# Petition for Writ of Certiorari — Waterman Steamship Corp. v. Atlantic & Gulf Stevedores, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1419%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 384 U.S. 972 ## Text a 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" 3 STATUTES INVOLVED - There are no statutes directly involved in this peti- tion. The Longshoremen’s & Harbor Workers’ Act 1 is col- laterally involved. “ 2 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 4 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 5 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- 6 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 al 4 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). 7 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 ay _ 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. + @ 10 —= Pe 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. o 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 y 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. 12 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. ae 40 Supra, footnote 6. 41 Supra, footnote 7. 14 * * * 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. { 16 . 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. 16 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 17 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 18 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 / yy 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 20 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). 21 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 All Rights Reserved CHRISTOPHER THOMPKINS, - Counsel for Atlantic & Gulf Stevedores, Inc. ? Ke APPENDICES 23 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. 6) If the answers to (4) and (5) are yes, to what degree was the plaintiff negligent? (0% to 100%). . % i dh (8) (9) (10) _ 2 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. i 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 27 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 ? 29 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. \ 30 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. 33 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 34 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. I. 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. 85 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 which runs along a metal track. A jack bar inserted into © 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: a 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 es 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 ee 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 38 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. Fd 40 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 41 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. 42 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. 43 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 45 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: | at “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 a 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 2 s 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. 3 ‘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 ys ae 9, § ae) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1419%3A1. Public record. Not legal advice.