Opposition Brief — Pisano v. Benny Skou

cy Office-Supreme Court, U.S.

oT. Uy She FILED

. 4 195

JOHN £. DAWIS, CLERK

Supreme Court of the United

October Term, 1965

No. 542

BENJAMIN PISANO,

Petitioner,

against

$8. BENNY SKOU, her engines, boiler, tackle, etc., in

rem, and OVE SKOU, D/S OVE SKOU A/S, and D/S

af 1937 A/S,

Respondent,

against

JOHN T. CLARK & SON,

Respondent-Impleaded.

On Petrrion ror Wait or CERTIORARI TO THE Unrrep STates

Court or APPEALS FOR THE Seconp Cmcurr

———

BRIEF OF RESPONDENT, OVE SKOU, D/S OVE

SKOU A/S, AND D/S AF 1937 A/S IN OPPOSITION

: =

J. Warp O’Neni,

Davm P. H. Watson,

Counsel for Respondent, Ove

Skou, D/S Ove Skou A/S, and

D/S af 1937 A/S,

80 Broad Street,

New York, N. Y. 10004

INDEX

PAGE

NE NUD vc poses cckeuenssanbueissnwedaunss 1

ES OEE ON OER TAS fe en oe 2

SE SIN ohccanvndaomcachecascapeceean 2

Statement of Facts ............... acetals area aie oer 2

ARGUMENT:

There Is No Confiict of Decision ................ 5

There Is No Important Question of Federal Law .. 8

The Decision Below Is Clearly Correct .......... 9

II 6 oo 4s kod ecko rn een oe ea ee caeeuas 12

Table of Cases Cited

Brabazon v. Belship Co., Ltd., 202 F. 2d 904 (3 C. A.

NES 565 4h 0ecenkndndebhiaetrians eka ee 6

Connolly v. Weyerhaeuser Steamship v. Nacierema

Operating Co., Inc., 236 F. 2d 848 (2 C. A. 1956) 7

Crumady v. Joachim Fisser, 358 U. S. 423 (1959) .... 8

Ferrante v. Swedish American Lines, 331 F. 2d 571

Ce Os as SD 44 vn wkend dann eecuecakcedunnes 6

Gruja v. United States Lines Company, 337 F. 2d 375

Ch se SEE bet ssn keeseacanuateenuyeesnceees 11

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

EP ene ORE oo Perens trys Paar toe gs 8

ll

PAGE

Knoz v. United States Lines Company, 294 F. 2d 354

Cis Oe eee eee 6

McAllister v. United States, 348 U.S. 19 (1954) .... 10

Skovgaard v. The Tungus, 252 F. 2d 14 (3 C. A. 1957)

affirmed 358 U. S. 588 (1959) ...........eeeeees 7

Other Authorities Cited

$8 UB. Code Beatie TRGB) | ococ cc ccccccussces: 2

Oe Uist SO, NS WE dink civ eeccenccceuses 9

Federal Rules of Civil Procedure—Rule 52(a) .... 10,11

Supreme Cowmt of the United States

October Term, 1965

No. 542

t+.

“w

BenJamMin Pisano,

Petitioner,

against

S.S. Benny Sxov, her engines, boiler, tackle, etc., in rem,

and Ove Sxou, D/S Ove Sxou A/S, and D/S af 1937 As.

Respondent,

against

Joun T. Crank & Son,

Respondent-Impleaded.

On Perrrion ror Writ or CERTIORARI TO THE Unrrep Srares

Court or APPEALS FoR THE Seconp Cimovurr

rs

ae

BRIEF OF RESPONDENT, OVE SKOU, D/S OVE

SKOU A/S, AND D/S AF 1967 A/S IN OPPOSITION

Opinions Below

The opinion of the United States District Court for the

Southern District of New York, the Honorable Irving Ben

Cooper, U. 8. D. J., presiding, dismissing the libel is re-

ported at 220 F. Supp. 901, and is set forth on pages 9-16 of

petitioner’s appendix.

The opinion of the United States Court of Appeals for

the Second Circuit affirming the dismissal of the libel is

reported at 346 F’. 2d 993, and is set out on pages 19-21 of

petitioner’s appendix.

Jurisdiction

Petitioner asserts the jurisdiction of this Court under

28 U.S. Code § 1254(1).

Question Presented

We do not believe that the question presented on page 2

of the petition reflects accurately the testimony and proof

offered upon the trial. The characterization of the pre-

venter wire without its half-hitch as an ‘‘open and obvious

hazardous condition’’ is not reflected in the testimony or

the findings of the District Court. It is implicit in the

affirming opinion of the Court of Appeals that petitioner’s

failure to put the necessary half-hitch in the preventer wire

would only have been discoverable through a ‘‘minute,

continuous supervision of every detail’’ of the stevedoring

operation (346 F. 2d 995).

The sole question presented by this petition is whether

this Court should undertake to review the findings of fact

of the District Court, as unanimously affirmed by the Court

of Appeals, that the sole proximate cause of the injuries

sustained by petitioner was petitioner’s own failure to rig

the preventer wire in a proper manner and that petitioner

was guilty of 100% contributory negligence.

Statement of Facts

We do not believe that the Statement of Facts set forth

on pages 3 and 4 of the petition reflects accurately the testi-

mony and the proof in this suit and would respectfully

refer this Court to the opinions of District Judge Cooper

and Circuit Judge Moore.

We would suggest that the relevant facts could be sum-

marized as follows:

On the afternoon of July 21, 1960, petitioner was the

gangwayman in a gang of longshoremen employed by re-

3

spondent-impleaded, John T. Clark & Son, to load cargo

at No. 5 hatch of m/s Benny Skou, a vessel owned by re-

spondent. Before any cargo was loaded petitioner and

three other longshoremen rigged and spotted the ship’s

booms at that hatch. The vessel was port side to the pier

and the port boom at No. 5 hatch was swung out over the

pier by petitioner so that it would be in a position to pick

up cargo from the pier. After the port boom had been so

placed with the use of the rope guy, petitioner proceeded to

rig the wire preventer, which was supposed to hold the

boom in this position. The rope guy was made up of 214

inch circumference manila rope having a breaking strain of

4,400 lbs. and a safe working load of 880 lbs. The wire

preventer was 21% inch circumference wire having a break-

ing strain of 47,600 Ibs. and a safe working load of 9,400

Ibs., or 4.7 tons.

After the rigging of the booms had been completed,

petitioner and the other men in his gang loaded general

cargo in one ton drafts without incident for the balance

of the afternoon. On the following morning, July 22, 1960,

general cargo was loaded in similar drafts for approxi-

mately an hour, again without incident. Shortly after 9:00

a.m. the longshoremen at No. 5 hatch lowered the head of

the starboard boom so as to permit the loading of alumi-

num ingots in the after end of the hatch. No changes were

made in the rigging of the rope guy or the wire preventer

for the port boom. This lowering of the head of the star-

board boom had the effect of increasing the interior runner

angle between the two wires in the married fall rig, thereby

increasing the lateral strain placed upon the wire preventer

rigged to the head of the port boom.

The accident occurred when the first draft of aluminum

ingots, which weighed approximately two tons, was being

burtoned across the deck between the heads of the two

booms. It was the function of the port boom’s wire pre-

venter to absorb the major portion of the strain and hold

the boom in position over the pier. As the draft of alumi-

4

num ingots came across the deck the boom swung in sharply

towards the center line of the vessel, the rope guy for the

port boom parted, and the draft of aluminum ingots

dropped to the deck and struck petitioner. The wire pre-

venter did not part, but ran or rendered through the padeye

and turnbuckle to which it had been rigged by petitioner.

When the ship’s second mate arrived at the scene of the

accident he made a close inspection of the wire preventer

and concluded that it had been rigged without a half-hitch,

and had as a result exerted no restraining force whatso-

ever. It was obvious to him that the wire preventer had

merely followed the movement of the boom.

On his two oral examinations before trial petitioner

admitted that he had failed to put a half-hitch in the wire

preventer as the last step in the rigging procedure when

he personally rigged the preventer. Even petitioner’s fact

witnesses admitted that the function of a half-hitch in such

a rig was to prevent the wire from slipping or rendering

when strain was applied. This was corroborated fully by

the ship’s officer and the two stevedoring experts. With

no half-hitch in the wire preventer the burden of opposing

the lateral stresses on the boom rested on the rope guy,

which as indicated, had only 1/10th the potential strength

of the wire preventer.

The District Court found that the intended function

of the wire preventer was to absorb the major portion of

the lateral stresses on the boom, that the wire preventer

had not been able to fulfill this function because it had not

been secured properly to the deck of the vessel, and that

it was petitioner himself who had rigged the wire pre-

venter in an improper manner. The Court was compelled

to conclude that petitioner had brought about his own in-

juries. Whereas petitioner’s improper rigging of the wire

preventer created an unseaworthy condition on the vessel,

petitioner was found to have been 100% contributorily neg-

ligent in that ‘‘the manner in which the preventer was

5

rigged, was the sole proximate cause of the injuries to

libelant [petitioner]’’ (220 F. Supp. 905).

The Court of Appeals affirmed in an unanimous opinion

pointing out that petitioner had presented no concrete

proof of the cause of the accident, that he had admitted

that it was his duty to rig the boom and had done so with-

out taking a half-hitch in the wire preventer, that ‘‘there

was ample expert testimony to establish that the preventer

would not have come loose under the strain of a two-ton

load if a half-hitch had been taken’’, and that the finding of

100% contributory negligence on the part of the petitioner

was reasonable and, not having been shown to be clearly

erroneous, would have to be sustained. Also sustained was

the District Court’s conclusion that petitioner’s negligent

rigging of the preventer was the sole proximate cause of the

accident.

ARGUMENT

There Is No Conflict of Decision.

The sole reason asserted by petitioner for a granting

of the writ is that ‘‘the decision of the Court below appears

to be in conflict with’’* five decisions of this Honorable

Court, three decisions of the United States Court of Ap-

peals for the Third Circuit, and one decision of the Court

of Appeals for the Ninth Circuit.

A reading of the decisions cited by petitioner makes it

quite obvious why the petition nowhere spells out the de-

tails of the alleged conflicts. Where the factual patterns

can be considered comparable the cases are on all fours

with the decisions below.

Whereas all the cases referred to on page 5 of the

petition involved shipboard accidents, the similarity ends

* Page 5 of the petition.

6

right there. None involved a fact pattern where plaintiff

or libelant, as the case might be, was solely responsible

for the condition on the basis of which he was claiming

against the shipowner.

None of the cases cited involved an unseaworthy con-

dition which, far from being obvious and open, would only

have been discoverable through ‘‘minute, continuous super-

vision of every detail’’ of the stevedore’s work as in the

instant suit.

The standard of care established by the Court below

for a determination as to whether the ship’s officers were

negligent in having failed to discover petitioner’s improper

rigging of the wire preventer is identical to the standard

of care established by the United States Court of Appeals

for the Third Circuit in the cited cases of Brabazon v. Bel-

ship Co., Ltd., 202 F. 2d 904 (3 C. A. 1953), Knox v. United

States Lines Company, 294 F. 2d 354 (3 C. A. 1961) and

Ferrante v. Swedish American Lines, 331 F. 2d 571 (3 C. A.

1964).

In Knoz v. United States Lines Company, supra, Circuit

Judge Hastie referred to Brabazon v. Belship Co., Ltd.,

supra, in defining the standard of care in the following

terms (294 F. 2d 357):

‘‘As our decision in the Brabazon case indicates,

the law does not impose a duty upon a ship to pro-

vide continuing observation and immediate super-

vision of work being done by a qualified independent

contractor in unloading ordinary cargo. If an ob-

viously hazardous condition had been created by the

longshoremen and permitted to exist long enough

for normal occasional observation of the course and

progress of the work to disclose the existence of the

danger to some officer of the ship, then the ship

should have been found negligent.’’

In the later case of Ferrante v. Swedish American

Innes, supra, the Court of Appeals reversed on the issue of

7

negligence, but only because the District Court had not

adhered to the foregoing standard of care in determining

whether the ship’s officers had been neglige.tt.

Nor is petitioner on good ground in asserting that there

appears to be conflict between the decision below and the

earlier decisions of this Honorable Court. For example,

in Skovgaard v. The Tungus, 252 F. 2d 14 (3 C. A. 1957),

affirmed 358 U. S. 588 (1959), Mr. Justice Stewart noted

at 358 U. S. 594 that:

‘‘The majority in the Court of Appeals pointed

out that the officers and crew of the Tungus re-

mained in overall control of the vessel and that they

were well aware of the existence of the oil spill and

of the danger created by it for approximately an

hour before Skovgaard arrived on board.’’ (EKm-

phasis supplied.)

The same distinction would have to be made with re-

spect to the other decisions of this Court cited by peti-

tioner. In all of them, without exception, the unseaworthy

condition was known fully to the ship’s officers long before

the accident occurred. For example, in Connolly v. Weyer-

haeuser Steamship Company v. Nacirema Operating Co.,

Inc., 236 F. 2d 848 (2 C. A. 1956), later reversed on the issue

of indemnity as between the steamship company and Naci-

rema in 355 U. S. 563 (1958), the United States Court of

Appeals pointed out that it was a clear inference from the

jury verdict in favor of plaintiff on the issue of negligence

that the wooden shelter over the winch at No. 1 hatch had

been built in New York before the ship arrived in Boston.

This coupled with the testimony of the chief mate that it

was his job to see to it that the shelters were taken down

before the ship came to Boston made a finding of negli-

gence a foregone conclusion. The defense put forward on

behalf of Weyerhaeuser, the shipowner, was not that the

mate was not under a duty to see that the shack was re-

moved, but rather that the shack had in fact been removed,

and could not, therefore, have caused the injury to the

8

plaintiff in Boston. The jury did not believe the witnesses

who testified along these lines, for it concluded that the

shack was still in position when plaintiff, the Boston long-

shoreman, was injured. The facts and circumstances of

that case are so patently different from the instant suit that

to say that one is in conflict with the other is untenable.

Equally untenable are the claimed conflicts existing be-

tween the decision below and Crumady v. Joachim Fisser,

358 U. S. 423 (1959) and Gutierrez v. Waterman Steamship

Corp., 373 U. S. 206 (1963), in the first of which the unsea-

worthy condition was brought about by the negligent set-

ting of a safety device on the winches by the ship’s crew,

and in the second of which the trial court had held that

the shipowner should have known of the defective condi-

tion of the bags of cargo carried on the ship, not only be-

cause the bags were still leaking while they were on the

ship and beans were being spilled throughout the unloading,

but also because coopers had come aboard in port in order

to repair the torn bags during the course of the discharge.

In short, the shipowner and its employees were held to

have been on actual notice of the condition which eventually

led to the injuries to the longshoreman. Such a fact pat-

tern finds no reflection in the instant suit. The standard of

care enunciated by Judge Moore in the decision below is

on all fours, not only with the decisions of this Court, but

with those of the other circuits as well.

There Is No Important Question of Federal Law.

Petitioner does not appear to claim that there is any

important question of federal law requiring decision by

this Court. We would agree. The only question posed by

this case is whether petitioner should be entitled to recover

when his injuries were brought about solely by his own

individual failure to carry out his duties in a proper man-

ner. Petitioner had admitted that it was his duty as gang-

9

wayman of the longshore gang to rig up the boom. He ex-

pressed the extent of these duties in the following terms:

‘‘Well, to see that my boom, the booms and the

preventers, the guides [guys], and everything were

secured right, to see that no one gets hurt, see if my

cargo is hooked up the right way, and to give signals ;

that’s it’’ (62b).*

Petitioner admitted that he was the boss of the deck

men in his longshore gang (62b). Petitioner admitted on

his two oral examinations before trial that he rigged the

wire preventer in question, and admitted further that he

had failed to take a half-hitch in the wire preventer as the

final step in the rigging. Obviously, petitioner failed in

his duty to see to it that the preventer was ‘‘secured right’’.

Ironically enough, petitioner himself was the one who sus-

tained an injury as a result of this improper rigging. Since

the failure of petitioner himself to put the necessary half-

hitch in the wire preventer was found both by the District

Court and by the Court of Appeals to be the sole, proximate

cause of petitioner’s injuries, it is hard to understand how

petitioner could be entitled to recover monies in a court

of law over and above the amounts to which he would be

entitled under the terms of the Longshoremen’s & Harbor

Workers’ Compensation Act (33 U. S. Code, Section 901,

et seq.).

The Decision Below Is Clearly Correct.

In order to upset the decisions below, petitioner would

have to establish that the following findings of the District

Court (unanimously affirmed by the Court of Appeals)

were not so:

* Numbers followed by the letter (b) refer to pages in respond-

ent-petitioner-appellee’s appendix in the United States Court of

Appeals for the Second Circuit.

10

1. That it was part of petitioner’s duties to rig

the wire preventer.

2. That petitioner did in fact rig the wire pre-

venter.

3. That in rigging the preventer petitioner failed

to take a half-hitch in the wire as the last step in the

rig 4 ing.

4. That the sole preximate cause of the injuries

sustained by petitioner was the manner in which the

preventer had been rigged by petitioner himself.

5. That petitioner was guilty of 100% contribu-

tory negligence in having brought about his own

injuries.

Petitioner has, in effect, taken upon himself the burden

of establishing that the findings of the courts below were

clearly erroneous. At the risk of going over too-familiar

ground, we would refer this Honorable Court to the deci-

sion of McAllister v. United States, 348 U. S. 19, 20 (1954),

where at 348 U. S. 20 it was stated:

‘In reviewing a judgment of a trial court, sitting

without a jury in admiralty, the Court of Appeals

may not set aside the judgment below unless it is

clearly erroneous. No greater scope of review is

exercised by the appellate tribunals in admiralty

cases than they exercise under Rule 52(a) of the

Federal Rules of Civil Procedure.’’

The pertinent portion of Rule 52(a) of the Federal

Rules of Civil Procedure reads as follows:

‘<* * * Findings of fact shall not be set aside un-

less clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge of the

credibility of the witnesses. * * *’’

It is perhaps unnecessary to note that the McAllister

rule has full vitality today. The United States Court of

11

Appeals for the Second Circuit was most certainly aware

that it was not involved in a trial de novo, since it noted

that the District Court’s finding of 100% contributory neg-

ligence had not been shown to be clearly erroneous, and

cited its own most recent decision on the point, Gruja v.

United States Lines Company, 337 F. 2d 375 (2 C. A. 1964)

where the Court stated, while citing McAllister v. United

States, supra, that since it appeared that the District

Court’s assessment of credibility and resultant findings of

fact were not clearly erroneous within the meaning of

Rule 52 of the Federal Rules of Civil Procedure, and since

there was substantial evidence in the record to support

such findings, the decision below would have to be affirmed,

especially since an Appellate Court should not lightly sub-

stitute its judgment for that of the trier of the fact

For that matter, the testimony and the proof in this case

left virtually no room for the Court of Appeals to disagree

with the findings and conclusions of the Trial Court. Per-

haps one of the most surprising aspects of the entire case

is that the testimony of the witnesses, whether called by

petitioner or by the other parties to the suit, was so uni-

form. There was virtually no disagreement as to the man-

ner in which the wire preventer had been rigged, no dis-

agreement as to the occurrence of the accident, no disagree-

ment as to the necessity for a half-hitch in the rig, no

disagreement that petitioner had failed to put a half-hitch

in the wire and, except for fine semantic distinctions, no

disagreement among the fact and expert witnesses as to the

intended functions of the various elements of the rigging.

The Trial Court stated that the theories of liability

advanced by petitioner were not sustained by the facts,

and that there were no tangible findings to support peti-

tioner’s claim that his injuries were caused by a defect

in the rope guy. The Court of Appeals agreed, stating

that the trial record revealed that petitioner ‘‘presented no

concrete proof of the cause of the accident.’’

12

The proof in the case leaves no room for any conclusion

as to the cause of the accident other than that arrived at

by the Courts below.

CONCLUSION

For the foregoing reasons it is respectfully submit-

ted that this petition for a writ of certiorari to the

United States Court of Appeals for the Second Circuit

should be denied.

Respectfully submitted,

J. Warp O’NEILL,

Davi P. H. Warson,

Counsel for Respondent, Ove

Skou, D/S Ove Skou A/S, and

D/S af 1937 A/S,

80 Broad Street,

New York, N. Y. 10004

Rosert K. Manrzix,

of Counsel.

T Ottice-Suipreme Court, U.S.

FILED

OBT 14 1065

JOIN F. DAVIS, CLERK

Supreme Court of the United States

October Term, 1965

No. 542

BENJAMIN PISANO,

Petitioner,

against

S. S. BENNY SKOU, her engines, boiler, tackle, ete., in

rem, and OVE SKOU, D/S OVE SKOU, A/S and D/S

af 1937 A/S,

Respondent,

agatmst

JOHN T. CLARK & SON,

Respondent-Impleaded.

—_

a

PETITIONER’S REPLY BRIEF

Gotpstern & STERENFELD,

Counsel for Petitioner,

00 Broadway,

New York, New York 10004.

Atvin P. ApFELBERG,

of Counsel.

Harvey GOLDSTEIN,

on the Brief.

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