Brief in Opposition to Petition for Writ of Certiorari — International Terminal Operating Co. v. Alexander

Sent ans tS X 6 sa r

=UPREME COURT. U. &

FILED —

JAN 2 1969

IN THE

Supreme Court of the United States

October Term, 1968 5

No. 808

INTERNATIONAL TERMINAL OPERATING

CO., INC.,

Petitioner,

v.

AARON ALEXANDER,

Respondent,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

ANSWER TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STUART GOLDSTEIN,

420 Walbridge Building,

Buffalo, New York 14202,

Counsel for Respondent, Aaron Alexander.

BATAVIA TIMES, LAW PRINTERS,

BATAVIA, N.Y.

oe

PROT AERTS 8 CRS TILE eR Re ED FIT ICRP mM, AT INET LED ERTL ELT IRE OENN /ERR

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TABLE OF CONTENTS.

nr OO ON i a owe caved dee tuexe eceens

The Issues and Holdings Below

Argument

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Question I. There is no novel or new question or

conflict among decisions that requires considera-

tion by this Court based upon the facts as to unsea-

worthiness of the ship in question

CEOS CPCCA 6 OH

Question IT. This Court has repeatedly passed upon

the relationship between claims by longshoremen

caused by unseaworthiness of a ship and their

rights under the Longshoremen’s and Harbor

Worker’s Compensation Act, and this question has

been consisiently answered requiring no further

consideration by this Court

Conclusion. For the reasuns set forth above, it is re-

spectfully submitted that the petition for a writ of

certiorari should be denied

TABLE oF Cases.

Beeler v. Alaska Aggregate Corporation, 336 F. 2nd

oS Re rr rere eee

Crumady v. The Joachim Hendrick Fisser e¢ al., 358

=e fer rere

Grillea v. United States, 232 F. 2d 919, 929 (2nd Cir.

Re rrr oo rreres fer er ae eee

Italia Societa v. Oregon Stevedoring Co., 376 U. S.

Gee CRUE) oes vscce ccna Ove seceeee eek ettal take?

Mascuilli v. United States, 387 U. S. 237, 87 S. Ct. 1705,

ee 8 eg ere rere 4,8

Rogers v. United States, 347 U. S. 984 (1954)

Ryan Co. v. Pan-Atlantie Corp., 350 U. S. 124

Skibinski v. Waterman Steamship Corporation v.

Yt. T. O., 360 F. 2d 539 (2d Cir. 1966) ............... 5,

Waldron v. Moore-McCormack Lines Inc., 386 U. S.

724, 87 S. Ct. 1410, 18 L. Ed. 2d 482 (1967) .......

2)

bilo iat

VOTALee

eee ae ee ee

II.

STATUTES.

en and Harbor Worker’s Compensation

We See he eh attach: Pads Chk boas oso Rea bok xo ee

PAGE

IN THE

Supreme Court of the United States

October Term, 1968

No. 808

INTERNATIONAL TERMINAL OPERATING

CO., INC.,

Petitioner,

v.

AARON ALEXANDER,

Respondent,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

ANSWER TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, The Chief Justice, and

Associate Justices of the Supreme

Court of the United States:

Statement of the Case

Respondent Alexander accepts the statement of facts set

forth in Pages 2 through 5 of the Petition, with the follow-

ing exceptions:

The unseaworthiness of the S. S. Exsa was not instan-

taneous or momentary. It was caused at some time before

the gang of longshoremen with whom Alexander was work-

2

ing had entered this hold of the ship. The dunnage was left

in a dangerous condition, at least prior to the dinner break,

because the very first load that was lowered by the crane

into this particular hold struck the overhanging dunnage

and caused it to strike Alexander, causing serious injuries

to him. Who left it in this unsafe position or how long

it so remained is uncertain, but that it did remain in this

dangerous, improper manner, protruding over an opening

between the steel beams already stowed for a considerable

length of time was undisputed. Not only did the longshore-

men working with Alexander so testify, but this was cor-

roborated by the petitioner’s own witness and foreman,

Richard T. Shanahan, and by Melford J. McDonald, assist-

ant district agent, Bethlehem Steel, Marine Division, in his

testimony on behalf of that party.

Furthermore, there was a plethora of evidence of the in-

competence of the crane operator Fowler, his inexperience,

the fact that he had failed to follow signals earlier that eve-

ning in another hold hitting the sides of the ships with

loads of steel and causing the longshoremen to run for

cover, and dropping loads of steel and causing dunnage

to fly ten to twelve feet in the air. Complaints had been

made about his incompetency to the petitioner’s lead man,

but he, the crane operator, was not removed. Consequently,

petitioner is incorrect in stating ‘‘that the vessel was being

loaded in accordance with the usual, customary and safe

method.’’

There was also proof of the inadequacy of the lighting

in this hold of the ship, and that the lights were improperly

located, causing shadows by the incoming loads of steel

whick might very well have caused Huff to overlook this

protruding or overhanging dunnage and fail to remove it.

Huff was working in semi-darkness.

None of the above was instantaneous or momentary.

paket HAI At A Ott es wots eels faa

3

The Issues and Holdings Below

In the District Court where this action was tried the

jury found the S.S. Esa unseaworthy, that Alexander was

not contributorily negligent, and awarded a verdict to him

against Bethlehem. The jury also decided that Bethlehem

was entitled to recover over against the present petitioner

under its contract of indemnity. The Court of Appeals

affirmed the judgment of the District Court based upon

this verdict.

The petitioner raises no new or novel issue of law perti-

nent to the fects relative to the issue of liability. If there

is any need for consideration of instantaneous negligence

by this Court, surely this present case is not the one to

bring before this Court, because no momentary act causing

unseaworthiness is involved.

ARGUMENT

QUESTION I

There is no novel or new question or conflict among

decisions that requires consideration by this Court based

upon the facts as to unseaworthiness of the ship in ques-

tion.

Petitioner is attempting to strain the facts to infer that

the unseaworthiness of the ship was based upon instan-

taneous or momentary negligence. On Page 11 petitioner

states ‘‘It is a case of simple dereliction in the manner of

doing the job—failure to remove a piece of dunnage.’’ It

is not the failure of Huff to remove the dangerously placed

dunnage, but rather the original placing of this dunnage

im an unsafe and dangerous position that made the ship

unseaworthy.

Even if the ship were made unseaworthy momentarily or

instantaneously so as to cause Alexander’s injuries then,

under the decision in Mascuilli v. United States, 387 U. S.

237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (1967) the judgment

in the present case should be affirmed and this petition

denied.

However, since the ship was rendered unseaworthy at a

time substantially prior to the time Alexander was injured,

and not at the ‘‘moment of injury’’, there is considerable

precedent for denying this petition for a writ of certiorari.

‘‘This case also presents the question of whether the

defect ‘should be considered as an incident in a con-

tinuous course of operation’ and not as an unfitness

of the ship. Grillea v. United States, 232 F. 2d 919,

922 (2nd Cir. 1956). In defining unseaworthiness we

are not concerned with the conduct or process by which

fitness is changed to unfitness. Our focus is upon the

resulting condition of the ship. See Puddu v. Royal

Netherlands Steamship Company, 303 F. 2d 752 (2nd

Cir.) cert. denied 371 U. S. 840, 83 S. Ct. 67, 9 L. Ed.

2d 75 (1962) (Hays, J., concurring).

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 apparatus became a part of the

Madaket’s equipment. See Mitchell v. Trawler Racer,

Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 941 (1962).

Recently, in Reid v. Quebec Paper Sales & Trans-

portation Company, 340 F. 2d 34, 35 (2d Cir. 1965)

where a portable ladder was left unsecured, we said:

‘Under the circumstances it was necessary for the

jadder to be secured in some fashion when it was being

used, and unless it was so secured, it was unfit for its

intended use. An unsecured and dangling ladder

under the conditions existing at the time of the ecci-

dent posed a serious threat to the safety of those

standing below in the hold, regardless of whether the

H)

ship owner knew it was unsecured and regardless of

how quickly this threat materialized.’ See Strika v.

Netherlands Ministry of Traffic, supra; Grillea v.

United States, supra.

Massa v. C. A. Venezuelan Navigacon, 332 F. 2nd

779 (2d Cir. 1964) ; Spinelli v. Isthmian S. S. Co., 326

F. 2d (2d Cir.) cert. denied 377 U. S. 935, 84 S. Ct.

1338, 12 L. Ed. 2d 298 (1964) and Puddu v. Royal

Netherlands S. S. Co., 303 F. 2d 752 (2d Cir.) cert.

denied 371 U. S. 840, 83 S. Ct. 67, 9 L. Ed. 2d 75 (1962)

are all distinguishable since they were thought to in-

volve transitory situations which had not yet ripened

into unseaworthiness. Each arose ‘as a momentary

step or phrase in the progress of work on board’ and

was ‘considered as an incident in a continuous course

of operation.’ GriHea v. United States, supra, 232 F.

2d at 922”’. (Emphasis ours.)

Skibinski v. Waterman Steamship Corporation v.

I. T. 0., 360 F. 2d 539 (2d Cir. 1966).

‘‘The claim is based upon the theory that, as soon

as the wrong hatch cover was placed over the ‘pad-eye’

the ship became pro tanto unseaworthy, and that, when

the libellant stepped upon it and it gave way beneath

him, he came within the decision of the Supreme Court

in Seas Shipping Company v. Sieracki, 328 U. S. 85,

66 S. Ct. 872, 90 L. Ed. 1099, which extended the doc-

trine of The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47

L. Ed. 76C, ‘to longshoremen, while loading or dis-

charging a ship’. - - —- On the other hand, if the wrong

hatch cover had been placed over the ‘pad-eye’ the day

before the libellant stepped on it, this ship would have

been unseaworthy; for that was in effect just what we

decided in Mollica v. Compania Sud Americana, 2

Cir., 202 F. 2d 25.’

Grillea v. United States, 232 F. 2d 919, 922 (2nd

Cir. 1956).

‘It (liability) does attach if the negligent act has

terminated and an appliance has been left in an un-

safe condition - - -. There negligence consisted in

ET eR eee ec

OME TEAR eS 5s RO AER al A EA aR et th Re tees 2 ite eS Se a

failing to act prior to the accident ---. There negli-

gence had come to rest before the ladder fell and was

thus an antecedent condition causing the ladder to he-

come unseaworthy.”’

Beeler v. Alaska Aggregate Corporation, 336 F.

2nd 108 (9th Cir. 1964).

As long as an act making the ship unseaworthy was not

instantaneous it matters not if a longshoreman is injured

because of the failure of stevedores who had stored the

cargo at the shipping point and omitted proper wedges

and dunnage or, as in our case, a prior crew or gang im-

properly stowed cargo. Ryan Co. v. Pan-Atlantie Corp.,

350 U.S. 124.

Again we reiterate that nowhere in the evidence is there

any testimony that the damage was improper but only that

it was laid improperly before Alexander and his gang even

entered Number 3 hold. The Trial Court specifically

charged that, if the jury finds it was improperly placed, to

charge any further would be irrelevant, unnecessary, sur-

plusage, and could only tend to confuse the jury.

The cases cited by petitioner allegedly evidencing a con-

flict of decisions in different circuits of the Court of Ap-

peals have no pertinency here. We are not concerned with

unseaworthiness ‘‘as a momentary step or phase in the

progress of work,” “instantaneous unseaworthiness,” or

‘‘negligent use of a seaworthy appliance at the very

moment of injury.’’ The petitioner is obviously confusing

the improper placing of dunnage with the failure to remove

the dunnage. The Trial Court referred to this ‘‘improper

placing of dunnage’’ and not to Huff’s failure to remove

the dunnage at his northerly end of the gap. This had al-

ready crystallized into an unsafe and unseaworthy ship

long before the resulting injury to Alexander. There

appears to be no conflict of decisions among the various

circuits of the Court of Appeals that a ship is unseaworthy

if ‘‘the negligent act has terminated and an appliance had

been left in an unsafe condition’? (Page 5 of petition).

This is precisely the situation in the present case.

QUESTION II

This Court has repeatedly passed upon the relationship

between claims by longshoremen caused by unseaworthi-

ness of a ship and their rights under the Longshoremen’s

and Harbor Worker’s Compensation Act, and this question

has been consistently answered requiring no further con-

sideration by this Court.

Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350

U. S. 124 (1956), held that a shipowner who was forced to

pay damages to a longshoreman injured by an unsafe

storage of cargo could recover indemnity from the stevedor-

ing employer for whom the longshoreman worked. At that

time the Court foursquarely refuted arguments that the

exclusivity provision in See. 5 of the Longshoremen’s Act

barred the owner’s claim for indemnity from the stevedore.

The Court was likewise unimpressed by the contention

that the result in Ryan made the economic burden of the

longshoreman’s recovery fall on the stevedoring employer

contrary to the purpose of the act.

Italia Societa v. Oregon Stevedoring Co., 376 U. S. 315

(1964), Crumady v. The Joachim Hendrick Fisser et al.

358 U. S. 423 (1959) and numerous other cases made this

conclusion very

‘*Unseaworthiness is not excused on the ground that

it was caused by the acts of fellow servants. See

Mahnich v. Southern S. S. Co., 321 U. S. 96, 64S. Ct.

455, 88 L. Ed. 561 (1944); cf. Crumady v. The J. H.

DULY TUN IRE LORT OE NR:

CIARA MERA B 0 A. NR ele dw Ae te a

8

Fisser, 358 U. S. 423, 427, 79 S. Ct. 445, 3 L. Ed. 2d 413

(1959).”’

Skibinski v. Waterman Steamship Corporation v.

I. T. O., 360 F. 2d 539 (2nd Cir. 1966) ;

Mascuilli v. United States, 387 U. S. 237, 87 S. Ct.

1705, 18 L. Ed. 2d 743 (1967) ;

Rogers v. United States, 347 U. S. 984 (1954) ;

Waldron v. Moore-MecCormack Lines Ine., 386

U.S. 724, 87 S. Ct. 1410, 18 L. Ed. 2d 482 (1967).

The petitioner apparently overlooks the fact that the

third-party judgment of Bethlehem Steel against this peti-

tioner (Page 12 of petition) was not based upon operation

of law, but rather upon the contract of indemnity. It is

fundamental that one has a right to make claim against

anyone not his employer causing one’s injuries through

negligence, unseaworthiness of a ship, ete. Alexander

brought such a claim against Bethlehem Steel and the

trial jury found in his favor upon the facts. This same

jury decided that Bethlehem Steel was entitled to in-

demnification under the terms of the contract between that

Company and petitioner. This contract was pleaded,

proved and interpreted by the trial judge and jury. The

judgment against petitioner resulted from this written con-

tract of indemnity. If by this written contract petitioner

gave up any protection that it had under any compensa-

tion law, it ean hardly be heard to complain of the effects

of this written contract which was of its own doing.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that the petition for a writ of certiorari should be

denied.

Respectfully submitted,

STUART GOLDSTEIN,

Of Counsel for Respondent, Aaron A lexander,

420 Walbridge Building,

Buffalo, New York 14202.

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