Petition for Writ of Certiorari — Born v. Oklahoma

: E COP Y Otfice-Supreme Court. US. F

FILED

NOY 20 1964

a JOHN FR. DAVIS, CLERK

Gu the Supreme Cimitt

of the United States

OCTOBER TERM, 1964

No. 707 S.

ALASKA AGGREGATE CORPORATION,

a corporation,

Petitioner,

Vv.

GEORGE BEELER.

R_ pondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Gray, FREDRICKSON & HEATH.

FLOYD A. FREDRIC:.SON,

1003 Equitable Building.

Portiand 4, Oregon.

Counsel for Petitioner.

STEVENS-NESS LAW PUB. CO.. PORTLAND. ORE. li-c4

INDEX

Page

Citations to Opinions Below 1

Jurisdiction 2

Questions Presented 2

Statement of the Case 2

Reasons for Granting Writ

1. Decision in Conflict with Applicable Decisions

of this Court 4

2. Important Question of Federal Law Not De-

cided 6

Conclusion

Appendix A

Opinion of Court of Appeals 9

Appendix B

Judgment of Court of Appeals 13

CITATIONS ;

CASES

Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72 6

Crumady v. Joachim Hendrick Fisser, 358 U.S. 423 6

Gutierrez v. Waterman SS Corp., 373 US 206 7

McAllister v. U.S., 348 U.S. 19 4.5.6

Morales v. City of Galveston, 370 U.S. 165 6

STATUTES

28 U.S.C. 1254(1)

28 U.S.C. 1291

28 U.S.C. 1331(1)

W ho

In the Supreme Court

of the United States

OcTOBER TERM, 1964

No.

ALASKA AGGREGA.E CORPORATION,

a corporation,

Petiticner,

Vv.

GEORGE BEELER,

Respondent.

PETITION FOR WRiT OF CERTIORARI

TO THE UN'TED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays for a writ of certicrari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit entered in the above-entitled case on

August 24, 1964.

OPINIONS OF COURTS BELOW

The opinion of the United States District Court for

the District of Oregon is reported at 224 F. Supp. 814

and appears at pages 13-16 of Volume I, Transcript of

2

Record. The opinion of the Court of Appeals is reported

at 336 F.2d 108 and is printed in the Appendix hereto,

infra, pp. 9-. *.

JURISDICTION

The judgment of the Court of Appeals was entered

on August 24, 1964 (Tr. Vol. II, p. 42) (Appendix p. 13)

A timely petition for rehearing was filed on September

23, 1964, and was denied September 28, 19ti4 (Tr. Vol.

II, p. 43). This petition for a writ of certiorari is filed

less than 90 days after denial of the rehearing petition.

The jurisdiction of this Court is invoked under 28

U.S.C. #1254 (1).

QUESTIONS PRESENTED

1. Can the Court of Appeals substitute its own

finding on proximate cause for that of the trial judge

who applied the proper legal principles in making his

finding?

2. Does a perfectly sound appliance become unséa-

worthy if it is not used with care at the moment of an

accident?

STATEMENT OF THE CASE

Respondent George Beeler was a longshoreman em-

ploved on August 27, 1961, aboard a barge known as

Barge 204, which was being loaded at Portland, Oregon.

cn navigable waters of the United States. Petitioner was

the bareboat charterer of the barge. Respondent and

3

the other longshoremen involved were employees of

Portland Stevedoring Company, an independent steve-

doring company.

The longshoremen were engaged in loading trailer

houses on top of half-houses previously stowed on the

deck of the barge. This necessitated their working above

the deck of the barge. Just prior to the accident, libel-

ant and his fellow longshoremen wanted to return to

the deck of the barge and the walking boss, another

employee of Portland Stevedoring Company, obtained

an ordinary straight wooden ladder and propped it up

. so that the men could descend. The walking boss stood

on the deck in front of the ladder to grab it in the event

the ladder slipped when in use. When Brown, one of

tespondent’s fellow longshoremen, reached the third or

fourth rung from the bottom of the ladder, respondent

mourited the ladder and started to 4escend. As Brown

reached the deck, the walking boss, believing that Brown

would stand by or would hold the ladder, walked away.

Brown failed to do this, the base of the ladder slipped,

and respondent fell to the deck, sustaining injury.

Respondent sued the petitioner alleging the: barge P

was unseaworthy because the ladder was not séttired

(Tr. Vol. I, p. 4). The District Court had original juris-

diction in admiralty pursuant to Title 28, U.S.C. § i331

(1). The District Court found that where a ladder is to

be used for a short period of time, it is the custom and

practice for ‘“zshoremen to have one of their group

hold the ladder rather than lash it to the deck or to

another portion of the ship or cargo and the ladder was

4

not defective (Tr. Vol. I, p. 18). It further found the

proximate cause of the injury was the negligent acts

of respondent’s fellow employees in the use of a sea-

worthy appliance (Tr. Vol. I, p. 19). On the basis of

these findings, the District Court entered its decree dis-

missing the libel. The Court of Appeals, which had ju-

risdiction pursuant to Title 28, U.S.C. § 1291, reversed

and remanded to determine damages. The Court of Ap-

peals stated that the trial court fully understood the le-

gal principles applicable but that in its opinion the in-

jury was not sustained by the negligent use of a sea-

worthy appliance but by an unseaworthy appliance

(Appendix pp. 11, 12).

REASONS FOR GRANTING THE WRIT

1. Decision in Conflict with Applicable Decisions of

this Court.

The decision of the Court of Appeals is in conflict

with this Court’s decision in McAllister v. U. S., 348

U.S. ¥9, and the resulting McAllister Rule. McAllister

v. U. S., supra, laid down the following rule:

“In reviewing a judgment of a trial court, sit-

ting without a jury in admiralty, the Court of Ap-

peals may not set aside the judgmeni below unless

it is clearly erroneous.” 348 U.S. 19, 20.

The trial court, in the instant case, acting as the

finder of fact in an admiralty case made a finding as

follows:

“The proximate cause of the injury was the negli-

gent acts of libelant’s two fellow employees in the use

5

of a seaworthy appliance.”' The trial court made its

finding after taking into consideration the distinction

between those cases in which the negligent act had term-

inated and the appliance left in an unsafe condition

and those in which the negligent use by longshoremen

of seaworthy appliances causes an injury.* The Court

of Appeals admits the trial court fully understand the

legal principles to be applied.* In the face of this find-

ing and the evidence that the trial judge understood

the iegal principles to be applied, the Court of Appeals

finds that the injury was caused by an unseaworthy

ladder.

Ne mention of the McAllister Rule is made by the

Court of Appeals. The Court of Appeals proceeded as

in a trial de novo and simply reached a different result

on the proximate cause question than the finder of fact.

This is not permitted by McAllister.

In McAllister, this court held that a finding of fact

by the trial judge that the illness suffered by the plain-

tiff was proximately caused by the negligence of the

shipowner was to be affirmed unless clearly erroneous.

Surely, the finding by the trial judge here that the ac-

cident was proximately caused by the negligence of the

stevedore’s employees rather than the condition of the

ladder is entitled to as much weight.

If the case had been tried to a judge and jury. and

the jury had rendered a verdict for the petitioner on

' Transcript of Record Vol. I, p. 19.

° Transcript of Record Vol. I, pp. 14-16.

> Appendix p. 11.

6

the issue of proximate cause on proper instructions, the

Court of Appeals would have no alternative other than

to affirm the judgment entered on the verdict. The Mc-

Allister rule lays down the same test for findings of a

trial judge sitting in admiralty. If the trial judge shows

that he applied the proper law in arriving at his factual

conclusions, ie proceeded ‘on proper instructions” and

his findings are entitled to as much weight as a jury

finding. Castro v. Moore-McCormack Lines, Inc., 325

F.2d 72, 74. A recent case affirming this principle as it

applies to findings of negligence and seaworthiness is

Morales v. City of Galveston, 370 U.S. 16£. Also, in

Crumady v. Joachim Hendrick Fisser, 358 U.S. 423. a

court of appeals decided the setting of a circuit breaker

on a winch was not the legal cause of an accident al-

though the trial court had so found. (C.A. 3) 249 F.2d

at 820-821. This Court reversed, pointing out the find-

ings of fact of the trial judge were not to be set aside

unless clearly erroneous.

In this case, there is internal evidence from the opin-

ion of the trial judge that he was not misapplying the

iaw and his finding on proximate cause was therefore

not to be rewersed unless clearly erroneous.*

2. Important Question of Federal Law Not Decided

| This Court has not determined, as yet, what is per-

haps the ultimate issue in the field of seaworthiness.

This Court has not supported a finding of unseaworthi-

ness which did not involve some structural or functional

unfitness of vessel or gear for its intended use. The

* Castro Vv. Moore-McCormack Lines. Inc., 325 F.2d 72. 76

/

most recent expression regarding the limits of the doc-

trine of seaworthiness is found in Gutierrez v. Water-

man SS Corp., 373 U.S. 206. This Court in deciding

that the warranty of unseaworthiness encompasses de-

fective cargo containers reviewed its earlier decisions

and stated:

“These cases all reveal a proper application of

the seavorthiness doctrine, which is in essense that

things avout a ship, whether the hull, the decks, the

machinery, the tools furnished, the stowage, or the

cargo containers, must be reasonably fit for the pur-

pose for which they are to be used.” 373 U.S. 206,

213.

The instant case raises the question whether the

very negligent acts of fellow longshoremen which caused

injury make the ship unseawoithy. Here, petitioner had

no employees aboard the barge.* The loading was being

performed solely by respondent and his fellow employ-

ees who were employees of a stevedoring company. The

ladder which was obtained so that respondent could Ge-

scend was furnishcd by the stevedoring company and

was in no way defective.® It was to be used temporarily

for the men to descend so they could move to another

position. It was customarily held by a longshoreman

rather than lashed in position when the other iongshore-

men were descending. The stevedore foreman did stand

at the bottom of the ladder with his feet in position to

catch the ladder if it slipped.” He maintained this posi-

* Transcript of Record, Vol. II. p. 6.

®* Transcript of Record. Vo!. II. p. 6.

* Transcript of Record. Vol. II, p. 31.

8

tion and the ladder was safe until the very moment of

the accident when he turned away thinking the next

man would hold the ladder. No doubt it was negligent

not to step forward to hold or watch the ladder at the

moment of the accident as the Court of Appeais states.

but this was simply operating negligence of the steve-

dore and not unseaworthiness. As a momentary incident

in the continuous operation by the stevedore. its employ-

J ees failed to hold or watch the ladder. To say that this fail-

ure to hold or watch the ladder at the moment of injury

was an antecedent condition making the ledder unsea-

worthy is simply imposing liability by semantics. If a.

shipowner is to be liable because of negligence of the

stevedore, this Court should make the extension of lia-

bility after fuil consideration. We do not think this

Court intends to make such an extension but this is

what has been done as a result of this case.

CONCLUSION

For the foregoing reasons; petitioner prays that this

petition for writ of certiorari be granted.

Respectfully submitted.

GRAY, FREDRICKSON & HEATH

FLoyp “A. FREDRICKSON

' 1005 Equitable Building

Portland 4, Oregon

Counsel for Petitioner

3 Transempt of Recerd. Vol. II. pp. 31-33.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE BEELER, )

Appellant, )

vs. )

ALASKA AGGREGATE CORPORATION, )

a corporation, ) No. 19,188

Appellee, )

Foss LAUNCH AND TUG COMPANY, )

a corporation, )

Respondent. }

fAug. 24, 1964]

Appeal from the United States District Court

for the District of Oregon

Before: MADDEN. Judge of the Court of Claims,

and HAMLEY and JERTBERG, Circuit

Judges

HAMLEY. Circuit judge:

George Beeler. a longshoreman, injured while

working on Foss Barge 204. filed a libel in person-

am for personal injuries against Foss Launch and

Tug Company and Alaska Aggregate Corporation,

alleging that the barge had been unseaworthy. The

tug company is the owner of Foss Barge 204, and

Alaska Aggregate Corporation was the bareboat

charterer of that barge. After trial, the district

court entered a decree dismissing the libel. Beeler

appeals from thet part of the decree which dis-

10

missed the libel against Alaska Aggregate Corpora-

tion.'

The district court found that Beeler was injured

on August 27, 1961, while he was engaged in load-

ing the barge on navigable waters of the United

States at Portland, Cregon. Just prior to the acci-

dent Beeler, and other longshoremen employed by

Portland Stevedoring Company, were unloading

trailer houses on top of half houses previously load-

ed on the deck of the barge. When it became neces-

sary for Beeler and his fellow longshoremen to de-

scend to the deck, the walking boss, an employee of

the stevedoring company, moved an ordinary

straight wooden ladder ino position. He then stood

on deck in front of the ladder ready to grab it in

the event the ladder slipped or moved while it was

in use.

When Brown, one of Beeler’s fellow longshore-

men, reached the third or fourth rung from the bot-

tom of the ladder, Beeler mounted the ladder and

started to descend. As Brown reached the deck, the

walking boss, believing that B:vwn would stand by

or would hold the ladder, walked away. Brown.

having received no instruction of this kind, walked

away. Brown, having received no instruction of this

kind, failed to hold or guard the bottom of the lad-

der. The ladder slipped and Beeler fell to the deck

sustaining serious injuries for which he now seeks ©

recovery. .

The court further found that where a ladder is

to be used for a short period of time, it is the cus-

‘It was stipulated that Foss Launch and Tug Company had nc

responsibility to the libellant and that the case was to proceed

against Alaska Aggregate Corporation alone.

11

tom and practice for longshoremen to have one of

their group hold the ladder rather than lash it to

the deck or to another portion of the ship or cargo.

The ladder itself was not defective. Further, it was

found that had the iadder been held properly, it

would have been safe. The proximate cause of the

injury, the court found, was the negligent ac’ ©:

Beeler’s fellow workers in the use of a seaworthy

appliance. It was the court’s opinion that this “.. .

was not a case in which the negligent acts which

created the unsafe condition terminated; here the

negligent acts of libelant’s two fellow employees,

the walking boss and Brown, caused the unsafe

condition. . . .” simultaneously with the accident

and injury.

These findings and expressions by the trial cohrt

indicate that it fully understood the legal principles

were properly applied under the facts as found by

the court.

Liability on the ground of unseaworthiness does

not attach if the injury was sustained by the negli-

gent use of a seaworthy appliance at the very mo-

ment of injury. It does attach if the negligent act

has terminated and an appliance has been left in an

unsafe condition.*

The ladder did not fall because of the negligent

way in which the walxing boss or Brown, who pre-

seded Beeler down the ladder, held or guarded the

Jadder at the moment of the accident. Neither o1

them were holding or guarding the ladder at that

moment nor were they then in any o*her way using

that equipment. Their negligence consisted in fail-

ing to act prior to the accident by stepping forward

2 Billeci v. United States, 298 F.2d 703. 706. See. also. Rawson

v. Calmar S. S. Corp., 9 Cir.. 304 F.2d 202, 205.

1?

to hold or watch the lacder. ‘!nstead, they walked

away. Their negligence had come to rest before the

ladder fell and was thus an antecedent condition

causing the ladder to become unseaworthy.

Reversed and remanded to determine damages.

13

APPENDIX B

UNITED STATES COURT OF APPEALS

For THE NINTH DISTRICT

GEORGE BEELER, )

Appellant, )

vs. )

ALASKA AGGREGATE )

CORPORATION, a corporation, ) No. 19,188

Appellee. )

FOSS LAUNCH AND TUG )

COMPANY. a corporation, )

Respondent. )

APPEAL, from the United States District Court

for the District of Oregon.

THIS 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.

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause

be, arid hereby is reversed and that this cause be

and hereby is remanded to the said District Court

to determine damages.