Brief Amicus Curiae — Dugas v. Nippon Yusen Kaisha

"OV 13 1967 -

ae se

‘LIBRARY

/PREME COURT. U, &

e

IN THE

Supreme Court of the Bute States

October Term, 1967

SY

: NUMBER 721 |

- ROLAND J. DUGAS, Petitioner |

~ °

J

: mera. | ae

NIPPON YUSEN KAISHA, Respondent

<<

Pan

a

AMICUS CURIAE PETITION AND BRIEF

* IN FAVOR OF PETITIONER

ARTHUR J. MANDELL

Chairman, Admiralty Section .

American Trial Lawyers Association

707 South Coast Building

. Houston, Texas *77002-..

Alpha Law Brief Co. M&M Bldg., Houston, Texas 77002

>

INDEX :

Statement of Interest of the Amicus Cuisine

a ae cee tree Ce eee

Questions Presented ......:........0..005.

Statement of the Case ........... See e st pee

Foreseeability not a required element for a find-

ing of unseaworthiness .................. -

: A violation of the Safety & Health Regulations for

° longshoring of loading operations, 29 CFR

Sec. 9.81 resulting in injury to a longshoreman

RE RI SE ee a er eee

Conciusion:..........:.. Gea ae ee at tie

Certificate of Service.........°.g> Ser eee

LIST OF AUTHORITIES

CASES

Alaska — Co. Vv. Petterson, 347 U.S. 396

CS Ge ee ee

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

382 U.S. 283, 86 S.Ct. 429 (1965) ........

Andros Shipping Co. v.. Panama Canal Co., 184 |

F. Supp. 246 (C. Canal Zone, 1960), ‘aff'd:

- FS &. Ber eee eee

Boleski v. American Export Lines, C.C.A. 4th

om ier ee reer ee

: Crumady v. JOACHIM HENDRIK FISSER, 358

.- US. 423, 79 $.Cte. 445 (1959). ...2....:..

nee Federal Barge Lines, 361 F.2d 422

EE ce Cat eerie ee ee ue:

Kerrente v. Swedish American pany 331 F.2d

re Cds ee ec. pce ole Oe ’

Gutierrez v..Waterman Steamship Corp., 373 U.S.

ave (1965), SS 34% 1165 ::..:.........

Huff v. Mattson Navigation Co., 338 F.2d 205

(9th Cir., 1964), cert. den. 380 U.S. 933.

Marshall v. Isthmian Lines, Inc., 334 F.2d 133

Ss oe eee 5 oe ee es os x

Marshall v. Ove Skou Rederi A/S, 378 F.2d 193

MN oN, uc dh esc iawan as |

Mascuilli v. United States, 87 S.Ct. 1705 sane

22, ame?) ye PRY As ei ok Seems ue ne

II

CASES

Mesle v. Kea Steamship Corp., 247 F.2d 747 |

Mitchell v. Trawler Racer, 362 U.S. 539 (1960)

Morales v. City of Galveston, 370 USS. 165, 82

ee gt eee err

New York & New Jersey Sandy Hook Pilo

v. Halecki, 251 F.2d 711, aff'd 358 U. 4613,

_ y T..) See aah are oes

Petterson v. Alaska Sania Co., Inc., 205 F.

2d 478, aff'd 247 U.S. 396, 74 §.Ct. 601.

-Provenza v. American Export ‘Lines, Inc., 324 F.

- Eg. 43 a. | era eee

Ray v. Compania Naviera Continental, 'S.A., 203

me: 060 eee eae

Reed. v. Quebec Paper Sales & Transportation Co.

a William alent 340 F. 2d 34 (C.C.A., 2nd

8 A ea tire Sr epee eee rere eee

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

S.Ct. 872, 90 L.Ed... 1099 (1946), aff'g. 149

DUN ao ee ne, ER eee

Skibinski v. Waterman Steamship Corp., 360 F.

Be | eee ee eee

Skipper ¥.-Amerind Shipping Corp., ‘230 F. Supp. |

253 (U.S.D.C.E.D. La., 1964) ...:..... +.

Sp ec Laurizen, 344 F.2d 204 (3rd Cir.,

I oaks ah al, Sek eg gg

Strika v. Netherland Ministry of Traffic, 185 F.2d

By (2nd Cir., 1950), 341 US. 904, 71 S.Ct.

14.

‘ore Sw eoeWe ev ae. everwv eo eevee vewwtetreee oe 2 eB

United States v. Gries Lines, 221 F. ‘oon wn

(SDE. SDEMLY., 903) ....--.--:.

UNITED STATES STATUTES

33 U.S.C.A. Sec. 914, et seq., 72 Stat. 835

45 US.C.A. Sec. 51, et seq. ................

CODE OF, FEDERAL REGULATIONS

(29 CER. Sec. 9.81, et seq. |

MISCELLANEOUS >

1958 US. Code and’ Congressional News, p.

3843, Sec. 41 of the Act, 33 U.S.C.A. Sec,

4 St eee re pee

10

5,9

10

— oil of the Hnited States

- October Term, 1967

NUMBER 721

ROLAND J. DUGAS, Petitioner

Vv. )

NIPPON YUSEN KAISHA, Respondent

AMICUS CURIAE PETITION AND BRIEF

IN FAVOR OF PETITIONER

STATEMENT OF INTEREST OF THE |

AMICUS CURIAE |

Arthur J. Mandell of Mandell & Wright, Houston,

Texas, as a member of the bar of this Court and as Chair-

man of the Admiralty Section of the American Trial

Lawyers Association, on behalf of the° American Trial

Lawyers Association respectfully petitions this Court for

leave to file a brief Amicus Curiae on behalf of Petitioner.

herein, and if granted, for this Honorable Court: to con-

sider the arguments and cases in point following this state-

ment of interest. : .

This Court has«heretofore had before it as amicus ~

curiae the American Trial Lawyers Association. As there- .

tofore stated, it is a national bar association consisting.

of mote than twenty-five thousand lawyers. primarily en-,,

gaged in the practice of personal injury law. The Ad-

‘miralty Section of this association consists of. a substan-

2

tial number of attorneys who specialize in maritime ‘tort

. law, particularly as it relates to maritime: workers. These

maritime workers, engaged,as they are in an extremely

hazardous industry, have a real and direct interest in

the outcome of this appeal.

Said association is vitally’concerned in the final out-

- come of this case involving as it,does what has been

thought to be two well established principles of law: (a)

that the shipowner owes longshoremen an absolute and

non-delegable duty to supply them a ‘safe place in which

to work, and, (b) that the Safety & Health Regulations

- for Longshoring promulgated by the Secretary of Labor

pursuant to Public. Law 85-742,-72 Stat. 835, 33 US.

C.A. Sec. 941, et séq., in force and effect -at the time the

injuries to the present Petitioner occurred, establish an

accepted standard of safety binding on shipowners as

well as. stevedores. ,

The resolution of these two questions are of paramount |

importance to hundreds of thousands of harbor workers, —

to the admiralty bar, and to the maritime industry gen-

erally. For the foregoing reasonis, it is respectfully prayed

that this Honorable Court accept this brief of. Amicus

Curiae and grant leave to the applicant herein to file the

same. Petitioner has consented to the appearance of the

American Trial Lawyers 4 riag but Respon- —

dent. has refused to give WT,

_ Artuur J. MANDELL | ‘

. Chairman, Admiralty Section |

; . ‘American Trial Lawyers Association

~ 707 South Coast Building

Houston, Texas 77002 ;

oe

Pras

IN “THE ‘Ie

Supreme Court of the Wnited States

~ October Term, 1967

_ NUMBER 721

ROLAND J. DUGAS, Petitioner

3 Vv. ‘e7

NIPPON YUSEN KAISHA, Respondent

BRIEF OF AMICUS CURIAE ~

AMERICAN TRIAL LAWYERS ASSOCIATION

em

. STATEMENT

The American Trial Lawyers Association views the

questions presented by Petitioner in his Application for

Writ of Certiorari as extremely important. The answers —

will affect thousands of workers engaged in loading

and/or. discharging vessels throughout the United States, .

the Admiralty bar and the maritime industry generally.

The failure by the Court of Appeals in this case to hold

that the violation of the “Safety & Health Regulations

for Longshoring” as promulgated by the “Secretary of

Labor establish generally accepted ‘standards of safety .

binding on shipowners and stevedores alike, represents a

direct threat to the safety of those engaged in this type

- of work, ignores Congressional concern for the safety

of this class of workers and should therefore be dealt with

by this Honorable Court.

4

QUEST IONS PRESENTED

1. DOES A SHIPOWNER HAVE A NON-DEL-

EGABLE. DUTY ‘TO PROVIDE’ LONGSHORE-

MEN WITH A SAFE PLACE IN WHICH TO—

WORK AS WELL AS TOOLS AND EQUIPMENT

~ REASONABLY SUITABLE FOR THE TASK AT.

(a). MAY A | SHIPOWNER CONTRACT

AWAY ITS ABSOLUTE AND NON-DELEGA-

BLE DUTY TO SUPPLY PROPER TOOLS AND

EQUIPMENT TO PERMIT LONGSHOREMEN

TO DISCHARGE rn DUTIES WITH SAFE-

TY? 3

2. ARE THE SAFETY. AND HEALTH REG-

' ULATIONS FOR LONGSHORING (29 C.F.R.

Sec. 9.81, et. seq) RELEVANT ON THE ISSUE

OF UNSEAWORTHINESS AND NEGLIGENCE

IN A SUIT BY A ee AGAINST

.. THE SHIPOWNER? |

rs STATEMENT OF THE CASE. |

For the sake ‘of brevity, we eet Petitioner’s statement

of the case. ? .

The decision for which review is here respectfully .

sought has 3 ‘.

(a) departed from, and tends to erode, the established

principles of law that the shipowner has an ab-

solute and non-delegable duty to supply longshore-

men a safe place in which to work, and, :

(b) rejected the applicability of the Safety & Health —

Regulations of Longshoring promulgated by the

5

Secretary of Labor pursuant to Public Law 85—

742, 72 Stat. 835, 33, U.S.C.A. Sec. 914, et seq,

as a standard of conduct which if violated con-

Stitutes unseaworthiness, and,

(c) whether “foreseeability” is a prerequisite to a find-

of unseaworthiaess..

FORESEEABILITY NOT A REQUIRED ELEMENT

FOR A FINDING OF UNSEAWORTHINESS —

The decision of the Court ‘of Appeals misconceives the

- import of this’ Court’s decision in Morales v-- City of Gal-

veston, 370 U.S. 165, 82 S.Ct. 1226 (1962) and injects

a new and heretofore unrequired element of foreseeability.

as a prerequisite to a finding of unseaworthiness, i.e.

though conceded that one sling to hold the dunnage was

jnadequate for the task at hand, the fact that the ship-

owner may not have had: knowledge that only one sling

was used relieves him of his non-delegable duty. Respect-

. fully and with great deference to the Court of Appeals,

Morales, Supra, intended no such holding. This decision

if permitted to stand would weaken if not destroy this

Court’s often reaffirmed doctrine of the absolute non- -

delegable duty of seaworthiness as a separate and apart |

concept from negligence. A requirement of foreseeability

as an element to prove unseaworthiness would nulify all

of this Court’s decisions on this doctrine. The Court of

_ Appeals’ decision is in sharp conflict with this Court’s

holding in Mascuilli*v. United States of May 22, 1967,

87 S.Ct. 1705. Alaska Steamship Co. v. Petterson, 347

_ US. 396 (1954).. Mitchell v. Trawler Racer, 362 US.

539 (1960).

But even if the element of “foreseeability” may be given

‘some consideration, the non-delegable duty to supply a

a

6

safe place to work encompasses the duty to inspect and

to determine the condition under which this group of

workers is required to discharge their duties. New York

& New Jersey Sandy Hook Pilots Association v. Halecki;

251 F.2d 711, aff'd 358 US: 613, 79 S.Ct. 517, in’ which

the court stated:

“*The Deceased was ‘inns an “invited person”

or “business guest” and the shipowner was liable, not

only for the negligence of the master, but, although

the work was let out to a subcontractor, also for

any lack of “reasonable care to ascertain the methods

and manner in which the concessionaire or indepen-

dent contractor carries on his activities, not only at

the time when the concession is let, or the Contractor

employed, but also during the entire period in which

the concessionaire or contractor catried on his ac- —

tivities. ”*” (Emphasis ours).

There is no doubt that Resporident had actual and/or

constructive notice that drums or barrels containing tetra

ethyl lead would be loaded in the hatch and that the dun-

age was required to be placed over the area where the -

drums or barrels: were to be loaded. Having had actual -

and/or constructive knowledge that such: activity would

occur, it was dutybound to provide necessary tools and

equipment to permit the performing of such work with

reasonable safety to the longshoremen. As Judge Mc-

Laughlin said in n Mesle v. Kea —— Corp., 247 F.2d

“TAT:

“It is quite apparent that whether or not an ap-

purtenance is ‘in fit condition * * * for a voyage

and the incident. perils of the sea’ is usually an ir-

relevancy. It is said that ‘(t)he concept of seawor-

thiness contemplates no more than that a ship’s gear

~ shall be reasonably fit for its intended purpose.’ Yet

* et

Sa,

sf”

y in ‘ 7

examination of a great:many personal injury cases. -

in which claims’ of unseaworthiness were presented

leads to the conclusion that those cases are of two

- categories, both of which fit this general definition.

One is where the shipowner, having knowledge—

actual or constructive—that certain: activity’ will ‘oc-

’ cur, is imposed with an absolute duty of supplying

‘ equipment. for permitting the conduct and accom-

plishment in reasonable .safety of that activity; li-

ability’is imposed for failure to comply with this

duty, termed one of making .the vessel seaworthy. .

ke? a

The fact that Respondent contracted with the stevedor-

ing company to do such work does not relieve it of its

liability. This Court in Seas Shipping Co. v. Sieracki, 328

US. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), aff'g. 149

F.2d 98, has stated and has consistently thereafter held

that the shipowner while at liberty to contract the work :

‘of loading its cargo to others it cannot contract nor dele-

gate its duty to others nor discharge its traditional re-

sponsibility. Crumady v. The JOACHIM HENDRIK FIS-

_ SER, 358 U.S. 423, 79 S.Ct. 445: (1959). The-Court-of

Appeals has found and Respondent concedes that ‘Section

9.81 of the Safety & Health Regulations for Longshoring |

was violated. It found that there should have been a double

‘ sling to even up and balance the load and grasp the boards

at both ends of the load. The inadequacy of the gear used

in loading operations. has. been held to constitute unsea-

worthiness even though supplied by the stevedore. Strika v.

Netherland Ministry of Traffic, 185 F.2d 555 (2nd Cir.,

1950), 341 U.S. 904, 71 S.Ct. 614, oftime quoted with

approval by this Court. Neither is it a defense that the

inadequate equipment or ,gear used in, loading operations

simply because it was attached to a shore-based crane.

: . . : Sil

ey * 3 .

¢ : .

_ .. Huff v. Mattson Navigation Co., 338 F.2d 205 (9th Cir.

1964), cert, den’d 380 U.S. 933; Spann v. Lauritzen, 344

°. F.2d 204 (3rd Cir., 1965); Duffes v. Federal Barge Lines, ° .

361 ¥. 2d 422 (1966). Thus, the agency charged by Con-

., §ress to prepare regulations for the safety of longshoremen,

régulations. which the Legislative history shows ‘to have

been arrived at after “ the consultation with shipowners

- and stevedoring companies, has set out ‘the requirement

‘that a double sling, should ‘be used. Respondent agrees that

liad there been a. double sling, the -dunnage .would not

“+ have fallen out’ and ‘Petitioner would not have. been, in-

jured. These regulations were undoubtedly violated. The

Appellate Court erroneously holds that before liability -

canbe imposed on the shipowner, Petitioner must prove -

- that‘it knew or should have’ known that the regulations

» were \being violated. It is not questioned that Respondent

_ had constructive knowledge that dynnage was to be low-, .

. ered into the hatch for, the purpose of making the place’

~ ready to receive its cargo. It: is now hornibook law’ that

| knowledge or foreseeability aré not required elements to

‘prove unseaworthiness.. Crumady v. The JOACHIM HEN-

. DRICK FISSER, 358 U: . 423,:79 S.Ct. 445. Indeed,

. ‘this very. Court of A ’ decision in Marshall v. Ove

* Skou Rederi A/S, 378 F.2d 193 (1967), is inconsistent

with its holding in the case ‘at bar.

es ‘A. NIOLATION OF "THE SAFETY & HEALTH

.. REGULATIONS FOR LONGSHORING OF LOAD- .

ING ‘OPERATIONS, 29 CFR SEC. 9.81 RESULT-

aS IN INJURY TO A LONGSHOREMAN |

co oe IMPOSES LIABILITY |

ip. enactment of Public Law 85-742, nN Statute 835,

*: 33 U-S.C.A. 941, et seq., Congress expressed its grave —

le Ss.

A, °

te -

‘concern of the human toll taken by the hazardous occu-

~ pation -of longshoring.’ It therefore directed and em-

powered the Secrétary of Labor. to provide for the estab-

- lishment of an effective hen program in this hepastons

occupation.

Prior to the enactment of Title 33, U.S.C.A., Séc. oid

and the promulgation of the regulations thereunder, what =

constituted negligence or unseaworthiness was to be de-

termined under the definitions laid down by the applicable

‘decisions. The regulations, however, cast no new. duty

upon the shipowner; neither do they relieve him of. any

pre-existing duty. With respect to longshoring, the stat-

‘ utory law of the United States, by enactment hereinabove

referred to now codifies definite minimum standards. The

failure to comply with and meet these standards creating -

an unsafe place to work constitutes unseaworthiness. Since

the duty to supply a safe place to work is a personal one,

the duty resting upon the shipowner which he cannot

‘rid himself by contract or otherwise, he is dutybound to |

inspect the gear used to determine their adequacy and if

inadequate, to make them so.. These regulations do not

impose new duties. Now, as before, the regulations were

promulgated, it is incumbent upon shipowners to dis-

charge their non-delegable duty to supply a safe place in

which to work. Now, as before, the gear and equipment

used in the loading or discharging of cargo, be it through

the act of the stevedoring contractor or anyone else, must

be fit for the task at hand. If it is not, and injury results,

‘ 1. The House Report accompanying the 1958 Amendment to the

Longshoremen’ 's & Harbor Workers’ Compensation Act points out that

stevedoring | is the most hazardous of all industries which Teport the .

experience to the Bureau of Labor Statistics, having an injury fre-

quency rate seven times that of manufacturing (1958 U.S. Code. and

Congressional News, page 3843, Sec. 41 of the Act, 33 U.S.C.A. Sec.

941(a, 1).

10

the shipowner is liable. This was the law before the

promulgation of the rules, and jit is the law now. All the

regulations do: is define how this well-established ‘duty

_ Shall .be discharged in particular circumstances by the

stevedores who have undertaken to perform the ship-

owner’s:non-delegable duty. Rule 9.81. establishes ‘a ‘mini-

mum standard of safety—not a new duty. We respectfully

submit that a violation of the regulations for loading op-

erations causing injury establishes liability as a matter of .

law. This Court has repeatedly held that longshoremen

are entitled to thé traditional and statutory protection as

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

S.Ct. 872, 90 L.Ed. 1099, aff'g. 149 F.2d 98. Thus, the

‘protective provisions of the Jones Act which incorporates

by reference the Federal Employers’ Liability Act, Title ‘

45, Sec. 51, U.S.C.A., et seq. apply. The fact -that the

regulations were violated is undisputed and the Court

so holds, 378 F.2d 272. A number of courts have held |

that the violation of the-Safety & Health Regulations for

‘ Longshoring causing injury to longshoremen during the

course of their employment imposes liability. Provenza v.

American Export Lines, Inc., 324 F.2d 660 (4th Cir.,

1963). Boleski v. American Export Lines, C.C.A. 4th Cir.,

Oct. 12, 1967. The decision of the Fourth Circuit in Pro-

venza has been cited with approval-by many courts, including.

the Court of Appeals for the Fifth Circuit. Marshall v.

Isthmian Lines, Inc., 334 F.2d 133 (1964). Numerous

District. Courts have reached substantially similar con-

_ clusions. In Andros Shipping Co. v. Panama Canal Com-

pany, 184 F.Supp. 246. (C., Canal Zone, 1960), aff'd.

298 F.2d 720. A violation of navigation rules has been

held to establish liability as a matter of law. In United

States v. Grace ,Lines, 221 F.Supp. 339 (U.S.D.C.

S.D.N.Y., 1963, Grace Lines was found in violation of-

reo |

_ the Safety & Health Regulations, for Longshoring and a

_ fine was imposed. In Skipper v. Amerind Shipping Corp.,

230 F.Supp. 253 (U.S.D.C. E.D. La., 1964), a violation of

these regulations causing injury was held to impose lia-

bility upon the shipowner. In Ray v.. Compania Naviera.

Continental, S.A., 203 F. Supp. 206, the Court took note

of the pamphlet containing Safety & Health Regulations

_ for Longshoring as prepared by the Department of Labor _

in June of 1960. The Court of Appeals, notwithstanding

this Court’s decision in Musculli, su ra, Albanese v. NV.

Nederl. Amerik Stoomv. Maats, 382°U.S. 283, 86 S.Ct.

429 (1965) and the Second Circuit decision in Skibinski

v. Waterman Steamship Corp., 360 F. 2d 539 (2nd Cir.);

Ferrente v.. Swedish American Lines, 331 F.2d 571

(C.C.A. 3rd Cir.); and Reed v. Quebec Paper Sales & ©

Transportation Co. v. William Spencer, 340 F.2d 34

(C.C.A. 2nd Cir.)- have nevertheless placed emphasis on

the long discarded shipowner lack of:control and/or lack

of knowledge theory. This Court and most Appellate

Courts have rejected the lack of control theory. Gutierrez

v. Waterman Steamship Corp., 373 U.S. 206 (1963), 83

S.Ct. 1185; Petterson v. Alaska Steamship Co., Inc., 205

F.2d 478, aff'd 247 U.S. 396, 74 S.Ct. 601.

CONCLUSION

The wide departure by the Appellate Court from the

standards laid down by this Court, the great concern

expressed by the courts and Congress for the safety of

these workers in such hazardous industries, and the danger »

of erosion of these established .principles which the de-

cision presented here for review may engender presents

compelling reason$-for this Court to settle the law, both

on the use of-the Safety & Health Regulations for Long-

shoring as a standard of care and on the doctrine of un-

12

seaworthiness and negligence in maritime cases, so that

the bar, the industry and those. working in the industry

will have a clear concept of the applicable law.

Respectfully “submitted,

_ AMERICAN LAWYERS

BY: : v3 |

Arthur J. Mattdell

Chairman, Admiralty Section

American Trial Lawyers Association

Attorney for Amicus Curiae

\

’ DATED at Houston, Texas, this the aH day of

November, 1967.. : 7

CERTIFICATE OF SERVICE

’ . This is to certify that on the ‘V day of November,

1967, copies of the above. Amicus Curiae. Petition and

- Brief in Favor of Petitioner was forwarded to:

Mr. Tom Phillips, Taylor; Porter, Brooks, Fuller &

Phillips, attorneys at law, Louisiana National Bank Build- —

ing, Baton. Rouge, Lope, er for — Yusen

Kaisha,

Mr. Jerry 'H. Bankston, 4359 Plank Road, Baton aia

Louisiana, attorney for Roland J. Dugas. 2

Mr. H. Alva Brumfield, 509 St. Louis Street, Baton -

Rouge, Louisiana, attorney for Roland J. Dugas. —

a

“