Brief Amicus Curiae — Waterman Steamship Corp. v. Skibinski

© Suprenie Court of the United Staten

OCTOBER TERM, 1966

NO. 378

WATERMAN STEAMSHIP CORPORATION, .

Pepitioner

JOSEPH SKIBINSKI, Respondent, °

AMICUS CURIAE PETITION AND BRIEF

IN FAVOR OF RESPONDENT

Motion for Lew to > File the Aibeiaeiaviie

Brief as Amicus Curiae in Opposition to

. Petition for Writ of Certiorari to the

United States Court of Appeals

_for the Second Circuit :

Avaanicany Tuas Lawems Assocuon so

oan eee RE oe a ce 0 Bl moa Te eee ae ge

“|

Seeeas

‘INDEX

Statement of Interest of Amicus Curiae ...... "ot

Brief of Amicus Curiae Admiralty Section of

American Trial Lawyers Association in Oppo-

sition to Petitioner’s Agytestion for a Writ

of Certiorari ..... oy Meh week PO EL a

Questions Presented... ........ rae Savant

Under the admitted factual situation in this .

case does not the use of an open mouth “S”

shaped cargo hook under the top rung of the

ladder in order to lower it through the hatch

and place it in position, render that hook not

reasonably fit al the purpose to which it was

put? ,

The Amicus Brief j in support of Petitioner nN to

establish principles rejected by this Court aes

Conclusion .................. eae pe eras

Certificate of Service...

LIST OF AUTHORITIES

Alaska Seeanahis Co. v. Peterson, 347 U.S. 396,

74 $:Ct. 601, affg. 205 F.2d 478... bate ans

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

vy. Internatjonal ‘Terminal Operating Co., Inc.,

Oe Oi, 006 TAI oc ow ce

Beeler v. Alaska Aggregate Corp., 336 F.2d 108

(COA. Sh Ce HO)...

Blassingill v. Waterman weeny sei 336 F.2d

367 (1964)

CASES

‘Candiano v. Moore-McCormack tien ee. 25 1 |

ME I a 5c ogo ou bod Ky Wiele ne ess ®

Cox v. Esso Shipping Co., 247 F.2d 629 (C.C.A.

i SL rR ae

Crumady v. he JOACHIM HENDRIK FISSER

(1959), 358 U:S. 423, 79 S.Ct. 445...

Flowers v. Savannah Machine & Foundry Co., 310

- 'B.2d 235 (Sth Cir, 1962) -.:.......-- 00.

Grillea’ v: United States, 232 F.2d 919 (CCA.

NE rene eg hoe ward «ak o's <

‘Holley v. The MANFRED STANSFIELD, 269 F.

2d 317, revg. 165 F.Supp. 660 .............. |

Mahnich vy. Southern Steamship Co.,. 321 US. 96,

i NE 2 uh oo he Gb od aes 4 ete Oo he we

McAllister v. United States, 348 U.S. 19, 75 S.Ct.

"SEES Ie Se IS eae

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325,

oo ne i gy Pe oe

Neal v. Lykes Bros. ‘Steamship Co., ‘Inc., 306 F.2d

we OE Le Sy} ee

Polgnene v. United States, 225. F. 2d 595 (CC, A.

MR fc i chy se

., Pope & Talbot v. Hawn, 346 U.S. 406, 74 S. Ct. 202

“Seas Shipping Co. v. are, 328 US. 85, 66 S.Ct.

872 (1946)

+ 5,8

IN THE |

‘fw Court of the United States

OCTOBER TERM, 1966

NO. 378

- WATERMAN STEAMSHIP CORPORATION,

Petitioner

gs

JOSEPH SKIBINSKI, Respondent.

. AMICUS CURIAE PETITION AND BRIEF —

- IN FAVOR OF RESPONDENT

Motion fot Leave to File the Accompanying

_ Brief as Amicus Curiae in Opposition to

Petition for Writ of Certiorari to the |

United States Court of-Appeals |

for the Second Circuit |

Statement of Lntesent of Amicus ‘Curiae.

Arthur J. Mandell of Mandell & Wright, Houston, a

a member of the bar in this Court, and as Chairman of

the Admiralty Section of the American Trial Lawyers As-

®

2

sociation and on behalf of the. American Trial Lawyers

Association, respectfully petitions this Court for leave to

file a briéf Amicus Curiae on behalf of Respondent herein,

and if granted, for this Honorable to consider the

arguments and cases in point following this Statement of

Interest. :

The. American Trial Lawyers Association is a national

bar association, consisting of more than twenty thousand

lawyers, primarily engaged in the practice of personal

injury law. The Admiralty Section of this Association

consists of a substantial number of attorneys and proctors in

admiralty who specialize in maritime tort law, and particu-

larly as it relates to maritime workers covered by the Long-

shoremen’s & Harbor Workers’ Act, 33 USS. C., Sec.’ 901,

et seq., as amended. These maritime. workers, ennui as

—they are in an extremely hazardous industry,’ - have a real

and direct interest in the outcome of this case.

Said Association, and particularly the Admiralty Section

thereof, is vitally interested in -the final outcome of this

- case, involving as it does the absolute and non-delegable

- duty to supply tools and equipment reasonably fit for the

_ purpose to which they are put which a shipowner owes

a Siercaki seaman, i.e., a longshoreman. Any relaxing of

aah duty would severely impair the rights of this group

of workers for whom the Congress and the courts have »

shown 2 on deal of concern.

1 The House Report accompanying the 1958 Amendment to the |

Longshoremen’s and Harbor Workers’ Compensation Act points

out that stevedoring is the most hazardous -of all industries: which

report their experience to the Bureau of Labor Statistics, having

an injury frequency rate seven times- that of manufacturing (1958

‘U.S. Code and Cong. News, p. 3843, Sec. 41 of the Act (33 U.S.C.A.,’

Sec, 941(a)]).

* _" phistry or rhetoric. —

‘It is of paramount importance to hundreds of thousands ;

of harbor workers that the established duties: as announced

by this court remain unimpaired and ‘undiluted by $0-

For the foregoing reasons, it is respectfully peeved that

this Honorable Court accept this Brief Amicus_Curide,

. fillliszlilllat

. T-MANDELL ‘’

ZG

. eae |

—*% MANDELL & WRIGHT

_ Chairman, Admiralty Section

American Trial Lawyers Association |

707 South Coast Building

Houston, Texas 77002

~ 7

Ee, RPO I SEA OORT IIE TSO I I eg OO SRE IEICE ENG GEL ION

4

Beet of Amiens Curise. Admiralty Section of

can Trial Lawyers Association in

Opposition_to Retitioner’s Application

. fora a Writ_of Ce Certiorari

The American Trial Seiad Association. views the at-

-tempt of .the Petitioner and that of the amicus~ curiae

American Merchant Marine Institute, Inc. to weaken ,and/

or dilute the established absolute and non-delegable duty

to supply longshoremen with tools and equipment reason-

ably fit for the purpose , to which they are put as a serious

threat to the safety and ‘the welfare of the thousands of

workers engaged in loading and discharging vessels through-

-, out the United States...

The holding by the trial court and = Court of Appeals

_ in this case that the use of an open hook to lower the

ladder into the hatch and place it in position, constitutes

unseaworthiness as ‘a result of which a longshoreman was

injured, is supported by decisional law as announced by

this court and. the many Courts of Appeal. Any departure

from these well-established legal. principles would represent

-a direct. threat to the safety of those engaged in this

hazardous industry. The-trial court’s judgment and that .

_ of the Appellate Court are proper ain in.accordarice with.

the none law. ae

QUESTIONS PRESENTED |

Under the admitted factual situation in this case

does not the use of an open mouth “S” shaped cargo

hook under the-top rung of the ladder in order to .

__ lower. it through the hatch and place it in position,

render that hook not reasonably fit for. the ‘Purpose

- to which it was ‘put. 3

5

Petitioner disregards or fails to take into consideration -

this court’s holding ‘that while a shipowner may contract

the loading and/or discharging of a vessel to others, i.e.

stevedores, in so doing it cannot contratt away its absolute

and non-delegable duty and obligation to provide tools —

and equipment reasonably fit for the task to which it is

put. As this.court has said, while a shipowner may take

‘advantage of the more modern method of division of labor,

in. doing so it cannot contract away its obligation. Seas

Shipping Company v. Sierachi, 328 US. 85, 66 S.Ct.°872_

(19 6). There is no doubt, indeed it is ‘conceded, that the

use of the open mouth “S” hook was not suitable for the

task at hand. Simply because a closed shackle with a locking

pin ‘devise closing off the open end was available does not -

_relieve-the shipowner of its absolute and non-delegable duty

“even though the ship’s unseaworthiness is created. not by .

+ its own acts but rather by the acts or negligence of a

third party specifically engaged to do specialized work. \. °

aboard .a vessel. Mahnich v. Souther: Steamship Co., 321

U.S. 96, 64 S.Ct, 455; Neal v. Lykes Bros. Steamship Co., |

Inc., 306 F.2d 313 (C.C.A. sth Cir., 1962). Petitioner

and its amicus American Merchant. Marine Institute, Inc.

‘seek to insulate the shipowner’ s liability because the steve-

doring company engaged to do this specialized work aboard

ship used the improper and concededly unsuitable tool and ~

equipment to lower and place in position the: ladder into

the: hatch. This is precisely. what this court has held that .

~ the shipowner cannot do. Alaska Steamship Co. v. Peterson,

347 US. 396, 74 S.Ct. 601, aff’g. 205 F.2d 478. arene)

This court. has held workers who do ‘work traditignally

‘done by seamen are entitled to the same protection ‘as

seamen. If Respondent Skibinski would have been a mem-

ber of the crew of the MADAKET and another member

“—_

-

of the crew had selected the open mouth “§” hook :to

’ lower and place in position the steel ladder as a result of

which he would have been injured, there would have been

‘no question but that he would have been entitled to re:

cover damages by reason of unseaworthiness as well as

negligence. The fact that: there was available a shackle on

board the vessel which could have been used with safety, _

does not insulate the shipowner from liability. Simply

because Respondent Skibinski. was a longshoreman, or as

one court referred to such worker, a Sieracki- seaman;’

does not, as this court has declared, lessen its obligation.

Are not these longshoremen subjected to’the same danger

and therefore entitled to the same treatment under the

‘law? Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202.

To do otherwise would lessen, if not destroy, this court :

“holding that the warranty of seaworthiness is absolute in

its nature and the failure to fulfill such warranty gives

_ rise to liability because . it is essentially a species of

liability without fault, ic, a form of absolute duty

owed to all within the range of its humanitarian policy.

If unseaworthiness created by the longshoreman himself

resulting in his injury, liability is’ imposed, then it goes

without question that if the negligence of its fellow long-

shoremen create an unseaworthy condition then there is -

greater reason for imposing liability. Grillea v. United |

States, 232: F.2d 919 (C.C.A. 2nd, 1956); Holley-v. The —

MANFRED STANSFIELD, 269 F.2d 317, rev’g. 165 F.

Supp. 660. We know .of no case where an_open hook

instead of a shackled one was used, causing injury and

liability for unseaworthiness has not been ithposed. Indeed,

Cox v. Esso Shipping Co., 247 F.2d 629 (C.C.A. Sth, 1957)

2 Flowers v. Savannah Machine & ry | Co., 310 F.2d 135,

(5th Cir., 1962).

be

7

- in ‘effect: holds that the "use of such a tool to hold up a

boatswain’s chair constitutes unseaworthiness. The test as.

the trial court held is whether he open: “S” hook was

_suited for the task at hand or to which it is put. If it was

' not, it was unseaworthy. This court in Michalic v. Cleve-

‘land Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6 at p. 10 said

“* * * whether the wrench furnished Michalic was a

reasonable suitable appliance for the task he was assigned.”

In Blassingill v. Waterman Steamship Corp., 336 F.2d 367

(1964), the court stated: “The tackle, however, was de-

fective only in the sense that it did not perform the*work

for which it was used.” So here, the tackle was safe when

‘ used’ to handle two bales. The jury could find that it was

unsafe when ‘used to handle four. This would be because

it was used-in a hazardous manner. Citing Crumady v.

The JOACHIM HENDRIK FISSER (1959), 358 U.S..423,

79 S.Ct. 445. As in the case at bar, the open mouth “S”

hook, while not defective,’ was not safe for the task to —

which it was put. See also Beeler v. Alaska Aggregate Corp., —

336 F.2d 108 (C.C.A, 9th Cir., 1964) ; Candiano v. Moore-

| . McCormack Lines, Inc., 251 F.Supp. 654 (1966). Use of =o

a pontoon bridle instead of toggle bridles both which were

supplied by the ship, rendered the vessel unseaworthy.

_ This court’s opinion in Albanese v. N. V..Nederl. Amerik.

Stoomv. Maats, .Resbondent v. International Terminal

Operating Co., Inc., Petitioner, 86 S.Ct. 534 (1965), if as

suggested by Petitioner asa holding repudiating operational

negligence as grounds for recovery in view of “the trial

court’s findings of no. negligence, it is not pertinent in this

case. The single question before this court is whether the

trial court’s finding of unseaworthiness is, under the facts,

clearly erroneous. McAllister v. United States, 348 U.S.

19, 75 S.Ct. 6 (1954). It is respectfully submitted, lee

8

ever, that the ‘trial court could do little else except to

find the open mouth “S” hook riot reasonably suitable for

th® task at hand, ie. unseaworthy.. Indeed, under the

facts, a Eading to the contrary would be clearly erroneous:

The ‘Amicus Brief In Support Of Petitioner |

Seeks To Establish Principles age ;

\. By This Court

ican with this court’s opinion.in Reed v. YAKA,

373 US. 410, 83 S.Ct. 1349 (1963), the American

Merchant Marine Institute seeks to nullify this ‘court’s

principle laid down in Seas Shipping Company v. Sieracki,

. supra. It urges that this court reverse its decision because

' the industry is under stringent economic pressure that none

of its components can absorb the additional cost of in-_

creased insurance and that the shipowner in turn must and

does pass along this additional. stevedoring charge to its

customers. But this court weighed and considered the same

argument in Seas Shipping Company v. sstimiae arid an-

swered it as follows: rn

iisier lind (ibiigiiiwies) is in position, as the worker is

“not, to distribute the loss in the shipping community

which receives the service and. should bear the cost.

(Parenthesis added)

“These and other considerations arising from the

hazards which maritime’ service places upon men who

_ perform’ it, rather than any: consensual_basis-of re- 7

-sponsibility, have been the paramount influences dic-

tating the shipowner’s liability for unseaworthiness as

well as its absolute character. It is essentially. a species

', . of liability without fault, * * *.

-* * * Te is-a-form-of absolute duty owing to all

within the range of his humanitarian policy.”

t

9:

Poignant v. United States, 225. F.2d 595 (CCA. 2nd, -

1955); ‘Grillea v. United States, supra... .

The argument to the holding in this case the court. be-

low saddled the shipowner with an obligation to supply

“an accident free ship” is wholly inaccurate. This. court

in Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct.

1226 (1962) has laid down the rule as to the meaning of.

‘an accident free “ship”. ?

| CONCLUSION

The erial court’s , holding of unseaworthiness is not clearly

erroneous. On the contrary it is supported by well estab-

lished’ principles and respected authority from this and Ap-

pellate Courts. The great concern expressed by the courts

'. and the Congress for the safety of these workers in such

hazardous industry require the decision of the trial and

Appellate Court remain standing.. :

“It is, therefore, respectfully prayed that Petitioner’s | Ap-

plication for Writ of Certiorari be in all = denied.

\ Respectfully veal,

. - AMERICAN T3 LAWYERS_ASSOCIATION

| fF Ye)

(ibd Mandell ;

Gaia. Admiralty Section.

“American Trial. Lawyers Association -

» Attorney for Amicus Curiae -

DAT ouston, Texas, this the Kew of »

pee , A966.

NN

CERTIFICATE OF SERVICE |

. Fhis is to certify that on the SAK day of October, 1966,

copies of the above Application to Appear as Amicus

uriae and Brief: in support. thereof nave been for-

warded to:

Mr. William A. Blank and Mr. Wilfred L. "Davis, At-—

torneys for Respondent, 66 Court Street, Brooklyn, New

' York, 11201, whose consent to file this application has been ?

/ebvained, at their office and post office address, -66 Court eee

Street, Brooklyn, New York, 11201; ees

Mr. Sidney’ A. Schwartz and Mr. Jouph-Atthur cee ;

of Alexander, Ash & Schwartz, Attorneys for Waterman:

Steamship Corporation, Petitioner, who has ‘not consented

- to. the-filing. of this application, at their office and post

—~ office’ address, 76 Beaver Street, New York, rey York

10005; ©

Mr. Cornelius P. Consiilie Canal for American

Merchant Marine Institute,:Inc., Amicus Curiae, 11 Broad- -

way; New York, New York 16604