Brief in Opposition to Petition for a Writ of Certiorari — Waterman Steamship Corp. v. Skibinski

FILED

AUG 20 1966 -

dre;

"RE

ME Courr, HN F. DAVIS, CLERK

* Supreme Court of the Buiteds tated

| OCTOBER. TERM, 1966

. No. 378

’ . WatTeRMAN STEAMSHIP CORPORATION,

ay | : : Petitioner,

' —against—. a

» JosepH SXKIBINSEI, Setar ie :

Respondent. ©

BRIEF FOR RESPONDENT IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT. OF APPEALS FOR THE SECOND

bes an

. WittiaM A. BLANK

Witrrep L. Davis |

Attorneys for Respondent -

66 Court Street .

Brooklyn, New York 11201 .

Wiu1amM A. BLANK s x

Of Counsel = ere.

\ RoBert HALPER:

On the Brief

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a

jor

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TABLE OF CONTENTS

7 ‘ a PAGE

Opinions Below .......... F ean, batcucexs eran |

Jurisdiction .g....... 056. enee eee. heii a

The Questions Presented ...........4. iavewmas 2

Statement of Facts 2... 0... coe coc ewcccee 2

Reasons Why Petition Should Be Denied ...... 6

The decisions of the Courts below;. finding the

S.S. Medaket unseaworthy, represent a-

proper application of the law to the facts’

.presented Bahl cea lve PES TE TR ee Sy eee 6..

= IN a dekidegetrn Se

Pies OF Pia Crrep ze

‘Alaska Steamship Co. v. . Petterson, 347 U.S. 396, .

Me 5°: eee ie mec ee

Albanese v. N.Y. Nederl. Amerik Stoowic: Maats,

et al, 346 F. 2d 481, 86 S.Ct. 429, reversing 2d

SE 335523455 e 4 oe ot Onateneetadewiveled. 5, 6

Blassingill v. Waterman S.S. Corp. -» 336 F. 24367

ERs agi Ree ere nn ee Nets ie ek OS 9

Crumady v. The J. H. Fisser, 358 US. 423, 9

8. NO Mn es ide ceo ath sti ane ke Be 7

Ferrante v. Swedish seattle Lines, 331 F. 2d.

571 (3d. Cir.), Cert. dismissed 1964 ...,.... 9

: Grillea v. United States, 232 F.2d 919 a se

1956)... ania diet intedie CBee 9

~

ii — ;

_. PAGE

Gutiovres v. Waterman S. S. rae * 373 US. 206,

B.C. 1 WE Si 8

: Knoe v: U8: 320 F. 2d 247 (3d Cir. 1963) ...... 9

| ‘Mahnich VY. Southern: pe | Co., sap US. 96, .64

on Oe QR eee Sie ee te a ee ee ce Pe

Masei, v. C.A. Venezuelan Navigacian, 332 F. od y

“779, 2d Cir. 1964, Cert. denied, 379 U.S. 914 10:

‘Mitchell v. Trawler: Racer, Tne., 362 U.S. 539, 80 |

C0: TBF Hala ete 6

Morales v. City pe Galveston, oun 370 U.S. 166, Bea

82 8. OK. TS CORR) os fo He heiiss ieee ties = oe

~ Norfleet v. Isthmian Lines, Inc., 355 F. ‘Od 359 ©

(9d Chie, TOOB) inva cn cece cee

Pudda v. Royal Netherlands ponies Calssnan

303 F.2d 752, 2d Cir. 1962, Gert. denied, 371

ee ee ene ES Sea Ee 10

Radovich v. Cunard 88. Co., Ltd., 2d Cir., ra

cidéd J uly 18, 1966, Docket No. 29867 -..... 9

Reid v. Quebec Paper Co, Litd., 340 F. 2d 34 (2d

| Cir. 1965) RSs Sere iP re eee Oe or Ae Where 9

Scott v. Isbrandtsen Co., Ine., aan 24 113 (4th |

Cir. 1964). ..... eoeak Vad Ree a eels a ae 9.-

. Seas’ Shipping Co. v. Sieracki, 328 U.S. 85, 66—

r,t eS hae at re 8

Skibinski v. Waterman Steaipehip Corporation, ;

'-242 F. Supp. 290, S.D.N.Y.-1965 ..+......... 2,4

| Strika v. Netherlands Ministry of Traffic, 2d Cir, -

1950, 185. F. 2d 555, Cert. denied 1951, 34]

US. Uo Pt ori SEE is Peps <I ... 8, 9,10

- Thompson v. Calmar, 3d Cir., 1964, 331 F:2d 657,

_ Cert. denied. 1964, 379 UB. 913'....... .. 8,9, 10

| Supreme Court of the Mnited States

OCTOBER TERM, 1966

‘No. 378

WATERMAN SreaMsHIP CoRPORATION,

| yess Petitioner,

_ -—against—

o/

a.

JOSEPH SKIBINSKI, ar

hn) eens | Respondent.

»™

’ .

BRIEF FOR RESPONDENT IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

Ps _ Opinions Below

— t A Scenes

The opinion of the District Court is reported in 242

F. Supp. 290. The opinion of the Court of Appeals -

is officially reported in 360 F.2d.539. Petitioner filed

petitions for a rehearing and rehearing in bane on -

’ April 13,-1966 which. were denied by orders entered

April: 27, 1966.

Jurisdiction

It is not disputed that there is Sustuilbetin under

Title 28, U. “ C., Section ne

- ‘

cS |

The Questions Presented ©

1. Is the use of patently unsuitable equipment

which creates a dangerous condition that pre-exists

‘an injury by a substantial period of time within the

ambit of the warranty of seaworthiness ? '

y Can. the unseaworthiness of a eae be set in -

motion by the acts of co-workers ? |

' 3... Can-a shipowner anbee himself of his obliga-

tion under the warranty of seaworthiness to provide |

and maintain a safe place to work by having the tra-

‘ditional work of seamen performed by senqunoremien 7

4. Have. not the courts below by their findings: -

(a) that a substantial period of time elapsed

during ‘the ,use .of the open mouthed hook fash-

ioned as an apparatus ° which was patently un .

' suitable for the use to which it was put resulting

in its. becoming a rt ofthe ship’s equipment,

na and

i. oan the. atypical type of operation far from -

the normal loading and unloading proceaure that

was being: performed,

disposed of petitioner’ s ‘so-called theory of opera-

tional negligence. . . ; @

Statement of F acts

/ "The ‘llivaian findings of .the District Court, Ski-

binski v. Waterman Steamship Corporation, 242

‘BF Supp. 290, S.D.N.Y. 1965, crucial to: its decision,

were omitted from petitioner’ s statement of the case:

6

3

“fA ‘one ton steel ladder struck Joseph Skibin-

_ ski while he was working in the depths of the

hold ‘under Hatch #4 of the S.S. Madaket on

November 24, 1958. The injuries which. befell

him were not the result of an honest: mistake in

Judgment or mere negligence, but rather, as ship-

owner’s counsel conceded and the record over-

whelmingly establishes, stupidity—‘criminal stu-

pidity’ in the use, of ship’s equipment as put in

motion to lower the ladder into the ship’s hold

for —, to the Ship’ s structure (Tr.

* * * %-

—

. The job of eles and rewelding the dedider,

‘furthermore, was not one of the typical, routine

and ordinary jobs of every day which take place-

during unloading of a sugar ship. Indeed, it

had happened only once in four years in plain-

_ tiff’s experience and only ‘several times’ in the

six years Chief Officer Fleming had served aboard -

the S.S. Madaket (Tr. 83-4, 528-30). The ship

was not unaware of the- unusual nature of this

task; it had given special permission for the.

_ removal and its officers were'on duty to watch

the winches and check to see that the longshore-

men did not damage the vessel.

=. : = ee *

eee ies, Skibinski, unaware of the ‘liga?

adopted by his fellow leinuehoremen on the main

deck above, had no way to ascertain or ameli-'

orate from his position in the depths of. the hold

the dangerous. condition created by the use of

the open mouth hook to lower the ship’s ladder.”

-~

+

The facts as summiarized by the Circuit. Court, Ski-

binski v. Waterman Steamship Corporation, 360 F.2d

039, 2d Cir. 1966, are as follows: ,

‘‘Terminal, in order to facilitate the wikialitas

operation, obtained permission to remove tem-

porarily from the cargo hold a one ton steel

ladder that was affixed to the ship’s structure by »

welded steel brackets. Skibinski, a welder, was

' assigned to use his welding equipment to burn off

_ the ladder and brackets. ‘Three days later, the

- unloading operation having been completed, Ski-.

_binski, and a co-worker named Stuve, returned

to the vessel to reaffix the ladder, which was lying

on the main déck.

Skibinski and Stuve first welded the brackets

and then gave the word to lower the ladder. The |

ladder was to be lowered by three longshoremen,

also in the employ of Terminal. Since there was

inadequate space to. permit the lowering of the

- ladder at the place it was to be reaffixed the long-

shoremenh devised a plan, which was described as

follows: — 3

: (1) lowering the ladder through the open

‘middle section of the hatch; (2) laying it down

flat on the bottom of the hold; (3) uncoupling ,

' the fastening mechanism by which it was low-

ered; (4) retrieving the fall; (5) lowering the

fall again through the opening between the

beams and the aft end of the hatch; -(6) re-

coupling the fastening mechanism; (7) drag-

' ging the ladder:to the aft end of the hold and

lifting it into position.’

_o Skibinski v. Waterman Steamship Corporation,

242 F. Supp. 290, 294 (S.D.N.Y. 1965).

~ view of the. Second Circuit’s decision in Albanese v.

5

In order to lower the laddef? through the hatch

the longshoremen inserted an open mouth, ‘‘S”’

‘ shaped cargo hook under the top rung of the

ladder. Then, with one of the longshoremen *

operating the winch, the ladder was raised from

the deck, positioned over the middle section of

the hatch, and lowered: ‘When the’ foot. of the

ladder reached the floor of the hold, the ladder -

disengaged itself from the hook, and rebounded:

against Skibinski, who, as the district court

found, ‘was in the wings bending over his tools

in preparation for his task.’- |

The district court held that ‘the use 2 of the open |

mouth cargo hook and the falling ladder were

proximate causes of plaintiff’s injury.’

oo * * _% _* .

Here, the. longshoremen, by improperly using

‘an open mouth hook, -fashioned an apparatus |

which was patently unsuitable for the job to

which it was put. The use of this apparatus took

a substantial amount of time, so that the appa-

-ratus become part of the Madaket’s equipment. oP

The trial court though finding in favor of respond-

ent, plaintiff, on the count based upon the warranty

of seaworthiness, held for. petitioner on the issue of

negligence. Although respondent did not appeal the.

negligence finding the petitioner’s attempt to’ cloak

itself in an aura of blamelessness makes noteworthy

the basis for the District Court’s opinion. The Court

felt constrained to find in favor of the shipowner on

the negligence issue in the absence of actual notice in °

N.Y. Nederl. Amerik Stoomv. Maats, et al, 346 F.2d

6 3 es +

481; a decision which was in fact reversed. by_this .. wae

- -eourt on that very point subsequent to ‘the filing: of

the opinion by the District Court below. See: 86

S.Ct. 429, reversing 2d Circuit.

REASONS WHY PETITION SHOULD BE DENIED.

The decisions. of the’ Courts below, finding the

S.S. Madaket unseaworthy, represent a proper appli-

cation of the law to the facts presented.

‘The petitioner relies heavily on M itehell v. Trawler

Racer, -Inc., 362 U.S. 539, 80 S.Ct. 926, citing that

portion of the opjnion which. sets forth a well recog-

nized and undisputed proposition that the owner of a

Vessel is not required to provide an accident free ship.

We are in full accord. A showing of reasonable safety

~~of.the:§.$. Madaket at the time of respondent’s in-

"jury ‘would preclude any recovery based upon breach ©

of the. warranty of seaworthiness.

The District ° Court ‘atil the Circuit Court below,

however, found the use of the open mouth. hook to

lower the one ton, twenty-five foot: ladder into the

hold created a condition fraught with danger of crim-

inal proportions which preceded the injury. to plain-

tiff by a substantial period of time so that the appara-

tus became part of the Madaket’s equipment.

The M itchell case, supra, made erystal clear the:

non-delegable duty, divorced from any negligence con-

cepts of liability based upon fault, of a shipowner to

provide a seaworthy vessel and in addition ‘‘disposed

‘of the suggestion. that liability for a temporary un-

+

seaworthy condition is different from the liability

”“that-attaches.when the condition is permanent.” Cit-

.. ing Alaska Steamship Co. v. Petterson, 347 U.S. 396, —

74 S.Ct. 601 and Seas ‘Shipping Co. v. Sieracki, 328

U.S. 85, 66 S.Ct. 872, which extended to stevedoring

. company employees performing traditional seaman’s

work aboard ship, the same protection against unsea-

worthiness which members of the ship’s crew enjoy.

_ In Petterson, supra, the ship was rendered unsea-

worthy by defective equipment brought on board’ by

the stevedore. Is there any logical distinction for im-

posing liability for injuries resulting from defective

equipment provided by a stevedore and used aboard

ship after the shipowner has relinquished his control

of the loading operation (Petterson 5 Alaska, supra )

and the imposition of liability in the instant case

where the longshoremen, co-workers of respondent,

‘devised a criminally stupid plan and fashioned a

patently unsuitable piece of rigging which created a

| dangerous condition that preceded respondent’s injury.

for a period of time, found long enough by the courts

below, to make the rigging a E casi of the ship’ S equip-

ment.

_ The presence of sound equipment on board the S.S.

Madaket and the fact that the unseaworthiness was

‘set in motion by respondent’s co-worker is not enough:

to excuse the shipowner.

‘Mahnich v. Southern S.S. Co., 321 US. 96, 64

S.Ct. 455;

Crumady v. The J. H. Fisser, 358 US. 423, 79

S.Ct. 445;

8

Thompeon v. . Calmar, 3d Cir., 1964, 331 F.2d

657, Cert. denied 1964, 379 U. S. 913; ) ,

Strika v. Netherlands Ministry of, Traffic, 2d

~ -Cir., 1950, 185 F.2d 559, Wert. denied 1951,

341 U. 1" 904. .

In ‘Movulea\v. City of Galveston, Tedai, 370 U.S.

166,°82 S.Ct. 1226 (1962), this Court again reiterated

that unseaworthiness can arise from a multiplicity of

factors when, at page 170 of 370 U.S., it stated:

“+A vessel’s ungeaworthiness might arise from

any number of individualized circumstances. Her

gear might .be defective, her appurtenances in

- disrepair, her crew unfit. The method of loading’

. her cargo, or the manner of its stowage, might be

improper. (Cases cited). For any or all of these

reasons, or others, a vessel might not be reason-

ably fit for her intended service.”’

That gear which is neither defective nor broken can,

if put to an improper use, render a vessel unseaworthy

‘was reaffirmed by this court by its approving citation

of Strika v. Netherlands Ministry of Traffic, supra, in -

Gutierrez v. Waterman S.S. Corp., 373 U. 8. 206, 214,

83 S. Ct. 1185, 1190.

Petitioner’s restrictive interpretation of broad,

policy based decisions of. this court fails to take into

_~ aecount the increasing spectrum of the warranty of

- seaworthiness since Seas Shipping Co. v. Sieracki, 328. ©

eT ee eee

U. S. 85, 66 8. Ct. 872, was decided in 1946.

‘Decisions in. the Circuit Courts are in accord in

recognizing the broad coverage of the: warranty of

seaworthiness.

9

‘

“A

Thompson-v. Calmar Steamship Corp., supra;

Ferrante v. Swedish American Lines, 331. F. 2d:

571 (3d Cir.), Cert. dismissed 1964;

‘ Knoz v. U.S., 320 F. 2d 247. (3d Gir. 1963) ;

Scott. v. tabréndinen Co., Ine, 327 F. 2d 113 es

(4th Cir. 1964);

Blassingill v. Waterman S. 8. Corp, 336 F. 2d

, 867 (9th Cir. 1964) ;

Radovich v. Cunard 8.8. Co., Ltd., Qa Cir., de- :

cided July 18, 1966, Docket No. 29867 ;

Reid v. Quebec Paper Co., Ltd., 340 ¥. 2d 34

(2a-Cir. 1965);

Norfleet v. Isthmian Lines, Inc., 355 F. 2d 359 :

¢ (2d Cir. 1966) ;

.. Grillea v. United States, 232 F. 2d 919 (2d Cir..

. 1956);

' Strika v. Netherlands M imstry of Traffic, supra.

There are cases, notably 4 in the Second Circuit, hold-

ing: that a dangerous condition created by longshore-

men in the normal and usual course. of a loading or

unloading operation which has not. yet ripened into

-unseaworthiness will not cast the shipowner in lia-

bility. Even if this:Court were disposed to recognize

the concept of ‘‘operational negligence’, the findirigs

of the courts below that this was not an incident in

_the usual‘or typical course of a loading or unloading

_. process and that the unsafe condition had been in

existence for a substantial period of time (see-Grillea

v. United States, supra) belie its application to the -

instant situation.

We are Sais faced with a circumstance - ‘where a

defendant wishes this Honorable Court to reverse

- both the District and Cireuit Courts below by apply-

ene vere

- 10

ing the theory of ‘‘operational negligence’’, a concept ,

which has never been the recipient of Supreme Court ©

approval, in spite of findings by both courts below

that the doctrine was ere to the facts. pre-

sented. on

/

The petitioner claims there are u ique, ‘eenieitand

_and unsettled questions. of law presented which re-

quire a determination by this tribunal. There have

_ been numerous other requests for ¢ertiorari-by both.

longshoremen and shipowners: where a longshoreman

ment by his co-workers. This Court, however, has

left to the trier of the facts the question of when a

particular set of, circumstances results in a vessel

béing rendered unseaworthy. :

Thompson v. Calmar; supra; |

Massa‘v. C.A. Venezuelan Navigacian, 332 F. 2d.

779, 2d Cir. 1964, Cert. denied, 379 U.S. 914;

. Pudda. v. Royal Netherlands ‘Steamship Com-

- pany, 303 F.2d 752, 2d Cir. 1962, Cert. ‘de-

_ nied, 371 U.S. 841; ~ = *

- Strika v. Netherlands Ministry of Traffic, 185

F. 2d 555, 2d Cir. pif Cert, denied, 341 U.S.

~ 904.

i 11

CONCLUSION

Upon the foregoing considerations the petition for

| writ of certiorari should be denied.

- Respectfully: submitted

Wruiam A. BLank

Witrrep L. Davis

' Attorneys for Respondent

-. °. 66 Court Street

: Brooklyn, New York 11201

WILLIAM A. BLanK

Of Counsel

RoBERT HALPER

‘On the Brief

o We ae et CUR Te