Petition for Rehearing — Lauritzen v. Spann

LiGrAakKy

et eso nes COUP y ii, fe

In THE

Supreme Court of the Uniteh States

October Term, 1965

No. 352

J. LAURITZEN,

—against—

ROBERT SPANN,

Petitioner,

Respondent.

———— ee

PETITION FOR REHEARING OF THE DENIAL OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

J. Warp O’NEILL

Counsel for Petitioner

J. LAURITZEN

80 Broad Street

New York, N. Y. 10004

FRANCIS X. Byrn,

Joun T. BIEzup,

LENNARD K. RAMBUSCH,

On the Petition

ell

INDEX TO PETITION

PAGE

REASONS FOR GRANTING THE PETITION FOR RE-

eras k cake eee ee te Cee ee 1

IR Se oe Pe oe a ean Waa a wae s 1

1. Issue not decided by this Court ............ 2

2. Acknowledged conflict among the Courts of

PES sev 04 Ae 44 aoe ene vaeeseeeene 2

3. By failing to speak out on this and other mat-

ters of maritime import, this Court is not

fulfilling its traditional “rule fashioning” role 4

| RRR mere emer NT 4

ie ee I re eh aa ns 6

I hl ee A Ne ee eae 7

Coprepecane Or COC ck vc sive hocc cue dencivccs 8

oo a daa aed oa ae ene okeees Al

TABLE OF CASES CITED

eee: Re uc eet. 5,7

Boudoin v. Lykes Brothers, 348 U. S. 336, 337 (1955) 3

Forkin v. Furness Withy & Co., 323_F. 2d 638 (2 Cir.

| ee Ser ied we ne (Moan ghiavawkineds 2

Garrett v. | Meeve-McCormach do., 317 U. S. 239, 243-

SE ED bn 54050 doen nee ee aeons cas 6

Gillespie v. United States Steel Corb. 375 U. S. 962,

De i I hav bnes wi ok ka tkces tesa 5

Gutierrez v. Waterman Steamship Corp., 373 U. S.

nv neds wcceucseias eee eeoes 3,6

Guzman Vv. Pichirilo, 369 U. S. 698, 699 (1962) ..... 3

ii ;

| PAGE

Haloyon Lines v. Haenn, 342 U. S. 282, 285 (1951) 4

Hastings v. Mahon, 340 F. 2d 910 (4 Cir. 1965) .... 3,6

Italia Societa v. Oregon Stevedoring, 376 U. S. 315,

Bee SES 3555654 0059000 004 ane eee 3

Kent v. Shell Oil Company, 286 F. 24746 (1961)... 3

Kermarec v. Compagnie Generale Transatlantique,

Se Wis De Gy OE CHOP bre nskeiveseavasess 4

Kossick v. United Fruit, 365 U.S. 731, 733 (1961) .. 4

McKnight v. N. M. Patterson & Sons, Ltd., 368

ay Se Ee 6.5 05 00459 140014495408 Te 2,6

Matson Navigation Company v. Huff, 380 U. S. 943 2,6

Mitchell v. Trawler Racer, Inc., 362 VU. S. 539,

Pe CON bbc ce asua cdi enbenass vies ccersaaa 3

Pope & Talbot, Inc. v. Hawn, 346 U. S. 406,

Se ica ven sere ceneesdeerburieceis 4

Romero v. International Terminal, 358 U. S. 354,

SUR UE anon Feuedxts si eraeereete ern 3,4

Roper v. United States, 368 U. S. 20, 24 (1961) . 2

The m/v Tungus v. Skovgaard, 358 VU. S. 588, 500

SPER ER ee eer ee eT CTY Ce TE ee er re ae 4

Umted New York-New Jersey Sandy Hook Pilots

Association v. Halecki, 358 U.S. 613, 624 (1959).. = 5

Wilburn Boat Co. v. Firemen’s Fund Insurance Com-

a BO ree 4

OTHER AUTHORITIES

Baer-Admiralty Law of the Supreme Court 1963,

CO BO Pe a SOO cde v ec hecbspascetuccees 6

In THE

Supreme Court of the United States

” October Term, 1965

J. LAuRITZEN,

Petitioner,

——— No. 352

ROBERT SPANN, |

Respondent.

—

TITION FOR REHEARING OF THE DENIAL OF

TION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Petitioner prays for a rehearing of the denial of its

petition for a writ of certiorari to the United States Court

of Appeals for the Third Circuit, which was entered in this

Court on December 6, 1965.

7

REASONS FOR GRANTING THE PETITION

FOR REHEARING

Statement

While the petition herein was most certainly denied, it

nevertheless must have evoked sufficient interest within the

Court to warrant requiring respondent to submit a brief

in opposition, when this had been expressly waived. Yet,

that brief served only to admit and point up the existing

conflict (p. 2). Thus, perplexed by these events, but be-

2

lieving it had come close, petitioner is prompted to return

to the Court with this substantial issue of maritime law, of

sufficient gravity to motivate virtually the entire Merchant

Marine of the United States to file a Brief Amicus.

Illustrative of the continuing confusion occasioned by

this Court’s not making a definitive decision in this area

are the recent determinations appearing in the Appendix

herein.

The within case squarely presents the issue which is (1)

not yet decided by this Court (2) as to which admitted con-

flicts exist among the Courts of Appeals and (3) which it

is the responsibility of this Court to resolve in the exercise

of its rule-making role in maritime matters.

1. Issue not decided by this Court.

The issue of the responsibility of the shipowner, under

the warranty of seaworthiness, for shore based equipment

has never been passed upon by this Court. Indeed, the issue

was specifically left open by. Roper v. United States, 368

U. S. 20, 24 (1961)

“This disposition of the case makes it unneces-

sary for us to pass upon the remaining question, i.e.,

whether a shore-based marine leg is within the war-

ranty of seaworthiness in the circumstances here

disclosed.”

2. Acknowledged conflict among the Courts of Appeals.

That there is conflict among the Circuits on this im-

portant issue is evident from the decision of the Court of

Appeals itself (p. 16a).

“We agree with the Ninth Circuit in the Huff

case that McKnight and Forkin are out ~~

with the principles announced by the preme

Court.”

3

The conflict is also acknowledged in respondent’s Brief

in Opposition (p. 2)

“Admittedly the decision below is in conflict with

the decisions of the Second and Sixth Circuits.”

Conflicts with the Spann and Huff views, particularly

as to the jurisdictional facet of the issue, also appear in de-

cisions of the Fourth Circuit in Hastings v. Mahon, 340

F, 2d 910 (1965) and the Fifth Circuit in Kent v. Shell

Oil Company, 286 F. 2d 746 (1961). With the exception

of the First Circuit, this now represents an involvement

of all the major maritime Circuits.

Conflicts among the Courts of Appeals, or ,even a

“seeming conflict,” in the maritime field have been con-

sistently recognized by this Court as grounds for granting

petitions for certiorari. Thus in Boudoin v. Lykes Brothers,

348 U. S. 336, 337 (1955), this Court mentioned a “seem-

ing conflict”; in Romero v. International Terminal, 358_

U.S. 354, 358 (1959) “because of the conflict among Courts

of Appeals”; in Mitchell v. Trawler Racer, Inc., 362 UV. S.

539, 542 (1960) “to consider a question of maritime law

upon which the Courts of Appeals have expressed differ-

ing views.”; in Guzman v. Pichirilo, 369 U. S. 698, 699

(1962) “conflict * * * between the Courts of Appeals”; in

Italia Societa v. Oregon Stevedoring, 376 U. S. 315, 318

(1964) “Because of a conflict between * * *”.

The question whether the warranty of seaworthiness

has applicability ashore is necessarily intertwined with that

of maritime jurisdiction. On this issue this Court said of

granting the petition in Gutierrez v. Waterman Steamship

Corp., 373 U. S. 206, 209 (1963) “we brought the case

here, * * * to resolve the apparently troublesome question

as to the shipowner’s liability for his torts which have im-

pacts on shore.” The question of how far maritime juris-

4

diction extended ashore was left open (p. 210) but it might

be observed that the “far-fetched hypotheticals” noted are

now beginning to take shape.*

Similarly in Kossick v. United Fruit, 365 U. S. 731, 733,

(1961) this Court said “We brought the case here because

it presented novel questions as to the interplay of state and

maritime law”, and in The m/v Tungus v. Skovgaard, 358

U. S. 588, 590 (1959) “Certiorari was granted primarily to

consider the relationship of maritime and local law in cases

of this kind.”

3. By failing to speak out on this and other matters of mari-

time import, this Court is not fulfilling its traditional “rule

fashioning” role.

a. In General

This Court has said that courts applying maritime law

are “freer than common law courts in fashioning rules”

Halcyon Lines v. Haenn, 342 U. S. 282, 285 (1951). They

have “traditional discretion” in developing rules. Pope &

Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953). The

courts referred to are, of course, Federal Courts, Romero

v. International Terminal Operating Co., 358 U. S. 354,

361 (1959), whose ultimate voice and expositor is this

Court. In Wilburn Boat Co. v. Firemen’s Fund Insurance

Co., 348 U. S. 310, 314 (1955), this Court acknowledged

that it had “fashioned a large part of the existing rules

that govern admiralty.”

While this Court has reserved to itself this rule-making

power, and to the exclusion of State law, see Pope & Talbot

v. Hawn, 346 U. S. 406, 409-410 (1953); Kermarec v.

Compagnie Generale Transatlantique, 358 U. S. 625, 628

(1959), there has been a recent hesitance about exercising

it in the field of maritime injury litigation. Thus, since the

*See Daniel v. Skibs A/S Hilda Knudsen—Appendix Al.

5

granting of the petition for certiorari in Gillespie v. United

States Steel Corp., 375 U. S. 962, January 6, 1964, not a

single petition out of 45 filed® has been granted in the

maritime injury-death field in the ensuing two years, with

the exception of the recent decision in Albanese v. N. V.

Nederl. Amerik, No. 523, December 13, 1965, which being

summarily reversed in a short decision, settled little but its

own outcome.

The language of Mr. Justice Brennan in his dissenting

opinion in United New York-New Jersey Sandy Hook

Pilots Association v. Halecki, 358 U. S. 613, 624 (1959),

is equally applicable here where the denial of certiorari can

‘give “no workable guide to the lower courts in this actively

litigated field of federal law”. His following language finds

‘equal pertinence to the issues here and the proliferating

conflicts in the Courts of Appeals, “And so confusion is

left to breed further litigation in an already heavily liti-

gated area of the law.”

While the burdens of this Court spiral ever upward,

and with this Term’s reading matter more profuse™ and

possibly gamier than any found in maritime law, the Court

should not lose sight of the fact that it is more than an in-

terpreter of the Constitution, against a backdrop ef legisla-

tive and decisional law fashioned by others. It has an his-

toric and affirmative function of rule-maker in the field of

maritime law. In such a role it might seem that proportion-

ately more, not fewer, maritime matters would be accepted

for review by this Court.

(1)1963-1964 Term—Nos. 577, 591, 634, 672, 683, 814, 815, 832,

842, 857, 859, 880, 956, 991

1964-1965 Term—Nos. 157 251, 341, 364, 398, 447, 468, 487,

oe 662, 707, 840, 846, 872, 911, 1017, 1020,

1965-1966 Term—Nos. 78, 91, 299, 307, 344, 352, 399, 516,

523, 524, 542, 557, 654

(2)Nos, 42, 49 and 368

6

In the past two years, such important questions as (a)

how far maritime jurisdiction extends ashore,“ (b) the

responsibility of the ship for shore-side equipment, (c)

the responsibility of shipowners for operating negligence

of longshoremen,® have been left to languish unattended

by this Court.

b. In Particular

Despite the acknowledged conflict, despite the fact that

the Gutierrez case, 373 U. S. 206, 210, left open the question

of how far inland the warranty of seaworthiness will move,

despite the fact that the issue has been presented to this

Court in ever increasing frequency, first in 1961 in Mc-

Knight v. N. M. Paterson & Sons Ltd., 368 U. S. 913, and

three times in 1965 in Hastings v. Mahon 380 UV. S. 963,

Matson Navigation Company v. Huff, 380 U. S. 943, and

finally in the within litigation, despite the unsettled law in

this general area, which has prompted one commentator to

remark“

“In the course of the years, both Congress and

the Supreme Court have attempted to fix the land-

based worker’s rights. However, it is in this area

when the vessel is in port that the Supreme Court

» 99

has been most ‘at sea’.

this Court, by consistently denying certiorari on these is-

sues, has permitted the Courts of Appeals to interpret

the maritime law in their separate ways, with a result-

ant breakdown in the uniformity desired. See e. g.

Garrett v. Moore-McCormack Co., 317 U. S. 239, 243-

(3)See 1954-1965 Term, Nos. 911 and 1017

1965-1966 Term, Nos. 91, 344, 352

(4) 1964-1965 Term, No. 846

1965-1966 Term, No.-352

(5) 1963-1964 Term, No. 991

1964-1965 Term, Nos. 398, 447, 529, 707

(6) Baer-Admiralty Law of the Supreme Court 1963 Chap. 5 p. 70

Sect. 1-14

7

246. (1942) The very increased incidence of petitions in

this area should motivate the Court to seek a solution to the

jurisdictional and substantive questions presented.

Certainly the importance of the issues transcends what

might have been a reason for denying certiorari herein,

namely the fact that there is not yet any judgment holding

the shipowner finally liable. However, the Court of Ap-

peals has finally determined the issue of law as to responsi-

bility of the shipowner for the gear, and nothing more

remains to be litigated on that point. Similarly, while the

order for a new trial by the Court of Appeals in the recent

decision of Albanese v. N. V. Nederl. Amerika et al., No.

523—December 13, 1965, did not finally determine the

issues therein, this Court not only granted the writ of

certiorari, but Summarily reversed.

The twin issues of maritime jurisdiction and ship re-

sponsibility for shore-side gear, have been here presented

in simple form under a stipulated set of facts and are'capable

of a broad, settling decision. The Court should delay no

longer in making the disposition that will inevitably have

to be made.

CONCLUSION

FOR THE FOREGOING REASONS IT IS RESPECTFULLY

SUBMITTED THAT THE PETITION FOR REHEARING AND

THE WRIT BE GRANTED.

December 30, 1965.

J. Warp O’NEILL

Counsel for Petitioner

J. LAURITZEN

80 Broad Street

New York, N.Y. 10004

FRANCIS X. Byrn,

Joun T. BIEzup,

LENNARD K. RAMBUSCH,

On the Petition.

8

CERTIFICATE OF COUNSEL

I hereby certify that the foregoing petition for rehear-

ing is presented in good faith and not for delay and is

restricted to grounds specified in Rule 58 of the Rules of

this Court.

New York, N. Y.,

December 30, 1965.

(s) J. Warp O’NEILL

Counsel for Petitioner

Al

APPENDIX

1. Daniel v. Skibs A/S Hilda Knudsen, was tried in

October of 1965 in the Eastern District of Pennsylvania,

Civil No. 30778 before the Honorable Joseph S. Lord III

and a jury. The quotes are from the charge which followed

the Spann decision.

Daniel worked in a warehouse in Camden, New Jersey,

“approximately half a block from where the ship was”.

He was “not transferring the bales of Séorice from the

hold of the ship to the flat car; he was not transferring

the bales of licorice from the flat car to the warehouse.

When Mr. Daniel entered the picture that had already been

done. He was engaged in hooking-on with these tongs to

the bales of licorice for the purpose of stacking them in the

warehouse.” An “engine... pulled the flat cars down to the

warehouse.” While stacking the bales in the warehouse a

piece of rope attached to the tongs broke. Plaintiff claimed

that he was owed the warranty of seaworthiness by reason

of the condition of the rope in the warehouse.

The District Court, following Spann, left it to the jury

to decide whether or not plaintiff “was actually engaged in

unloading the vessel at the time of his injury, whether or

not the work that he was doing was an essential part of the

actual unloading of the vessel.”

If the answer to that question was yes, then the Court

held that whatever was used therein, i.e., the rope in the

warehouse “is an appurtenance of the ship because it is used

in connection with the loading, if you so find.” The jury

found for the plaintiff on October 19, 1965.

2. In contrary District Court decision, in the Eastern

District of Louisiana, Baton Rouge Division, CA3069,

A2

Appendix

Dugas v. N. Y. K. Line, a longshoreman working on the

ship was struck by a dockside crane during the course of the

operation. On November 4, 1965, the Honorable E. Gordon

West directed a verdict, stating in an oral opinion from the

bench that no warranty of seaworthiness was owed to the

injured longshoreman since the crane was not attached to

the vessel. No written opinion was handed down.