Petition for Writ of Certiorari — Waterman Steamship Corp. v. Atlantic & Gulf Stevedores, Inc.

Supreme Court brief1966

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What actually matters in this document.

Text

is unreported. The amended judgment of the District

Court is found in the Record at page 586, is printed in

Appendix C (p. 29), and is unreported. The opinion’ of

the Court of Appeals is found in the Record at page 596,

is printed in a odciges D (p. 33), and is reported at 353

F. 2d 660.

Lillie JURISDICTION

The judgment of the Court of. Appeals for the Fifth

Circuit was entered on November 11, 1965, (R. 610), and

is printed in Appendix E (p. 45). Rehearing was denied

on February 1, 1966, (R. 635), Appendix F.

_ Jurisdiction of this Court is invoked under 28

_ULS.C. §1254.(1).

QUESTIONS PRESENTED

1. WHETHER. IN A LONGSHOREMAN’S PER-

SONAL INJURY SUIT AGAINST A SHIPOWNER, A

STEVEDORE CAN NEGLIGENTLY CAUSE OR

BRING INTO PLAY AN UNSEAWORTHY CONDI-

TION OF A VESSEL WITHOUT BREACHING ITS

WARRANTY OF WORKMANLIKE SERVICE TO THE

SHIPOWNER.

2. WHETHER A SHIPOWNER 1S UNDER A

DUTY TO USE REASONABLE CARE TO SUPPLY

SOUND AND ADEQUATE SHIP’S GEAR TO A STEVE-

DORE FOR USE BY LONGSHOREMEN ABOARD THE

VESSEL; AND IF SO, WHETHER A BREACH OF

THAT DUTY WILL PRECLUDE INDEMNITY FROM

THE STEVEDORE WHOSE NELIGENCE CAUSES OR

BRINGS INTO PLAY THE UNSEAWORTHINESS RE- .

SULTING FROM THE sti) si GEAR.

‘e"

STATUTES INVOLVED -

There are no statutes directly involved in this peti-

tion. The Longshoremen’s & Harbor Workers’ Act 1 is col-

laterally involved. “

STATEMENT OF THE CASE

_ The basis of federal jurisdiction in the Court of first

instance, the United States District Court for the Eastern

District of Louisiana, is because of diversity of citizen-

ship,.the plaintiff being a citizen of Louisiana and the de-

fendant a corporation domiciled in Alabama.

On December 7, 1960, Francis David (hereinafter re-

ferred to as David) sustained serious personal injuries

aboard Waterman Steamship Corporation’s (hereinafter

referred to as Waterman) SS ARIZPA, which was moored

at New Orleans. At the time of his ‘accident David was

aboard the vessel as a longshoreman in the employ of

Atlantic & Gulf Stevedores, Inc. (hereinafter referred to

’ as Atlantic), which had been hired to act as stevedore for

the SS ARIZPA.

David filed a Complaint in the United States District

Court for the Eastern District of Louisiana against Water-

man for $200,000.00 (R. 1); Atlantic not being sued be-

cause of the exclusive remedy afforded by the Longshore-

men’s & Harbor Workers’ Act.?, Waterman filed its An-

swer to the Complaint ‘ ‘denyin? all liability for David’s

injuries (R. 8), and at the same time filed a Third Party

Complaint against Atlantic alleging that any injuries sus-

tained by David were caused by the negligence, fault, and

breach of warranty, of Atlantic, for which Waterman was

entitled to indemnity for any sums it mightebe ordered to

pay David (R. 4). Atlantic filed “Answer to the Third

344 Stat. 1424 Sr idee 33 U.S.C. §§ 901-et seq.

2 Supra, footnote

Party Complaint, denied the truth of the allegations con-

tained therein, and asserted a cross-claim against Water-

man for the amount of workmen’s compensation it had

paid David (R. 10). Atlantic filed a a against

David alleging that if it was found negligent, that same

‘ was attributable to it solely through David’s negligence,

‘and that it was entitled to recover from David any sums

it might be required to pay Waterman (R. 12). Atlantic

also amended its crosf-claim against Waterman alleging

that if the SS ARIZPA was unseaworthy, and if that un-

seaworthiness was a proximate cause of David’s injuries,

then Waterman had breached duties and warranties run-

ning in its favor, and consequently that it was entitled

to damages measured by its workmen’s compensation pay-

ments and any other sums which might be recovered against

it by virtue of Waterman’s Third Party Complaint (R. 28).

Waterman filed Answer, denying all allegations (R. 30).

The case was tried before a jury and was submitted |

on special interrggatories and a general verdict (R. 551,

552), the contents of which were vigorously objected to

by Waterman’§ counsel (R. 459, 567, 568). Thereafter,

judgment was entered by the Trial Judge “upon the jury’s

special verdict” in favor of David and against Waterman

in the amount of $84,000.00. with interest from the date

of judicial demand and for all costs; and in favor of At-

lantic, dismissing Waterman’s Third Party Complaint (R.

557, 558).

Among other motions, Waterman moved the District

Court to amend the judgment as to David to eliminate the

award of pre-judgment interest (R. 558). This motion was

granted, and the judgment was modified so as to render

judgment for the amount of the verdict only (R. 586).

Waterman filed its Notice of Appeal from the Judg-

ment in its entirety and with respect-to both David and

Atlantic (R. 589). Thereafter, with the agreement of

Atlantic and without prejudice to its appeal from the judg-

ment in favor of Atlantic, Waterman settled the David

case and the appeal was dismissed insofar as he was con-

cerned (not reflected in the record).

The Court of Appeals affirmed the judgment of the

District Court (R. 596).

There is no issue of fact material to a consideration

to the questions here presented for review. Suffice it to

say that in answer to the special interrogatories the Jury

found that the SS ARIZPA was unseaworthy (Interroga-

tory No. 1), that the unseaworthiness was the proximate

cause of David’s injuries (Interrogatory No. 2), that the

unseaworthiness was caused or brought into play by neg-

ligence on the part of David’s employer, Atlantic, (Inter-

rogatory No. 7); and also that Atlantic did not breach its

warranty of workmanlike service, (Interrogatory No. 8),

and that the “breach of unseaworthiness” by Waterman

was so great as to preclade it from indemnity (Inter-

rogatory No. 10), (R. 551).

REASONS FOR GRANTING THE WRIT

QUESTION I.

WHETHER IN A LONGSHOREMAN’S PER-

SONAL INJURY SUIT AGAINST A _ SHIP- |

OWNER, A STEVEDORE CAN NEGLIGENTLY

CAUSE OR BRING INTO PLAY AN UNSEA-

WORTHY CONDITION OF A VESSEL, WITH-

OUT BREACHING ITS WARRANTY OF

WORKMANLIKE SERVICE TO THE SHIP-

OWNER.

The basic ground upon which the Court of bela

affirmed the District Court was its legal.conclusion that

if a vessel’s unseaworthiness prevents or hinders the steve-

dore’s workmanlike performance, that unseaworthiness is

conduct on the part of the shipowner sufficient te preclude

indemnity, and to excuse even a negligent breach of war-

ranty by the stevedore.* This holding and decision of the

Court of Appeals is in direct conflict with the several de-

cisions of this Court and the Courts of Appeal for the Sec-

ond and Fourth Circuits in Weyerhaeuser Steamship Co.

v. Nacirema Operating Co., Inc.,4 Crumady v. Joachim

Hendrik Fisser,> Drago v. A/S Inger, Misurella v. Isth-

mian Lines, Inc.," Mortensen v. A/S Glittre,® Albanese v.

N. V. Nederl Amerik Stoom v. Maats,® and Calmar Steam-

ship Corp. v. Nacirema Operating Co., Inc.”

In Ryan Stevedoring Co., Inc. versus Pan Atlantic

Steamship Corp.," this Court first set forth the doctrine

that where a stevedoring contractor undertakes to service

a vessel, the shipowner is entitled to indemnification for

all damages it sustains as a result of the stevedore’s breach

of its warranty of workmanlike service. Thus, by using

a contract formula, relief was given the shipowner which

had been denied him when the problem had been looked

upon as one of contribution between joint tortfeasors.”

This Court also made it clear in Ryan that although the

cause of action for indemnity depended on contractual rela-

tions between the parties, either express or implied, the

3 Opinion p. 10, 353 ww RS

4355 U.S. 563, 78S. Ct. 4 2 L. Ed. 2d 491 FS

5358 U.S. 423, s. Ct. 445, 3 L. Ed. 2d 413 1959

6194 F. Sup upp 398, (S.D. N.Y.-1961), aff'd 305 F. 2d 189 (C.A. 2-

1962), cert. den. 371 U.S. 925, 88 S. Ct. 292, 9.L. Ed. 2d 282 (1962).

eel? Supp. 857 (S.D. N.Y. 1963), aff'd 328 F. 2d 40 (C.A. 2-

8348 F. 2d 383 (C.A. 2-1965).

9 346 F. 2d 1 (CA. 2-1965) .

10266 F. 2d 79 (C.A. 4-1959) cert. den. 361 U.S. 816, 80 S. Ct. 56,

4L. Bd 2d 62 (1959).

11 $50 U.S. 124, 76 S. Ct. 282, 100-L. Ed. 133 (1956).

12 Baer,’ Admiralty Law of the Supreme Court, (1963) —_

ring to Haleyon Lines versus Haenn Ship Ceiling “Refitting Corp.,

342 U.S. 282, 72 S. Ct. 277, 77, 96 L. Ed. 318 (1952).

standard of performance of the stevedore’s work is the

essential ingredient in determining whether or not the

contract has been breached:

“The shipowner here holds petitioner’s uncontro-

verted agreement to perform all the shipowner’s

stevedoring operations at the time and place where

the cargo in question was loaded. That agreement

necessarily includes petitioner’s obligation not only

to stow the pulp rolls, but to stow them properly

and safely. Competency and safety of stowage are

inescapable elements of. the service undertaken.

This obligation is not a quasi-contractual obligation

implied in law or arising out of a noncontractual.

relationship. It is the essence of petitioner’s steve-

doring contract. It is petitioner’s warranty of

workmanlike service that is comparable to a manu-

facturer’s warranty of the soundness of its manu-

factured product. The shipowner’s action is not

changed from one for a breach of contract to one for

a tort simply because recovery may turn upon the

standard of the performance of petitioner’s steve-

doring service.” 350 U.S. at pp. 133, 134.

Since Ryan, the shipowner-stevedore indemnity doc-

trine has been before the Courts in innumerable factual

situations. In each instance, the Court has reiterated the

Ryan principle concerning the obligation of the stevedore

to perform its contract in a workmanlike manner; and

in each instance, the Court has looked to the standard of

performance of the stevedore’s work in determining wheth-

er or not the contract was b d. As was noted in Ryan,

the shipowner’s case for indemnity is not changed from

one for breach of contract to one for tort simply because

recovery turns on the standard of performance of the

stevedore’s work. Consequently, in Ryan and in all sub-

sequent cases, although the right of action in favor of the

shipowner against the stevedore sounded in contract, the

crucial issues regarding the standard of performance by

_ 8

the stevedore necessarily revolved around principles of

negligence.'®

In every case, without exception, when after exam-

ining the stevedore’s standard of performance the Judge

or Jury has found the stevedore guilty of a negligent per-

formance,"* that negligence has been held to constitute a

breach of warranty. See Waterman Steamship Corpora-

tion versus Dugan & McNamara, Inc.;** Drago v. A/S

Inger; ** Koninklyke Nederlandsche Stoomboot Maalschap-.

py N.V. versus Royal Netherlands Steamship Company; ""

Griffin v. Scott Paper Company; '* Damanti v. A/S In-

ger;*® Massa v. C. A. Venezuelan’ Navigacion;® Reed v.

S/S Yaka;*' Koninklyke, etc. v. Strachan eens Co.;*

and Chevis v. Luckenbach Overseas Corp.”

This Court’s opinion in Crumady v. Joachim Hendrik

Fisser,2* from which counsel for Waterman drafted Inter-

rogatory No. 7;> leaves no room for oo as to the valid-

13 ——— — F factual situation as was presented in Italia

- Societa {Me sc Navigazioni versus Oregon Sanalorina Company,

Inc., 376 U.S. 315, 84 S. Ct. 7 748, 11 L. Ed. 2d 782 (1964), where the ship-

owner was granted indemnity from a non negligent stevedore.

14 Assuming, of, course, that the — was causally related to

a loss on the part of the shipowner. this regard, see footnote 46

15364 U.S. 421, 81 S. Ct. 200, 5 L. Ed. 2d 169 (1960).

16 Supra, footnote 6.

17 301 F. F. 2d 741 (C.A. 5-1962), reh. den. 304 F. 2d 545 (1962), cert.

$71 U.S. — vy Ct. 288, 9 L. Ed. 2d 230 (1962). Z

18 219 F. Sup 1 (ED Pa., 1963)

19 314 F. 24408, K on968). cxrt. den. 375 U.S. 884, 84 S. Ct. 46,

11 L. Ed. 2d 64 (1963

$82 F. 2d 779 0G.A. 2.1964), cert. den. 879 U.S. 914, 85 S. Ct. 262,

13 L. Ed. 2d 186 (1964).

21873 U.S. 410, 88 S. Ct. 1349, 10 L. Ed. 2d 448, (1963), reh. den.

375 U.S. 872, 84 S. Ct. 27, 11 L. Ed. 2d 101 (1963).

22 3901 F. 2d 741, (C.A. 5-1 962), reh. den., 304 F. 2d 545 (1962), cert.

den. 371 U.S. 921, 88 S. Ct, 288, 9 L. Ed. 2d 230 (196 2).

228 F. Supp. 642 (E.D. Tex. 1964).

$s Sepia, Settee &.

237) If the answers to ee ee ee oe a unsea-

y by any ~~ on part of

ma employer, Adantic & Gulf Stevedores, Inc., its agents or em-

" (xX) Yes « ) No

ity of this proposition :

“* * © we need not go so far to sustain the District

. Court here. For there is ample evidence to support

the finding that these stevedores did no more than

bring into play the unseaworthy condition of the

vessel.” 358 U.S. at p. 427.

“We conclude that since the negligence of the steve-

dores, which brought the unseaworthiness of the

vessel into play, amounted to a breach of the war-

ranty of workmanlike service, the vessel may re-

cover over.” 358 U.S. at p. 429.

The cases cited above stand firmly and without contra-

diction for the premise that if the negligence of a steve-

dore proximately causes damage to a shipowner, the steve-

dore has breached its contract and is in default of its

warranty of workmanlike service. It would appear from

a close study of the decision of the Court of Appeals that

.the Court here deferred to the unanimf¥y of jurisprudence

and considered Atlantic’s negligence as a breach of war-

ranty.** Certainly had it not done so it would stand alone,

in obvious conflict with the Courts rendering the opinions

hereinabove listed.

é In view of the jurisprudence, particularly Crumady

v. Joachim Hendrik Fisser,”" the Jury’s answer to Inter-

‘rogatory No. 7 that Atlantic was guilty of negligence

which caused or brought into play the unseaworthiness of

the SS ARIZPA, would entitle Waterman to indemnity

unless there is an exception or qualification to the Cru

26 “Our task is not to decide whether the SS ARIZPA’s uriseaworthi-

ness was a sufficient material breach of the shipowner’s warranty to

excuse Atlantic’s breach of the stevedore’s warranty.” Opinion, p. 12, .

353 F. 2d p. 666.

It would ae, ee Se ane Oe Ses See Sap Rae See

cided on the basic fact of no breach of warranty by Atlantic, but revolved

around the issue of conduct sufficient to preclude indemnity from the

stevedore which did breach its warranty.

27 Supra, footnote 5.

+ @

—=

rule. In the opinion of the Court of Appeals, there is such

a qualification.

In the words of the Court of Appeals, this aspect of

the instant case turns on the Weyerhaeuser corollary to

the Ryan doctrine:

“The Ryan doctrine enables the shipowner to re-

cover indemnity from the longshoreman’s employer,

when the unseaworthiness for which the shipowner

is liable results from a) breach of the stevedoring

company’s implied warranty of workmanlike serv-

ice. Weyerhaeuser makes explicit a caveat implicit

‘in Ryan: To recover indemnity, the shipowner’s

‘condugt on its part [must not have been] sufficient

to er ude recovery.’ 355 U.S. at 567.” Opinion at

p. 2, 353 F. 2d at p. 662.

It was on the basis of this Court’s dictum in Weyer-

haeuser that Atlantic’s counsel drafted Interrogatory No. |

10,” and that the Court of Appeals affirmed the judgment

of the District Court.in the aT at bar. The Court said:

“« * * * The stevedore’s negligence is immaterial

unless it is a breach of the contractual warranty

of workmanlike service and is the proxiniate cause

of the longshoreman’s injyries. And under the

Weyerhaeuser dictum, the stevedore’s breach of

warranty may be excusable, if the shipowner’s con-

duct is ‘sufficient te preclude recovery of indem-

nity. ?” Opinion at Pe 7, 353 F. 2d at p. 664.

* * * '# *,

“These contract principles are implicit in ‘the

Weyerhaeuser dictum. If a vessel’s thi

28 Supra, footnote 4.

2910) “If the answer to (7) and (8) is yes, was breach of un-

seaworthiness, if any, by Waterman so great as to preclude it from a re-

covery against Atlantic & Gulf on the Atlantic & Gulf bated of work-

manlike service. ;

(X) Yes ( ) No” '

beypegen peice ee

11 $

ness prevents the stevedore’s workmanlike perform-

ance, that is ‘conduct’ on the part of the shipowner

‘sufficient to preclude recovery’, and to excuse even

a‘/negligent breach by the stevedore.” Opinion at p.

10, 353 F. 2d at p. 665.

It would-appear from this Court’s language in Weyer-

haeuser that certain conduct on the part of the shipowner

could preclude it from recovering indemnity from th

stevedore. Just what that conduct may be was left un-

answered. It was not left unanswered by the Court of

Appeals here, and it is that answer with which Petitioner

disagrees. The. Court of Appeals said that the crucial

question was whether or not the shipowner prevents or

‘hinders the stevedore in the performance of its contractual

obligation. If a vessel’s unseaworthiness (even if caused

by the stevedore) does prevent or hinder a workmanlike

performance by the stevedore, the Court of Appeals for the

Fifth Cireuit would consider the unseaworthiness as con-

~ duct on the part of the shipowner sufficient to preclude

indemnity, and to excuse even a negligent breach of war-

ranty by the stevedore.” In holding that unseaworthiness,

a species of liability without fault, can constitute conduct

on the part of the shipowner sufficient to preclude indem-

ity from a ‘stevedore’ whose negligence either caused or

rought into play the vessel’s unseaworthiness, the Court

Appeals for the Fifth Circuit stands alone and in con-

flict withthe holdings of this Court in Weyerhaeuser

Steamship Co. v. Nacirema Operating Co., Inc.*' and

Crumady v. Joachim Hendrik Fisser,** the Second Circuit

in Drago v. A/S Inger, Misurella v. Isthmian Lines, Inc.,™*

Mortensen v. A/S Glittre,> and Albanese v. N. V. Nederl

30 Opinion p. 10, 3538 F. 2d p. 665.

31 Supra, footnote 4.

32 Supra, footnote 5.

33 Supra, footnote 6.

34 Supra, footnote 7.

35 Supra, footnote 8.

Amerik Stoom v. Maats,** and the Fourth Circuit in Calmar

Steamship Corp. v. Nacirema Operating Co., Inc.**

No case since Weyerhaeuser has ‘denied a shipowner

indemnity from a negligent stevedore on the basis of that

elusive “conduct” ‘first mentioned in the Weyerhaeuser

dictum. Few cases have discussed it; even fewer have —

attempted to define it;.and the majority of those which

have discussed it did so through a negative approach, i.e.,

not by stating what conduct would preclude indemnity, but.

by eliminating certain conduct as that which would not

preclude indemnity.

The Weyerhaeuser case itself evidences this approach

in holding that the shipowner’s failure to inspect and cor-

rect an unsafe condition aboard the vessel is not conduct

sufficient to preclude indemnity.

In Crumady the Court granted indemnity to the ship-

owner where it furnished-defective, and consequently un-

seaworthy, equipment to the stevedore. Significantly, the

shipowner knew of the dangerous condition and the steve-

dore did not. Certainly, from Crumady it can be concluded

that by furnishing equipment to the stevedore which it

knows to be defective, and consequently unseaworthy, the

' shipowner is not guilty of “conduct” sufficient to prechade

indemnity. )

The Fourth Circuit, in the 1960 case of Calmar Steam-

ship Corp. v. Nacirema Operating Co., Inc., followed —

Crumady and was the first case subsequent to Weyer-

haeuser to meet the “conduct” issue head on. Here a de-

' fective light, supplied by the shipowner, was negligently

‘>? 13

handled by stevedores so as to cause injury to the plaintiff

longshoreman. After finding the shipowner. negligent”2 and

the ship unseaworthy, the Court granted the shipowner’

indemnity from the negligent stevedore. In holding that

by supplying the defective light to the stevedores the ship-

owner was not guilty of conduct sufficient tc preclude in-

. demnity, the Court said:

“Since this decision by the District Court, however,

the Supreme Court has adjudicated Crumady v.

The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.

Ct. 445, 448, 3 L. Ed. 2d 413. While this also does

not undertake a definitive statement of the conduct

on the part of the shipowner which will bar indem-

nity it indicates that furnishing defective equip-

ment will not necessarily have that effect.” 266 F.

2d at p. 80 (emphasis ours) , ‘

With its decisions i in Drago v. A/S Inger* and Misu-

rella v. Isthmian Lines, Inc., the Second Circuit followed

the Fourth Circuit’s approach.

In Drago, a defective-winch aboard ship caused in-

jury to the plaintiff longshoreman. With respect to the -

shipowner’s indemnity claim against the stevedore, the

Court held that even assuming that the stevedore was a —

third party beneficiary of the shipowner’s express con-

tractual obligation to its time charterer to keep the vessel’s

gear in good condition, nonetheless the:shipowner was en-

titled to indemnity. In so holding, the Second Circuit said:

“As we have recently held in Pettus v. Grace Line,

Inc., supra, a shipowner’s breach of contract in

failing to supply adequate equipment to its steve-

dores is not sufficiently material te excuse the steve-

dores from the contractual duty to give proper serv-

ice on which the indemnity claim is here based.

40 Supra, footnote 6.

41 Supra, footnote 7.

* * * We find in the record before us no additional

circumstances which could possibly constitute ‘con-

duct on (the shipowner’s) * * * part sufficient to

preclude recovery,’ Weyerhaeuser S.S. Co..v. Naci-

_ rema Operating Co., 355 U.S. 568, 567, 78 S. Ct.

438, 441, 2 L. Ed. 2d 491 (1958), and the appellant

has suggested none.” 305 F. 2d at p. 143 (emphasis

ours)

Thus, in Drago, although the Court assumed a specific

contractual duty on the part of the shipowner to supply

sound equipment to the stevedore, it still refused to deny

indemnity on the basis of the Weyerhaeuser dictum.

In Misurella v. Isthmian Lines, Inc.,*? the Second Cir-

cuit was presented with 4 case involving gross negligence

on the part of a shipowner, together with the unseaworthi-

ness of the vessel. Nonetheless, indemnity in favor of the

shipowner against the stevedore was allowed. In Misu-

rella the plaintiff-longshoreman was overcome by carbon

monoxide fumes while operating a gasoline powered hi-lo in

a vessel’s hold. The evidence established that the hold was

. ventilated by a forced air and blower system controlled

from a deck house on the vessel’s main deck. Despite re-

peated requests by the longshoremen, the ship’s mate did

not turn on the ventilation system as he could not find the

keys to the deck house. Neither could the longshoremen

bring a portable blower into play because the-electric cur-

rent of the ship was not on. In finding the shipowner neg-

ligent and the vessel unseaworthy, yet allowing indemnity

against the stevedore, the District Couit opinion stated:

“In any event, here the stevedore urges that the

_ shipowner’s conduct was @0 egregious that it should

bear the loss itself.” 215 F. Supp. at p. 862.

“«* * * True, the ship on its own was negligent and

‘42 Supra, footnote 7. {

. the vessel was rendered unseaworthy by the non-

use of the ventilating ent, and perhaps a

different result would follow if the common law rule

applicable to joint tortfeasors prevailed, but it has

“keen made abundantly clear that this concept is in-

applicable when breach of a contractual duty is the

basis of liability. Just as a shipowner’s breach of

contract in failing to supply adequate equipment is

not sufficiently material to excuse the stevedore

from its contractual duty to render workmanlike

service, so here it follows equally that where the

shipowner does not supply adequate equipment, the

stevedore is not exonerated for its breach in fail-

ing to use or cause the use of such equipment.” (em-

phasis ours)

“The Court is constrained to hold that the circum-

stances of this case do not constitute ‘conduct on its

(the shipowner’s) part’ which relieves the stevedore

of its breach of warranty * * *’.” 215 F. Supp. at

p. 863

The Second Circuit again had the opportunity to face

the “conduct” issue in 1965 when it. decided the cases of

Mortensen v. A/S Glittre* and Albanese v. N. V. Nederl

Amerik Stoom v. Maats.“* These two cases hold that there

must be evidence of “active hindrance” by the ship, and

that the shipowner must prevent or seriously handicap the

stevedore’s ability to do a workmanlike job before “con-

duct” sufficient to preclude indemnity is apparent.

In Albanese a longshoreman was injured by monoxide

fumes from hi-los used in a vessel’s hold. On facts quite

similar to Misurella, the Court said:

“Whatever fault of a shipowner may be said to re-

lieve the stevedore of his duty under the warranty,

it seems plain that it must at the least prevent or

43 Supra, footnote 8.

44 Supra, footnote 9.

seriously handicap the stevedore in his ability to do

a workmanlike job. Merely concurrent fault is not

enough. (cases cited) There was no eviclence of ac-

tive ‘hindrance’ by the ship.” 346 F. 2d at p. 484

Likewise, in Mortensen, where a longshoreman slipped

on oil on a hatch left by a ship’s maintenance man, the

Second Circuit said:

“Tt is true, as the Supreme Court has suggested in

Weyerhaeuser S.S. Co. v. Nacirema Operating Co./

Ine., 355 U.S. 563, 567, 78 S. Ct. 488, 2 L. Ed. 2d

491 (1958), that there may be conduct on the ship-

owner’s part which may be sufficient to preclude

recovery of indemnity. While neither the Supreme

Court nor this court has attempted to define with

any particularity what constitutes such conduct,

Misurella v. Isthmian Lines, Inc., 328 F. 2d 40, 41

(2d Cir. 1964), we have recently concluded that ‘it

must at the least prevent or seriously handicap the

stevedore in his ability to do a workmanlike job.’

Albanese v. N. V. Nederl. Amerik Stoom v. Maats.

etc., 346 F. 2d 481 (2d Cir. June 15, 1965). It is

well established that the mere creation of the unsafe

condition is insufficient to preclude recovery over

where the contractor’s own negligence has brought

the unseaworthiness of the vessel into play. E.¢.,

Crumady v. J. H. Fisser, 358 U.S. 423, 79 S. Ct.

445, 3 L. Ed. 2d 418 (1959). (emphasis ours)

“Despite every opportunity to do so during the

course of the trial, no effort was made to show and

no claim was made that Glittre’s conduct consisted

of anything more than the creation of the hazard

- which underlay the unseaworthiness claim, let alone

that it amounted to ‘active hindrance’ of the con-

tractor in the performance of its contractual duties,

which, as we stand in Albanese, supra, at 484 of

346 F. 2d, i is required to defeat the indemnification

action.” 348 F. 2d at pp. 384, 385.

In every case cited above, Weyerhaeuser, San

Calmar, Drago, Misurella, Albanese, and Mortensen, the

shipowner delivered an unseaworthy vessel to the steve-

dore.** In each of these cases the facts evidence unsea-

worthiness on the part of the shipowner which hindered or

prevented a workmanlike performance by the stevedore;

otherwise the accident would not have occurred. Yet in

each case this Court, and the Second, and Fourth Circuits

held that unseaworthiness, without more, did not consti-

tute conduct on the part of the shipowner sufficient to pre-

clude indemnity within the meaning of the Weyerhaeuser

dictum. The Court of Appeals for the Fifth Circuit stands

in obvious conflict with these Courts when it holds that

solely through delivery to the stevedore of an unseaworthy

vessel a shipowner may prevent or hinder the workman-

like performance by the stevedore, and thereby be guilty of

conduct sufficient to preclude indemnity from a stevedore

whose negligence either caused or brought into play the

unseaworthiness giving rise to the accident.**

45 Although we need not plead the facts herein for a comprehensive

presentation of our position, we are compelled to call to the Court’s atten-

tion that the only fact upon which Waterman could be denied indemnity

here is that it may have delivered to Atlantic a defective, and conse-

— unseaworthy, hatch beam. Negligence was neither pleaded by

avid, as plaintiff, nor by Atlantic,-as cross-complainant, against Water-

man, and consequently the issue of negligence was not before the jury.

46 Although not critical to a granting of the writ, we respectfully

suggest that the Weyerhaeuser dictum should be re-examined and either

roperly defined or discarded. We call the Court’s attention to Professor

hes comments in Adiniralty Law of the Supreme Court at p. 193. He

suggests that the “conduct” contemplated relates to the situation where

the injury is caused by an unseaworthy condition for which the stevedore

is in no way responsibie; and if the stevedore is found by the jury to be

free from all negligence, then the shipowner against whom the ore-

man recovered would have no action over against the stevedore. see

Miller and ae ar of Birmingham v. Louisville & Nashville Railroad

Company, 328 F. 2d 78 (C.A. 5-1964), cert. den’d, 877 U.S. 966, 84 S. Ct.

1648, 12 L. Ed. 2d 787 (1964), wherein the Court of Appeals quoted the

following language from the District Judge’s opinion:

“Absent conduct on its part, as for example, its sole negligence

producing the inj to Jackson, (cases cited), which is not the

case here presented, plaintiff is entitled to indemnity under

paragraph 12 of the contract * * * ”

It is certainly logical to assume that if the shipowner is guilty of con-

= — cae oe to oo meas oe the rag tanh would

er no of negligence or , then negligence

would have no causal relationship to fir voor The latter was the

QUESTION II.

WHETHER A SHIPOWNER IS UNDER A

DUTY TO USE REASONABLE CARE TO SUP-

PLY SOUND AND ADEQUATE SHIP’S GEAR

TO A STEVEDORE FOR USE BY LONG-

SHOREMEN ABOARD THE VESSEL; AND IF

SO, WHETHER A BREACH OF THAT DUTY

WILL PRECLUDE INDEMNITY FROM THE

STEVEDORE WHOSE NEGLIGENCE CAUSES

OR BRINGS INTO PLAY THE UNSEA-

WORTHINESS RESULTING FROM THE DE-

FECTIVE GEAR.

Prompted by drequested charge submitted by Atlan-

tic’s counsel, and over objection by Waterman (R. 537,

538, 547, 548, 584, 585), the Trial Judge charged the Jury

as follows:

“Waterman Steamship Corporation was obligated

to the Atlantic & Gulf Stevedores, Inc., that it,

Waterman, would use reasonable care to supply

sound and adequate materials and equipment which

it knew the stevedore would use in the performance

46 (Continued)

situation in Reddick v. McAllister Lighterage Line, Inc., 2 Cir., 1958, 258

F. 2d 297, cert. den. 358 U.S. 908, 79 S. Ct. 235, 3 L. Ed. 2d 229 (1958),

and in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S.

355, 82 S. Ct. 780, 7 L. Ed. 2d 798, reh. den. 369 U.S. 882, 82 S. Ct. 1134,

8 L. Ed. 2d 284, (1962); both erroneously relied upon by the Court in

the instant case.

Not here presented M4

the writ is an issue which is inherent in Question No. 1, and which was

strongly urged by Waterman before the Court of Appeals as a reason for

reversal of the District Court judgment. That issue is that although

the District Judge attempted to present the “conduct sufficient to pre-

clude indemni issue to the er Pd way of Interrogatory No. 10’s

reference to “breach of unseaworthiness * * * so great as to preclude

it from a regovery,” at no time did the Court explain the interrogatory

by way of a charge. Considering the difficulty which has been en-

countered by courts and counsel in handling the “conduct” issue, a jury

could hardly be expected to judiciously apply the principle without a

proper explanation. We submit that if the Weyerhaeuser dictum re-

garding conduct is applicable to cases of the sort here presented, the

conduct issue should not be given to the jury without adequate ex-

planation.

‘ + &

Peel

this Court as a separate reason for granting /

19:

of nitamininy and usual longshoremen’s duties. ” (BR.

537)

The jurisprudence is’ overwhelmingly against the

premises reflected in the charge that: 1) The shipowner

owes a duty to the stevedore to supply sound equipment,

and 2) That by supplying defective equipment the ship-

owner is in breach of contract which would preclude in-

demnity. a

In Pettus v. Grace Line, Inc.,“" the Second Circuit af-

firmed the Trial Judge’s refusal to charge the jury in

accordance with a charge tendered by the stevedore which

was in substance identical to that abovenoted. The re-

quested Pettus charge read: :

“* * * if the winches were defective * * * then the

shipowner breached its contract to provide adequate

winches and cannot recover over against the steve-

% dore * * * .” 305 F. 2d at p. 151

In affirming the District Judge’s refusal to give the charge,

the Second Circuit said:

“But the mere fact that Grace Line failed to ful-

_ fill its duty to ‘supply * * * adequate winches, in

good order’ did not, without taking the circum-

stances into consideration, by stnelt make it guilty

of such a material breach.”

“The only issue raised by the requested instruction

» was whether or not the simple fact of supplying de- ©

fective winches was without more a bar to indem-

nity, and there can be no question that it was not.”

305 F. 2d at p. 154

Similar holdings are reflected in Crumady** where indem-

nity was allowed notwithstanding the fact that a defective -

47 305 1’. 2d 151 i? Sa.

48 — footnote

winch was ‘tendered to the stevedore, and in Calmar*®

where the Fourth Circuit followed Crumady in specifically

holding that the supplying of defective equipment to the

' gtevedore would not preclude indemnity. Also see Drago.

™

v. A/S Inger. In Simpson v. Royal Rotterdam Lloyd "

the Court said:

“Stevedore contends that it has a valid counterclaim

against Shipowner for breach by Shipowner of its

- implied warranty to Stevedore to furnish Stevedore

and its employees with a safe place to work. Ap-

parently, no Court has held that such a cause of

action exists, although the possibility that it does _

has been mentioned.” 225 F. Supp. at p. 954 \

The language used by the District Judge here in the

charge complained of advised the Jury in no uncertain

terms that the Shipowner owed the Stevedore a duty to

supply sound ship’s gear, and clearly inferred that a breach

of that duty would constitute grounds for a denial of in-

demnity. In countenancing this charge the Court of Ap-

peals for the Fifth Circuit is unequivocally at odds with

the Court of Appeals for the Second Circuit which rejected

a basically identical charge in Pettus. The conflict be-

tween the two Circuits is obvious, and a resolution of the

issue in conflict is critical to the maintenance of uniform-

ity between the Circuits.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this Petition for a Writ of Certiorari should be

granted.

49 Supra, footnote *

61226 Fr Supp. 947 947 (S.D. N.Y. 1964).

Respectfully submitted,

JOHN. W. SIMS, :

Counsel for Petitioner, ©

Waterman Steamship

: Corporation,

420 Hibernia Bank Building,

New Orleans, Louisiana 70112

JAS. HY. BRUNS,

GEORGE W. HEALY, III,

HARRY S. REDMON, JR.,

Of Counsel.

CERTIFICATE

I hereby certify that copies of the foregoing brief have.

been ed on opposing counsel by placing same in the

. United States Mail, postage prepaid, addressed to them at.

their offices.

New Orleans, Louisiana, this ___.. day of

JOHN W. SIMS

Service Accepted

CHRISTOPHER THOMPKINS,

- Counsel for Atlantic & Gulf

Stevedores, Inc.

APPENDICES

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN sate avi OF LOUISIANA

INTERROGATORIES AND GENERAL VERDICT

SUBMITTEL TO THE JURY

INTERROGATORIES TO THE JURY

(Number and Title Omitted) (Filed )

(1)

(2)

(3)

Was the SS ARIZPA unseaworthy?

(x) Yes () No.

If yes, was that unseaworthiness a proximate cause

of the plaintiff’s injuries?

(x) Yes () No.

If the answers to (1) and ( 2) are yes, at what amount

' do you fix the damages sustained by the plaintiff as

(4)

(5)

a result of the accident of which he complains. (The

Court will make the computation for contributory

negligence, if any, found by you in the following -

interrogatories). 3

$84,000.00 :

Was the plaintiff, Francis David, negligent?

() Yes (x) No.

If yes, was that negligence a proximate case of his :

injuries?

~ () Yes () No.

If the answers to (4) and (5) are yes, to what degree

was the plaintiff negligent? (0% to 100%). .

i dh

(8)

(9)

(10)

If the answers to (1) and (2) above are yes, was such

unseaworthiness ‘caused-or brought into play by any

negligence on the part:of plaintiff's employer, At-

lantic & Gulf siihien zie Inc., -its: agents. or em-

ployees?_ er

(x) Yes '-. +( ) No.

Did the agents or employees of the Atlantic & Gulf

Stevedores, Inc., breach its warranty to. perform its ©

job in a reasonably safe, proper and workmanlike

manner? :

2 ae (x) No.

If the answer to (8) is yes, was such breach a proxi-

mate cause of plaintiff’s injuries.

() Yes () No.

If the answer to (7) and (8) is yes, was the breach

of unseaworthiness, if any, by Waterman so great

as to preclude it from a recovery against Atlantic &

Gulf on the Atlantic & Gulf warranty of workman-

like service.

_(@ Yes () No.

CHECK THE APPROPRIATE VERDICTS:

(x)

()

We, the jury find for plaintiff, Francis David, and

against the defendant, Waterman Steamship Com-

pany, as indicated above.

We, the jury, find for defendant, Wetmnen Steam-

ship Company, and against plaintiff, Francis David,

as indicated above.

We, the jury find for third-party plaintiff, Water-

man Steamship Company, and against third-party

defendant, Atlantic & Gulf Stevedores, Inc., as in-

dicated above.

(x) We, the jury, find for third-party defendant, At-

lantic & Gulf Stevedores, Inc., and against third-

party plaintiff, Waterman Steamship Company, as

indicated above.

S/ D.R. Hanemann

FOREMAN

March 18, 1964

New Orleans, La.

oe BRE Ty Pe BMA AL SAE AE ie Naw Spal Eb ee

3 iy ys Ca 2a ied ag cag MAR AMEN SA SR Cea gS a es :

eck as neta

APPENDIX B

» 7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

_ JUDGMENT

(Number and Title Omitted) (Filed March 23, 1964)

In accordance with the direction of the Court that

judgment be entered herein upon the jury’s special verdict,

rendered herein on March 18, 1964, containing answers to

questions ;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of plaintiff, Francis David

and against Waterman Steamship Corporation in the

amount of Eighty-four Thousand ($84,000.00) Dollars,

with interest from date of judicial demand and for all costs.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment in favor of third-party

defendant, Atlantic & Gulf Stevedores, Inc., and against

third-party plaintiff, Waterman Steamship Corporation,

dismissing third-party plaintiff’s complaint.

Dated at New Orleans, Louisiana, this 23 day of

March, 1964.

S/ A. ‘Dallam O’Brien, Jr: be

A. DALLAM O’BRIEN, JR.,

CLERK

ao ?

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT. OF LOUISIANA

ORDER DENYING MOTIONS FOR

NEW TRIAL AND GRANTING MOTION

OF DEFENDANT FOR AMENDMENT

OF JUDGMENT TO ELIMINATE THE

. AWARD OF INTEREST |

APRIL 24, 1964

MINUTE ENTRY ELLIS, FRANK B.—JUDGE

_ (Number and Title Omitted)

This cause came on for hearing on a former day on

motion of defendant, Waterman Steamship Corporation to

enter judgment in its favor and against the plaintiff,

Francis David, notwithstanding the verdict, and alter-

natively for a new trial with respect to the claims of the

plaintiff, Francis David; and further in the alternative

for a judgment against third-party defendant, Atlantic &

Gulf Stevedores, Inc., notwithstanding the general verdict

and consistent with the answer to Special Interrogatory

No. 7, alternatively for a new trial as against third-party -

defendant, Atlantic & Gulf Stevedores, Inc., on the ques-

tion of the effect, if any, of defendant, Waterman’s con-

duct on its right of indemnity and further alternatively

for a new trial on all issues between mover and third-party

ment of the judgment to eliminate the award of interest

from the date of judicial demand.

* defendant, and further in the ste for an amend-

After having heard argument of counsel and studied

the briefs submitted the Court is now ready to rule.

IT IS"ORDERED that the motion of defendant,

Waterman Steamship Corporation, to enter judgment in

its favor and against the plaintiff, Francis David, notwith-

standing the verdict, and alternatively for a new trial with

respect to the claims of the plaintiff, Francis David, be,

and the same is hereby DENIED: and

IT IS FURTHER ORDERED that the motion of de-

fendant, Waterman Steamship Corporation, for a judg-

ment against third-party defendant, Atlantic & Gulf

Stevedores, Inc., notwithstanding the general verdict and

consistent with the answer to special interrogatory No. 7,

and alternatively for a new trial as against third-party

defendant, Atlantic and Gulf Stevedores, Inc., on the ques-

tion of the effect, if any, of defendant, Waterman Steam-

ship-Corporation’s conduct on its right of indemnity, be

and the same is hereby DENIED: and

IT IS STILL FURTHER ORDERED that the motion

of defendant, Wa an Steamship Corporation for a new

trial on all issues between it and third-party defendant,

Atlantic & Gulf Stevedores, Inc., be and the same is hereby

DENIED: and

IT IS STILL FURTHER ORDERED that the motion

of defendant, Waterman Steamship Corporation, for an

amendment of the judgment to eliminate the award of

interest from the date of judicia) demand 1 hg, and the same

is hereby GRANTED: and

IT IS STILL FURTHER ORDERED that the fhe

ment entered and filed herein on March 23, 1964, be and

the same is hereby MODIFIED, so as to render judgment

for the amount of the verdict only.

REASONS

While it may be true that the jury’s answer to special

interrogatory number 7 is inconsistent with the jury’s

’

general verdict, it may not be. considered inconsistent

when considered in the light of all the interrogatories, and

thus the case must be resolved that way. “Where there is

a view of the case that makes the jury’s answers to special

interrogatories consistent, they must be resolved that way.

(A) search for one possible view of the case which will

make the jury’s finding inconsistent results in a collision

with the Seventh Amendment.” Atlantic & Gulf Steve-

dores, Inc. v. Ellerman Lines, 369 U.S. 355, 364.

The matter of the award of interest may also be dis-

posed of perfunctorily. Interest before a decree runs upon

an award under the maritime law only when allowed in

the discretion of the court. In a maritime matter tried by

jury on the civil side of the court “it is the federal law that

an award of interest rests in the discretion of the jury

and it is the jury who must exercise it,”” Hand, J. in New-

burgh Land & Dock Company v. Texas Company, 2 Cir.

277 F. 2d 732.

Thus the judgment must be modified by striking out

the award of interest and judgment should be entered for

the amount of the verdict only. ,

F.B.E.

APPENDIX D °

IN THE

UNITED STATES COURT. OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21830

WATERMAN STEAMSHIP CORPORATION,

Appellant,

versus

FRANCIS DAVID, ET AL.,

Appeal from the United States District Court for the

Eastern District of Louisiana.

(November 11, 1965.)

Before JONES and WISDOM, Circuit Judges, and

BREWSTER, District Judge.

WISDOM, Circuit Judge: This appeal turns on the

Weyerhaeuser corollary to the Ryan doctrine of stevedore-

shipowner indemnity. Ryan Stevedoring Co. v. Pan-

Atlantic Steamship Corporation, 1956, 350 U.S. 124, 76

S. Ct. 232, 100 L. Ed. 1383; Weyerhaeuser Steamship

(1964) ; Comment, Fs Te

1446 (1964); Note, 24

Company v. Nacirema Operating Co., 1958, 355 U.S.

563, 78 S. Ct. 438, 2 L. Ed. 2d 491. Under the Sieracki line

of decisions, a shipowner is liable to an employee of a

stevedoring or ship-refitting company for an injury caused

by negligence of the shipowner or unseaworthiness of the

vessel on which the injured longshoreman or other em-

ployee is working.? The Ryan doctrine enables the ship-

owner to recover indemnity from the longshoreman’s em-

ployer, when the unseaworthiness for which the shipowner

is liable results from a breach of the stevedoring company’s

implied warranty of workmanlike service. Weyerhaeuser ~

makes explicit a caveat implicit in Ryan: To recover in-

demnity, the shipowner’s “conduct on its part [must not

have been] sufficient to preclude recovery”. 355 U.S. at

567. The Supreme Court did not declare just what conduct

is sufficient to bar indemnification, although the Court

did declare that “in the area of contractual indemnity an

application of the theories of ‘active’ or ‘passive’ as well

as ‘primary’ or ‘secondary’ negligence is inappropriate.” .

Id. at 569. In the case before us the question was properly

put to the jury. The jury decided that unseaworthiness

was the proximate cause of the plaintiff’s injuries and

that the shipowner’s conduct was “so great as to.preclude

recovery of indemnity.” We affirm the judgment based

on the jury’s verdicts.

Francis David, a longshoreman employed by Atlantic

& Gulf Stevedores, Inc., was injured while working aboard

Waterman’s §S. S. Arizpa in New Orleans. David was one

of a gang of longshoremen opening and clearing a between-

decks cargo hatch. On Waterman vessels, the hatch covers

2 Seas Shippi Co. v. Sieracki, 1946, 328 U.S. 85, 66 S. Ct. 872,

Ed. 1099; v. Southern S.S. Co. 32 1 U.S.

90 L. , 64 S. Ct. 455,

88 L. Ed. 561; ’Mitchell v. Trawler Racer, 302 U.S. 89, 80 S. Ct. 926, 4

L. Ed. 2d 941; Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601,

98 L. Ed. 2d 798.

rest on a series of I-beams. The beams lie from port to

starboard. At each\end of the I-beam there is a wheel

a cam engages and disengages the wheel. The end of the

beam also rests on an upper guide rail as an additional

safety precaution. To clear the hatch for loading or un-

loading- cargo, the longshoremen first remove the hatch

covers, then one man on each end engages the wheel by

inserting the jack bar and rotating the cam. The other

members of the gang, half on each end of the. beam, roll

the beam down to the end of the hatch by pulling with

ropes or a metal pull bar inserted into a metal eye on each 7

end of the beam. After they have rolled all of the I-beams

_ down to the end of the hatch, the hatch is clear for loading

or unloading.

On the morning of the accident, David’s gang had al-

ready cleared the weather-deck cargo hatch without any

. difficulty. They then removed the hatch covers from the

between-decks hatch and moved two of the I-beams to the .

end of the hatch without incident. David was operating

the jack bar on the onshore end of the beams. As they

were moving the third beam, the beam jumped the track —

at the offshore end and fell into-the hold. The falling -

beam struck David and catapulted him into the hold. He

was seriously injured.

David sued Waterman, the shipowner, alleging that

his injuries were sustained as a result of unseaworthiness,

“specifically, in that the track for the roller on said beam

was not safely designed and the roller, which left. the

track, was worn and not fit for the use intended * * * .”

In its answer, Waterman denied that the accident occurred

in the manner alleged, denied the alleged unseaworthiness

of the S. S. Arizpa and, as a special, alternative defense,

pleaded contributory negligence on the part of David.

; 36

Waterman filed a third party complaint against Atlantic

& Gulf Stevedores for indemnification based on the con-

tention that Atlantic breached its -warranty of due care.

Waterman alleged that Atlantic was aboard the S. S.

Arizpa in connection with performance of general stevedor-

ing work and was in full custody and control of the areas

where: David allegedly sustained injury, that it was the

sd of Atlantic to perform its work with due diligence

safety, and that any injuries sustained were caused

%y the negligence-and fault of Atlantic. The jury returned

a general verdict for David against Waterman in the

amount of $84,000.* The jury returned a second general

verdict denying Waterman’s claim against Atlantic steve-

dores. The court rendered Judgment in accordance with

the verdicts. |

m2 |

Watebman’s argument on appeal rests chiefly on the

contention that the jury’s answers to certain interrogato- -

ries required a judgment in its favor and, at thevery least,

were inconsistent with answers to other interrogatories.‘

This. ed and dismissed with the consent of all

ra aoa were submitted to the jury:

2) If Saati ieilicills veashante cami of te

pl f’s - ogicadl

8) If the answers to (1) and (2) (3) axe yes, sfwhat amount do

fix the damages sustai Da et Cone will

38 een Se also oe led the general verdict in favor of David.

4) Was the es rex a negligent?

5) If you was that een eeee ane we

( ) Yes “BS _

6) If the answers to (4 5 to what degree was

) If the shavers te (4) and (8 ) are % ™

7) If the ans to (1 d°(2) above » such un-

) answers to (1) and’(2) are yes, was u

a (

37 e ”*

In answer to the first two interrogatories, the jury found

that the proximate cause of the accident was the unsea-

worthiness of the beam roller assembly. In answer to the

seventh interrogatory, the jury found that Atlantic was

negligent, ard that the negligence “caused or brought into

play” the vessel’s- unseaworthiness. Waterman assumes

that these findings necessarily required a verdict in its

favor, relying on the Ryan and Crumady v. Joachim

Hendrik Fisser, 1959, 358 U.S. 428, 79 S. Ct. 445, 3 L. Ed.

2d 413 holdings that a shipowner cast for unseaworthiness

may recover over against the employer of the injured

seaman if the employer’s negligence’amounts to a breach

of warranty of workmanlike performance. But the jury

also found, replying to the eighth interrogatory, that the

negligence did not constitute a breach of Atlantic’s war-

ranty to perform its job in a reasonably safe and work-

4 ay a

. worthiness caused or brought into play by any

~ os on the part of plaintiff's — pis by & Gulf =

7 ‘eo agents wes "ya

8) Did S agents or employees of the Atlantic & Gulf Steve-

dores, Inc. breach its warranty to ‘orm its job in a rea-

ee ee oe manner

9) If the answer to (8 is yes, was such breach proximate

, oa of plaintif?'s - uries? "

(X) Yes ) No

10) If the answer to (7) and (8) is yes, was the breach of

unseaworthiness, if any, by Waterman so great as to pre-

Cae SS eS ee ee ee oe

Atlantic & Gulf warran workmanlike service?

a Sh

cok cae the defendant, Waterman Steamship

(ER ee a Bere, gee

cis David, as indicated —"

We, the , find for Wi

( ) We, bent rm " plainitif?, a

party defendant, A & Gulf Stevedores, Inc.,

( ) We, the Jury, find for third-party At-

lantic & ati, Woteatan Bhan ope on

Pay voce a Fd cea —

a as

manlike manner. The jury’s answer to the tenth inter-

rogatory is consistent with its answer to the eighth in-

terrogatory: The unseaworthiness of the vessel was “so

great as to preclude” Waterman’s recovery from Atlantic

for breach of warranty.

It is the “duty of the courts to attempt to harmonize

the answers, if it is possible under a fair reading.of them”,

and “to reconcile the jury’s findings by exegesis if neces-

sary *** * before we are free to disregard the jury’s special

verdict and remand the case for a new trial”. Gallick v.

Baltimore & Ohio R. Co., 1963, 372 U.S. 108, 119, 83 S. Ct.

659, 9 L. Ed. 2d 618. If “there is a view of the case that

makes the jury’s answers to special interrogatories con-

sistent, they must be resolved that way. For a search for

one possible view of the case which makes the jury’s

finding inconsistent results in a collision with the Seventh

Amendment.” Atlantic & Gulf Stevedores v. Ellerma

Line, 1962, 369 U.S. 355, 82 S. Ct. 780, 7 L. Ed. 2d 798.

If.

The result the jury reached agrees with the Supreme

Court’s treatment of the stevedore’s indemnity obligation

as resting on contract, not tort principles.° The stevedore’s

negligence is immaterial unléss it is a breach of the con-

tractual warranty of workmanlike service and is the prox-

na te $4 Court has “crossed the bri of

dge” ches in third party

of comparative fast os bowern Li vow ae ime

Giimore A speeger He = ng Bed

, — ceili nk Beritting Oo 366-367.

on Se oa Comm. 1952, 342 US. 262, Hee Ce aTT,

96 L. Ed. 3 Owain the referred to to Congress the possibility of .

applying comparative fault in the shipowner’s suit for indemnity. |

imate cause of the longshoreman’s injuries. And under

the Weyerhaeuser dictum, the stevedore’s breach of war-

ranty may be excusable, if the shipowner’s conduct is

“sufficient to preclude recovery of dndemnity”.

The stevedore’s “warranty of workmanlike service is

comparable to a manufacturer’s warranty of the sound-

ness of its manufactured product. The shipowner’s action

is not changed from one for a breach of contract to one

for a tort simply because recovery may turn upon the

standard of the performance of petitioner’s stevedoring

service.” Ryan, 350 U.S. at 133. In a more recent case

the Supreme Court, declining to take a bailment approach,*

again noted that the considerations underlying the steve-

dore’s warranty are the same as those which “underlie a

manufacturer’s or seller’s obligation to supply free of de-

fects.” Italia Societa v. Oregon Stevedoring Company,

1964, 376 U.S. 315, 318, 74 S. Ct. 748, 11 L. Ed. 2d 732

(Griffith’s case). See also Reed v. The Yaka, 1963, 373

U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448. In Griffith’s

case, allowing indemnity, the Supreme Court held that

“the absence of negligence on the part of a stevedore who

furnishes defective equipment is not fatal to the ship-

owner’s claim of indemnity based on the stevedore’s im-

- plied warranty of workmanlike service.” The Court said:

“Although in Ryan the stevedore was negligent, he was

not found liable for negligence as such but because he

failed to perform safely, a basis. for liability including

negligent and non-negligent action... . . [Lliability

should fall upon the party best situated to adopt preven-

tive measures and thereby reduce the likelihood of in-

jury.” 376 U.S. at 318.

. Weyerhaeuser the breach of contract was the steve-

dore’s negligence. The Supreme Court said: “If * * *

6 See Booth SS. Co. v. Meier & Oelhaf Co., 2 Cir. 1958, 262 F. 2d 310.

respondent (stevedoring company) rendered a substandard

performance which led to foreseeable liability of petitioner

(the owner), the latter was entitled to indemnity absent

conduct on its part sufficient to preclude recovery.” (em-

phasis added) 355 U.S. at 567.. The Court left no doubt

that the law of contract determines what is “conduct:suf- .

ficient to preclude recovery.” The Court cited sections

295 and 315 of the Restatement of Contracts (First). Sec-

tion 295 provides that: “If a promisor prevents or hinders

* * * the performance of a return promise, and the * * *

return promise (would have) been rendered except for

such prevention or hindrance * * * the actual or threatened

- nonperformance of the return promise does not’ discharge

the promisor’s duty * * * ” Section 315, entitled “Breach

by Preventing or Hindering Performance by Other Party” ;

reads: ;

“(1) Preverition or hindrance by a party to a con-

tract- of any occurrence or performance requisite

under the contract for the creation or continuance

of a right in.favor of the other party, or the dis-

charge of a ~— by him, is a ial of con-

tract. 2 @ # 99

“(2) Acts that would have been sufficiént to hin-

“der or prevent the occurrence of .a condition or the

- performance of a return promise are not a breach

_... Of contract if the condition would not have occurred

. or the return promise -have ‘been performed had

those acts not —— done.”

The: chien cited sections 571,947, and 1264 of Corbin on

Contracts dealing with excuse ef a breach of contract ‘

through acts of the other party Wise hinder o or ‘Prevent

performance of the: contract:

These simbine ptinciples are implicit ‘in the: Weyer-

“es

haeuser dictum.” If a vessel’s unseaworthiness prevents

the stevedore’s workmanlike performance, that is “con-

duct” on the part of the shipowner “sufficient to preclude

recovery”, and to excuse even a negligent breach by the

stevedore. In Reddick v. McAllister Line, Inc., 2 Cir. 1958, :

258 F. 2d 297, cert. denied 358 U.S. 908, for example, the

court reversed, as clearly erroneous, a finding that the

stevedore’s fault required a judgment of indemnity in the

shipowner’s favor. The Second Circuit said: “However,

even if it was properly found that Clark (stevedore) by

improper stowage breached its implied warranty of work-

manlike service to McAllister (shipowner), a majority of

the court thinks that there is no showing that this breach

caused Reddick’s injury. Under the general test of fore-

seeability applied to contractual liability, a breach must

have been the causé of the injury. We think that in this

7In a recent comment the author suggests: “The obligations owed

by the shipowner” are:

1) To exercise care in placing the ship and its appli-

aware

such that an experienced stevedore,

of the nermel dangers eupested to aria in the ’s service,

the danger and that it was danger such as the stevedore

Celt ny ae ee ee

a performance of the stovedering operator in af

manner.

case the latent defect in the board on the top of the crate

‘‘was the intervening cause which broke any causal chain

that mignt otherwise have existed.” 258 F. 2d .at

Similarly, the stevedore’s warranty of workmanlike service

does not put him under the duty to discover defects in

equipment furnished him by the shipowner, such as a

rotten rope. Ignatyuk v. Tramp Chartering Co., 2 Cir.

1957, 250 F. 2d, 198.

In these cases and in the instant case, the factfinder’s

evaluation of the shipowner’s conduct involves a weighing

process. Thus, in Hagans v. Farrell Lines, 3 Cir. 1956,

237.F. 2d, 477, it was contended that an interrogatory con-

cerning the stevedore’s asserted negligence was answered

in a way that was inconsistent with the general verdict.

In answer, the Court said: “We think it is a necessary

conclusion from the question addressed to the court’ by

the jury, and the general verdict (against the shipowner

and in favor of the stevedore), that the jury must also

have concluded that the defective winch was a substantial

cause of the accident, and that the negligence of. Lavin’s

(the stevedore’s) employees was not a substantial cause

of the accident.”

Our task is Hot to decide sein the S. S. ARIZPA’S

unseaworthiness was:a sufficiently material breach of the

shipowner’s warranty to excuse Atlantic’s breach of the

stevedore’s warranty. That is the jury’s task. So, in

Weyerhaeuser the Supreme Court observed :

“The evidence bearing on these issues—petitioner’ 8

(owner’s) action in making the shelter on its ship

available to respondent’s employees in -Boston al-

though it apparently was unsafe, as well as re-

spondent’s (stevedore’s) continued use of the shelter

for five days thereafter without inspection—was

for jury consideration under appropriate instruc-

tions.” 355 U.S. at 567.

And see McNamara v. Weichsel Damp. A. G. Kiel, 2 Cir.

1961, 293 F. 2d 900, 904; Moore-McCormick Lines, Tne. v,

Mayland Ship Ceiling Co., 4 Cir. 1962, 311 F. 2d 663. ~

Here the jury concluded that in spite of Atlantia’s neg-

ligence, the defective roller beam assembly was the prox-

imate cause of the accident and amounted to conduct on

the part of the shipowner sufficient to preclude indemni-

fication. We cannot say that the jury was confused or

inconsistent or that the record fails to support the jury’s

finding.® : |

The judgment is AFFIRMED.

8 Waterman alleges several other errors. Waterman attacks the ad-

mission of evidence t

accurately refl

ditions. Avera v. Florida Towing Corp., 5 Cir. 1963, 322 F. 2d 165, 162

& n. 12. A lapse of several years does stretch the rule, but not

the breaking Page when the rule is applied to 2 e object as

an w guide rail.

aterman also complains that the second ial interrogatory was

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1964

NO. 21,830

D. C. Docket No. 10667—Civil Action

WATERMAN STEAMSHIP CORPORATION,

Appellant,

versus

FRANCIS DAVIS, ET AL.,

} Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before JONES and WISDOM, Circuit Judges, and

BREWSTER, District Judge.

JUDGMENT "

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed;

It is further ordered and adjudged that the appellant,

Waterman Steamship Corporation, be condemned to pay

the costs of this cause in this Court for which execution

may be issued out of the said District Court.

| November 11, 1965

Issued as Mandate: |

“APPENDIX F

‘U.z s. ‘Court of Appeals

mie ‘Filed Feb 1st 1966

_ Edward W. Wadsworth, Clerk

[543]—Wisdom

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

‘NO. 21,830

WATERMAN STEAMSHIP CORPORATION,

~ Appellant,

Vs.

FRANCIS DAVID, ET AL, |

| Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

( February 1, 1966)

ON PETITION FOR REHEARING.

Before JONES and WISDOM, Circuit J udges, and i ceaadl

STER, District Judge.

PER CURIAM: | A

IT IS ORDERED that the petition for rehearing

filed in the above styled and numbered cause be, and the

same is hereby DENIED.

Rk ERD Dace a Tab LSAT ACAI tek SiS Ae to de Oeaaccnanapmnsmmacnganat menneiaamNE é ne ee re ee eT

= Office-Supreme Court, U.S,

eReRY 7 FILED

' MAY 25 1966

JOHN F. DAVIS, CLERK

Supreme Court of the United States

OCTOBER TERM, 1966

a —_—_—

No. =e

‘WATERMAN STEAMSHIP CORPORATION,

Petitioner,

versus

ATLANTIC & GULF STEVEDORES, INC.,

¢ eepecdiant.

RESPONDENT'S BRIEF IN OPPOSITION

. | TO CERTIORARI

| Eberhard P. Deutsch ¢

. Hibernia Bank Building

‘New Orleans 70112

Attorney for Respondent

Deutsch, Kerrigan & Stiles

Christopher Tompkins

Of Counsel

This Court is being asked to grant certiorari to

review the action of the Court of Appeals in af-

firming a judgment entered on ‘a jury verdict

against petitioner and in favor of respondent.

Although petitioner asserts that important inter-circuit

conflicts of law are involved, it is obvious from the opinion

of the Court of Appeals that it is not in conflict with that

of any other circuit; and that petitioner’s real quarrel is

with the jury’s findings of fact which were accepted by

the Court of Appeals. :

The issue of liability in David’s case against pe-

titioner was whether or not the ship was unseaworthy

by virtue of a defective hatch beam assembly. The

jury found that the ship was unseaworthy, and that such

_ unseaworthiness was a proximate cause of the plain-

tiffs injuries. The jury then found expressly that al-

though the unseaworthiness was brought into play

by negligence of respondent’s agents or employees,

such negligence did not constitute a breach of re-

spondent’s contractual warranty to perform its work

in a reasonably safe, proper and workmanlike man-

ner. }

The jury went further, in answer to one of the special

interrogatories directed to it, and found that the unsea-

worthiness of the ship was “so great as to prectude (peti-

tioner) from recovery against (respondent) on the (lat-

ter’s) warranty of workmanlike service”. The jury then

expressly entered two findings on,a general verdict form:

(1) For David and against petitioner and (2) against peti-’

tioner and for respondent.

‘Since the decision below does not conflict on any

‘- point with applicable holdings of this Court or of

other Courts of Appeal, and the only questions at

issue are questions of fact decided by the jury, it is

respectfully submitted that. certiorari should be

denied. -

Eberhard P. Deutsch - -

Attorney for Respondent

Deutsch,Kerrigan & Stiles j

Christopher Tompkins

Of Counsel

May, 1966

ae 9,

ae)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.