# Petition for Writ of Certiorari — Continental Grain Co. v. Deffes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0006%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 969 ## Text ues ae _— = ; Se a | LIBRARR ) ‘FILED meer Ere ar COURT, . = SEP 26 1966 7 ¥ , . . r ~ . Supreme Court of the United States OCTOBER TERM, 1966, -——~ = W'S cuene ‘FEDERAL BARGE LINES, INC., and) GULF-CANAL LINES, INC, Petitioners, versus ERNEST 0. DEFFES, | aie ee Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF AP: PEALS FOR THE FIFTH CIRCUIT. UAT. WAECHTER, IR R. .225 Baronne Street, New Orleans, Louisiana, Counsel for Petitioners. J ONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, Ernest A. Carrere, Jr., . Edmond C. Salassi, Of Counsel.’ . . v os ‘ . . . « m - a ial a ak i Ris hi tint tine A ta plese A Tabee'., 2 » ‘e@ > ™ INDEX. | ; yo Page CITATIONS TO OPINIONS BELOW ...........00. 2 JURISDICTION. ees Ek Sora ret QUESTIONS PRESENTED ............... ee iat STATUTES INVOLVED ..... Se nee arene me STATEMENT ;..... PERO IRS 3 -REASONS FOR GRANTING THE WRIT: \ _ I. A Vessel Should Not Be Rendered “Unsea- worthy by Reason of an Alleged Defect in a Land-Based Marine Leg (GUase eieedh hiss’ we II. Reversal of J udgment by Appellate Court ' Should. Contain Further Instructions as to Findings Required ............... eee eees 7 Ti. Reversal of Judgment by Appellate Court : Should Contain Directions as to Indemnity 7 ea TV: Asiicoigys- Ween nd Repeens’ tx dk oe. . peal Should Be Granted in Favor of Vessel- Owner and Charterer ............. fr 8 CONCEAIBIGN, joc i ns tlenvduiedseasitenes bestedlesbe ipa : | CERTIFICATE OF SERVICE 20.06...0..-.-5.02-2 | 0 ‘APPENDICES: tee he A. Judgment and Reasons for Judgment TORRENS | B. So ccc cc avers cn snveress uacneees 19 eT EE 2G feces ec erveseiee, woe | D: Petitions. for Rehearing eas Moke sevavepeye 37 vot ye enn ae on cee eer eT, . ei | ‘e get | LIST OF AUTHORITIES. — aoe , . Page Calbeck V. “Travelers Ins. Co., 370 U.S. 114 (1962)... ° 6 Crumady v. Joachim Hendrik Fisser, 358 U.S. 493 - CRE ccacceesae SP acts a A PEA ge ne A Se 8. Deffes’ v. Federal Barge Lines, Inc., 361 F. 2d: 422, 427 (5th Cir. 1966) ...... WN SEGA Raun ee Laes 6. Forkin v..Furness Withy & Co., 323 F.2d 638 (2nd 7 MU I gos 9 bcs wae cad eae aes i ae Huff v. Matson Navigation: Company, 338 F.2d 205 - (9th Cir. pt) er eee eee 6,7. Italia Secieta v. Oregon Stevedoring Co., 376 US. . 315 (1964) ....... Ly SAE DEUCES cee ees viNees 8 McKnight v. N. M. Paterson & Sons, 286 F.2d 250 (6th Cir. 1960) cert. den. 368 U.S. 913 ...:.. ° 5 “Mitchell v. Trawler Racer, Inc., 362 US. 539, 500 CGD) Pou: Se ow eP CURE s Hed WeREEERE Ne oe’ 7 Mosley v. Cia.. Mar. Adra, S.A., 362 vad 118° (and es Fs = ll TOD) sce hese eAc FURS. FRI oe os vig Nicroli v. Den Norske Afrika-OG Australielinie: Ete. 5 332 F.2d 651 (2nd Cir. 1964) ................ sits _ , Ryan Stevedoring Co. v. Pan-Drlentic ss Corp., 350 é U.S. 124 (1956) | RE Shedile Bathe gs Spt Want aang ne 8 Seas Shipping Co. v. Sieracki, 328 U. S: 85 (1946) . 6 Sherbin-v. S. G. Embiricos, Ltd., 200 F. Supp. 874 ; aD: Ta OB. 6. ONE BES... 5 Spann v. Lauritzen, 344 F.2d 204 (3rd Cir. 1965) . 6, 7. United States Longshoremen’s and Harbor Workers’ aaa Compensation Act, 33 U.S.C. §901 et seq. :... 6 > Supreme Court of the United States. OCTOBER TERM, 1966. No. __ FEDERAL BARGE LINES, INC., and _ GULF-CANAL LINES, INC., Pomijeners, versus A -. ERNEST 0. DEFFES, seh ts ae MARES SY, «: murat. B 7 PETITION FOR A WRIT OF CERTIORARI TO THE ‘UNITED STATES CIRCUIT. COURT OF AP- di PEALS FOR THE seb dhe CIRCUIT. itn TO THE HONORABLE, THE CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF. has UNITED STATES: Petitioners, Federal Barge Lines, Inc. and Gulf- me Canal Lines, Inc. pray that a Writ of © Certiorari issue to review the judgment of the United States _ Circuit Court of Appeals for the Fifth Circuit entered ; ‘in the above case on the 26th day of May, 1966 and. the denial by . said Court of ares for ge cricgeiis d . on betes 6, 1966. ae " CITATIONS TO OPINIONS BELOW. This case was tried on the merits to the District Court sitting without. a jury and judgment was rendered against the plaintiff with written reasons. The opinion 9f the trial court is reported in 229 F. Supp. 719. The Court of Appeals for the Fifth Circuit reversed and remanded the judgment of the Dis- — trict, Court with Judge Jones dissenting. The opinion of. the Circuit Court of Appeals is reported in 361_ F.2d 422 (5th Cir. 1966). A rehearing in the Circuit Court of Appeals was denied with Judge Jones again dissenting. as JURISDICTION. The J udgment of the Circuit Court of Appeals was _ entered on the 26th day of May, 1966. melons » was cat on July 6, 1966. J urisdiction was vested in the United States. Dis- trict Court by virtue of 28 U.S.C. Section—1332 (a). . The jurisdiction of this Honorable Court is. invoked “under 28 U.S.C. Section 1254 > Seba QUESTIONS 1 PRESENTED. a Is a vessel rendered unseaworthy by an al- legedly ert land-based marine lég? (2) Wiouid an Appellate Court reverse ‘judgment _and remand case without further instructions as to . i aes findings required and as to indemnity? ve . \ ee g oi - \ : 3 \ 7 oa a (8) Should. acini Court order the paymeat of attorney’s fees and expenses ’for barge. owner and ae charterer for the aspen fie oi, STATUTES INVOLVED. There are no express ‘statutes jsvolred and the case is ; submitted under the General Maritime Law. STATEMENT. The parties involved in isis case are Ernest O. Deffes who sued Federal Barge Lines, Inc.. and Gulf- Canal Lines, Inc., as owners and charterers. of the Barge FBL-625 who in. turn filed a third-party Ac- tion against Continental Grain Company, the plain- tiff’s employer for. indemnity and waite & Ss fees. « The plaintiff alleges that he was sink in thie eye by a piece of metal from an allegedly defective marine leg which ‘had been injected into the ‘cargo of corn during the unloading procedures from the, — Barge FBL-625. | coe . The Barge can be. described as a “Hopper” type barge of steel-welded construction with steel rolling: covers. The Barge was 195 feet in length. and. 35 feet in breadth. The Barge on this occasion was Joaded with a cargo of corn,. but was a - general classification barge capable of carrying any type © of solid cargo. The cargo of corn had been shipped by the Contiriental Grain Company. from St. Paul, Minnesota to New Orleans, Louisiana under a freight 4 bill and bill of lading in which the Continental Grain Company was the shipper as well as the consignee: Under this type of arrangement, the movement of the cargo was on a free on and off basis whereby the shipper performs the loading’and the consignee performs the’ unloading. The Barge arrived at the Federal Barge Lines, Inc. fleet location on the Mis- sissippi River on May 9, 1960 and on May 27, 1960- - the barge was moved to the Continental Grain Com- pany dock also on the Mississippi ‘River by a Point. ‘Landing tug whith was called by the. Continental — "Grain SOR PPY: At ‘the time of the alleged injury, the Barge FBL- | 625 was conipletely under -the control of the: Conti- nental. Grain Company unloading crew. The cargo of corn was unloaded from the Barge by means of a, mechanical contrivance commonly termed a_ ‘marine leg”’. The base of the marine leg was firm- ly attached to the Continental Grain Company dock and was an integral part of the land-based conveyor . ° system to the Continental Grain ‘Company elevator. The plaintiff was a member of. the Continental Grain Company unloading ‘crew and was. allegedly injured - during the final stages of the unloading operation — ‘from the barge. The case was tried to ‘the District Court sitting without a jury on quést éstions ‘of negligence and sea- ‘worthiness. ©. ~ < ( ? The District Court pindeted judgment in favor bt ‘the defendants and awarded attorney’ S fees in the - _ eee co) e oy ” Inc. and Gulf-Canal. Lines, Inc. against Continental amount of $2,500.00 in favor of Federal Barge Lines, ‘Grain Company. :An appeal was taken.by the plain- tiff on the merits and the Court of Appeals for the | Fifth Circuit reversed and remanded the judgment of the District-Court. The Fifth Circuit subsequently denied timely requests sa] a rehearing. ; a) ? A REASONS FOR GRAN TING THE WRIT. Bi on I. A Vessel Should Not Be Rendered Unseaworthy _By Reason Of An Alleged Defect In A Lend- Based Marine sind The decision in: "the ‘Fifth Circuit in in instant — ee case is directly in conflict . ‘with the guidelines. es- tablished in the cases such as. McKnight v. N. M. Paterson & Sons, 286 F.2d 250 (6th: Cir. 1960), cert. me ‘ den. 368 U.S: 913; Forkin v. Furness Withy & Co., 323. F.2d: 638 (2nd.Cir. 1963) and. in the Eastern Dis- trict-of Louisiana, Sherbin v. S. G. Embiricos, ‘Ltd., 200 F. Supp. 874 (E.D. La. 1962). These cases would provide proper tests to be utilized in determining : the ‘applicability of the Unseaworthiness Doctrine. For instance, as Judge West pointed out in his Opin- Se ey - ion in. the Sherbin- case, that the “rational stopping : place”’ would be whether or not’ the defective equip- ment. was a part of the “‘hull, “gear, stowage, ‘ap- = purtenant appliances. — equiprierit” of the ship. : _ ID. 876-877. ‘s oy This } operation involving shore-based equipment should not affect a vessel and this ‘is ; recognized’ by = | - ‘ | : “4 Bape ; E 6 . | ‘Tedys Jones in thie” ‘ailing opinion, ‘petite: "Federal. Barge Lines, Inc., 361 F.2d at 427. It is, sub- | ~ mitted; that an “extension of :the Admiralty’ Doctrine “So gy: this .case would effectively supersede the 7 pro- _ visions’ of the’ Longshoremen’ s and. Harbor Workers’ | oe Corfipensation’ Act, 33 U.S.C.° $901 et seq. In this . re- » gard, the Courts could well meet themselves coming _ from the other’ diréction with such cas Ve Travelers ns: Co., : 370° U.S 114. (1962), : ‘wherein — | this. Court! clarified : ‘and: extended the ‘application of © esas Calbeck. ‘the Ronastorelna’n t Act. ta Pere roe re oi.4 eee ; “% The Fifth: Cireuit> in effect, “had Fousia that wheth- . “er: or not: the shore-based ‘equipment. was attach ed ° 333 2% iia v Go e 3 +i oe . “Fh te ae | 1% 3 vr. PA. 7 we ee 185 * =~, | ; ii thes 1 rs rt . + te - , PP ee & y ere. 5f.? s 1 ” eo ae ie Bs” ie ou at ee ios : 2 Ze .. a a eer ae “+3 es . ; ha a : 7 2 = r leer. © .- 2 ‘ ? i j be ‘bol rae <4 etl . 4 , a i . y - “@# a p 8 4 er. aa a ' e. f oe s a » ¢ » 7% e@ A, XY Ste the ‘barge. dt the: time of: thé. alleged injury is of “oy 4s 4 #8" no consequerice. Further, the. ‘question of whether or \, oo Pit ee o “not re tenses marine leg was a. part of the hull, ° AS EA fie gear, stdwageé or appy nt appliances: of the barge es ote ee ae eee OF whether the equipment was traditionally the . vessel's | ‘equipment is of -no consequence. ‘The Fifth.» saa eee i: ~Cireuitshas chosen to find thatthe . Doctrine. of Un-- oh | eae _ -seaworthiness concerning the - Longshoremen-Admiral- . = a ee on ee ty-rémedies commencing with Seas Shipping Co. 'v. re aI wo ., & Siera racki, 328 US. ‘85. (1946). and‘ its progeny. should a govern this ease: “The: ‘petitioners would submit, how- > > ae scoot ever,’ that such’ extensions’ ‘of the. Admiralty Doctrine .. € Ae te would.--prevent uniformity - in such cases. Further, Peat Soot re, such cases as. Huff v. Matson Navigation Company, x Pail -* | \338-F.2d-205 (9th Cir. 1964), cert. den. 380 U.S. 943 EG a and Spann v. Lauritzen, 344 F.2d 204 (3rd Cir: 1965) - 8 i \S eert- den: 34 L.W. 3201. relied: upon." by the Fifth Ree me Circuit. aré ‘cases motivated by the nr ¢on- * 7 aenering 2 sae | : aN ee ee ee _ Ps : "+ cept that “the end justifies the means”. The Spann, ‘Supra, case: would seem to say that anyone remotely involved with the loading or unloading process should. be afforded the admiralty remedy. It is respect- ‘ fully submitted that there should’ be some “rational eS - stopping place” imposed and it is respectfully urged — that this- Court accept this Writ and prevent further * encroachment in the Maritime. Law. ae Findings Required. some ie Ill. Reversal. Of “Judgment os eodiots Court. Should Contain Directions As To Indemnity. In the. event that the reversal by the ‘Fifth Circuit, should remain in effect then further’ instructions con- cerning the remand to the District Court should be given in regard to’ findings ‘of fact concerning the accident. As stated by Circuit Judge Barnes in his _ concurring and dissenting opinion in the Huff case: ’ “The District Court has still to reach the funda- mental question:, whether the * mechanical ap- . paratus. which was used in unloading ‘was free from defects, and- reasonably fit for its intended purpose.”’. Huff v. Matson Navigation Company, 338 F.2d 205, 218. ; | _ The ‘reasonable fitness concept ' is. of great. impor- tance in such ‘matters. See, Mitchell v. » tntsoler Racer, | Inc., 362 U.S.-539, 550 (1960). . ‘5 Petitioners further . urge that for the remand to ' the District Court that instructions should be given. $ a y cA. o ms ‘ ie . : a . 5 # _ Reversal Of Judgment By. Appellate, Court | Should Contain ‘Further Insttuctions. As’ To | > Sea a as ae to the Court to apply indemnity in favor of. petitioners. In that’ the Court’s opinion finds that the marine . | leg made the barge unseaworthy, and the fact that the marine leg was owned and operated - solely . by Continental Grain ‘Company, then the well-estab- lished: theory of indemnity as expressed in Ryan | Stevedoring Co. v. Pan-Atlantic SS Corp. * 350. U.S. .. , 124 (1956) would be applicable. See also, Crumady _v. Joachim Hendrik Fisser, 358. U.S. 423 (1959); Italia ' Societa v. Oregon Stevedoring Co., 376 U.S. . 315° (1964); Mosley v. ‘Cia. Mat. Adra, S.A., 362 F.2d 118 (2nd Cir. 1966). ; ae a Actually, there should. be né>question of indemnity over against Continental Grain Company, but it is submitted that the District Court should be so in-- .— structed on’ this point. Although there has been no opposition expressed to petitioners’..plea for indémnity — at any stage of this litigation, it is respectfully urged that this point should be clarified 7 purpose of the. - remand. ~ . BV. ‘Attorney’ s Fees And Hxpensts For The ome Should Be. Granted In Favor - Of Vessel-Owner And Charterer. Finally, it is presumed by petitioners that the -re- | versal of the District. Court would not in: any way affect the award for attorney’s fees for: the trial in favor ‘of petitioners in that there has been no dispute . as to this award on appeal. Petitioners would re- ‘spectfully urge that the Court, however, apply’ the award of attorney’s fees for the appeal in fa petitioners and against. Cohtinental Grain Company. of | oe . The amount of attorney’s fees was stipulated in the amount of $900.00 for the appeal, and it is respect- fully submitted ‘that such an award should be made- . by this Court. See, Nicroli v. Den.Norske Afrika-OG _ Australielinie Etc., 332 F.2d 651 (2nd Cir. 1964). eile _ For the foregoing reasons, this petition for. writ of | certiorari should be granted. ©: | Respectfully submitted, | A. J.WAECHTER, J n.. 225 Baronne Street, New Orleans, Louisiana, — Counsel for Petitioners, } JONES, WALKER, WAECHTER, POITEVENT _ .CARRERE & DENEGRE, Ernest A. Carrere, Jr., Edmond €. Salassi, Of Counsel. - ‘ 2s aS . > ~~ . - v SO REO Pe CLF OE FU SE, “aaa aw exces, 10 CERTIFICATE. _. I hereby certify that a copy of the foregoing brief has been served upon opposing counsel of record _ by placing the same properly dddressed into the Ne United States Mail with yee: postage affixed thereto. 3 | ee eee ee tceeeeeeeeeeeeeeeeeeeeeeae we § my a a APPENDIX A. UNITED STATES DISTRICT’ COURT, EASTERN. DISTRICT OF LOUISIANA, NEW ORLEANS — DIVISION. ERNEST oO. DEFFES, ele _ Plaintiff, rh os versus | FEDERAL BARGE LINES, INC., Defendant. . Civil Action ™ 11113, — “Det. _ JUDGMENT. This cause came on for trial on y anuary 20, 1964. After ‘considering the testimony, pleadings, and re- viewing the law, the Court is now ready to rule. | IT IS.ORDERED, ADJUDGED AND DECREED that there be judgment in favor of: defendants, . Federal Barge Lines, Inc., and Gulf-Canal Lines, ‘Ince., “and that the plaintiff’s suit be. and the ame is hereby dismissed at his costs, IT iS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of de- - fendants, Federal Barge Lines, Inc., and ‘Gulf-Canal — ‘ Lines, Inc;,. against? Continental Grain Company for PBL PEL OIE IELO RIE SO PN SORELLE TL RE RET Pa _ attorney’s fees in the amount of TWENTY-FIVE ‘HUNDRED AND NO/100 ($2500.00) DOLLARS, with interest from date of judgment until paid. 1964. ' . ROBERT A. AINSWORTH, UR., (Robert A. Ainsworth, Jr.), : \ yf Pe v, Judge, United States, District t Court. _—_ Dated at New Orleans, Louisiana, this 9 day of J as : e ee 13 = i ‘UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA, NEW ae _ DIVISION. ERNEST 0. DEFFES, ! Plaintiff, ; versus . ——— BARGE LINES, INC., Defendant. y. No. 11113 Civil Action, Division D. AINSWORTH, District J wage i Plaintiff; has “sued ederal. Barge ‘ Lines, Inc., owner of the Barge FBD 625, and Gulf-Canal Lines, Inc., bareboat charterer of the barge, for damages growing out of an injury he sustained while em- ployed by Continental Grain Company as a grain. “handler in unloading the barge ata dock in the Port _of New Orleans. Defendants have filed a third-party complaint against plaintiff’s employer, . Continental . Grain Company, ‘under the doctrine of Ryan Steve- dor. Co.- v. Pan-Atlantic Steam. Corp., 350 U. S. 124,76 S. Ct. 232 (1956). Plaintiff has “been paid compensation in full for his injury by his employer, Continental, under the provisions ‘of the Longshore- -men’s and Harbor Workers’ “Compensation Act ~ _iULS.C.A. 901, mae): ee EE Qn: May 21, 1960, plaintiff was ‘etctinn. abeaed the Barge FBL 625 unloading grain. He claims. thst while a 14 on board he sufferéd ‘an injury to. his right eye from’ a piece of flying metal thrown: frorn the marine leg . used in the unloading operation, which resulted in ~ industrial blindness to the eye.: He alleges that the marine leg was defective which made the barge°un- ‘seaworthy; that the barge owner and charterer failed _ to provide him with a safe place to work. ‘The Barge FBL 625 isa “hopper-type” barge of steel-welded construction with steel-rolling covers, 195 feet in length and 35 feet in breadth It was loaded * ‘with a cargo of. corn, but was a. general classifica- - tion barge capable of carrying any type of solid ‘cargo. Continental had shipped . the corn from St. “Paul, Minnesota, to’ New Orleans ‘under - a. freight : Bill /and bill of lading in which Continental was both _ shipper and consignee. Continental loaded and un- loaded the oat ye. * “s - The evidence showed that the marine leg, which plaintiff alleges caused his. injury, is a shore-based nental, used in unloading grain. It is permanently attached to the dock. It is equipped with a conv@¥or | belt on which buckets are attached. The buckets _ elevating conveyor, owned and ‘operated. by Conti- © scoop up the grain and carry ‘it from the hold of the | vessel to the shore. .The ‘unloading operation is di- vided into four phases. ‘The first. is the lowering: of the leg. i into the hold and resting it on top of the grain. ' The’ leg remains, however, attached to ‘and based on shore. The only. contact which the leg h with the: vessel is that it rests .on the in cargo, has ~ .* | 15 cables. attached to the vessel for a’ period of time } and during the sweeping-up | operation ‘rests on’ the. ‘bottom of the. vessel.. The raising and lowering of the » leg is done with power furnished by a self-contained unit. Large’ scoops called. “air - buckets” are then -removed from the leg. These ‘‘air buckets” are used. to bring. the grain from the ends of the barge to the centrally . located marine leg. The \buckets are operated by means of/ pulleys, one sof which lis! fas-° | tened to the vessel and the other to. the ‘marine leg. The pulleys and the cables are part of. the equip- ag ment of.the leg. After the level of the grain is lowered the “air buckets,” the pulleys and cables are re- moved and stored on the. marine leg: The third phase of the unloading operation is performed with small bulldozers which do essentially the same task + ‘as the “air buckets,” that is, bring the grain to. the leg. The fourth and final phase’ is termed “sweeping ; up.” The grain handlers sweep up the grain and | "shovel it into the marine leg: It was during this phase | while plaintiff was shovelling corn into the marine 3 leg that he claims he was injured. 2 , It is settled leew that a longshoreman injured while - performing a, ‘‘ship’s service” can recover for un- . seaworthiness. Seas Shipping Co. v. . Sieracki, 328 - U. S. 85, 66 S. Ct. 872: (1946). A vessel is unseaworthy © when it has a defect.in its “hull, gear, stowage, and appurtenant appliances -and- equipment. ”* The Os- eeola, 189 U. S. 158, 23'S. -Ct. 483 (1903); Mahnich. i Southern. S.S. Co.; 321 U, S. 96, 64 S. Ct. 455 (1944); ; Grillea v. United mete “at 2 scale 1956, 232 F. 2d 919. ae Sa a | TAS. Ct. 649 (1954). ment.” Mosley wv. & ” An owner of a vessel may: be liable for an unsea- — worthy condition which has been caused by an in-. dependent contractor and the doctrine. has been ex- tended to include. equipment brought aboard and : “ used and -controilled exclusively by ‘stevedores ae loading and unloading a vessel. ‘Alaska. ‘Steamship ae Company v. Petterson, 347 U. S. 396, 74 S. Ct.° 601. (1954); Rogers v: United ‘States toed 347 U.S. 984, é fos A: 4. We now consider whether or not the Barge FBL 625 was unseaworthy. Plaintiff bears the burden of — showing that the alleged. defective equipment which - ‘caused his injury ‘was a part of the ship’s “‘hull, gear, stowage and pRpurtenant, appliances. and equip- Cia. Mar. Adra, S. A.,°2 Cir., 1963, 314 F. 2d ° 223. He. contends that the marine -leg was ‘defective and that this rendered the barge ' unseaworthy. He cites as authority in support, of his — contention Petterson, ‘supre, and Considine vo. Black - Diamond Steamship Corp., D. C. -Mass., 1958, 163 F. _ . Supp. 109. Considine. would extend the warranty of seaworthiness, as applied to longshoremen, to any “equipment aboard a vessel: used in the traditional -work of loading | or unloading a vessel, regardless of . | what type or to whom it belonged. Petterson and Rogers, supra; did not go that far: In Petterson the defective equipment was a block ‘of a type gen- erally uséd by a vessel. In Rogers the ° ‘injury was ' eaused by the landfall runner rewinding on the’ winch drum of thé vessel. In McKnight v. N..-M..’ Paterson & ‘Sons, Ltd., 6 Cir., 1960, 286 F. 2d 250, OD S¢ % | cert. denied 368 U. S. 913, 82-S. Ct. 189 (1961), and Sherbin-v. S. G. Embiricos, Ltd., ‘D.C. E. D. La, 1962, 200.F. Supp. 874, the shipowner’s warranty of ‘seaworthiness was limited to equipment which’ was traditionally ‘a part. of a ship’ s appurtenant appli- ances and equipment. We’ concur, believing that the. test enunciated, in McKnight and Sherbin is the prop- . . er. one here. Applying that test. here, we find x the barge was not unseaworthy, for the marine leg MES \ is not. equipment traditionally found aboard and ‘used .in unleading operations. This equipment. was owned _by the stevedore and not by the vessel. It was shore — based and shore powered and had only a minimal ‘contact with the areas a 7 But plaintiff turther contends that Continental's - failure to furnish him with goggles for the protec- tion of his’ eyes violated the Safety and Health Regu-. - ‘ lations for Longshoring; 29- CFR. §9.1, et -seq., thereby rendering the vesgel unseaworthy under the authority of Provenza -v® American. Export Lines, ‘Inc.,. 4 Cir., 1963, 324 F.2d 660. Violation of-a safety regulation applicable to a stevedore does not render *« a vessel unseaworthy unless the violation creates a - dangerous condition aboard the vessel, which would . constitute a défect.in the vessel’s hull, gear, stowage and appurtenant . appliances and equipment. See - Provenza v. American -Expott Line3, Inc., supra. - . Failure of the ‘stevedore to provide plaintiff with ; goggles did hot create a dangerous condition which . . affected the veésel’s hull, gear, etc. For Continen- tal’s negligence to be. imputed to the shipowner, un--. Be 6 ' @ es er “der. the. facts Liat, it mugt be shown that it knew "er should have known by the exercise of. reasonable. . .. care of the steyedore’s negligerice. The evidence © does not. show that the shipowner knéw of Conti- ~ nental’s negligence. The FBL 625 is a damb barge and. was ‘unaccompanied by any personnel at. the time of..cargo discharge. The vessel owner exer-,. cised reasonable care. It. is sufficient here that the’ .barge owner had a reputable firm loading | and. ,un-' AOTENS Chile ge -< i Nd Cp Judgment for defendants. _ . dn. : ® Original Signed ROBERT A. AINSWORTH, JR., United States District J — _ New Orleans, Louisiana “May 6, 1964 \ He ae. be APPENDIX B. ‘INTHE et eed ce] ‘UNITED STATES COUR'NOF APPEALS _ FOR THE FIFTH CIRCUIT ~ No. 21868. _ ERNESTO.DEFFES, > | . . , Appellant, — versus’ @ a. : -S _ FEDERAL B. BARGE. LINES, INC. and GULF-CANAL zs > La, INC., ET AL, | ha ik Appellees. Appeal from the United States District Court fo the } _ Eastern District of Louisiana. i (May 26, 1966. es -and SLOAN, District Judge. “ o THORNBERRY, Circuit Judge: The plaintiff, “a -stevedore employed by Continental’ Grain Company (Continental), was injured while unloading grain from ‘Barge: FBL 625 which is owned by Federal Barge ‘Lines, Inc, (Gulf). Plaintiff-sued’ Federal and Gulf \_ eo a damages, and the defendants filed a third-party | Lines, Inc. (Federal) and chartered by’ Gulf-Canal, complaint —— Continental as re employer of uae \ ° Before JONES’ and ‘THORNBERRY, Circuit Judges. aay _——~ a plaintiff. The district court, - held for the defendants. 229 F. me: 719. eee The injury resulted from. an alleged defect ina ‘ marine leg, a mechanical elevator. device, owned’ by : : Continent]. The marine ‘leg is basically a conveyor belt to which buckets are attached. It is permanently attached to the dock at all times and is designed for “use in unloading grain from -barges. The power for raising, lowering and operating ‘the leg is supplied ‘by shore-based facilities, and all the equipment used is. owned by: Continental. 7 The unloading operation | is performed in. four stages: cant (1) ‘The marine leg is introduced through-the open hatch of the barge into the, grain, and grain is, .in effect, “dug” out by the. buckets on the conveyer | belt: During this stage, there is no contact with - * barge. (2) Large. scoops,. generally _ called. air ; buckets,’’ operated by means of. pulleys and _ cables; “are ‘utilized to bring-the grain from the ends of the barge to the marine leg. The pulleys are attached to the barge at various: places by means of hooks - and are connected with the marine leg by cables. All this equipment;is stored in the marine leg when. not in use. (3) When the grain level has been lowered ‘ _* sufficiently, ‘the —air “buckets are: detached’ and — —~. stored and small bulldozers — serving essentially the . same purpose as the air buckets are brought into use. (4) The iast phase of the process is the. ‘‘sweep- ing up,” during which stevedores sweep up the- grain: ~ and shovel it into the ‘marine leg: At this stage, the x > ee 21- f . A oS 29) marine. leg rests on the bottom’ ‘of the barge. The in- ue jury occurred bracts, this last _ of the a ’ Plaintiff ‘elaimed that a- piece of metal. from a worn "bucket ‘broke off and hit him in the eye. He received | compensation from his ‘employer, ' Continental, un- der the provisions of the Longshorethen{s and: Har- bor Workers’ Compensation Act; 33 U.S.C. 901.°Plain- _ tiff sought recovery against Federal and Gulf on the theory that the allegedly defective marine leg and — the failure of Continental to supply goggles in com- pliance with the Safety. and - Health Regulations for Longshoring, 29 C. F. R. ° ie 9.1, eesoomecit the barge ; unseaworthy. Die. oce eee see AG ; . Rg . 3 \ = ’ a | The district court notedthat = eal oe “in owner - of: a vessel may be liable for an : unseaworthy. condition which has been’ caused ' by an independent . contractor .and — [that] the doctrine has been extended to include equipment brought aboard and used and con- \ trolled exclusively by stevedores in loading - and unloading’ a vessel. Alaska Steamship _. _ Company v. . Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L. Ed. 798 (1954); Roggrs v. United. States Lines; 347 U.S. 984, 74 - Ct. 849; 98. L.Ed. 1120 (1954).” a Deffes * v. Federal Barge Lines, Ine., E.D. La. 1964, - 229 F. — 719,721. Awe \ ‘sy . 3 Se, Le qj as ae 22 or a ° “The court, citing MeKnight v. N. M. Paterson & “ Sons, 6th Cir. 1960, 286 F.2d 250, cert. denied, 368 . Te es, -and Sherbin v: S.G. Embiric se; Ltd:, E.D. La. 1962, 200 F.Supp. 874, found at, the Petterson and Rogers cases involv _-was not ‘‘equipment traditionally. found. aboard and eit Ee used in unloading operations, ” the court held that a defect in the’ marine ‘Teg: would. not ‘cause the barge ? to be unseaworthy. The court also concluded: that ‘a “violation of a ...safety ‘regulation applicable to a stevedore does not render a. vessel unseaworthy unless the violation creates a dangerous -conflition aboard the vessel, which would constitute a defect in the vessel’s hull, gear, stowage gand appurténant appliances and equipment)” and that the barge owner had discharged } his duty of reasonable care by hiring” a reputable . ra to handle the loading and gem of the barge. _ Id., 721-22. we ~The basic question presented on this appeal is — ‘whether 4 defect in a shore-based marine leg can cause a barge to be held unseaworthy. Similar ques- tions have been considered ‘by several courts and have resulted. in a sharp conflict. between the cir- “cuits. The opinion of the district court relies on the\ Sixth Circuit decision in the McKnight case ‘and is | also: supported by ‘the Second Circuit’s Opinion in — Forkin v. Furness Withy:& Co., 2d Cir. 1963, 323 F.2d | equipment which was’ “traditionally y apart of a ship’ Ss appurtenant ‘appli- <"— ances: “and equipment.” Ibid. Since the marine. leg - a a ww a trict ‘court must be ‘reversed. | 23 : 638. The opposite view “has- been espoused by the ., Ninth Circuit in Huff v. Matson Navigation Co., 9th Cir. 1964, 338 F.2d 205, ‘cert. denied, 380 U.S. 943, .and by the Third Circuit. in Spann v. Lauritzén, 3rd -Cir. 1965, 344 F.2d 204, cert. denied, 34 L.W. 3201. After carefully considering these cases and the Su- -.'preme Court cases which have developed the doc- _otrine. of unseaworthiness, , we conclude that the. ‘de- cisions of the Ninth and Third Circuits correctly ‘state the law and that, therefore, ‘the holding of the dis- The doctrine of unseaworthiness was conceived yy he - the Supreme Gourt in The Osceola, 1903, 189 U.S. 158, as a device for imposing diability on ship owners for injuries to seamen. Since that time there has been a steady expansion of the’ scope . and coverage - of the doctrine. Thus, in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 89, the Supreme Court considered . the question - “whether’ the. shipowner’s obligation -of _ seaworthiness extends to longshorerhery injured while . doing the ship’ s work aboard but employed by an . ‘independent stevedoring contractor whom the owner ‘ has hired to load or unload the ship.’” The Court dis- cussed at length the rationale of the doctrine and noted that : : ‘‘the hazards of marine service ei: un- - ; seaworthiness. places on the men who per-’ . form it. , together with. their helplessness. to ward oft such perils and the harshness "of forcing them to shoulder alone the result- ing aanacan ‘Gisubility and loss, —_ ‘been: : ‘ wd @ g . ; . . 4 ie " . thought to justify ahd to require putting their burden, in so far as it is measurable in - money, upon the owner regardless of his fault... . [T]he owner... . is in position, 1m as the worker is not, to distribute the’ loss" in the shipping community which receives z _ & a the service. and should bear its cost. * oe _“[TJhis. policy is not .confined to, seamen ‘who perform the ‘ship’s service under -im- mediate hire to the’ owner, but -éxtends to Ba those who ‘render. it with his consent or by: -. his arrangement. All the considerations which | ; . gaye birth to the liability and have shaped its is absolute character dictate that the- owner : should not. be free to nullify it ‘by parcelling out - his. operations to intermediary employers: whose.sole business is _to_take over portions of the: ship’s. work: or by ‘other devices which would strip the men performing its service of ° ? their historic protection. The risks” themselves arise from and - are incident in fact ‘to the service ..... [The. owner’s] ability to dis-. - tribute the te over the industry is not les- sened by the fact.that’ the men who do: thé work. are employed and furnished by another. Historically the. work of loading and: unload- _ ing is the work of the ship’s service, per- ‘formed. wn recent times. by members of the. crew. . That the owner seeks to have it : w seeeieneihetinatinne aincemmenn an nett See eee A ROR te aa ede et: jee ew « ‘ x ° . done with the. advantages of more modern di- visions of “labor does not. minimize the worker’s' hazard and should not: nullify his | * protection. .” s ae ei: “It seems, therefore, that when a man is per- forming a function essential to maritime serv-. "| ice, on board’ a ship the fortuitous: circum-. ” stances of his employment by the shipowner ..- h _or qa stevedoring contractor should not deter- mine the measure of his rights.”’ : Id. at 93-97. (Emphasis added). The Court: also found that the. stevedore’s remedy ._ for unseaworthiness against the shipowner. was. in ad- ployer. Id. at 100-02. The eoverage of stevedores under the doctrine -of _ Unseaworthiness was further developed in Alaska - phe es Steamship’ Co. v. ‘Petterson and Rogers v. United -' States Lines, supra: The stevedore’s injury in ‘Pet- -terson was’ caused “by a defective block which the ‘dition to his statutory remedy. against his own ém- Court assumed had been brought.on board the ship __ _ by, the stevedoring company. The Ninth Circuit found the vessel to be unseaworthy, Pétterson v. Alaska ' Steamship Co., Inc., 9th Cir. 1953, 205 ‘F.2d 478, and . _the Supreme Court affirmed per curiam, citing Seas | Shipping Co. :v. Sieracki, supra, and Pope & Talbot v. ate 1953, 346. -U. S. 406. In Pope, | the Supreme Court had reaffirmed ° Sieracki and stated that . -“Sieracki’ Ss legal protection. was not based on the — “namie ‘stevedore’. but on the type. of work he did and its, relationship to the. ship’. and to the ‘historic ‘doc- ‘tring’ of . seaworthiness. a af: 413. (Emphasis adde ) The injured man in Pope was- @ searpenter who. was repairing the loading apparatus ‘and was ~ hurt when he fell through an uncovered, hatch hole. | “The” Third - Cirtuit in Roget's was concerned with ‘an allegedly defective land fall runner, a device used _ in unloading Cargo. ae, ‘its: discussion, ‘the court : ene stated: 14 “Admittedly then, .the alleged unseawoxthy condition was: not created by the ship. The ‘runner was:owned, produced eas to | the winch by Lavino [the stevedoring com- - *pany], which was in charge of. and perform- . the. unloading operation. And there is no in- » dication that the ship sanctioned its use or . even knew of its existence. The «statement. . - that the: vessel adépted the runner. as an ap- : purtenance is-simply not justified by ‘the rec- ord ... . . Since the wire ‘alone or the man- — éner-in which it was handled, or both, caused . -plaintiff’s hurts and since under the facts . ‘the presence of that wire cannot be construed _ as appellee’s responsibility this judgment’ _ [for the defendant] should not, for the rea- sn a be disturbed. $ sah ~ é x ¥ ‘ ‘Rogers, v.: United States aes: 3rd Cir. 1953, 205 F.2d 57, 57-58. (Emphasis added.) The Supreme Court re- versed per curiam. 347 U. S. 984. Three justices dis- sented in .both. the Petterson ‘and Rogers cases on the theory that the doctrine of seaworthiness as stated in Sieracki should not be extended to cover ‘the un- seaworthiness of equipment owned and brought: on board by a stevedoring contractor . . <’” since the ' stevedoring company’ would be better able to. elim-” a inate the hazard. (B47 U.S. at 401-02. a. a ee “The sieicisiaeOiliniinn doctrine .was further extended « by the Supreme Court in Gutierrez v. Waterman ... Steamship Corp., 1963, 374 U. S. 206. In that case, 4. longshoreman | had slipped on beans spilled’ on the ‘dock from defective: bags- during the unloading’ of - cargo. The Court reiterated Sieracki’s position that. : the ‘‘Seaworthiitess is. not limited, ofs course, to fit- ‘ness for travel on the high seas; it includes fitness - _ fot leading and unloatiing,” id. at.213, and ‘found that . the doctrine of seaworthiness applies. to “‘longshore- men unloading the’ ship whether they ‘are ‘Standing aboard ship or on ‘the pier.” Id. at 245. ¢ *. Since the district ‘court’s opinion relies’ ‘primarily. . on the decision in the McKnight case, we must first | '.look to that case. McKnight, @ longshorem was: . | injured by unloading gear which was ‘being owered into the ship’ s hold by a, shore-based- crane. ve ‘the Sixth Circuit and’ the district court ‘conceded the plaintiff “might have been doing the srniattions work of © a’ seaman.” _(i.e., . ynloading cargo), both a ‘ ‘ : : af . ©, ey a _ courts concluded that “he was not incurring the -haz-_ "ards of a seaman, in that noné of the: traditional un-. . loading gear of the Ship, mamely winches, masts, _,or booms, was being used . A: 286 F.2d at -251, . 181. F. Supp. at 440. The’ coaet distinguished the Su- . preme Court decisions *in- Sieracki, Rogers and Pet- te?son on this’ basis but cited no case to aiioteia this’ distinction. Our reading, of the Supreme Court cases leads us to a contrary conclusion. Loading and unloading is. clearly held to be ‘‘work of the ship’s service.”’ Sieracki, _ supra; Crumady v. The Joachin Hendrik Fisser, 1959, 358 U.S. 423, 427; Italia “Societa v. Ore- gon Stevedoring Co. .» 1964, 376 U.S. 215, 323. Pope & Talbot v. Hawn, supra, instructs us to look to the type of work performed to determine the’ extent of: liability under the doctrine . of ‘seaworthiness: Here we have a claimant who was admittedly injured while. unloading a cargo of grain. Therefore, there. can be - no doubt that he is within the scope of the-doctrine. _ The district court below. and. the McKnight case would exclude ‘the plaintiff here from recovery be- cause, although he was doing seamen’s work, he was not incurring a seamah’s hazard since he was not using gear traditionally found aboard ship. The Su-. | preme Court in Sieracki, however, attempts to ne- ‘gate this type of limitation on the concept of sea- worthiness. As ‘stated there, the shipowner ‘‘is at: liberty conduct his business by. securing the ad- vantages of specialization in labor and skill brought ; . .. 4 a ? m Seiiedl : . ee ae rrr an dS NR 23 . ee | y about by modern divisions of labor. He is not-at lib- erty by doing this to discard his traditional respon-— - sibilities.” 328 U.S. at 100. McKnight and the district court would permit the shipowner to escape. liability merely by substituting a more modern method for performing ‘the traditional work of a seaman. We can find no support in the ‘Supreme Court cases for’ adopt- 3 ing such a position. Nor can we find a rational basis - for drawing this distinction. If one is performing. sea- men’s work, by definition he must be. subjecting him- self to a seaman’s hazard, no matter what type of ae, equipment he is ysing to do the work. “The risks themselves arise from. and are incident in fact to the service... ...”” Sieracki, id. at 95. If a seaman were ,injured in the engine room of ‘& nuclear-pow-— ered vessel by some defect in the reactor, he could not recover under the rationale of McKnight and the .,, district. court, even though he was performing tra- ditional seamen’s work, because the shipowner had . installed apparatus which had not traditionally been found on board ships. Such a result would be com- ' pletely out. of harmony with the Supreme Court's at of the doctrine of seaworthiness.. = : The district court in McKnight BS an additional nf basis for denying relief not used by the district court ’ in the instant case. It concluded that: the shore-based | crane was. not part of the hull, gear or stowage of the _— vessel, and, therefore, a defect in the crane or a fault x: in its operation could not make the ship unseaworthy. a Again, the court cited no authority to.support its con- clusion. This reasoning also flies in the face.of Su- oe "at the time of the injury resting on the’ bottom of the 30 preme Court opinions. The Third Circuit attempted to draw the same distinction in. the Rogers case. 205 _ F.2d at 57. The Supreme. Covrt reversed per curiam. In the Petterson case,, the Ninth Circuit ‘assimed > a that the defective block belonged to the stevedoririg company and thad it has been brought on board by the stevedores. 205 P. 2d at 479. The Supreme Court.’ affirmed per curiam. The case at hand cannot be distinguished from the Rogers and Petterson cases on a rational basis. All three cases involved steve- dore company equipment brought on board to assist | in loading or unloading cargo. The-mere fact that the marine leg is larger than ‘a block (Petterson) or a land fall runner. (Rogers) should not cause a differ- ent application of the law.. _The courts in McKnight and. Forkin attempted to. - draw further distinctions, They suggest that liability. should npt; be imposed _ unless the ‘injuring device is attached No or touching the ship. M cKnight, 181 Fates ‘Supp. at. 439 and n.9; Ferkin,-323 F.2d at 641. This — “limitation. finds no support in the Supreme Court . cases. As stated: by ‘the Ninth Circuit in ‘Huff, this approach is “‘manifestly wrong and contrary to the - _ controlling: decisions... .”? 338 F.2d at 215. Evens — - though it is admitted here that the marine leg at‘one ~ stage in the process is attached to thé. barge and was. barge, we join the Ninth Circuit in rejecting this ae . art exception to the doctrine of seaworthiness. . The opinions in McKnight and Forkin confuse. ae issue by. introducing concepts of negligence into their 31 . on : “| as consideration of the seaworthiness question. They in- fer that the shipowner’ Ss power of inspection, 323 F.2d - at 641, or his’ lack of control, 181 F. Supp. at 439, have relevance to the problem. This position, however, was clearly rejected by the Supreme Court when -it stated’ in Sieracki that “liability is neither limited by con- oo ceptions of negligence nor contractual in character,”’ -328 U.S. at 94, and when it concluded in Mitchell v. Trawler Racer, Inc., 1960, 362:U.S. 539, that “‘we can. _ find no room for argument as to what the law is. What has evolved is a complete divorcement of unsea- -- worthiness liability from concepts of neligence.”’ _ Several ‘months after judgment was rendered be- low, the opinion ofthe Ninth Circuit in Huff v. Mat- | ———— ow wae son Navigation Co., 9th «Cir. 1964, 338- F.2d 205, was handed down. Huff was also injured by the-operation ofa marine leg-The Ninth Circuit made a very thor- ‘ough analysis of the Supreme Court cases and “the decisions. of the Sixth Circuit in McKnight and the Second Circuit in. Korkin.. It found the distinction drawn in. McKnight ‘that the longshoreman ‘was not incurring. a seaman’s hazard because the gear was “not that traditionally used in unloading to be invalid. The Court concluded that the shipowner's s apetne - liability — . : “for the results. of | defects in eding. | equipment brought on board ship/by _the stevedoring company. should not be qualified or modified if the unloading equipment thus used happens to be newly designed and de-— vised and involves none of the traditional uns; . ; 32 loading gear of the ship. Use of more modern equipment can no .more exculpate the ship- owner from his" obligations _ than - could ? use of “more ‘modern’ divisions: of | ‘labor.’ {Sieracki] . It would seem ‘passing strange of. the shipownd whose obligation of sea- - worthiness, as stated in Sieracki, ‘is peculiar-" ly and exclusively the obligation of the owner-——— ey could in ‘ effett® ‘delegate: and-avoid his * obligation by _employing a - stevedoring com- pany “een used newly invented unloading _ devices.’ 4 TKe Third Circuit, in Spann v. Lauritzen, 3rd Cir. 1965, 344 F.2d 204, followed Huff and extended its | ye ‘holding | considerably. The defective equipment. in that case was a hopper located on the pier.,.A shore- based crane would scoop buckets of nitrate from the hold of a ship and: empty them into the hopper. Trucks would drive under the hopper and a lever . ‘would release the contents of the ‘hopper ‘into the truck bed. The plaintiff was injured when a defec- tive release’ mechanism caused the lever. to descend _prématurely and "strike him. The Court agreed with *. the conclusion of the ‘Ninth Circuit in the Huff case , . that McKnight ‘and Forkin.. are out of harmony with - . thé. principles announced by the ladies Court’’ and allowed the isaac to Tecover. Id. at 209. The analysis of Huff and Spann and the failure of the lower court and the courts in McKnight and . Forkin to demonstrate. 2. valid distinction as, a basis 3 i ny We Nite earch Sn gas SA ei irl Hite en Sah iH JON ES, Circuit Judge, Dissenting oo ee for a limitation on the broad distil of seaworthi- — ness “as enunciated by the Supreme Court convinces. "us that a defective marine leg used in unloading grain makes a barge unseaworthy. Because of this con- ‘clusion, _we find it unnecessary to consider the’ ap- : pellant’s other contentions. ee hares 8 The judgment of the district court is reversed and @ the case is remanded for proceedings not: inconaist- : ent with this opinion. Federal and Gulf, ap ellees, andsContinental,. third | -party defendant-appell , haye stipulated that inthe ~— : event attorneys fees’ hie: the appeal of this case are ‘awarded in favor of Federal and Gulf and against -‘Contiriental, the amount should be set at $900. Since ‘this case is being reversed and remanded, the, Dis- trict Court will have before if sich stipulation for’ whatever action it deems appropriate. In the opinion of the majority, it is shown that: | “The injury resulted from an alleged defect ‘in’ a marine leg, a mechanical elevator. de- a vice, owned by Continental... .It is. per- -manently . attached to the ‘dile: ; 3 power for... operating the leg is supplied by shore based facilities. . * . The injury oc- ‘curred _—— this last phase, of the unload- ing. 99 e ee ke “The end of the marine ‘leg rested on the bottom of - ‘the barge. I do not see. how it became a part of the - barge res wy touching it.°© + — I see no reason for this ‘extension of the doctrine. that a _longshéreman is a,seaman and equipment affixed to the shore is a part of a vessel. I would ~ ‘ relegate. the appellant to the remedy provided by «the Longshoreman and Harbor Workers Compensa- tion Act rather than impose a liability for- negligence | upon his employer by. way of indemnity of the Ship owner. enarerite, edie eek api ¥ : t 8 ‘ . Se : : X 's ms APPENDIX C.. UNITED STATES COURT OF APPEALS FOR THE FTA CIRCUIT ° | = ‘p Geisher Term, dl Pe ee ee 21868 a 'D. Cc. Docket No. 11113-Civil Action : ERN EST oO. DEFFES, : ., Appellant, ‘s versus FEDERAL BARGE LINES, INC. and: GULF-CANAL LINES, me ET AL., Appellees. | Appeal from the United States District Court nae the Eastern District of Louisiana. - | ‘e Before JONES and THORNBERRY, Circuit Judges, a | _and SLOAN, District J Judge. | "JUDGMENT | Peay This cause came on to be. heard on the transcript - of the record from the United States District Court ‘s for the Eastern District of Louisiana, and was argued 7 by Coe; , 62%. ’ J ON CONSIDERATION’ WHEREOF, ‘It’ is now — ordered and adjudged. by. this -Court that the judg- ment of the. ‘said District Court in: this cafise be, and the same is hereby, reversed; and that this cause be, and. it is hereby remanded to the said District Court _ for further proceedings. not inconsistent. with the opin- - ion of this Court; © lees, Federal Barge Lines, Inc. and Gulf-Canal Lines, ‘ Inc., and others, be condemned, in solido, to pay the costs of this cause in this Court for. which execution — be issued out of the said District Court. < : JONES, Circuit Judge, dissents. cee Issued é as Mandate: May 26, 1966 "-® It is further ordered and adjudged that the appel- 3 > ae estas Sones : ae fe ane APPENDIX D. | Q pee fw] «4 “IN THE UNITED STATES COURT oF APPEALS fe : _FOR —_ FIFTH CIRCUIT ares a “h Ae No.” 21,868 ue ; wok pee Nae ERNEST 0. DEFFES/ Creer So ie | : Appellant | : . © Z ic » - ae v. ; ‘ : repéRat BARGE LINES, INC. and GULF-CANAL : : LINES, INC., ET AL; | Appellees: ° - Appeal from the United States District Court for the. 2) eae Eastern District of 5 sacral ; ON PETITION FOR REHEARING» es ee 6 “(daly 6, 1966) Before JONES and THORNBERRY, Circuit Judges, . and SLOAN, District ot Fhdge as ih : -PER CURIAM: : “It is ORDERED that Appellees’ ‘petition for rehear- “ing in the above entitled and numbered cause be, and” the same is hereby DENIED." J » J oni, Circuit J adge, I dissent. 8 ; . \ ee K | \ ; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0006%3A2. Public record. Not legal advice.