Petition for Writ of Certiorari — Golten Marine Co. v. Trelleborgs Angfartygs A/B

urnee- -SHereme Ny Court, U c

LIGRARY FILED

SUPREME COURT. U. &

APR 26 1969 |

: é

i

JOHN F. BAVIS, CLERK

OG

IN THE

Supreme Gout of the United States

OcroserR Term, aR 1963

GoLTEN Marine Company, Inc.,

Petitioner,

—against—

TRELLEBORGS ANGpaRTYcs A/B, and

Cuartes McLaucuiiy,

Respondents.

PETITION FOR A WRIT OF'CERTIORAR! TO

THE UNITED STATES COURT OF APPEALS

| FOR THE SECOND CIRCUIT ©

Smwney A. Scowartz

Attorney for Petitioner

76 Beaver Street

_ New York, New York 10005

(212) WH 4-2633

JOSEPH ARTHUR COHEN

Of Counsel

.

Pt é

a ONE MAIS OT IRAE Se TEE IN Ge

INDEX

PAGE

- Citations to Opinions ST. icdeassditiiie unites HA ee 2

. Jurisdiction +... seerente Wea pases: 2.

Constitutional FPOWIGION TMVORTOE nnn ..cnzccccccsceesereses 2

The Questions Presented . s srecinbaekces seuss vulineamcalicilck 2

Statement of the Cass sssecencnseninansnsepeneesinenenensnnnnneceess Oh a 2

- Reasons ror GRANTING THE Writ—

I. Review of this case should\be had to halt a

growing conflict between decisions of the Court

below and those of this Court, and to prevent

denial to petitioner of its constitutional right

ee ieirccha ec eacccicchacadaebetin dec 7

(a) With Regard to the Shipowner’s Claim for

II citation oe 7

(b) With Regard to Golten’s Counterclaim -

¥ Against the Shipowner .....<.<.............

II. There is both an inter and intra circuit con-

flict and inconsistency on various issues pre-

sented in this case cosstpdnecnneetnensndeeenendh ssddhanittaniiaagiaaibn 12

- (a) Regarding nea of the Soule, |

Contributory Negligence. to the Silcsuaiain

i ee a NS IE RRM SEU OARS a ee 12

(b) With Regard to the Counterelaim Against

the Plaintiff steseneseneton¥enereneenesenesenesnecenseensenseeneese 12

Wrest nite 6 phil te

Batis

PAGE

Hit. The instant case presents the ideal vehicle for

this Court to render the clarification sought.

by courts, counsel and litigants in the presently .

chaotic state of the maritime personal injury —

( SI TE ccsketrtentiininbnmtiouiamssinncon Rien, a

Cosasmies 2... Re a LS APE Oe RET ON HITS 19°

Aprenpix— . .

Opinion of the Court of, Appeals ssctlecdiaaipnicboaalaideiaae la

Judgment of the Court of Appeals -.............2......-. 10a

I THING iticcnciscnatrecsetnsieccrenctichncsnein shies i lla

Judgment of the District Court -2......0..0:.cc---- 18a

' Judgment of the District Court | sieeethnecnsecunsennesenescen .. l4a

TABLE OF AUTHORITIES

Cases: |

_ Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines,

369 U.S. 355, 82 S. Ct. 780° (1962) - 2.2... ee eeee ee 8

Cavelleri v. Isthmian Lines, 189 F. Supp. 525 and 190°

F. Supp. 801 ........... Sslicsbsisiisessiiedediinas 12

Chevis v. Luckenbach wake nn, ., 228 F. Supe.

UU schenctices andes cabtantaadions Praee Wemee” a palsies 18

Drewery v. Daspit Bros. Marine Divers, Inc., 317 F.

FE te __: SIREN RUMMY (a teen P me EI 12

D/S Ove Skou v. Hebert, 365 F. 2d 341, 344 (5 Cir.

BI Scapnevchectaies snowed teitaninbnnsesnsatedignablgas aad megaman 15, 18

% »

v.

lil

°

‘ _PAGE

Federal Marine Terminals, Inc. v. Burnside Shipping

Co., Ltd., US. —, 37 L.W. or (4/1/69).....9, 10, -

11, 14, 16

‘Grace Lines Ine. v. Port Everglades: Terminal Co.,

. 324 F. 2d 699 (5 Cir. 1963). ............. aes aisoneeiie. ae

—— Lines v. Haenn Ship “Sh. and Refitting

— 342 U.S. 282 ER), _) BR) oh: y Sn 3, 11, 16,

17,19

Holmes v. “‘Wisaiesippi Shipping: danas, 301 F. 2d_

A Be Re Serene 13

Horton v. Moore-McCormack Lines, Inc., 326 F. 2d

a ccsecescespetesnceshteseosnsetteeesnel 13, 14

‘International Terminal Operating Co., Inc. v. N. V.

Neder]. Amerik Stoomv- Maats, 393 U.S. 74,89 S. Ct.

RRP ARESPe i IRA eenen gone nee ae oO 8

Italia Societa v. Oregon Stevedoring Company, 376

US. ” NN ics atc scala bniadresh-cthinnedlonirsannionedaiiinbeoniins 16

Jones v. 8.8. Jesse Lykes, 253 F. Supp. 366 ................ 18

Kermerac v. Compagnie Generale Transatlantique, 358

U.S. 625, 632, 79 S. Ct. 406, 410 REED Secsivictecceianreoneen 9

Loffiand Bros. Co. v. Roberts, 386 F. 2d 540 (5 Cir.

BE is Kinwiianisdietereticbsaminnnans Maceecneeneeeeenseenntee sakawaboees 12

Maples’ Case, 1966 A.M.C. 2032, 2035 (S.D. Tex. 1966) 12

Mortensen v.-A/S Glittre, 348 F.-2d 382 (2 Cir. 1965) 12

Nicfoli v. Den Norske, et al., 332 F. 2d 656 (2 Cir. 1964) 13

Ryan Stevedoring Co. v. Pan-Atlantic 8. S. Corp., 350

if Me fs | eer ner nnerrnT 10, 17

ve Kits

™ ve te Bere PEMA NRE R e on! ~ ae

| iv

| PAGE

+ Schenker v U. S., 322 F. 2d 622, 630 (2 Cir. 1963) .......: 13

| ’ Thomas v. Malco Refineries, 214 F. 2d 884, 886 (10 Cir.

‘ | gen laa einlad sh oguieieahinaiaias 13

‘ Treadwell Construction ‘Co. v. U. S., 372 US. 172, 83

- Ii, nL. TI sinc teticendeasei bsnieeinlacacaateianleaadapplieteiannanaiaeenetin’ 17

‘ Waterman Steamship Corporation v. Dav id, 353 F. 2d

i I HE OEE i acsiaiccceinhineeitinnestndhertiaedehinndesibiasbanisaiainnuioneanes 8

_ Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355

U.S. 563, 567, 78 S. Ct. 438, 441 (1958) 0: 7,9

‘Weyerhaeuser v. U.S.. 373 U-S. 597, 83 S. Ct. 926 ........ 17

|. Statutes: |

Longshoremen s and Harbor Workers’ Compensation

Sn Te aie is ia, 6 Oe I iit 14

United States Constitution, Amana, WEEE Weenteahadaces =;

SERINE: AMIEL shashicSedevniniiichichenenepiinmeunnameienaiigaaiiidine i

Other Authorities: |

Gilmore & Black, The Law of ‘Admiralty, ay , poreomee 17

‘Larper and James, The Law of Torts, 1363 (1956) ...... 14

3 Prosser on Torts, Second Edition (1955), p. 250,446... 14

. Restatement of Restitution § 96 a alls 14

4 “The Tar Baby”: Maritime-Personal Injury Indeyf-

4 nity Actions, 20 Stan. L.Rev. 423 (1968) ....... ws & Oy

; 42 Corpus Juris Secundum. pp. 597-598 ene Sana © 14°

;

sal oe ON eT me bre ea abe

In THE

Supreme Court of the United States

OcTUBER TERM, 1968

-

GotteN Marine Company, Inc.,

Petitaoner,

—against— : ae

TRELLEBORGS ANGPARTYGS A/B, and

Cuartes McLavcaiin,

Respondents.

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: .

Petitioner, Golten Marine Company, Inc., prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit,

entered on January 30, 1969, affirming judgments of! the

United States District Court for the Eastern District of,

New York holding petitioner liable tc indemnify respon-

dent, Trelleborgs Angpartygs A/B, as a matter of law,

and dismissing petitioner’s counterclaim against respon-

dent, Charles McLaughlin.

teas. F

2

Citations to Opinions Below

There was no opinion filed by the District Court.

The United States Court of Appeals for the Second

Circuit filed an opinion which is not yet reported. Said

opinion is, however, printed in the Appendix hereto (la-9a).

Jurisdiction

The juclicasias of the Court of Appeals was entered on

January 30, 1969 (Appendix p. 10a). .

This petition for the issuance of a writ of certiorari is

being filed within ninety (90) days after the entry of said.

- Judgment.

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254 (1).

Constitutional Provision Involved

Unitep States Constitution, AMENDMENT VII:

“In suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right to trial by

jury shall be preserved, and no fact tried by a jury

shall be otherwise re-examined in any Court of the

United States, than according to the rules of the com-

mon law”

The Questions Presented

1. Where a shipboard accident has been caused 1624%

by plaintiffs negligence and 8314% by Shipowner’s negli-

gence is the Shipowner entitled to recover indemnity as a

matter of law from the plaintiff’s employer merely by rea-

3

son of tie plaintiff's contributory negligence having been

imputed to the employer?

2. Was it not a denial of the employer’s right to trial’

by jury to take away from the jury the question of whether.

Shipowner’s negligence of. 8343 % constituted “conduct pre-

cluding indemnity” ?

3. ‘Tf a plaintiff’s contributory negligence is imputed to

his employer so as to make the latter liable as a matter of

law to a shipowner, then should not the employer’s liabil-

ity be limited solely to that percentage ‘of shipowner’s .

damage for which it has been rendered vicariously liable?

4. Does Halcyon Lines v..Haenn Ship Ceiling and Re-

fitting Corp., 342 U.S. 282 (1952), 72 S.Ct. 277, insulate a

shipowner against damages for its own independent wrongs —

to marine contractors; and, if so, then should not that

decision and its rationals be re-examined for its applica-

bility to the current maritime personal injury Indemnity

cases?

9. Where 8343% of the cause of an accident has been.

shipowner’s negligence, does not a contractor have a cause

of action against that shipowner for the damages sustained

by him?

6. If an employer has been held liable to a shipowner

solely because his employee’s negligence has been imputed

to him, does not such employer have a cause of: action

under the maritime law, as is the case under the common

law, for indemnity against the negligent employee?

4

Statement of the Case

At its genesis, this was an action to recover damages

for personal injuries, brought by the respondent, Charles

McLaughlin, a’ marine rigger, against the respondent,

Trelleborgs Angpartygs A/S (hereinafter Shipowner).

Shipowner impleaded McLaughlin’s employer, the peti-

tioner, Golten Marine Company, Inc. (hereinafter Golten),

seeking indemnity for the latter’s alleged breach of the

implied warranty of workmanlike performance (WWP)

which it owed as a maritime contractor. Federal jurisdic-

tion was predicated upon 28 U.S.C. § 1332 in view of the

diverse citizenship between McLaughlin and Shipowner.

Golten had been engaged by Shipowner to perform

considerable repair and overhaul work in the engine room

of the LAKE ONTARIO while the said vessel lay at dock

in Jersey City, New York. None of the work to be per-.

formed by Golten had anything whatever to do with the

engine-ropom hoists. Needing some additional day labor

on March 26, 1962, Golten hired two riggers, McLaughlin

and Kewn, from a union hall. They reported to the vessel

at approximately 1:00 p.m.; and their job was to remove

some engine bearings from the ship to a truck that would

haul them to Golten’s shop for rebabbiting.

These bearings, which were oily and greasy, were loaded

onto a hoist in the engine room. McLaughlin and Kewn

then climbed ladders to the upper level of the engine room

and sought to raise the loaded hoist to that level, so that

from there they could manually carry the bearings off the

‘ship. In working the chains of the hoist in their attempt

to raise it to the upper platform level, they found that

the hoist could not be elevated beyond the level of ap-

" proximately 21% feet below the platform. They neither re-

ported this to the ship’s officer or to Golten’s foreman,

4)

Erickson, nor explored other methods of removing the bear-

ings. Instead, exercising his own judgment and making his

own decision, McLaughlin climbed into the’ hoist to hand

the bearings out to Kewn. To do so, he necessarily chad

to stand on top of the greasy engine bearings.

As McLaughlin picked up a particular bearing and”

turned to hand it to Kewn, he slipped on the bearings

and fell against the safety bar of the hoist. This came out

of its slots and McLaughlin fell to the engine-room floor.

- This was the first use of the hoist by any Golten ein-

ployee. Golten’s foreman, Erickson, called as a witness by

the plaintiff, testified to having found the hoist approxi-

mately two feet below the platform level after learning

of the accident. He confirmed that he had received no

> report before the accident of anything wrong with the hoist:

He further testified that McLaughlin should have reported _

his difficulty with the hoist to him so that he could have

repaired the hoist, and, most importantly, that it was not

safe for McLaughlin to have descended into the hoist when

it failed to come up to platform level.

Pursuant to the ruling of the Trial Judge, a verdict was

to be obtained first on the principal case of McLaughlin

against Shipowner. In summation, counsel for Shipowner

argued the contributory negligence of McLaughlin in de-

scending into the hoist and standing upon the greasy bear-

ings. The jury was then charged that if in doing those

things McLaughlin did not act as a reasonably prudent

rigger he might be found contributorily negligent.

Ina special verdict (Appendix p. 11a-12a), the jury found

(a) that Shipowner was negligent, (b) that Shipowner.

breached its warranty of seaworthiness, (c) that said negli-

gence and breach of warranty proximately caused Me-

Laughlin’s ipjuries, (d) that McLaughlin’s damages were

4

FRAT Se

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6

$12,000.00, (e) that’ McLaughlin was contributorily negli-

gent in the amount of $2,000.00, and (f) Was thus entitled

to recover only $10,000.00 from Shipowner. :

The finding of contributory negligence on the part of

McLaughlin was considered by the Trial J udge to conclu-

sively establish Shipowner’s right to recover fall indemnity

from Golten as a matter of law. Accordingly, he directed

a verdict in favor of Shipowner against Golten for

$10,000.00 plus the taxed costs and for $3,500.00, the agreed

amount cf Shipowner’s attorneys fees and disbursements

- in defending against McLaughlin’s claim.

Although Golten was thus heing held liable as a matter

of law to Shipowner for the imputed negligence of Mc-

Laughlin (in-a situation whereby McLaughlin’s negligence

was only 1674% of the whole and Shipowner’s negligence

was 8344%), the award against Golten was not reduced

to reflect an offset for Shipowner’s own fault, as ‘sought

by Golten in its counterclaim against Shipowner; and

Golten’s other counterclaim against McLaughlin, whose

negligence, imputed to Golten, rendered it liable to Ship-

owner, was dismissed. :

The determinations that as matters of law (a) Golten

was obligated to indemnify Shipowner and (b) was en-

titled to no relief on either its counterclaim ,against Ship-

owner or its counterclaim against McLaughlin, were each

affirmed by the Court of Appeals in its opinion of J anuary

30, 1969 (Appendix p. 1a-9a). |

Thus, in its present posture, this case presents the pic-

ture of three parties who, as a matter of law, have been

subjected to damages in an inverse proportion to their

fault.. The major fault herein lies with Shipowner which

was found by the jury to have been responsible for

$10,000.00 of the $12,000.00 damages sustained by Mce- |

7

Laughlin, or 83144% negligent. McLaughlin was found by

the jury to have been at fault fer only $2,000.00, or 1674%.

Golten’s fault could only be equal in quantity to McLaugh- .

lin’s, and was of a lesser quality since it was only a de-

rivative or vicarious fault.

However, as a result of what both the Trial J udge and

the Court of Appeals considered to be governing rules

of law,. Golten,; the party least at fault herein, has had

damages imposed upon it in the amount of $13,500.00.

McLaughlin, who was only at fault for $2,000.00, or 1674%,

loses only that precise amount from‘ his damages. But

Shipowner, the major tortfeasor herein, responsible for

* $10,000.00, or 8314% of the total damages, has not only

been granted full indemnity but has been awarded an

additional $3,500.00 for defending against a claim caused

in major part by its own fault. =

_ REASONS FOR GRANTING THE WRIT

e

4

\ I

eo

Review of this case should be had to halt a- growing

‘conflict between decisions of the Court below and those

of this Court, and to prevent denial to petitioner of its

constitutional right to trial by’ j jury.

‘

(a) With Regard to the Shipowner’s Claim for Indemnity:

The matter of indemnity in maritime personal injury

cases embraces two separate and distinct issues. It must

initially be determined whether the putative indemnitor

breached the warranty of workmanlike . performance

(WWP); and, if so, was the conduct of the indemnitee such

as to preclude indemnity. This Court has held such issues

to be for jury consideration. Thus, in Weyerhaeuser S.S. Co.

i eta ET baad Sen Pre tbe ese bg * i

oie, We ee

8

v. _—— Operating Co., 355 US. 563, 567, 78 S. Ct. 438,

441 (1958), it was declared. that

“The evidence bearing on these issues * * * was for

jury consideration under appropriate instructions.”

That a Shipowner’s claim. for indemnity was for jury

determination was once again the holding of this Court

in Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines,

369 U.S. 355, 82 S. Ct. 780 (1962). The principle was re- -

cently rciterated and a contrary judgment of the United

States Court of Appeals Second Circuit: was summarily

reversed in International Terminal Operating Co., Inc, v.

N. V. Nederl. Amerik Stoomv. Maats, 393 U.S/74, 89 S. Ct.

53 (1968). .

Yet, notwithstanding the clear mandate of this Court,

the District Court took these issues from the jury and re-

solved them as questions of law. This procedure was af-.

firmed by the Court of Appeals. By such action, petitioner

was deprived of its constitutional right to trial by jury.-

on iscues declared by this Court to be for jury considera-

tion.

It will undoubtedly be argued that since McLaughlin’s

contributory negligence of 16374% had been fixed by the

jury, the indemnity issue was in reality jury resolved. But

any such argument (which has other flaws) completely

overlooks the fact that the jury was never given an oppor-

. tunity to consider whether the Shipowner’s negligence

amounting to 8314% was such as to preclude indemnity.

Evaluation of a shipowner’s conduct by the fact finder -

involves a “weighing process”, Waterman Steamship Cor-

poration v. David, 353 F. 2d 660 (5 Cir.). Your Petitioner _

‘was entitled to have the jury weigh the imputed 1624%

of McLaughlin’s negligence with the Shipowner’s 8314%

9 ee

and determine whether under these circumstances indem-

nity was warranted.

(b) With Regard to Golten’s Counterclaim Against

the Shipowner: mas : at

In its counterclaim against Ghinsnne” Golten pleaded,

inter alia, that any liability on its part would be caused,

in whole or in part, by Shipowner’s active and affirmative

. negligence and fault and its breach of the warranty of

seaworthiness ; and Golten thereby sought judgment against

Shipowner : ;

«* * * for an amount equal .to the extent that any

liability on the part of the third-party defendant.

(Golten) was caused, brought about or cuntributed

to by said third-party plaintiff (Shipowner) * *. *.”

In both Weyerhaeuser S.S. Co. v. Nacirema Operating

Co., 355 U.S. 563, 568, 78 S. Ct. 438 (1958), and in Kermerac

v. Compagnie Generale Transatlantique, 358 U.S. 625, 632,

79 S. Ct. 406, 410 (1959), reference was made to the duty

‘owed by a shipowner to a contractor invited aboard the

vessel. Only recently in Federal. Marine Terminals, Inc. v.

Burnside Shipping Co., Ltd., —— US. , 37 L.W. 4271 -

_ (4/1/69) did this Corrt re-iterate (4275) :.

“We hold only that federal maritime law does impose

on the shipowner a duty to the stevedoring contractor

of due care under the circumstances, and does -recog-

nize a direct action in tort against the shipowner * * *.”

\

This Court in the cited, case then went on to recognize

that the counterclaim against the shipowner was predicated

upon its independent wrong to the contractor. The ship--

owner’s argument that its tortious conduct may be used

only as a shield to preclude indemnity but not as a sword

‘

a.

1 eed AIRS “ACL AINAY, 4 ’

‘ ;

°

10 .

compelling payment of damages for that tortious conduct

, was expressly rejected by this Court. -

Farther, this Court in Burnside, supra, also held that

the fact that the contractor has a direct action in tort

against the shipowner does not preclude additional direct

actions against the shipowner by the contractor under other

theories. It made clear that the proscription, set forth in

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

124, 76 St. Ct. 232 (1956), against the use of the theories

of “active” or “passive” as well as “primary” or “sécond-

ary” negligence was appropriate only to the. shipgwner’s

claim for indemnity against the contractor, but was in no

wise applicable to the contractor’s action against the ship-

owner.

~~

In view of the fact that the jury in the instant case found

the shipowner 8314% at fault, there was at the very least -

a prima- -facie case established on Golten’s counterclaim

against the Shipowner. By holding Golten liable to indem-

nify the Shipowner for all of McLaughlin’s recovery plus

- $3,500.00 in counsel fees, all as a matter of law, the Courts

below completely deprived Golten of its right to have a

jury pass upon its counterclaim for damages against the

Shipowner which Shipowner had already been found by

that jury to have been 8314,% at fault in the accident. Such

counterclaim could have provided Golten with an offset

‘of at least 8314% of the judgment entered against it, and

possibly even more in view of the fact that its liability was

wholly vicarious.

The marvelous inconsistency. in what the Trial Judge

did, and of what the Court of Appeals affirmed, is that they

determined as a matter of law that the jury finding of

16%4% contributory negligence on the part of McLaughlin

made Golten liable to the Shipowner on@the Shipowner’s

=.

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\

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11

- Claim for indemnity, but refused to use that same. jury’s

finding of 831% negligence on the part of the Shipowner

to grant Golten recovery on its counterclaim against the

Shipowner. Nor would they permit the issues between the

Shipowner and Golten to be presented to the jury.

Undoubtedly this exquisite inconsistency was in part re-

sponsible for the use of the term “wonderland” by the

Court of Appeals in describing this area of law. However,

the Court of Appeals erred in rate ributing that “wonder-

land” to the decision of this Court in Halcyon Lines v.

Haenn Ship Ceiling and Refitiing Corp., 342 U.S. 282

(1952). For, as this Court makes most clear in Federal

Marine Terminals, Inc. v. Burnside Shipping Co., Ltd.,

supra, the contractor’s counterclaim against the shipowner

is not an action for contribution, hut springs rather from

a breach by: the shipowner of the independent duties which

"it owes to the contractor.

The conflict betw een the law fughioned by this Court and

its misinterpretation and misapplication by inferior Courts, |

resulting in a deprivation of constitutionally guaranteed

rights, cries out for review by this Court.

Mattes eet ash WANN Men lle inn celia: Sets” aay asia 3

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Di hana tecitisictrterscniintcteaensssecitceiett thence SNES hen abi ed wh na MR ceOR IE tree Lr

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Il.

There is both an inter and intra circuit couflict and

. inconsistency on various issues presented in this case.

(a) Regarding Imputation of the Plaintiff’s Contributory

Negligence to the Impleaded Employer:

As evidenced by the instant decision and that in Morten-

sen v. A/S Glittre, 348 F. 2d 382 (2 Cir. 1965), the United

States Court of Appeals for the Second Circuit is of the

_ view that a plaintiffs contributory negligence benefits a

shipowner not only by a proportionate reduction of, the -

plaintiffs recovery, but by also providing the shipowner

with a springboard for automatic indemnity from the

impleaded employer: (It should be noted that in Cavelleri

v. Isthmian Lines, 189 F.:Supp. 525 and 190 F. Supp. 801,

the ther District Judge Kaufman was of the view ‘that —

such contributory negligence would be completely “excised”

from the case upon the diminution of the plaintiff's recov-

ery and could not thereafter begome the basis for the em-

ployer’s indemnity liability to the shipowner. It is that

view which seems to have been excised by subsequent

decisions.) 3

However, the United States Court of Appeals for the

Fifth Circuit is of the view that the contributory negli- _

gence of a plaintiff may not be imputed to the employer

so as to render that employer liable to indemnify a third

party. See Drewery v. Daspit Bros. Marine Divers, Inc.,

317 F. 2d 425 (5 Cir. 1963), and Loffland Bros. Co. v. Rob-

erts, 386 F. 2d 540 (5 Cir. 1967). See, too, Maples’ Case,

1966 A.M.C. 2032, 2035 (S.D. Tex. 1966).

(b) With Regard to the Counterclaim Against the Plaintiff:

Notwithstanding that Golten was held liable to the Ship-

owner only because McLaughlin’s contributory negligence

™~e.

..

of 1624% was imputed to it, the Court below affirmed the -

dismissal of Golten’s counterclaim against McLaughlin on

the basis of Nicroli v. Den Norske, et al, 332 F. 2d 656 (2 —

Cir. 1964). However, the same Second Circuit held in

Horton v. Moore-McCormack Lines, Inc., 326 F. 2nd 104

(2 Cir. 1964), that a maritime employer was entitled to

recover full indemnity from its employee whose breach

of his “implied agreement to perform his duties in a proper

and workmanlike manner” cast the employer into liability

to a third party. See, too, Footnote 1 of the dissenting

opinion in Schenker v. U. S., 322 F. 2d 622, 630 (2 Cir.

1963). :

An’ mens obligation to his employer to perform

his job in a workmanlike manner exists in the 5th Circuit,

see Holmes v. Mississippi Shipping Company, 301 F. 2d

474, 481 (5 Cir. 1962). ~

The 10th Circuit recognizes the ventana s obligation to

indemnify an employer held liable to a ae person solely

because of such employee’s negligence and, in Thomas v.

Malco Refineries, 214 F. 2d 884, 886 (10 Cir. 1954), has:

stated the rule as follows:

“In cases where the wrongful act or omission of a per-

son causes injuries to another, and a second person,

guilty only of imputed or constructive wrong, because

of his legal relationship to the primary wrongdoer or

his positive legal: duty to the person injured, is also

liable to the latter for the-damages suffered, and such

second person has discharged such liability, he is en-

titled to indemnity from the primary wrongdoer for

the entire amount paid to discharge such liability. The ©

principle applies where: an employer under the doc-

trine of respondeat superior is compelled to pay dam-

_ages to a third person solely because of the negligence

or other wrongful.act of his. employee.” (Italics added)

_

:

i

i

_ Shipping Co., Ltd., —— U.S.

14

Indeed, the duty of an employee to reimburse his em-

ployer for damages sustained by the employer due to the

employee’s negligence has become hornbook law. See 42

Corpus Juris Secundum, pages 597-598; Harper and James,

The Law of Torts, 1363 (1956); Prosser on Torts, Second

_ Edition (1955), page 250, § 46; and Restatement of Resti-

tution, § 96.

There is nothing contained in the Longshoremen’s and

- Harbor Workers’ Compensation Act, 33 U.S. Ct., $901 et

seq., ‘which in any way deprives the employer of a right ©

to recover indemnity from an employe whose negligence

has cast the employer into liability to a third party. The

rights and obligations granted to parties under the Act

did not exclude all other rights and obligations between the

parties, see Federal Marine Terminals, Inc. v. Burnside

, 387 L.W. 4271 (4/1/69).

Golten’s liability to the Shipowner in the instant case

“came about solely, and as a matter of law, because Mc-

Laughlin’s contributory: negligence was imputed to it. To -

dismiss Golten’s counterclaim for indemnity against Mc-

Laughlin is, under these circumstances, a clear conflict

with the law of other Circuits, with hornbook law, and

with the maritime law of the Second Cireuit itself, as

pee 3 in H orton, supra.

-

15

Ill.

The instant case presents the ideal vehicle for this

Court to render the clarification sought by courts, coun-

sel and litigants in the presently chaotic state of the

maritime personal injury indemnity law.

Termed a “wonderland” by the Court below, a “Donny-

brook Fair” in D/S Ove Skou v. Hebert, 365 F. 2d 341,

344 (5 Cir. 1966), and a “Tar Baby” by Proudfoot in_

20 Stan. L.Rev. 423 (1968), there can be little doubt of the

need for review by this Court of the issues involved in

the field of maritime personal injury -indemnity actions. ~

Presenting, as it does, virtually all of those issues, the :

instant case is the ideal vehicle for the clarification so -

desperately required.

The anomaly of inferior Courts fashioning law so as to

impose damages in inverse ratio to fault has perhaps

reached its zenith in the instant case. The shipowner, who

was most at fault in view of a jury verdict finding it

negligent to the extent of 8314%, has benefited the most

from this litigaiton by having been awarded not only full

indemnity for McLaughlin’s judgment but by also having

been awarded its counsel f2es and expenses of defense.

McLaughlin, less at fault than the. Shipowner in view of

a jury finding of only 16°4% contributory negligence, has

his damages mitigated by the extent of his negligence

(whereas the Shipowner did not) and must also pay his

own attorney’s fees. Golten, only vicariously liable because

of. the imputation to it of McLaughlin’s contributory neg-

ligence, ends up by paying all of McLaughlin’s recovery

and by also having to pay the Shipowner’s attorney’s fees

as well as its own. It is to this ridiculous extent that

various inferior Courts have propelled this:Court’s state-

16

ment in Italia Societa v. Oregon Stevedoring Company,

376 U.S. 315 (1964), that “liability should fall upon the

party best constituted to adopt preventive measures and

_ thereby to reduce the likelihood of injury.”

The extreme, illogical and inequitable result, reached in

the instant case by Courts purportedly attempting to

carry out that philosophy, is, upon analysis, contrary to

‘its purpose. In the instant case, there is nothing Golten

could have done to:have prevented McLaughlin from mak-

ing his own judgment and descending into the hoist to

pass the bearings out to Kewn. But, there is considerable

that the Shipowner could have done to have made the

hoist safe for use so that it would have come up to the

level of the platform and so that its safety bars would

function better. The fact that the Shipowner gets off

seot-free and is even. reimbursed its attorney’s fees and

expenses for defending against an accident, caused by its _

negligence of 83144%, is certainly no inducement to it to

more carefully maintain its equipment and is certainly no

incentive for it to adopt preventive measures to reduce

the likelihood of further accidents.

As indicated earlier in this petition, the Court below

ascribes -this “wonderland” .to this Court’s decision in

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp.,

- 342 U.S. 282 (1952), which your petitioner believes it mis-

interprets with the result that it precludes recovery by

petitioner on its counterclaim against the Shipowner. The

error, committed by the Court of Appeals in its affirmance,

is, we submit, demonstrated clearly by the decision of

this Court in Federal Marine Terminals, Inc. v. Burnside

' Shipping Co., Ltd., — —U.S. , 37 L.W. 427 (4/1/69).

If, however, petitioner be wrong in its view of the non-

effect of Halcyon upon the situation at hand, then it is

submitted that Halcyon should be reviewed by this Court

Pe ee eee aS eT anit ee at RUS TO

17

for a policy declaration as to whether its principles are

intended to apply to the recently developed’ maritime

personal injury indemnity field.

In the law of Admiralty which recognizes comparative

negligence and divided damages, the Halcyon rule prohib- | -

iting a division of damages between shipowner and con-

tractor in proportion to fault-is an anomaly. Indeed, its

vitality in the area of maritime personal injury indemnity

actions, developing since Ryan Stevedoring Co. v. Pan-

Atlantic Steamship Gorp., 350 U.S. 124, has been ‘seriously

questioned in Gilmore & Black, The Law of Admiralty, p.

371 as follows: -

“Despite Justice Burton’s disclaimer, it is obvious that

. Ryan by its approval of the indemnity cases, strips

Halcyon of any surviving vitality. In the framework

of harbor-worker litigation, there are simply no cases

left for the Halcyon rule to apply to unless it be

imagined that the harbor-worker’s employer was a

trespasser on the ship; in all other cases the existence.

of the contract between employer and shipowner leads

automatically to the implied promise by employer to

indemnify shipowner.” (Italics added)

Additional: authority té the effect that Halcyon is of

doubtful authority today, if not indeed stripped of all

vitality, is to be found in Grace Lines, Inc. v. Port Ever-

glades Terminal Co., 324 F. 2d 699 (5 Cir. 1963). See, too,

Weyerhaeuser Steamship Company v. U.S., 373 U.S. 597,

83 S. Ct. 926, anc TreadwelleConstruction Co. v. U.S., 372

US. 772, 83 S. Ct. 1102.

It should be obvious that incentive to prevent injury

can best be promoted by making partiés respond in dam-

ages to the extent that their fault caused the injury Such

practical businessman’s deterrent from negligence will best

ep MAES OS A

Bae eit

18

serve the interests of society and would require apportion-

ment of damages between shipowner and the inipleaded

‘ contractor in accordance with their respective degree of

fault as has been done in Chevis v. Luckenbach Overseas

Corp., 228 F. Supp. 642, and Jones v. S.S. Jesse Laghes,

253 F. Supp. 368.

Indeed, in D/S Ove Shon v. Hebert, 365 F. 2d 341 (4 Cir.

1966), a learned and experienced maritime Judge stated

that the Court was not undertaking to rule that “there:

may never be an acceptable, equitable basis for distribut-

ing the burden of a loss resulting from the operational

cooperation of breaches or wrongs of several parties”.

Circuit Judge John R. Brown then stated in a most perti-

nent footnote as follows (365 F. 2d 351):

“18. Assuming, as some knowledgeable persons doubt,

Gilmore & Black, Admiralty, p. 371 (1957) ; Grace

Lines, Ine. v. Port Everglades Term.’ Co., 5 Cir.,

1963, 324 F. 2d 699, 701, that in a practical. way

there is any practical vitality in Halcyon Lines

v. Haenn Ship Ceiling & Refitting Corp., 1982,

342 U.S. 282, 72:S. Ct. 277, 96.L.Ed. 318, we do

not think this outlaws for all time judicial im-

provisation in the accommodation of this dynamic

‘Sieracki-Ryan-Yaka-Italia concept. Difficult as it

conceptually is to read out handy, everyday no-

tions of prudence, due care on the ground that

tort principles. as such are not pertinent, Italia

Societa v. Oregon Stevedoring Co., 1964, 376 U.S.

315, 84 S. Ct. 748,°11 L.Ed: 2d 732,.the process is

inevitably a comparative one (see Pettus v. Grace

Line, Inc., 2 Cir., 1962, 305 F. 2d 151, supra) per-

haps justifying comparative techniques some-

, times.” J

Gece”

19

?

In Proudfoot, “The Tar Baby”: Maritime-Personal In-

jury Indemnity Actions, 20 Stan. L.Rev. 423 (1968), there

is an excellent academic discussion of the problems actually

- presented by the instant case. These problems, involving a

contractor’s counterclaim against a shipowner, an employ-:

er’s counterclaim against a negligent employee, the right

to jury trial of what this Court has declared factual i issues,

and the vitality and applicability of Halcyon to the subse-

quently developed field of maritime personal injury in-

demnity actions require policy determinations and clarifi-

cation by this Court.

It is respectfully submitted that this petition for certi-

orari should be granted so that the anomaly and inequity

now prevailing through misunder standing can be clarified

by appropriate policy declarations by this Court.

CONCLUSION

By reason of the foregoing, it is respectfully submitted °

that the petition herein should be granted and'a writ of

certiorari should be issued to the United States Court of °

Appeals for _ Second Circuit. —

_ Respectfully submitted,

- Sipney A. Scuwarrtz

Attorney for Petitioner

76 Beaver Street

New York, New York 10005

(212) WH 4-2633

Joserx Arraur -Conex

Of Counsel

“

we

peemead

SP Lg etey Ree DBR? Se BEATE INL Ra al EA Pay Ua Sella

Serica etait aia Ds Sia Raab

Opinion of the Court of Appeals

‘UNITED STATES COURT OF APPEALS

- For tue Seconp Circuit

No. 51—September Term, 1968

Argued December 2, 1968 Decided January 30, 1969

7 Docket No. 30837 F

CHARLES McLavcuun,

.

Plaintif’-A. ppellee,

TRELLEBORGS ANGFARTYGS A/B,

Defendant and Third-Party

Plaintiff-A ppellee,

GoLTEN Wisin Company, Inc.,

Third-Party Defondant- Hoattonns

‘ s

Before Lumparp, Chief Judge, Frienpty, Circuit Judge,

and Ryan, Distrigt Judge.* :

Appeal by a ship repairman from aleenatitn of the

District Court for the Kastern District of New York,

‘Jacob Mishler, Judge, granting indemnity to a shipowner’

in respect of a personal-injury recovery against it: by the

repairman’s employee and dismissing the repairman’s coun-

terclaim against the employee. Affirmed.

Joseph Arthur. Cohen (Alexander, Ash &

Schwartz, New York, N.Y.; Sidney A.

Schwartz, of Counsel), lie” Third-Party

Defendant- Appellant.

* Of the Southern District of New York. sitting by designation.

a.

2a

~ Opinion. of the Court of Appeals

Robert Klonsky (DiConstanzo & Klonsky, Brook-

lyn, N.Y.), for Plaintiff-Appellee.

& Havens, New York, N.Y.; Joseph V.

Fleming, of Counsel), for Defendant and

Third-Party Plaintiff-Appellee.

FRIENDLY, Circuit Judge:

This action in the District.Court for the Eastern District

of New York, in which federal jurisdiction was predicated

on diverse citizenship, 28 U:S.C. § 1332, was brought by

McLaughlin, a rigger employed by Golten Marine Com-

.pany, against Trelleborgs Angfartygs A/B, owner of the

freighter Lake Ontario, to recover for injuries caused by

unseaworthiness of the vessel and Trelleborgs’ negligence.

Trelleborgs impleaded Golten. A jury brought in a special

verdict. that the ship was unseaworthy. and Trelleburgs

was negligent; that McLaughlin’s damages were $12,000;

that he had been contributorily negligent; that his damages

should accordingly be reduced by $2,000; and that he should

recover $10,000 against Trelleborgs. Question then arose

as to Trelleborgs’ claim for indemnity.. Judge Mishler,

relying on Mortensen v. A/S Glittre, 348 F.2d 382 (2

Cir. 1965), considered that the finding of contributory negli-

gence on the part of McLaughlin was conclusive of Golten’s

breach of its’ warranty of workmanlike performance

P) and required a recovery in the absence of evidence

that Trelleborgs had prevented Golten from fulfilling its

,obligation: Accordingly he directed a verdict in fayor of

Trelleborgs on its third-party claim for $10,000. plus the

taxed costs and $3,500, the agreed amount of Trelleborgs’ ©

‘attorneys’ fees and- disbursements in defending against

William P. Kain, Jr. (Haight, Gardner, Poor

BBE ART

ise RATT AE ae

We ae, Rha ne int le

3a

_ Opinion of the Court of Appeals

McLaughlin’s claim; he did not reduce this recovery to

reflect. comparative fault as ‘requested in a counterclaim

Golten had pleaded against Trelleborgs. He also dis-

missed another counterclaim wherein Golten had sought .

indemnity from McLaughlin for any liability it ‘might

incur by reason of his negligence. This last ruling was

demanded by: Nicroli v. Den Norske Afrika-OG Aus-

tralielinie, 332 F.2d 656 (2 Cir. 1964), and we shall say

no more concerning the portion of Golten’s appeal that

relates to it.

Trelleborgs had engagéd Golten to perform repair and

overhaul work in the engine room of the Lake Ontario

while she lay at dock in Jersey City, N.J. Needing ,addi-

tional help, Golten employed two riggers, McLaughlin and

Kewn, at a union hiring hall. They reported to the vessel

around 1 P.M.; their job was to move some engine bear-

_ ings from the ‘hip to a truck that vould haul them to

Golten’s machine shop. cp

The bearings, which were oily and greasy, were lying on

the floor plates of the engine room near a hoist that ran

up to a platform giving access to an upper passageway

and, we assume, an exit from the ship. Erickson, Golten’s

_ foreman, instructed the men to use the hoist. .Kewn

placed the bearings in it and went to the platform to raise .

it; he. was joined there by McLaughlin. They found that

‘the hoist could not be elevated beyond a level some 214’

below the platform. They did not report this to the ship’s

officers or to Erickson or explore other methods of re-

moving the bearings, such as lowering the hoist’ to the

floor and moving the bearings to another one. Instead,

McLaughlin decided to climb into the hoist and hand the

bearings out to Kewn. While attempting to do this, he

slipped on the bearings and fell against the safety bar

io a SRA en {

Be SDRC Ran

4a

Opinion of the Court of Appeals —

of the hoist. This came out of its slots and si asi

fell to the engine room floor.

In Mortensen, supra, 348 F.2d 383, this court sustained

the direction of a verdict on a ship’s third-party claim

against the employer of an injured plaintiff whom the

jury had found guilty, of contributory negligence. Golten

attempts to distinguish Mortensen on the facts. In the

alternative, it argues that if we should disagree on: that _

seore, the result here—where, as Golten puts it, the ship,

-- which was found to have five-sixths of the responsibility

for the* accident, has succeeded in placing the entire

liability plus its expenses on an otherwise guiltless em-

ployer of the man who was found to be only one-sixth

responsible—is so manifestly unjust that something in

the picture must be wrong. .

The asserted distinction is that the: employee in Mor-

tensen had noticed the oil slick that caused the accident

‘almost ‘two hours earlier, and the employer, with this

knowledge imputed to him, thus breached its WWP in

failing to remedy the dangerous condition. See Drago v..

A/S Inger, 305 F.2d 139, 142 (2 Cir. 1962); Nicroli v. Den

Norske Afrika-OG Australielinie, supra, 332 F.2d at 656.

In contrast -we held in Calderola v. Cunard 8.8. Co., 279

F.2d 475 (2 Cir. 1960) and Orlando v. Prudential S.S.

Corp., 313 F.2d 822, 824 (2 Cir. 1963),’ that a stevedore

could not be cast in liability for failure to correct a dan-

gerous condition when the employee had become aware

of the danger only momentarily before the accident. ° If

~Golten could be held liable to the ship solely for failure

to have the hoist put in proper order or to direct Mc-

Laughlin not to enter it, this distinction of Mortensen

~ - ; .

1TIn neither case was it found that the employee was guilty of

contributory negligence. -

oa

_ Opinion of the Court of Appeals

might well have merit. However, while a stevedore or

other third-party defendant can undoubtedly be held for

failure to correct a‘ hazardous condition or prevent its

employees from exposing themselves to danger of which

it has knowledge, actual or imputed, that is neither the

theory of Mortensen nor the full measure of the liability

the Supreme Court has established.

The rationale of Mortensen was rather that the jury’s

finding of contributory negligence by the third-party de-

fendant’s employee was conclusive of breach of the defen-

dant’s WWP. This followed logically from an earlier hold-

ing of ours that a finding that an injured longshoreman

had negligently exposed himself to danger required entry

of a judgment for indemnity, even though the employer

had no real opportunity for control. Damanti v. A/S Inger,

314 F.2d 395 (2 Cir. 1963).2 See also Shenker v. United

States, 322 F.2d 622, 628-29 (2 Cir. 1963) [express war-

ranty]; Nicroli v. Den Norske Afrika-OG Australielinie,

supra, 332 F.2d at 656. | ‘

The Damanti and Mortensen holdings, apparently rested

on an imputation of the employee’s contributory negligence

to his employer, which was thought to. render the employer

negligent as a matter of law. If there had been no other

developments in the law of this subject, we might indeed

wonder whether it might not be useful to have that position

reexamined by the court in banc. The similarity in name

between negligence and contributory negligence masks an

essential difference in concept. Whereas negligence is a

breach of a duty to others and gives rise to a right in the

person injured, contributory negligence is simply a dis-

* The finding in Damanti had been on a trial of the indemnity

claim rather than of the personal-injury claim, which the ship

had settled.

6a

Opimon of the Court of Appeals

ability preventing a plaintiff from recovering. See Re-

statement of Torts 2d § 463 (1965); 2 Harper & James,

Torts § 22.10 (1956); Prosser, Torts § 64 (2d ed. 1964). A

rule whereby the employee’s disability automatically cre-

ates a right in the shipowner to be indemnified by the

employer:’can thus be sound only if the employer is deemed

to have undertaken not simply to use reasonable care to

select, train and supervise employees so that they will

protect themselves, but to furnish employees who in fact

will not negligently expose themselves to injury. If the

warranty were only of the more limited sort, the contribu-

_ tory negligence of an employee, although some evidence of -

breach, would not alone support a verdict in favor of the

indemnitee, let alone the direction of one.

We think, however, that, under Italia Societa v. Oregon

Stevedoring Co., 376 U.S. 315 (1964), the WWP is not so

limited. The issue there was whether the warranty of

workmanlike service “is breached where the stevedore has -

non-negligently supplied defective equipment which injures —

one of its employees during the course of stevedoring oper- *

ations.” 376 U.S. at 315-16. The Court held it was. True

Mr. Justice White stated that “the implied warranty to

supply reasonably safe equipment may be satisfied with

less than absolutely perfect equipment,” 376.U.S. at 321,

and annotated this with a citation of our Calderola .and

Orlando decisions, see fn. 1. However, the Court went on

to say that the standard was “whether the equipment was

-in fact safe and fit for its intended use” and that it did not .

“believe a rope designed to withstand three to five times

the pressure exerted on it when it gave way satisfies the

standard of reasonable safety.” 376 U.S. at 322. We see

no reason to suppose that the /talia doctrine applies only

to material and not to human resources; indeed, the Court’s

Ta

Opinion of the Court of Aypote

footnote sebebiviée to Calderola and Chine, 376 U.S. at

321 n. 8, in support of a statement concerning equipment

would not have been pertinerit unless the Court. considered

that personnel should be treated on the same basis as rope.

Putting the /talia criteria in human terms, while Golten

did not warrant a perfect rigger, it did warrant one who

would not in fact be negligent. Again, paraphrasing Italia,

we do not consider that a rigger who stepped onto a set

of oily and greasy bearings on a hoist suspended in mid-

air was “safe and fit” to work on the ship or “satisfies the

standard of reasonable safety.’ When we go behind the

Court’s statements to the reason given for them, namely,

that Ww here, as here, injury-produeing and defective equip-

ment is. under the supervision and control of the steve-

dore, the shipowner is powerless to minimize the risk; the

stevedore is not,” 376 U.S. at 324, we see no basis for a

different rule regarding personnel. Golten hired McLaugh-

lin and put him to work; the ship was not consulted. While

it might have been tnipteotionl for Golten to take measures

that: would have prevented McLaughlin’s negligence, the

law in this area charges the employer with the results of

employee carelessness so that the decision on what precau-

tions to take will be made upon a w eighing of all relevant-

costs. See Proudfoot, “The Tar Baby”: Maritime Personal-

Ifijury Indemnity Actions, 20’ Stan. L.Rev. 423, 433-34

(1968).

We have considered whether a different view is required

by the Supreme Court’s recent summary reversal, Inter- —

national Terminal Operating Co. v. N.V. Nederl. Stoomv.

Maats., — (1968), 37 L.W. _3150- “51, see also:

392 F. 2d 763. We di - ‘think SO. The issue in Interna-

tional Terminal was whether the stevedore had breached

oN i ai

MLL EI PILE PNG IS LR IIE LI

PROPER ATE

oie ek ah Ue 8

LEMP EE TEL IT A a Ma ll

8a .

Opimon of the Court of Appeals

its WWP when its hatch boss allowed work to continue

temporarily in an ill-ventilated hold on the faith of a prom-

ise by a ship’s officer to activate a concededly adequate

ventilating system. The jury, in response to a special in-

_terrogatory, had found that the hatch boss acted reason-

_ ably. The Supreme Court reversed a ruling by a divided

panel of this court that the.hatch boss acted unreasonably

as a matter of law; it held that the issue of the propriety

of his conduct was one of fact on which the jury’s deter-

mination should not have been disturbed. We are reversing

no jury determination here; the jury has wae that Me-

‘Laughlin acted unreasonably.

Golten’s remaining point is that even if all this is SO,

we ought to be sufficiently resourceful to find some way

to avoid the apparently irrational result whereby a ship-

owner who supplied a defective hoist emerges scot-free and

a repairman who did nothing more than innocently recruit

a careless workman from a hiring hall pays the full bill for

the workman’s injury and the ship’s defense against his

claim. It is true that a desire to find some solution for

the problem stemming from Halcyon Lines v. Haenn Ship

Ceiling & Refitting Corp., 342 U.S. 282 (1952), has led mem-

bers of this court to indulge in occasional murmuring about

a counterclaim by the stevedore against the ship, based

presumably on the ship’s breach of an implied warranty

to the stevedore to supply a ship where the stevedore’s

employees could work in reasonable safety. See Pettus v.

Grace Line, Inc., 305 F.2d 151, 156 (2 Cir. 1962) (Clark, J.,

dissenting) ; Williams v. Pennsylvania RR., 313 F.2d 203,

213 (2 Cir. 1963) (Friendly, J.). More recently, the Fifth

Circuit, speaking through a judge with long experience in

admiralty, said it was not “undertaking to rule for all time .

that in the adjustment of these complex warranties and

9a .

Opinion of the Court of Appeals

counter warranties or. promises, there may never be an

acceptable, equitable basis for distributing the burden of

a loss resulting from the operational cooperation of -

breaches or wrongs of several parties. . .” D/S Ove Skou

v. Hebert, 365 F.2d 341, 350-51 & n. 18 (1966) (John R

Brown, J.). What sapenbion us is that despite such expres-

sions of desire, no-court of appeals has undertaken to make

them real. See Proudfoot, supra, 20.Stan. L.Rev. at 442-45.

Probably that is.as it should be. So long as Halycon v.

Haenn, supra, 342 U.S. 282, remains on the books, inferior

federal courts will do better to abstain from further adven-

tures in this wonderland and leave doctrinal development

to the Supreme Court, unless current congressional inter-

est in the complex problems arising from the creation of .

a new class of land-based seamen by the Sieracki decision,

328 U.S. 85 (1946), should result in the knot “aw cut in

a more drastic fashion.

Affirmed.

eee

OSS OF

5 i ne ar ahh Dad

10a

Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE SEcOND CIRCUIT .

At a Stated Term of the United States Court

of Appeals, in and for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the thirtieth day

_ of January, one thousand nine hundred and |.

sixty-nine.

Present: |

7 Hon. J. Epwarp Lumsarp,

‘Chef Judge,

Hon. Henry J. FRIENDLY, |

| Circuit Judge,

Hon. Sytvester J. Ryan, ie

| District Judge.

[SAME TITLE]

| Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the Kast-.

ern District of New York, and was argued by counsel.

On ‘coNSIDERATION WHEREOF, it is now hereby ordered, °

‘adjudged, and decreed that the judgments of said District

. Court be and they hereby are affirmed — costs to be

taxed against the appellant.

A. Davin Fusaro

Clerk

lla

Special Verdict

UNITED STATES, DISTRICT COURT

HasTERN District or New York

No. 62-C-1131 °

FILED

in Clerk’s Office

U. S. District Court, E.D. ‘N.Y.

JuNE 10, 1966

Cuartes McLaveuuin, .

Plaantif’,

—against—

'TRELLEBORGS ANGFARTYGS A/B,

Defendant and Third-Party Plaintiff,

—against— 5

GoLTEN Marine Company, INc.,

+ Third-Party Defendant.

xz

SPECIAL VERDICT

l(a) Was defendant negligent?

pi ae ¢

[Answer with X mark]

i I re

‘12a

Special Verdict

If the answer tq both questions is “NO”—do not answer

any of the following questions:

2.

Did the negligence or breach of the warranty of sea-

worthiness eee cause the claimed injuries?

Yes X

[ Answer with X mark]

If the answer to the above question i is “NO”—do not answer -

the following questions:

3.

The amount of plaintiff’s damages is $12, 000.00.

4. Was plaintiff contributorily naittacankt

| Yes X

BO site

[ Answer with X mark]

Do not answer the following question if the answer is

“NO”:

Plaintiff was contributorily negligent in the, sum of

$2,000.00.

Tue Jury Finns For THE PLAINTIFF AND AGAINST THE

DEFENDANT IN THE Sum oF $10;000.00.*

Dated: June 10, 1965

GEORGE J. ANDERSON

Foreman

*In fixing this mnie deduct the amount found in 5)

from the amount found in 3.

° : 13a -

Judgment of the District Court

UNITED STATES DISTRICT COURT

For tHe Eastern District or NEw York

Civil Action File No. 62-C-1131

FILED

June 10, 1966

Cuartes McLaucHuin, .

—against—

- TRELLBoRGS ANGFORTYGS A/B.

JUDGMENT

This action came on for trial before the Court and a

jury, Honorable Jacob Mishler, United States District

Judge, presiding, and the issues having becu duly tried

and the jury having duly rendered its verdict, in favor

of the Pitf. Charles McLaughlin.

It is Ordered and Adjudgéd that Plaintiff, Charles Mc-

Laughlin, recover of the Defendant TrelJborgs Angfortygs

A/B the sum of $10,000.00 together witifconts when taxed.

Dated at Brooklyn, New York. this 10th day of June,

1966. ‘

Lewis OrGEL

Clerk of Court

by MicHaEL J. Gexarpt

Deputy Clerk

— i4a

Judgment of the District Court

UNITED STATES DISTRICT COURT

- For _ Eastern District or NEw York

Civil Action File No: 62-C-1131

FILED

June 13, 1966_

TreLitsporcs Ancrortyes A/S,

3rd Party Pltf.,

—against— ,

GoLtTEN Marine Company, Inc.,

3rd Party Deft.

JUDGMENT

This action came on for trial before the Court and a

jury, Honorable Jacob Mishler, United States District

Judge, presiding, and the issues having ben duly tried

and the Court having duly rendered its verdict, in. favor,

of the 3rd Party Pitf. Trellsborgs Angfortygs A/S.

It is Ordered and Adjudged that. the 3rd Party Plt.

Trellsborgs Angfortygs A/S recover of the 3rd Party Deft.

Golten Marine Company, Inc. the sum of $10,000.00 with

costs when taxed. Also $3,500:00 for legal fees and dis-

bursements. Making a total of $13,500.00

Dated at Brooklyn, New York, this 13th day of June,

1966. y ¥

| Lewis OrGEL

Clerk of Court

by MicuaeL J. GELARDI