Petitioners Reply Brief — Pisano v. Benny Skou

INDEX

Table of Cases Cited

Alaska v. Petterson, 347 U. 8. 396 ................ 4

Aldridge v. States, 265 F. 2d 554 .................. 3

Ballwanz v. Isthmian, 319 F. 2d 457 ................ 5

Beard v. Ellerman, 289° F. 2d 201, sub nom. Atlantic

Ws FN BH Wc Te OD ob rev cccccctccoccesces

Brabazon v. Belships, 202 F. 2d 904 ...............

Calmar v. Nacirema, 266 F. 2d 79 ................

Caputo v. United, 311 F. 2d 413 ..............00-

Connolly v. Weyerhaeuser, 236 F. 2d 848, sub nom.

Weyerhaeuser v. Nacirema, 355 U.S. 563 ........ 3,

Crumady v. Fisser, 358 U.S. 423 ............0000e-

DeGioia v. United, 304 F. 2d 421 ..................

Ferrante v. Swedish, 331 F. 2d 571 .............. 3,

Gutierrez v. Waterman, 373 U.S. 206 ..............

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

SEE GT. CEN GOO Fe BE OOO cccccccsctccercccece

PGE UV; DA Ge is SEE 6 oo eo ecb i dbicccndeees

Palazzolo v. Pan-Atlantic, 211 F. 2d 277, sub nom.

Ryan v. Pan-Atlantic, 350 U. 8.124 ..............

Santomarco v. United States, 277 F. 2d 255........

Skovgaard v. Tungus, 252 F’. 2d 14, 358 U. 8.588 ....

Smith v. Jugoslavenska, 278 F. 24 176 ............

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Supreme Court of the United States

October Term, 1965

No. 542

ra

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BENJAMIN Pisano,

Petitioner,

against

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

and Ove Sxou, D/S Ove Sxovu, A/S and D/S af 1937 A/S,

Respondent,

against

Joun T. Crank & Son,

Respondent-Impleaded.

r, =

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PETITIONER’S REPLY BRIEF

While the findings of the District Court were challenged

in the Court below, following the settled rule of this Court

that affirmed findings cannot be reviewed, petitioner has

not taken issue with said findings and admits, without

reservation, that petitioner improperly rigged the preventer

wire which created an unseaworthy condition and which,

some six working hours later, resulted in the accident and

petitioner’s injuries.

The District Court, in its opinion, did not take up the

question of primary duty of the shipowner and of the

stevedores to inspect, detect, and @orrect an open defect

of which it knew or should have known. Its decision of

some eight pages (pp. 9-16) did not have a single word

as to whether the shipowner used reasonable care to carry

out its obligation and whether the stevedore performed in

a workmanlike manner, retaining control over the opera-

1 Pages of Appendix.

tion by reasonable normal observation of the activity

aboard its ship m order to carry out the continuing duty

to provide the petitioner and his fellow workers with a

seaworthy vessel and with a safe place to work.

The District Court, in exquisite detail, outlined the past

history of the vessel and followed the activities of the peti-

tioner and of the stevedore operation step by step from

the time the vessel docked and work began at 1:00 P.M. on

July 21st until the collapse of the boom at 10:00 A.M. on

July 22nd. Throughout all of the opinion not a word was

written about the duties, responsibilities or activities of

any one other than the work gang, including petitioner,

yet the Court of Appeals concluded that the entire issue

of whether the shipowner, through its officers and crew

members, or the stevedore, through its boss, carried out

their duties toward the petitioner, was fully determined.

The sentence: ‘‘The unseaworthiness, resulting from the

manner in which the preventer wire was rigged, was the

sole proximate cause of the injuries to libellant’’ (p. 16),

was in fact held to be a full decision of the issue.

And so—with the use of one word upon which to base

its decision and with total silence even to the presentation

of the issue, the Court below ruled that it had been fully

discussed -and determined by the District Court.? Cer-

tainly the sentence was open to the interpretation that the

petitioner was_solely liable for creating the condition—as

it is admitted he was for the purpose of argument.

2 If “sole” was a determination that the shipowner and stevedore.

carried out their responsibilities toward the petitioner, what was

the District Court’s basis for such finding? Where was the dis-

cussion of that responsibility and how that duty was fulfilled?

Where was the discussion of the law applicable to the issue of such

importance as to be the basis for the decision of the Court below?

Employment of the word out of all context has lead to the de-

struction of the petitioner’s case—and not on the basis of findings

but on the basis of absence of any findings at all.

3

The cases cited by petitioner all deal: «ith the question

of shipowner and stevedore duty toward business invitees.

The different fact patterns cannot change the applicability

of the rule of law whether the shipowner ‘‘knew’’ rather

than ‘‘should have known”’ of the danger as in Skovgaard

v. Tungus, 252 F. 2d 14 (3C), 358 U. 8. 588 and Connolly v.

Weyerhaeuser, 236 F'. 2d 848 (2C), sub nom. Weyerhaeuser

v. Nacirema, 355 U. S. 563, or whether non-liability was

predicated upon lack of reasonable time to correct as in

Knoz v. United, 294 F. 2d 354 (3C). The other cases cited

by petitioner, Crumady v. Fisser, 358 U. S. 423; Beard v.

Ellerman, 289 F. 2d 201 (3C), sub nom. Atlantic v. Ellerman,

369 U.S. 355; Gutierrez v. Waterman, 373 U. S. 206; Fer-

rante v. Swedish, 331 F. 2d 571 (3C) ; Brabazon v. Belships,

202 F. 2d 904 (3C) and Aldridge v. States, 265 F. 2d 554

(9C), discussed the duty to inspect, detect and correct an

open and obvious danger and predicated liability upon the

failure to do so. Such is the case herein.

While the Court below did not take up the subject of

whether the condition was visible to inspection and super-

vision, the District Court’s decision clearly pointed out

that the improper rig was ‘‘on the deck’’ from bolt to turn-

buckle (p. 10), all in accordance with the uncontradicted

proof that the preventer was rigged on the open deck of

the vessel (21-24, 88).

The Court of Appeals did not deny that the knotless

rigging was on the deck but stated (although the District

Court had been absolutely silent in the matter) that a~~

‘‘minute, continuous supervision of every detail’’ would

have been necessary to detect the condition, a condition

that was on the open deck during six hours of actual work

operation and a fundamental part of the overall operation

affecting the safety of the entire ship to such extent that

the failure to properly rig caused the collapse of the ship’s

boom with its consequent injuries and damages.

8 Pages of the trial transcript.

4

Further, no mention at all was made of the duty of the

stevedore to properly inspect and supervise the operation

when once again the uncontroverted evidence was that he

was to inspect this most important rigging routine to assure

its safety during the cargo operation (9, 13, 41-42, 45, 322).

Such lack of proper inspection of the rigging by the

stevedore- boss so as to detect the lack of the knot was

a failure to perform in a workmanlike manner, Palageo v.

Pan-Atlantic, 211 F. 2d 277 (2C), sub nom. Ryan v. Pam-

Atlantic, 350 U. S. 124; Italia v. Oregon, 376 U. S. 315;

Calmar v. Nacirema, 266 F. 2d 79 (4C); Smith v. Jugosal-

venska, 278 F. 2d 176 (4C); Ferrante v. Swedish, 331 F. 2d

571 (3C); Néicrolt v. Den, 332 F. 2d°651 (2C); DeGtota v.

United, 304 F. 2d 421 (2C); Caputo v. United, 311 F. 2d

413 (2C) ; Santomarco v. United States, 277 F. 2d 255 (2C),

giving raise to Hability of the shipowner, with indemnifi-

cation over from the stevedore.

We are now faced with the situation of failure of a

District Court to make any determination on this most

important of issues, and an affirmance by the Court below,

not on any factual basis (since there was none) but on the

use of one word taken out of context in the discussion of

another issue.

This issue of shipowner and stevedore duty to inspect,

etc., has more and more frequently come before various

Courts of Appeals in recent years, arising out of the concept

that the shipowner cannot surrender control over its ship

to evade its duty to provide business invitees with a sea-

worthy vessel, Alaska v. Petterson, 347 U. S. 396. While

in this matter petitioner created the unseaworthy condition,

shipowner’s liability was predicated, inter alia, upon the

intervening failure of the shipowner and stevedore to fulfill

their duties to inspect, detect and correct that condition,

as laid down by this Court in Weyerhaeuser v. Nictrema,

supra. This Court must now decide whether an open, dan-

gerous condition for a period of six working hours and

twenty-one hours in all, remaining dangerous through

periods when there was or should have been an inspection

by either or both the shipowner and stevedore, can be laid

only at the feet of its creator, for if that is so the effect of

the Petterson decision concerning shipowner’s primary duty

has been utterly destroyed. Not only did the shipowner

herein improperly surrender control over its vessel ‘but it

did so to one longshoreman, the petitioner. It is truly

amazing how the petitioner’s mistake, made so long before

the accident, through work periods when inspection was

required, through periods of changes in the boom position

requiring inspection, through changes in cargo requiring

inspection, was still considered the sole cause of all that

befell him, while those in command stood aside, did noth-

ing—and now innocently cluck their tongues.®

For the destruction of this Court’s decisions, in negating

the shipowner’s and stevedore’s primary duty to watch over

4 The cases cited by respondent-impleaded on page 4 of its brief

in opposition concern matters in which there was no time element

between plaintiff's wrongful act and the accident. As such they are

not material herein.

5 A similar situation arose in Ballwanz v. Isthmian, 319 F. 2d 457

(4C), in which the Fourth Circuit rejected the concept of plaintiff-

longshoreman’s contributory negligence for injuries sustained during

the loading of cargo, in operation for three hours.

“The plaintiff longshoreman was at the bottom of the hier-

archy of command and we fail to see how we can be held

responsible for the manner of operations of the stevedore

company. The defendant ship owner has a general responsi-

bility for the manner in which the loading operations on his

vessel were carried out. If it was negligent and dangerous

to ‘sling’ the spreaders up instead of passing them up, then this

manner of operation had been going on under the general super-

vision of the ship owner and the particular supervision of the

stevedore company for nearly three hours before the injury

occurred” (p. 460).

= eee BIN RO

the vessel, petitioner submits that this Court should con-

sider, at this time, what responsibility is demanded of the

shipowner and of the stevedore so as to provide a known

basis of safety to the working gangs, all in accordance with

decisions of this Court and various Courts of Appeals,

cited above.

CONCLUSION

A writ of certiorari should be granted in accordance

with the prayer of the petition.

Dated: October 11, 1965.

Respectfully submitted,

GotpsteIn & STERENFELD,

Counsel for Petitioner,

50 Broadway,

New York, New York 10004.

Atvin P. ApFELBERG,

of Counsel.