaworthiness claim may.

well have beeri understood: to have been limited to

structural defects in hull or gear. This was not suf-

ficient under the circumstances here, for the unsea- |

worthiness claimed was. the dangerous working. plat-.

form consisting of the chassis in the condition in which

_ they were left by Clark’s meh sometime before noon.

" A'ship may be unseaworthy because of improper. stow-

age * * *.”? (Italics ours.) :

The concept of ‘‘unseaworthiness’’. relates to a condition

existing in or on a vessel. It is not limited to the mechani-

cal state of specific items of ship’s equipment. It relates

as much to a condition created by the improper use of good

equipment as it does to a condition ercated by mechani-

eally defective equipment. properly used. Cf. Vega v. The °

Malula, 291 F. 2d 415 (5 Cir. 1961). For example, a vessel,

otherwise adequate, which is improperly loaded has tradi-

tionally been regarded as being unseaworthy. In the Ben- -

jamm Noble, 244. Fed. 95 (6 Cir. 1917), Judge"AVarnINGron

stated at page 97 with reférence to vessels made unsea-

w orthy by improper loading: | 9

“weee This is true also of avessel which is imprope vty

ballasted with reference to the load it entricn °..° *;

so as respects an improper distribution or loading of

the cargo *.* *; or overloading a partic ‘ular part of a:

vessel * * . It must follow, if it is not obvious that

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the capacity of a vessel and the tonnage of its cargo

seaworthiness. In Cifcinnati Firemen’s Mutual Ins.

*' Co, v. May, 20 Ohio, 212, 226, Chief Justice Hitchcock

said: ‘T sat werlhidine a vessel renders lier unsea-

worthy, there can be no doubt.’ * * °.’’

a This decision was affirmed in Capitol Transportation Co..

v. Cambria Steel Co., 249 U. S. 334, 39 S. Ct. 292, 63 L. Ed.

639). See also Ryan Stev edoring Co. v. Paw-A: tlantic

Steamship Corp., 350 U. S. 124, 76 S.,Ct. 232, 100 L. Ed.

133 (1956) where,a longshoreman recovered when injured

_ by improperly stowed cargo while unloading the vessel;

- Ballwanz v. Isthmian Lines Inc., 319 F. 2d 457 (4 Cir. 1963),

where a. wire sling, while being hoisted, failed to hold a

wooden’ spreader, causing it to fall into a hold; Gindville v.

American Hawaiian Steamship Company, 224 F. 2d 746

(3 Cir. 1955) where a longshoreman was injured while im-

properly stowed cargo was being unloaded. If £vessel is

unseaworthy because a particular part of the vessel is im-

properly: loaded, it logically “follows that, an_ improperly

loaded draft on the yessel’s loading gear creates an unsea-

worthy condition.

he decision of the Court of Appeals for the Second

f re ireuit is also in conflict with the principle recognized in

the decision of the Court of Appeals for-the Fourth C:

cuit in Scott v. Isbrandtsen Co., 827 F. 2d 113 (4 Cir. 1964).

In that case the Court held that an unseaworthy condition

may be created’ by a a of the longshoremen -

ance of the ship's work and Jin

‘themselves in the perfo

their ‘method of operation.” . o-.

Judge Bore MAN wrote at page 123:

‘‘In the case at bar, there was evidence before the jury

that the procedure used by the longshoremen in dis-

are likewise vitally related as respects the fact of un-

—— eee |

charging the cargo was the usual and practical method

employed in breaking down and working this type of

eargo out of the stow for discharge and was reason- ~

ably safe. But there was other evidence to the effect

that it took two men to safely handle ‘a bale as -it was

being rolled down to or toward the cargo net; that

because some of the bales were standing on pa be-

tween the forward bulkhead and beams which extended

from port to starboard, there* was room for only one

man to work; that one inan could not handle a bale’,

with safety so as to either check or direct its fall;.that~’.

an unsafe and hazardous condition resulted. from going

_ ‘to such depth into the stow and creating the stairstep _

arrangement before undertaking to remove the top tier

- of the bales standing omend. Thus, it is apparent that .

the evidence was in conflict and that different infer-

ences could reasonably be drawn therefrom.

423, 79S. Ct. 445, 3 L. Ed. 2d 413. (19: 59), ‘the sree”

‘Court, by citing the Grillea case, appears to have given

Za at least tacit approval tHereté and to the principle

- “that stevedores themselves could render a *ship pro

‘tanto unseaworthy and make the .\ résse dwher liable

for injuries to one of them. é;

_* ® _ ¢

. ‘ . } :

‘“In this circuit it is no longer opén to question that

evidence of the negligence of the longshoremen them- —

: ‘selves in the performance of the ships work and in

their method of operation. may present a factual issne

as to whether an unseawortliy ‘condition ix created for

which the shipowner may be. heh liable for injury te a

12

_

longshoreman resulting from such condition. This is

true even though the condition be transitéty and with-

out knowledge of the ship’s officers. Furthermore, con-

trary to defendant’s argument, in determining unsea-

worthiness no significance attaches to the fact that no

one complained of the alleged unsafe condition. We

point to’ two fairly recent decisions of this cqurt (and

cases cited therein), namely, Grzybowski v. Arrow

Barge Co,, 283 F. 2d 481 (4th Uir. 1960), aud Ballwanz

,v. Isthmian Line’, Inc., 319 F. 2d 457 (4th Cir. 1963).

Y These cases were decided subsequent to the decision of

_ the Supreme Court in Mitchell v. Trawler Racer, Ine., |

* supra, 362 U. S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941

(1960), where a transitory slippery condition of the

ship’s rail was involved-and it was held that a factual,

---—fssue ‘as to unseaworthiness was presented even though

the condition was unknown to the ship's officers. ° —

: “Tn the instant case, because of the trial court’ s ruling

as a matter of law that the plaintiff was free of con-

tributory negligence, no issue in that respect Was. pre-

sented for determination by the trier of fact, but here

_ there was'a conflict m the evide nee as to whether thee

- method used in ‘discharging the cargo (the re moval of

a large number of the bales stowed in the lower tier

and the creation of the steep-stairstep arrangement

up to the topmost iter) created such an unsafe, though |

transitory, condition as to render the ship unsea-

worthy. The Supreme Court has made -it abundantly

’ ¢lear that-there- has evolved a complete divorcement

of inseaworthiness liability from concepts of neghi-

gence, The plaintiff. requested.the. court to submit to

the jury such an issue off fact asta unseaworthiness

. hut, instead, the court instructed that if the jury be-

lieved that the longshoremen’s method of operation

*

s st a ad

nes

13

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used in removing the carge was the sole proximate

cause of the accident, the defendant was not . noe.

(Italies ours.) .

In the instant case, the Court of Kenite below, ‘two

months aftér argument, “aflirmed per curiam citing only

Puddu v.*Royal Netherlands ‘Steamship, Company, 303 F.

2d- 752 (2 Cir. 1962) cert. den. 37F-Q, S. 840, ss S: Ct. 67, --.

9 L, Ed, 24-75 (1962). However, the Puddu e ed on

»

the ‘finding that the question of **unseaworthiness” was a

factual question. Puddi\is different from the present case.

The issue ih this case is a legal issve afid was so regarded .

by the trial’ judge. He stated with reference to his finding —

that the ship was not unseaworthy (25a):

“*** On this point I may say that I do not believe that’

the cases have as. yet reached the point of holding that

a vessel is unseaworthy merely beeause ‘one of its ap-

pliances fails when it is used by a stevedore in a man-

ner for which it was not designed ay intended. I do |

not understand that Crumady vy. The Joachim Hendrick

. Fisser, 358 Us S. 423 (1959), relied upon by libellant

~ so holds. -In that gase, the negligent operation of the

stevedore ‘did no more than bring into play the: un-

scaw orthy condition of the vessel’. which had: previous-

ly existed, Here there was no-su@h previously existipg

‘“unseaworthy condition.”

His finding is hased upon the. “Jeal concep t of unsea-

worthiness. The: “patitione r accepts ils Berlin findings

of ‘fact made by the-Court but we allege that the legal.in-

terpretafion of the Court of the concept of ‘unseaworthi-

ness’? and the Cruamady case is wrong. -

The issue presented in this petition involves a basie prin- —

ciple of maritime’ law which should be resolved by this

° e ‘

ss:

»

14.

- - Court. In the decision of Reed v. Steamship Yaka, 373

U, S. 412, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963), this Court

said:

wieintng ; one ner’s obligation of seaworthiness cannot _

+ be shifted about, limited, or escaped by contracts, or

e by the absence of contracts and that the shipowner’ s

’ obligation is penton, not in contracts, bu in the haz,

ards of the wor

If the leading and winch operation were in the hands of

the ship’s creygand a. crewnfin was hurt rather than a

longshoreman, such crewman could recover for an unsea-

- worthy condition ou. the vessel even if it was a transitory

condition arising out of the operation of the vessel. Mitch-

ell v. Trawler Racer Inc.; 362 U. 8. 539, 80 S. Ct. 926, 4 L..

Ed. 2d 941 (1960):

In Oddenes y. Unirers?.Taukships, Ind, 188 F. ‘ie 177

(1960), the plaintiff, a seaman, was injured when an eighf-

inch spring line slipped out of an open chock and struck

him. The trial judge did not find any mechanical defect

in the ship’s equipment. He did find, how ever, at page 121:

“I find that the manner in w hich the spring line -was

rigged created a condition dangerous to seamen work-

ing én the poop deck that this condition rendered the

spring line as riaged unseaworthy * * *’* (Italies ours)

~. In the Oddenes case, it was the manner in which a spring

liné was rigged which created an unseaworthy condition.

Similarly, making up a draft so that it overloads a winch

creates the unseaworthy condition.

e

oe)

o

”

1° tt

~ CONELUSION

For the above reasons a Writ of Certiorari should vd

granted as prayed for.

Respectfully submitted;

-NaTHA * BaKER;

Baker, GarBer & CHAZEN, .

Proctors for ‘Libellant-Petitioner.

T. [APPENDICES Foow }

. hy e “ @

-

Counsel for Libellant-Petitioner: *

fi

wees ae ‘*s

~,° 8 tao ;

ab Btn ad A. cares -

Opinion

‘UN ITED st ATES C ou RT OF APPEALS

For Tur Secoxp Circeir Se. >

r. No. i 73—September en 1963. *

(Argued November 19, 1963- Decided January 13, 1568.)

Docket No. 28385 ¢

: ¢. 3 ‘ " 'g ; is

ALFeNso SPINELLI, -

ey = Libellant-Appellant and

“4 Cross-Appellee,

—against— a

Istamian Steamsurie Company, a corporation, s

‘ Respondent-Petitioner-A ppellee

. . and Cross-.ppellant,

oO

* —against—

* “IsrernationaL Teraunan Operatine Co., Iyc..

Respondent-Impleaded-Appellee

| and Cross-Appellant. .

; . . 6 : : ae Bs . £

Fae ara boo .

Béfore: : |

“Meptna. Waterman and Marsuaun, ,

| — Ctreuit Judges.

_—___¢ —__.—_ oO

Appeal from a tinal decree of the United States Districes

Court for the Southern District of New Y ork, in Admiralty,

‘Edward C. McLean, Judge. ws re

| Appendix A oe :

_ Libellant, a longshoreman, appeals from a final decree

_ dismissing his libel to ‘recover damages for injuries’ sus-

‘tained: by reason of the falling of.a draft of steel pipe-in a

loading operation and Isthmian Steamship.Company cross-

appeals from ‘a final decree’ dismissing - its. cross-qlaim -

against International Terminal Operating Co., Inc. Opin-

ion below not. reported. Affirmed in ajl respects.

ae P ; o—. é pa.

Beexsup ‘Cusex, Hoboken, New Jeresy (Milton

= Garber and Baker, Garber & Chazen,- Ho-

‘boken, New Jers%, on the brief), for libel-

lant-appeltant. °

ROBERT P. Hart, New York, N. Y. (Ralph C:

\ a wr. Kreimer anid . Kirlin, Campbell & Keating,

He _New York, N. Y., on the sia for respon-

‘dent -petitioner,

Joseru Arrav n COHEN, New York, N.Y. (Side

ney A. Schwartz and ‘Alexander, Ash -&

Schwartz; New York, N. Y., on the brief),

for respondent-impleaded-app lee.

—¢

Per CuriaM: ; One

Appellant Alfonso Spinelli, a longshoreman, was ‘injured

when helping to i aboard the SS Steelmaker,

owned by respondent-appeller Isthmian Steamship om-

_ pany. The libel chargex respondent- -appellee with respon-,

sibility forthe fall of a draft of steel pipe that was being

hoisted in a sling-from the pier.to the vessel. The draft °

-fell back: because the brake on the ship’s wimeh slipped and

libellant-appellant was injured. The_ evidence ‘ample sus-

-

.

6 aqpete A

tains the finding af the. trial ‘sidlies that the w ineh- was not

defective and that the accident happened because the steve-

“dore boss - changed: from drafts o ipes to a draft of

9 pipes, although warned that such a was too heavy

forthe winch. We aflirm on the authority of Puddu v. Royal

Netherlands Steamship Company, 2 Cir., 1962, 303 F. 2d¢

7a2, cert. denied, 371 U. S. 840. ° -

We affirm ‘the decree in all respects, including the part.

- thereof dismissing the cross-claim of the shipowney against

. the: stevedore, Internationa! Terminal ‘Operating Co., Inc,,,

and involved in Isthmian’ s protective ——

19 ras 4 iS

*

APPENDIX B

Oo é Judgment.

| (Filed—January 13, 1964)

UNITED STA TES COURT OF APPEALS ©

For: THE “Seconp Cixcurr :

+ sk

Ata Stated Term of the United States Court of Appeals,

in and for the’ Second Circuit, held at the United Statés

Courthouse in the City of New York,-on the thirteenth day

of January one thousand nine hundred and sixty-four.

Present: a

Hox. Haroip R. Mepina,

Hon. Sterry R. Waterman,

. -Hox. Tuvkcoop Marsuatt,

r es oe

gp. J eee

¢ ‘ircuit Judges.

2

e

‘ALFONSO SPINELLI,

Libellant-A ppellowt

-

IsrHMIAN STEAMSHIP,COMPANY,

» Respondent-Appellant,

INrerNATIONAL TERMINAL Operatine Co., LNc.,

Respondent-Im pleaded -dA ppellant.

7 , | —— a ® sian -

‘ ° ; \

Appeal! from the United States District Court, for the

“Southe rn District of New York.

Cs

21

Pte Appendia B

«

a ; . if e .

This cause canie on do be heard on the transcript of rec-

on from the United States District Court for the South-

ern Distriet of New York, and was aioe by counsel.

‘Ox Conswwiratios WHeEreor, it is. now ‘hereby ordered,

adjudged, and decreed that the, decree of said District

Court be.and tt hereby is aflirmed : with costs to respondent-

appellee Isthmian Steamship Companys ~~ ,

A. — Fusaro,

Clerk.

~

\ Z

rad