Brief in Opposition to Petition for A Writ of Certiorari — Lipsett Steel Products, Inc. v. Mosley

SEP 2.3 196

MIBRARY | |

BPR sins Th [son F. DAVIS, CLERK

Supreme Court of the Anited States

OCTOBER TERM, 1966

No. 498

—

SAMUEL MOSLEY, 7

_ Respondent, a:

-—against—

_ CIA. MAR. ADRA S&. A, |

Respondent,

ntipiiiabe-

LIPSETT STEEL PRODUCTS, INC.,

Petitioner.

Ow AppzaL From THe Unitep Srares District Covrr

For tue Sournern Distaicr or New York :

BRIEF OF RESPONDENT CIA. MAR: ADRA S.A.,.

mn OPPOSITION

VICTOR 8S. CICHANOWICZ

Counsel for Respondent

, Cra. Mar. Avra §.A.,

‘Office & P.O. Address

_ 26 Broadway

New York, New York 10004

Victor 8. CicHaNowicz

and

Wuusum P. Larsen

On Brief

i hia Cae

” '

co

:e@

INDEX

| PAGE

Opinions Below Ey Eo ae PO peaaees a

Jurisdiction dicate teantcueemiatu Favegees ren 7

Statement ........ bop waaaes stds) exes ae —_

MRE Co ifec ns peer oe SOO oe =

I—The Decision Below Is Clearly Correct . naa nce oe

II—There Is.No Conflict of Decision .......... kee

: I1I—There Is No Important Question of Federal Lam 17

Conclusion ..:......... Vereeaegye geass ey ‘wh eeebe erty 20

TABLE OF Cases CITED

Albanese v. N. V. Nederl, Amerik, Stoomv., Maats,

346 F. 2d 481, _— on other grounds 382

We SO: 6c vied eis ahs dad Cosh Clurereseeees 17

Atlantic &- Gulf ‘piciiona v. Ellerman Lines, Ltd.,

Oe ae Oe yore tacncedecies biwak kiebae soe 15, 16

Crumady v. The Toachim Hendrick Visser, 358 U.S.

MP OPEL EE eT Pe ery eT Terre pare Sapa 14, 16

- Foman v. Davis, 1962, 371 U. S. 178 . Akpan wats 12, 13, 17, 19

Helvering v. Gowran, (1937) 302 U.S. 288. .......... ° 10,

Herron v. Southern Pacific Company, (1931) 283 U.S.

, Seren ee rere rey ety eee err errr e iecsianschey ae

Italia Sooleta v. ' Ovegen Stevedoring ae 376 U.S. .

EE PET ECT CO TT Heee hy Pee eT eee 12, 14, 16

a v. Kurn, 1946, 327 U.S. 645 ceehepueh eo

*

we * Mortensen v. as alii, 2 Cir., 1965, 348 F. 2d

: WN, BBB: . lecicsGeve. ie Pe ioe es at Care pees oly 16

New York, N. H. é H. R: Co, v. Hennigan, 1960, 364 |

US. 441 cunt oas PCP LETT CUTER TC COCR UE T ELE 15.

: Paliner v. Hoffman, 1943, 318 U.S. 109 ...... eat 12, 17

- Puddw: v. Rogal: Netherlands 8.8. Co., 2 Cir., 1962,

303 F.2d 752, cert. den. 371 Ue 840,.reh. den.

PAGE

OG TE Oe Acocks tcve sane denss siPuckes “14

| Ryan Stevedoring Co. v. Pas Atlantci S.S. Corp., \

: + (1955):350-.8. 124.200.2002. ici ucdeens 11, 14, 16. ~

- Waterman 8.8. Corp. v. Dugan dé. McNamara, 364 U.S.

pM seattle gadas badd Needs akbh on uees ...14, 16

"Weyerhaeuser SS. Co. v. Nagireme ‘Operating Co.,

| - 556, US. 568 ga nun cla ok than aleaesabentaaeet 16, 17

‘Ormn. Avrsoniries Crrep

Rules of Supreme Court: ‘of United States, Rule 19..° 1

28.08, 1254 (1). oe eens PEE OO PEPE Pea 1

ee". 4 : _

Supreme Court of the United States

OCTOBER TERM, 1966 ;

No. 498

EA

Respondent,

Cra. Mar. Apra S:A.,

Respondent,

—against—

Lirsett STEEL Propucts, INc.,

Petitioner.

‘ a+

BRIEF OF RESPONDENT CIA. MAR. ADRA S.A.,

IN OPPOSITION

- Opini Bel

The memorandum opinion of the District ‘Court

(App. B. of Petition) is not reported. The opinion of

the Court of Appeals for the Second Circuit, and the

dissenting opinion (App. A. of hares are —

at 362 F.2g 118. 4»

; Jurisdiction

' It is not disputed that there is jurisdiction under

28 U.S.C, 1254(1). However, under the facts of this

case and the applicable law, there are no valid reasons

for the granting of a writ as prescribed by Rule 19 of

the Rules of this Court. |

Statement |

This litigation concerns an accident to a longshore-

man which was sustained during the course of a load-

ing operation which was being conducted aboard

respondent’s vessel by petitioner, the injured long-

shoreman’s employer. The cargo being loaded was

loose scrap metal of varying sizes and shapes. The

loading was conducted by dropping the scrap metal

’ into a semi circular steel chute. which was suspended

on an incline from the main deck into the hatch open-

ing. The scrap was caused by gravity to slide down

the chute and off onto.the deck in the particular sec-

tion of the hatch toward which the lower part of the

ehute was directed.

It is undisputed that the chute, which was some

35 to 40 feet in length, and wider at the top than at

the bottom, was furnished by petitioner; that peti-

tioner by its employees. including the injured long-

shoreman, was conducting the loading operation; that

the petitioner’s employees had rigged the chute prior

to the accident and that: :

“According to the proof herein, no defect or

unfitness in the hull, gear, machinery, or appur-

tenances of the ship directly visited harm on the

plaintiff longshoreman. a we fo, © S)

It is further undisputed that petitioner controlled

all the relevant aspects of the loading. Ship’s officers

went into the hatch occasionally only in order ‘‘to see

that the ship was trimmed properly’’, to protect

against damage and observe while ‘‘a position run”’

tet gaPeesonvns poner’

3

was made when the position of the chute was i deni:

| (Pet. p. 7). It is also not disputed that on the day pre-

vious to the accident petitioner loaded scrap metal

into the hatch square to such a height that it cut off

~ - some of the natural light in the wings of the hatch

where the stowing was being done. on the day of the

accident.

The accident in question occurred after. loading of

the scrap metal had gone on for some two hours in the

tween deck of the #5- hatch of the SS Turmon.

‘Shortly. before the accident, some scrap metal which

appeared to be the rear end of an automobile became

jammed in the chute. The injured longshoreman who

had been in the ’tween deck during the entire time

that day and whose duty it was to see that the loading

was done properly and to dislodge any scrap which

might become trapped in the- chute, decided to walk

over to the chute and investigate the cause of the ©

jamming and dislodge the trapped scrap metal. He

picked up a piece of scrap metal which the longshore-

- man had fashioned .into a hook and proceeded to the

chute, walking over scrap metal which had fallen on

the deck during the course of the loading operation.

-- When he reached the chute, he placed the impro-

vised hook around a part of the automobile rear end

.and comménced to pull in an attempt to dislodge the

automobile rear end by pulling it over the side of the

chute. As he continued to pull, his feet slipped on the

serap metal on which he had positioned himself and he.

fell.

The injured longshoreman sued the shipowner for

damages claming negligence and breach of warranty

of seaworthiness. The first trial resulted in a jury

4

verdict for the plaintiff on unseaworthiness and a

jury verdict awarding the respondent-shipowner in-

demnity against the petitioner. The claim based on

negligence was dismissed. bol Se

' The judgment in plaintiff’s favor was ‘reversed by

the Court of Appeals and the case remanded for a new

trial. (314 F.2d 223). Certiorari was denied (375

U.S. 829). “ae

On retrial, the case against the shipowner was sub- —

mitted to the jury only on unseaworthiness. The

jury .returned a verdict in plaintiff’s favor. against

the respondent-shipowner but denied indemnity to the

shipowner against petitioner-stevedore.

- Following the rendition of the jury verdict, re-

spondent made timely application for judgment not-

withstanding the jury verdict and the trial judge .

granted the motion. In granting judgment notwith-

standing the verdict, the District Court upheld the

respondent-shipowner’s contentions that it was en-

titled to indemnity as a matter of law, stating:

‘‘Defendant’s third contention is that it is en- -

titled to indemnity as a matter of law. _ With this

contention, we wholly agree. The law is clear that

a stevedore is liable over if he himself created the

unseaworthy condition, or if the performance of a

workmanlike job called for the elimination of ‘a ©

' known risk created by another. Mortensen v. A/B

_ Glittre, 348 F.2d 383, 385 (2d Cir.1965) ; Albanese

-v. M.V. Nedorl, Amerik-Stoomv, Maata., 346 F.2d

481, 484 (2d Cir.), rev’d on other grounds, 34

U.S.L. Week 3217 (Dec. 13; 1965). Here, there

*5

. . 5°

is no question but that any unseaworthy condition

obtaining in the tween deck area was created by

the stevedore and that the verdict in its favor is

against the weight of the evidence. Even if we

assume that the absence of lighting was the only.

unseaworthiness and that this condition was in its

inception wholly attributable to the owner’s fail-

ure to provide internal lights, the stevedore could

and should have corrected it. There was uncon-

tradicted evidence that electrical outlets were in-

stalled in the hold where plaintiff was -working

and that, in another hold on an earlier day, the

stevedore had niade use of such an outlet to pro-

vide artificiai illumination. In this regard, plain-

tiff’s knowledge of inadequate lighting is imputa-

ble to his employer, third-party defendant. Mort-

ensen v. A/S Glittre, supra. at 385.”’

_ The Court of Appeals affirmed the judgment of the

District Court, stating: |

‘‘On the merits of the n.o.v. motion, the trial

judge ruled that ‘any seaworthy condition obtain-

ing in the ’tween deck area was created by the

stevedore. ...’ A stevedore company is liable

for indemnity if it creates an unséaworthy ¢ondi- .

tion, or.if it fails to eliminate a known risk cre-

ated by another. See Mortensen -v. A/S Glittre,

348 F.2d 383, 385 (2d Cir. 1965). Since Lipsett

furnished and rigged the chute, and controlled all

other relevant aspects of the loading, the jury

would, have to find that the stevedore company

was liable for a breach of its warranty of work-.

manlike service. See, e.g., Italia. Societa v. Ore-

gon Stevedoring Co., 376 U.S. 315, 318-24 (1964) ;

6

Crumady v. The J. H. Fisser, 358 U.S. 423, 428-29

_ (1950); Ryan Stevedoring Co. v. Pan-Atlantic

88. Corp. 350 U.S, 124, 133-34 (1956).”

‘The ‘dissenting ‘opinion of J udge’ Friendly was

directed only to the appeal, from the “judgment

awarded to plaintiff against the respondent-shipowner.

It pointed out that the charge to the jury én unsea-

worthiness on the second trial violated the same rule

which required reversal of the judgment entered: in

favor of the ‘plaintiff in the first. trial.» It, however,

did not deal with the question of indemnity.

*

Argument

Petitioner’s insistanee that the granting of judg-

ment notwithstanding the verdict on the indemnity

claim violated the Seventh Amendment does not trans-

form this case into one warranting review by this’

Court on certiorari. Of the several issues sought to

be raised, petitioner overlooks the fact that the judg-

ment on indemnity was correct as a matter of law and

ho amount of strained: semantics can excuse peti-

tioner’s failure to load and stow the.cargo properly

and safely and its failure to furnish and properly use

needed equipment: ©

This case does not actually involve a violation of the

right to a jury trial guaranteed by the Seventh Amend-

ment to the Federal Constitution nor is a determina-

tion of atiy question here involved necessary in order

to define the rights and duties of the Trial Judge in a

- jury trial or the requirements of Rule 50 (a) and (b)

_ of the Federal Rules of Civil Procedure or the obliga-

‘\

7

tions of a shipowner and a stevedore ‘under their re-

‘spective warranties.

To focus attention on precisely what is offered as an

issue for Supreme Court determination with respect to

the third-party indemnity claim, it may be pointed out -

that the petitioner concedes that ‘According to the -

proof herein, no defect or unfitness in the hull, gear,

machinery, or appurtenances of the ship directly vis-

ited harm on the plaintiff longshoreman’’ (Pet. p. 6),

and it is undisputed that petitioner ‘‘furnished and

rigged the chute, and controlled all other relevant as- —

_ pects of the loading’’, (App. A. p. 25-26). .

Petitioner nonetheless urges that it was error for

_ the Trial Judge to set aside the’ jury verdict on indem-

nity and grant judgment notwithstanding the verdict

because (1) the jury could have concluded that the

scrap metal on which the plaintiff longshoreman was .

Standing when he fell ‘‘was not an unseaworthy condi-

‘tion ‘created by the stevedore’ ’’; (2) that ship’s. per-

sonnel by virtue of their presence ‘‘to seé: that the

‘ship was trimmed properly’’, and to protect against

damage to the ship and during position runs after the

chute was placed in position were constantly supervis-

ing the loading; and (3) that the motion for a directed

verdict at the close of all the evidence was not directed.

against petitioner and that, if it was, it was defective

in that it did not state the specific grounds therefor.

The requirement that the stevedore load cargo all

over the deck does not absolve thé petitioner of its well

defined duty to stow the cargo safely and properly.

The law does not: recognize any distinction. between

bid sited a ship and loading it partially. Com-

8 -

petency and safety of stowage are inescapable ele-

ments of the service undertaken whether the load is”

to be partial or total.

The presence of ship’s officers during the loading

operation or their failure to discover or correct: the

stevedore’s failure to stow the cargo properly is no bar

- to indemnity. The admitted reason for the presence

of ship’s personnel disposes of petitioner’s tenuous

argument that they were continually supervising the .

loading operation. In any event only such conduct of

the shipowner as prevents or seriously handicaps the —

stevedore in his ability to do a workmanlike job pre-

eludes indemnity and there was no claim let alone evi-

dence of any such conduct here.

. The jequiventent that a motion for a diuediea verdict

, be made in order to authorize fhe Trial Judge to grant

judgment n.o.v. obviously was met. Petitioner did not |

dispute this even though it was expressly pointed out

. to the District Court in the written memorandum in

support of the motion for ——— notwithstanding

“the verdict. .

On the facts of this case, the decision of the District

Court was manifestly correct. There.is no asserted

- eonflict of decision nor in the light of the purpose of

the Federal Rules of Civil Procedure is any other re-

_.sult propér. _Manifestly there is no important ques-

tion of Federal Law requiring decision by this Court.

In view of respondent, Cia. Mar. Adra’s position on

its appeal to the Court of Appeals on the jury verdict

for the plaintiff longshoreman and the state of the

law, respondent-shipowner does not disagree that the.

i

ze

charge to the jury on unseaworthiness was ingeeper.

It disagrees, however, that this affords a basis for a

denial of indemnity as petitioner did not raise this

issue on the appeal to the Court of Appeals nor join in

‘the appeal of respondent-shipowner.

Petitioner is filing a petition for a writ of certiorari

on the question of the propriety of the Court’s charge

on. unseaworthiness with the prayer that it be granted

in the event certiorari is granted in this case, No. 498.

L.

The Decision Below Is Clearly Correct

Following trial, respondent, Cia. Mar. i made a.

timely motion for judgment notwithstanding the ver-

dict or, in the alternatiye, for a new trial. The Dis-

was entitled to indemnity as a matter of few because |

“The law is clear that a stevedore is liable over if he

- himself created the unseaworthy condition, or if the °

performance of a workmanlike job called for the elimi-.

nation of a known risk created by another * * *.” -

(App. B. p. 30). While the District, Court did indi-—

cate that it could not’ state on what ground the jury .

found the vessel unseaworthy, there was no room for

_ any doubt that the plaintiff’s accident resulted from

the petitioner’s breach of its warranty of workmanlike

service. The Trial Judge said: ‘‘Here, there is no .

question but that any unseaworthy condition obtaining -_

in the tween deck area was created by the stevedore

_° ** #9? (App. B. p. 30), and accordingly granted the

motion for Judgment ———— the verdict.

‘

- 410

Petitioner does not appear to question the validity

of this finding as it concedes’ that “ ecording to the

proof herein, no defect or unfitness in the hull, gear,

- machinery or appurtenances of the ship directly visited

harm on the plaintiff +e amen (Pet. p. 6).

Petitioner’s basic contention seems to be that be-

cause the Trial J udge added the clause ‘‘and that the. .

verdict in its favor is against the weight of the evi-

denée’’ the granting of the motion for judgment not-

- withstanding the verdict must have been based on the

Court’s weighing the evidence and not because the

‘ verdict was contrary to law.

At the same time, the Trial Court had: before it a

motion in the alternative for a new trial. There is

therefore the distinct possibility that the Judge’s .

thinking on the weight of the eviderice was directed to

the alternative motion for a new trial.. Construing the

findings-of the Trial Court in a most favorable light to —

petitioner, the granting of the motion for judgment

‘notwithstanding the verdict was based on mutually ex-

. @lusive grounds. This, however, does: not constitute ©

reversible error because: ‘‘[T]|he rule is well settled

that ‘if the decision below is correct, it must be affirmed,

although the lower court relied upon @ wrong ground

or gave a wrong reason”. Helvering v. Gowran, (1937)

302 U.S. 238, 245.

The decision below. was correct and the Court of

‘ Appeals, in affirming, was guided by this rule. After

~ noting that on the merits of the n.o.v. motion, the Trial ,- |

_ Court ruled that ‘‘any unseaworthy condition, obtain--

ing in the ’tween deck area was created by the steve-_

dore * * *’’, the Court of Appeals expressly held:

il

‘‘A stevedore company is liable for indemnity if.

it creates an unseaworthy condition, or if it fails

to eliminate a known risk created by another. See »

Mortensen v. A/S Glittre, 348 F.2d 383, 385 (2d

Cir. 1965). Since Lipsett furnished and rigged

the chute, and controlled all other relevant aspects -

"x of the loading, the jury would’ have to find that -

- the.stevedore company. was liable for breach of

its warranty of workmanlike service. See, e.g.,

Italia Societa v. Oregon Stevedoring Co., 376

U.S. 315, 318-24 (1964); Crumady v. The J.H.

Fisser, 358 U.S. 423, 428-29. (1950) ; Ryan’ Steve- -

doring Co. v. Pan Atlantic 8.8. Corp., 350 U.S.

124, 133-34 (1956).”” (App. A pp. 25-26)

Petitioner’s contention that the granting of judg-

ment n.0.v. was contrary to the Seventh Amendment

because the jury could have found that the scrap on

which plaintiff slipped ‘‘was not an unseaworthy con-

. dition created by the stevedore’’ (Pet. p. 10), is mere

semantics and clearly without merit.

~ Petitioner’s position is in absolute conflict with the

doctrine of warranty of workmanlike service. The.

law is well settled that the agreement to load a vessel

obligates the stevedore to stow the cargo safely and

properly, as competency and safety of stowage are

ines¢apable elements of the service undertaken. Ryan

Stevedoring Co. v. Pan Atlantic S.S.-Corp., (1955) -

350 U.S. 124, 1383. A stevedore is liable for indemnity

not only if it creates an unseaworth: y condition but

also if it fails to eliminate an unsedworthy condition

ereated by another, including the shipowner. Morten-

sen V. a“ Glittre, 2 Cir., 1965, 348 F., 2d 383, 385. The

12 Je

shipowner relies on the. competency of the stevedore

company and the stevedore-is in a far better position

than ‘the shipowner to avoid the accident, Italia So-

cieta y. Oregon Stevedoring Co., 376 U.S. 315, 323.

Under such circumstances a Trial a udge has not only

the right but ‘has the duty to direct a verdict’ where, +

as in the instant case, the facts are undisputed, the

evidence is conclusive and the verdict is contrary to

law. Herron ¥. Southern Pacific Company, (1931)

283 U.S. 91, 95-96. The decision below was ‘unques- -

tionably. warranted by the facts of this case and the

applicable law. '

Turning to the subject of the motion for a directed

verdict, it clearly preserved the right of the shipowner

to make a; motion for judgrment n.o.v. and thus confer .

jurisdiction on the Trial Court to rule on that motion. .

_As the Court of Appeals pointed out, all, including

petitioner, accepted the motion for a directed verdict.

as covering the indemnity i issue. Petitioner overlooks -

the fact that judgments are not be set aside be-

eause there rhay be error in rulings unless it is clearly

prejudicial. The burden to show such prejudice rests

with petitioner and petitioner failed to carry this

burden. Rule 61 F.R.C.P., Palmer v. H offman, 1943,

318 U.S. 109, 116. A judgment will not be reversed

for mere technical errors so that it can be retried to

reach the same result. It is well settled that it is not

the purpose of the Federal Rules of Civil Procedure

- to permit a party to avoid a disposition of a case ‘on |

_ itg merits on the basis of mere technicalities. In

oman v. Davis, 1962, 371 U.S. 178, 181, this Court

said: i:

"a is too late in the day ja contrary to the —

,

13

‘aplcit. of the Federal Rules of Civil ‘Pressiins

for decisions on ithe merits to be avoided on the.

basis Of such mere technicalities. ** * Rules them-~

Selves provide that they are to be construed. ‘to

secure the just, speedy, and inexpensive determi-

nation of every action.’ Rule ate |

°

- Phe Court of Appeals so applied that — of the

; Federal Rules when it said:

kee ‘*, a motion such as that made by. esi

should ‘not be read narrowly, so as to penalize -

« the client but rather should be read in light of .

the purpose of the Federal Rules to ‘secure the

. Just, speedy and inexpensive determination of

every action,’ ”’ (App. A. 25)

ee Trial Court’s remark in colloquy with ship-

owner’s counsel, after all the evidence was in that “All

right, it is your case, not mine. ‘If you haven’t enough

__ it.is going to be your tough luck.” (Pet. p. 8) was

. ‘ not directed to the evidence. As this. glloquy shows,

this remark resulted from an erroneous concept of law ©

that indemnity was a matter of contract. The Court

conceded that the shipowner had established ‘‘that

the stevedore was on board and performed the work.”’ -

Nonetheless, the Trial Court specifically asked: ‘‘It

_ (indemnity) is a matter of contract, isnt’t it?”’ ‘(R.

352) When counsel sought to show that under the law

indemnity was not a matter of contract and that. the

presence of the stevedore on board: performing the

work was all that was necessary, the Court said: “‘‘ All

right, it is your case, not.mine....’’. The law is well ..

*, settled that indemnity is not dependent on proof of:

»- .. contract. but is measured by the relationship which

ua

G

14

. brings it into play. Crumady v. The Joachim Hendrick

| Fisser, 358 U:S. 423,:428-429; Waterman S.S. Corp. v.

Dugan & McNamara, 364 U.S. 421, 423-425; Italia

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

Furthermore, petitioner’s answer expressly admitted _

that petitioner had contracted to load the ship ‘with

iron (Pet. p:7).-° am

The right to indemnity is not defeated by the fact

that ship’s officers were present to see that the ship

” was trimmed properly, to protect against damage and.

' observe while a position run was made after the place- -

ment of the chute had been changed. (Pet. p. 7)°

Merely stating the reason for the presence of the ship’s

officers disposes of petitioner’s tenuous argument that

the, ship’s officers were exercising a continuous and

regular supervision and control over the loading.

Puddu v, Royal Netherlands S.S. Co., 2 Cir.; 1962, 303

F.2d 752; 754, cert. den. 371 U.S. 840, reh. den. 371.

U.S: 917. Petitioner, however, is not relieved of its

obligations under the warranty of workmanlike service

by the failure of.ship’s personnel to discover and cor-

rect defects in the stowage, Ryan Stevedoring Co. v.

Pan Atlantic 8.8. Corp., 1956, 350 U.S..124,134.

Insofar as the propriety of the charge on unsea-

worthiness is concerned,’ petitioner did not raise it in

the Court of Appeals. Petitioner evidently was satis-

fied with the Trial Court’s charge. ‘Petitioner also did.

not join with respondent-shipowner in its appeal di-

rected to that charge. — !

aw | 15

: | Tl.

There Is No. Conflict of Decision

Petitioner asserts that judgment n.o.v. cannot bé

granted when the jury verdict is against the weight of

the evidence but that a new trial may be granted citing

several cases in support thereof.

- Respondent does not dispute this principle of law

and. the fact that it must be applied in the proper cir-

-eumstances. Where, as in the instant case,- the facts

are undisputed, conflicting inferences are absent and °

‘ the evidence is conclusive the trial judge has the right

and duty to direct’a verdict, or to set aside the jury .

verdict if it is ‘contrary to the evidence or the law.

Herron v. Southern Pacific Company, 283 U.S. 91, 95-

96: This is still the law, New York, N.H. & H.R. Co.

v. Hennigan, 1960, 364.U.S. 441. In Lavender v.

Kurn, 1946, 327 U. S. 645, this Court noted that: only

‘ when there is an evidentiary basis for the jury’s ver-

dict that i is there an invasion of the jury’s function for

a court to weigh the evidence. Sait Ted sells $s

The decision of this ‘Court i in Atlantic & Gulf Steve- _—

dores v.. Ellerman Lines, Ltd., 369 U.S. 355, does not

require a different result than that reached by the —

Court below in this case. While this Court pointed .

out that a court may not search for a view of the case

which will make the jury’s, finding inconsistent, it em-

phasized ‘at the outset that it reached the result in that ——

case because each possible ground of liability to the

original plaintiff did not involve a breach of the peti-

tioner’s, warranty as a matter of law. It said at page

364:

»

ORT RE UE ON Te Tere.

ies

“We cannot say that petitioner was liable as a

~ matter of. law illo tas

- In ‘the instant case, the: converse | was true. . Peti- |

tioner had the duty to stow, the cargo proper ly and.

. safely:and could not use'the failure of the shipowner

to discover and correct the defect in stowage as a bar

to indemnity. Ryan Stevedoring Co. v. Pan Atlantic

S.S. Corp., 350 U.S. 124. If the chute which was fur-

nished for the loading of the scrap was defective or

~unfit for the purpose for which it’ was intended, the

‘shipowner was entitled to indemnity because it ‘‘defers

to the qualifications of the stevedoring contractor in

the selection and use of. equipment. and renee on the

‘ competency of the stevedore company”. I talia So-

cieta v. Oregon Stevedoring Co., 1964, 376 U.S. 314,

323. .The stevedore’s obligation to perform its serv-

ices with reasonable. safety extends not only to stow- '

age .and handling of cargo but also to the use of equip- °

ment incidental thereto including defective equipment

supplied by the shipowner. | Italia Societa v. Oregon

Stevedoring Co., 376 U.S. 315, 375-376; Weyerhaeuser

_ SiS. Co. v.-Naeirema Operating Co., 355 U.S. 563;

Crumady v. Joachim: Hendrick. Fisser, 358 U.S. 423.

It is a breach of warranty of workmanlike service

_ to use a dangerous’ method of loading and unloading .

> eargo. Waterman S.S. Corp. v. Dugan & McNamara

_Inc., 364 U.S. 421, 423. It is:also a breach of warranty

of workmanlike service to permit ‘work to*go. on -

though the risk is created-byanother. Mortensen v.

- A/S Glittre, * 2 d Cir, 1965, 348 oH.2d 383, 385.

. The question: of what conduct. on the part of the.

shipowner precludes recovery which, petitioner says -

_ was raised in Weyerhaeuser v. Nacirema Operating

oe | oe

1

Sa 355 U.S. 563, 567 was defined i in dita v. N. V.

*

- Nederl, Amerik. Stoomv., Maats, 346 F.2d a.

versed on other grounds 382, U. S. 283.

eee is no conflict with respect to the sauhiaiae

of Rule 50 (a) and (b) of the Fedéral Rules of Civil

Procedure. The Court.of Appeals below followed the

decision. of this Court in. Foman v. Davis, 1962, 371

-U.S. 178 and its decision was in conformity with’ this

| Court ’s holding in Palmer v. Hoffman, 318 U.S. 109.

Obviously, no conflict of decision exists which re- |

quires review by this Court on certiorari. Whatever -

confusion there may be results from petitioner’s at- .

‘tempt to substitute discarded principles for well set-

tled law to facts which do not exist in this case.

. °

. Le ‘

II eal

I.

” ,

2

There Is No important Question of: Federal Law.

‘Petitioner asserts that there i isa compelling need for °

this court to define the law on_certain questions which

it says lurk ‘in this case. Except for decisions

' dealing with the shipowner’s ‘warranty of seaworthi-. -

- ness, there is no showing that the-state of the law is |

such that. definition and clarification is necessary.

Mere fear of petitioner that confusion or uncertainty

-May arise does not clothe a. question, if one attually

j — with sufficient importance , to warrant review. |

~ It is snwpested that lawyers ait Sudo ooula point

to this ‘case to demonstrate how far a trial. court may

go in substituting its judgment of the facts for the .

>

18

‘ilaasiaas of the jury. The short answer to this is’

that judgment n.o.v. was. granted not on the basis of °

the reevaluation of facts but purely because the jury’s

verdict was contrary to the law. The Court of Ap-

- peals expressly affirmed. for this reason. It said:

“# *.* Since ‘Lipsett furnished and rigged the | :

- chute, and controlled all other. relevant: dspects

of the loading, the jury ‘would have to .find that

the stevedore company was liable for a breach of

its warranty of workmanlike service.’’ ( App. A

Be: 25-26) -

It is also suggested that this’ c case asta ‘be pointed

to as demonstrating that the requirements of the

‘Common Law, and of FRCP Rule 50 a & b involve

provisions which may be dispensed with in-the discre-

tion of the:court. The ‘short-answer is that the pro-.

visions were not dispensed with but there was com-_

_ pliance and the Court of Appeals so found. It said:

‘“*This motion, although soméwhat ambiguous, pre- |

served Cia Mar. Adra’s right to’ make an n.0.v.

motion.”’ (App. A p. 24)

Inherent in the Court’s finding i is the fact that peti-

tioner ’s objection, at best, was a mere technicality and

did not warrant reversal of the judgment because — .

_ the ‘decision of the trial judge was correct on the.

law. It said:

“oe 4» motion such as that made by counsel

should not be,read narrowly, so as to penalize the

client but rather. should be read in light of the

purpose of the Federal Rules to secure the just,

speedy and inexpensive determination of every

vatecanck ne (App. A p. 25)

Nee APCS LON FRI OR OG My “<a imanntey eonigaasy: cmapliapseosigeret

&

. 19

é~

The Sscision below was in ‘conformity with the hold-

_-ing of this court in Foman v. Davis, 371 U.S. 178, 181

that it is contrary to the spirit of the Federal Rules of

_ Civil Procedure for decisions on the merits to’ be. .

avoided on the basis of mere technicalities. |

It is further suggested that this case may be relied.

upon as demonstrating that the warranty of seaworthi-

ness is not limited or defined by decisi8ns of this court - |

‘but is subject. to unlimited enlargement by . lower —

courts. . While respondent shipowner believes that the

charge to the jutry was improper and ‘contrary to the

doctrine of the warranty. of seaworthiness as defined

by this Court and has filed a separate petition*® ‘seek-

ing review should this petition be granted, the answer

= to petitioner’s contention is that petitioner’ did not. ©

raise this question on its: appeal to: the’ Court of

Appeals nor join with respondent. shipowner in its

appeal on this question. -

-

Petitioner thus is not entitled to seek review on this. :

basis nor challenge the indemnity award on the rather ©

_ illogical ‘argument that because petitioner believes that ©

‘+this charge to the jury was legally incorrect, petitioner

is not liable for indemnity except when. the shipowner |

lly" liable. -Under such a concept. a stevedore

| ae just. sit back until after the shipowner had’ex-

hausted all his remedies and then refuse indemnity on

the ground that the basis on which the shipowner -was.

held liable did not constitute “legal liability’’. |

* Cia. Mar. Adra 8.A. v. ae Mesley, October 1966 Term

No. 550. |

ve

“Conclusion

For tiie. following: reasons it is pares nil

mittéd that this” aaa for a writ of certiorari should .

be denied. ae

\ Respectfully Subrhitted

Victor 8. ‘C1cHANOWICZ

Beh Counsel for Respondent

; ‘Cra, Mar. Apra 8.A.,

| Office & P.“O. “Address -

ae. * 26 Broadway

New York, New York 10004 ees

7 i ae , \

. Victor §. CIcHANOWICZ :

_ and

» WriuaM P. Larsen

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