# Petition for Writ of Certiorari — Holland American Line v. Philadelphia Ceiling & Stevedoring Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0529%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 388 U.S. 911 ## Text il de Semi hr yey Eh Ta 5 A ners Vent eesvedl ET ee ae . ee Dene enna, nai ril ie ea Se is the: Steen A Nansen pi ia ee - G62 seats eal “ 2 cadre Pac aes 2 opr , mn - — PED Mod ns Cer areone samen 52 CPT TN - : INDEX. | ° ‘ Page OvInsons BELOW 22.42 \sesceceossveren ap OL se: ae _ JURISDICTION ...... , ROPES Cones ee ae evecedeeesanise Om | ; QuesTION PRESENTED ......... | eoveccvenceeced’ eeegeseds. ~ @ “Sravement or THE CASE .. et SA eos ats cnksvethaningetey (4 Reasons WHy THE Wait Suoutp BE GRANTED ...°...... ows 7 Baier 1n Surrort oF PETITION .....2>.+.-- eer ae 8 IIE os inns koxey dacntan Gunecetbarsisnsneesesen UE APPENDIX: | Opinion of District Geant bs + * October Term, 1966. — a No. HOLLAND AMERICAN LINE | ( Sup as N. VY. NepErLanpscu-AMERIKAANSCHE Sroomvaart MaarscHappis), : | Petitioner, Vv. _ PHILADELPHIA CEILING AND STEVEDORING ‘COMPANY, Respondent. | ha FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS | ' FOR THE THIRD CIRCUIT. The Petitioner, Holland-American Line, ssnebiie prays that this Honorable Court may grant a Writ of Certiorari to the United States‘Qourt of Appeals for the . ‘Third Circuit to review a final apes of that Court entered October 13, 1966. Petition fora Wi “tt of Certiorari : -e \ l OPINIONS BELOW. _- The opinion of the Court of Appeals ‘ter the Third » Circuit, dated- October’ 13, 1966, is not yet reported. The opinion of the District Court, dated May 12, 1965, is not ‘of the District Court is reproduced as part of an appendix | to this Petition, la, and the opinion of the Court of-Appeals. - and its order on rehearing are reproduced, 5a, 11a. eee _ Ssunrsprerion. (a) Jurisdiction to consider the within Petition is conferred upon this Court by 28 U. S. C. A. 1254(1). (b) ‘The judgment*of the Court of Appeals for the Third Circuit affirming (2-to 1) the judgment of the District . Court in favor of the Respondent and agar the Petitioner. . _ was entered’ October 13, 1966.. jy (c) Pursuant to the Rules of the Court of Appeals, a timely petition (15 days) for rehearing before the Court en banc was filed. On November .28, 1966, the Court. of Appeals granted the petition for rehearing.. Reargument — was scheduled before the Court en banc. At rehearing, - peals affirmed the judgment of the District Court, the _ judges who heard the matter on secre being equally _ divided. | (a) A sieend petition for veheietnl was filed within _ :1§ days. ‘ It requested that the Court designate one or all of the three Senior Judges of the Circuit to sit so as to constitute a Court with an uneven number of judges so that the matter could be decided. The second petition for eaoaring was denied niet rind 16, 1967. 7 Se TO ee ct en oe Se ee re SE ee ws yet reported. For the convenience of the Court, the opinion .- eight judges sat. On Decémber 28, 1966, the Court of Ap-. — 3. \ - Petition for a Writ of Certiorari 8 —- e) Reodnsh it was uncléar \uedives the time. to file the within petition ran from December 28, 1966 or from February 16, 1967, Petitioner filed and Mr. Justice Brennan entered an order upon Petitioner’s ‘motion for enlarge- - ment of time. Under the order entered by. Mr. Justice Brennan the time within which the Petition for Certiorari in this case’ might be-filed was extended to April 27, 1967. _ &@ QUESTION PRESENTED. e- Ina chiseirnier’ 8 ‘indemnity’ oulen aguiriat a stevedors,’ ‘which arises out of a judgment obtained by a longshoreman against the shipowner; and where there is no conflicting evidence as. to the factyal condition which existed, is not .. | the shipowner entitled to an instruction to the jury that ~ if the jury finds that a dangerous condition improperly ' created by. the stevedore during the performance of its -work was causally related to plaititiff’s injury, the jury must return a verdict in favor of the shipowner o on its indwnnity claim. | . — ° ®. 4 ‘Petition for a Writ of Certiorari _ STATEMENT OF THE CASE. - & ; : z oi ’ Jones, a longshoreman, sued Holland-American Line (shipowner) for personal injuries sustained by him during” - the course of his work as a longshoreman discharging _ eargo from one of the Petitioner’s vessels. Petitioner, the — original defendant, joined Jones’ employer as a third-party . defendant, claiming indemnity. The cargo being unloaded.at Philadelphia was peat — moss in bales. It was undisputed that at the commence- — ment of the unloading operation, there was no accumula- ‘tion of: loose, peat moss. As-the Court of Appeals stated it, ‘‘as work ‘progressed loose peat moss flaked off or was ‘loosened by the longshoreman’s hand hooks and accumu- lated in the-hold of the vessel. - Plaintiff claimed that: he. sustained his injury when he stepped into. an open, bilge box in the hold which was concealed by an accumulation of loose. peat moss’’. (Slip Opinion, Page 2) (Appendix, p. 6a). At the slain of the plaintiff’s case, the shipowner conceded its liability to him. Submitted to the jury were the issues of the amount of the damages sustained by the plaintiff (found to. be $45,000.00) and the issue of whether the shipowner was entitled to be indemnified by the stevedore. The evidence as ; to the accumulation of peat-moss in the hold was uncontradicted. Plaintiff, the only witness to . the precise manner in which the accident occurred, testified that the accumulation of peat moss in varying depths com- pletely obscured the floor. of the compartment in: which the cargo had been carried. He testified that it was not possible for him to see the floor upon which he was.walking - (11a), the loose peat moss floated on the water within the ~ bilge well so that the opening which was’ usually covered by the steel plate was completely obscured by the accumu- lation of peat moss. According to the plaintiff, this Ss s Petition fee a 1 Writ of Certhinait } 5 amounted to sa foot in some places, ‘i in some places there was more of the loss peat moss and we . . . and I didn’t | see the floor at all’’ (11a). Jones’ version of what hap- paned [there -was-no other] was.as follows: “So about 3:30 or quarter to'4-I don’t ae the specific time—we were almost done. I had about one bale left I had—I had to get in my end, and I walked _ # to get this bale, and all of a sudden my leg disappeared : - into the peat moss, and as I—my leg disappeared, I twist my back and my right leg.went out from under me and I hit my back up against a steel beam.” ”» (10a) t The fact that an sndiiinia had occurred. came to: the _ Chief Mate’s attention when he saw the injured Jones on the ship’s main deck with one leg wet. The Mate im- mediately surmised what had occurred. When he went into the- cargo compartment, in spite of the fact that he knew precisely the location of the bilge-well, he. had to . search for the perforated steel plate intended.to ever it by running his fingers through the moss and he finally ‘ found it by groping for it in the peat moss. He could not ' see the floor of the tank (23b) and even though he knew precisely the location of the bilge well, he was unable t6 observe it (293¢a): Sea: Sore og : The record is clea t there had been no accumula- tion of peat moss when the longshoremen began the un- loading operation. An expert stevedore, called-as a wit-_ ness by the Petitioner, testified that it was improper steve- doring practice to have permitted an accumulation of peat © moss or any other cargo which obscured the surface upon which the men had to walk. When the testimony of Jones, the plaintiff, and the Chief Mate (the only two witnesses ~ to testify: on this subject) was outlined to the stevedore foreman ‘in charge o. the work, -he testified : “Tf it [the accumulation of peat moss] was that high, itwould have to be removed.’” (40a) 6. Petition for q Writ of Certiorart At the close of the evidence, the Petitioner-Shipowtier submitted written requests for charge, including one read- ing as follows: ‘Under all of the evidence, if you find a verdict in favor of the plaintiff against Holland-American Line, and you find that the“accumulation of loo’e peat moss in the bottom of the tank was a.cause or a-contributing . cause in bringing about the injury to Mr. Jones, then © you must find a verdict in favor of Holland-American Line against Philadelphia Ceiling and Stevedoring Company.”’ (57a) The District Court denied that request for charge. , Instead it submitted the case to the jury under a charge a which several times reiterated ‘‘you (the jury) again are © _ the super-expert”’ (52a): The District Court specifically stated to the jury that in spite of the evidence in the record, as outlined above: ‘You again are the experts. You have to detacties ; how much peat moss is expected to be found in a tank such as -this one, how much should be allowed to. accumulate before -you determine that it should be removed? You have to make that determination. (52a) , , - * * ; ‘‘But if you find that the Philadelphia Ceiling per- formed its work of discharging the cargo in’ a good and workmanlike manner, if you find that the proper performance of the work did not require prevention or avoidance of an accumulation of loose peat moss, or if you find that proper and workmanlike performance did not require the removal of an accumulation of peat moss .. . . then you should find that . . . (the steve- dore) . . . breached no duty to Holland-American . . . and in that event, you should return a verdict in favor of the third-party defendant, Philadelphia Ceiling, | against the. third-party plaintiff, Holland-American | Line.’’ (SSe-ie}. ~~ +) OR —_— Petition for a Writ of Certiorart : ‘REASONS WHY THE WRIT SHOULD BE GRANTED. — I. The Court of Appeals‘ for the Third Circuit; sitting en banc, which has much maritime litigation before it, has » divided equally upon the question of what is the’ applicable law with respect to the duties owing as between stevedore and shipowner and the proper standard for instructing a . _ Jury in a case of that nature. The frequent recurrence of litigation ‘of this type within the Third Circuit -Tequires the ee of this Court. : ‘ 2 The approach of the Court of pe for the Third Circuit in this and other cases is in conflict with decisions - ' of this Court and of other Courts of Appeals. Petition for a Writ of Certiorari - BRIEF IN SUPPORT OF PETITION. in maritime cages of this type has been consistently at odds» with the approach of othe Courts of ‘Appeals. | In spite of the frequent holding by this. Court that i in . indemnity actions such as the one now before the Court, the contract standard is applicable and a tort standard in- appropriate, nevertheless, the Court of Appeals for the “Third Circuit and the District J udges within that Circuit consistently view these cases as if a tort standard prevailed - and juries in these actions are instructed to return their verdict based upon a tort rather than a contract standard. | That the Court of Appeals for the Third Circuit has _ not sailed a consistent course in shipowners’ indemnity actions.is demonstrated by its prior decisions. -Hagans v. Farrell Lines, Inc., 237 F. 2d 477 (C. A. 3, 1956) was — probably the first of a long line of decisions where breach . of a contract for workmanlike service was equated with negligence. Contract interpretation is for Courts and Courts are to instruct juries .as to the proper interpreta- tion of the contract.so that the jury may apply the facts it finds-under the guidance of correct rules of law. If a contract requires a party to perform work in a certain | fashion, the fact,that one party introduces the testimony of an expert as to what constitutes proper performance’ is not, in the absence of a proper instruction to the jury, : something which ‘‘must pass through the screen of the jury’s judgment of credibility’’ (Slip Opinion, ‘Page 3). The evidence left no doubt that an accumulation of The approach of the fe as be to indemnity siti _ peat moss existed which obscured the walking surface and, of course, obscured the opening-into the bilge well. Every i person, experienced and expert enough to express an opin- | ion, both Petitioner’s witness and Respondent’s foreman, an acknowledged expert, agreed that if the condition de- - . seribed by the fact witnesses had existed, it was improper and should have been rectified before work continued. ~ = Petition for a Writ of Certiorart 9 Yet the District J udge charged and the: Court of Appeals: affirmed that the jury was ‘‘to determine how much peat moss is expected to be found in a tank, such as this one, how much should you allow to accumulate before you deter- mine that it should be removed?’’ (R-52a). So an ad- mitted breach, under. the evidence, was tossed into the lap of the jury for consideration without a ‘proper instruction as to the standard the jury was to apply. _ In its 1956 decision in Hagans v. Farrell Shas Inc., 237 F. 2d 477, the Third Circuit clearly and admittedly applied a tort standard in denying a shipowners’ indemnity claim. The‘rationale of its decision was based upon this Court’s 1905 decision in Union Stock Yards v. Chicago BEQ’ BR. Co., 196 U. 8. 217, a tort case. The Court of Appeals ' there said: ‘‘Where the parties. have violated similar duties to’ the injured person, neither is entitled to relief against the other.’’ 237 F. 2d at 482.. — _ There was not unanimity in the Third Cirenit even _in those days._.Chief-Judge Biggs and Ji udge Maris dis- sented on petition for rehearing. 237 F. 2d 483. - } In 1961, in Hodgson v. Lloyd Brasileiro’ Patrimonio Nacional v. Murphy Cook & Co., 294 F. 2d 32, the Court again approved indemnity on a tort rather than a contract standard. Again ete on rehearing, Chief Judge Biggs pointed out: ° ‘In view of Crumady v. The Joachim Hendrik Fisser, 358 U. 8. 423, and Waterman Steamship Corp. v. Dugan & McNamara, Inc., 360 U. S. 421, it would seem inevi- table‘that we reappraise our. decision i in Hagans...”’ It is impossible to reconcile two more recent Third Circuit decisions involving indemnity. Compare the opin- ions in this case and in Thompson v. Trent Maritime, 353 F’, 2d 632, particularly at 651 (C. A. 3, 1965) with Dziedzina + v. Dolphin Tanker Corp., 361 F. 2d 120. In the Dolphin Tanker case the Third Circuit’ seemed to reverse its prior _ ‘ rs _ Petition for a Writ of Certiorari 10 trend and bring itself more in line with the decisions of this Court. and other Courts of Appeals, but the change 7 lasted only from May 24 to October 13, 1966. ay Soin the Third Circuit the result depends upon the - composition of the panel which happens to be assigned to hear a particular case. The panel in the Dolphin Tanker decision (decided after argument but before decision in this case) clearly followed what we believed to be the teaching of: this Court’s decisions which culminated in Italia Sogjeta v. Oregon Stevedoring, 376. U. S.. 315 and the earlier decisions by this Court which are e cited 1 in oup- port of the Italia Societa decision. ’ In the case at bar we are dealing with a case ; ews the evidence clearly and without contradiction demonstrated a condition which constituted a breach of the stevedore’s’ _contractural obligation. Yet the District Court refused to charge the jury that if it found that condition was a _— substantial factor in bringing about the harm to the plain- .. tiff, indemnity would lie. There were not, as the District Court’s decision would have one. believe, ‘‘various versions | of how it [the work] ought to be done’’. ‘The decision of the Court of Appeals is clearly at variance with the decision in and the rationale * ‘underlying the Second Cir- | euit’s decision in Mortensen v. -Glittre, 348 F. 2d 383, and other decisions by: the Court. of Appeals for the Second Cireuit cited in the. following quote: . ' This warranty of workmanlike service comprehends the carrying out of the operations provided for in the contract in a reasonably safe manner. Waterman S.'8. Co. v. Dugan &€ McNamara, 364 U. S. ‘421, 423, 81S. Ct. - 200, 5 L. Ed. 2d 169 (1960). It imposes a duty on the — _ gstevedore. or contractor to clean up the area of opera- - tions, where necessary, to make it a safe place in which to work. Nicroli v. Den Norske Afrika, 332 F. 2d 651, 655-656 (2d Cir. 1964) ; DeGioria v. United States Lines Co., 304 F. 2d 421, 423-424 (2d Cir. 1962). Since there was no evidence of conduct on Glittre’s part which Wedd Petition for a Writ of Certiorari = = 1 relieved Federal of its obligations, the District Court ’ properly. held that Glittre was entitled to indemnifica-— _ tion as a matter of law, for the breach of warranty in failing to take steps to rettify a known hazardous condition and eliminate a foreseeable risk of injury . * which brought into play the vessel’s unseaworthiness, and which was a proximate cause of the accident which occasioned the shipowner’s expense. > 348 F. 2d. 383. . If this Court-meant what it said in W éyerhaeuser S. 8. Co. v. Nacirema Operating Co., 335 U. S. 564, then clearly ~ the decision of the Court of Appeals 1 in this case is 8 at odds with this Court. “The Third Circuit approach to indemnity has ‘been specifically rejected by the Ninth Circuit in Matson Termi- nals, Inc. v. Caldwell, 354 F. 2d 681 (1965), and just.as clearly but not so specifically bythe Fifth Circuit. D/S : OVF SKOW », Hebert, 365 F. 2d 341 (1966). The views of the various Courts of Appeals are set out in ‘‘ Admiralty Law in.the Fifth Circuit’’, by Carl-O. Bue, Jr., 4 Univ. of ° . Houston Law Review, 350 at 416 (F. N.). _ If the perforated cover. over a bilge well is inadver- tently and unexplainedly missing, that may impose liability upon the shipowner. ' Nevertheless, the stevedore who so conducts. his operations as to cover up and conceal that - condition is clearly ‘‘calling into play’’ the. unseaworthy conditign of the ship with resultant injury to both the in- : jured longshoreman and the shipowner who must respond - to the longshoreman in damages. That is clearly the ra- tionale of this Court’s decision in Weyerhaeuser v. Naci- rema, supra; Crumady v. Fisser, 358 U. S. 423; and Water- . man v. Dugan & McNamara, Inc., 364 U. S. 491. In Atlantic & Gulf Stevedore v. Ellerman Lines, 369 U. S. 355 (1962), this Court made it clear that‘a jury’s ver- _ dict is controlling where an issue has been resolved by the _ jury if, but only if, a fe. Petition for a Writ of Certiorari : (a) There are disputed i issues of fact to be resolved; “and (b) The charge of the Court to the jury states prop- erly the applicable law. | The Ellerman decision and this Court’s quotation of Byrd v. Blue Ridge Rural Electric Corporation, 356 U. S. 525. at 538, 539, teach that it is where there are disputed fact questions to be resolved that the Seventh Amendment fashions the Federal policy, favoring jury decision. By the same token, where there is not a disputed question of fact, the Court should instruct the jury as to the law applicable to the facts which it does find. The Second Circuit has, we submit, properly construed the decisions of this Court and an example of it is in its language in Mortensen v. Assit 348 F’. 2d 383 where that Court said: | . “Since we ‘was no evidence of conduct. on Glittre’s part which relieved Federal.of its obligations, the Dis- trict Court properly held that Glittre.was entitled to indemnification as a matter of law, for the breach of’ warranty in failing to fake steps to rectify a known _. hazardous condition and eliminate a foreseeable risk ~ _of injury which brought into play the vessel’s. unsea- worthiness, and which was. approximate cause of the accident which occasioned the shipowner’ S expense.’’ 348 F. 2d 383. There is no way in which one can reconcile the See- ond Circuit Court’s decision in Mortensen and i in the case at bar. The two are diametrically opposed, for had the -law in Mortensen been applied by the Court of Appeals in this case (as half of the Court thought it should be) the result would have ey been the same as the result in M ortensen. ' Petition for a Writ of Certiorari © 13 - CONCLUSION. _ One of the Courts of Appeals is evenly divided on a question which frequently recurs in that busy Circuit. We think we have demonstrated that earlier decisions of the Third Circuit, which undobutedly have influenced half of - : ' the judges against the position for which Petitioner argues, are entirely inconsistent with decisions in other- Circuits .and with decisions by this Court. A tort standard of con- duct is not the proper instruction to give a jury in an in- demnity action. It is for the Court to interpret the contract and instruct the jury as to the law which the jurors shall ‘apply their fact findings. Since, there was no evidence of proper performance by the stevedore hére, the only question open was causal relationship. That should have been sub- _. mitted to the jury as Petitioner requested and as half of the Court of Appeals believes should have been done. - Certiorari should be granted.for all the reasons stated herein. — ee oe Respectfully submitted, ‘T. E. Byrnz, JR., Counsel for nari ead es K. Woop, JosepH P. Green, Krusen Evans anp Byrne, _ Of Counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0529%3A1. Public record. Not legal advice.