Petition for Writ of Certiorari — Semet-Solvay Division, Allied Chemical Corp. v. Miller

INDEX

Opinions Below

J urisdiction

Questions Presented -...

Statute Involved She nei eon

Statement of the Case de xp a

Reasons for Granting the Writ __

Conclusion

Appendices: .

A. Opinion of the United States Court of

Appeals for the Fourth Circuit __.__.

B. Order of the United States Court of

‘Appeals for the Fourth Circuit Enter-

ing Judgment

C. Order of the United States of Appeals

for the Fourth Circuit Denying a Re-

hearing )

CITATIONS

Cases:

Mathiasen, etc., 2nd Cir., 140 F 2d 522...

‘Bergen v. The Joseph Stickney, 1 Fed. 624

(1880)

Page

ow nN NS NY Ke

10

-

14

4165

Baker, Carver & Morrell Ship Suppliers v.

ii

Burns Bros. v. Long Island R, Go., 2nd .

Cir., 176 F 2d 406

Charles L. Jeffrey, The, 1st Cir., 55 Fed.

685 (1893)

Clara, The, 102 U.S. 200 (1880)

- Commercial Mollasses Corp. v. New York

a

Tank Barge Corp., 314 U.S. 104...

Deisel Tanker F. A. Verdon; Ine: v. Stake-

boat No. 2, 2nd-Cir., 340 F 2d 465...

Grace Girdler, The, 7 Wall. 196, 203. (1869)

‘Hulton Company v. Arrow Builders Supply

Corp., 2nd Cir., 371 F 2d 944

Ira S. Bushey & Sons v. Standard Oil Co.,

2nd Cir., 197 F 2d 788 __.

J..J. Hill, The, 7th Cir., 260 F 655 }

Joseph Stickney, The, 2nd Cir., 56 Fed. 156

(1893)

L. P. Dayton, The, 120 U. S. 337 (1887). vane es

‘ Page

9

co

.10

Martin K. Eby Construction Co. v. sical

10th? Cir., 344 F 2d 482 -

Melnotte, The, 1 Bond 453, Fed. Case 8812

(1861) «

Middlesex Co. v. The Albert Mason, 2 Fed.

821 (1880)

- Newgawnee, The, 20 Fed. 918 (1884) __.

Pacific Tow Boat Co. v. States Marine

Corp. of Delaware, 9th Cir., 276 F 2d 745

.

iii

Pennsylvania, The, 19 Wall., (86 U.S.) 125

GPS een ies

Relief, The, Ole. 104, Fed. Case 11693

Shebeiea:

Navigation Rules for Red River of the

- North, etc., Rule 22, 33 U.S.C.A. 347, mn)

Authorities:

53 Am. Jur., § 323, p. 262.and § 358, p. 287

- 88 C.J.S., Trial, § 2084, p 439 _.

Gilmore and Black, Law of Adiniralty, 396

RS ee

Grifin on Collision, Sec. 24, Burden of

Proof _.. soansheignonn ceatninaicaistec rates galieinon

8

10

s IN THE |

Supreme Court of the United States

OCTOBER TERM, 1968

No. ——

SEMET-SOLVAY DIVISION,

ALLIED CHEMICAL CORPORATION,

. ‘PETITIONER,

V.

JAMES A. MILLER, SR., _

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Semet-Solvay Division, Allied Chemical Corpora-

tion, Petitioner herein, prays that a Writ of Cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit, en-

tered in this case on February 17, 1969.

OPINIONS BELOW

The opinion of the Court of Appeals (App A,

infra,.p.p. 11) is not yet officially reported.

2

JURISDICTION

The Order of the Court of Appeals was entered

on February 17, 1969. (App B, infra, p.p. 14). An

Order Denying Rehearing was entered by the Court

of Appeals on March 7, 1969. (App C, infra, p.p. 15).

The jurisdiction of this Court is invoked under 28

U.S.C.A. 1254 (1).

- QUESTIONS PRESENTED

(1) The quantum of proof necessary to be pre-

sented by a plaintiff in a case involving a collision

between two vessels on an inland navigable river

wherein plaintiff alleges violation of Navigation

Rules For Red River of the North, etc. Rule 22, 33

- U.S.C.A. 347, (a), in order for plaintiff to sustain

the burden of proof to show such violation; and to

entitle plaintiff to a peremptory direction in the

absence of rebutting evidence on. behalf of the de-

fendant. |

(2) The quantum of proof necessary to be pre-

sented by a plaintiff in such a collision case to sus-

tain the burden of proving that defendant was other-

wise negligent in the operation of its vessel, and to

entitle plaintiff to a peremptory direction in the ab-

sence of rebutting evidence on behalf of the defend-

ant.

STATUES INVOLVED

The: pertinent part of Nistiinbbon Rules for Red

River of the North, etc., Rule 22, 33 U.S.C.A. 347,

(a), involved is that part which vende as follows:

3

“(a) Notwithstanding anything contained

in sections 301 - 352 of this title, every vessel,

overtaking any other, shall keep out of the |

way of the overtaking vessel.

Every vessel coming up with another

vessel from any direction more than two

points abaft her beam shall be deemed to be

an overtaking vessel; - - - -.” Jig ae

STATEMENT OF THE CASE

This action involves the collision of two motor

vessels each pushing tows upon the navigable waters

of the Kanawha River after dark on April 4, 1968.

The vessels were the M/V Semet owned and operated

by Semet-Solvay Division, Allied Chemical Corpora-

tion, defendant, petitioner herein, and the M/V

Little Edward, whose Master was James A. Miller,

Sr., plaintiff, respondent herein. At the time of the

collision, Miller had turned in and was: asleep in

his quarters in the after end of the Little Edward.

Miller allegedly was thrown from his bunk by

the force of the collision, allegedly sustaining in-

_ juries.

. Miller instituted this action as plaintiff against.

Semet-Solvay Division, your petitioner, to recover

damages for the alleged injuries, suing in the di-

versity jurisdiction of the District Court, he being

a resident of the State of Ohio and your petitioner

being incorporated. in and a resident of the State

of West Virginia.

Miller charged, in his Complaint, that Semet-

Solvay Division was negligent in the navigation of

4

its vessel, the Semet. In particular, his charges of

negligence were incompetency of the Semet’s crew,.

her failure to observe “the rules of the road and

applicable statutes” and “to keep the Semet under

proper control and avoid collision, in operating same

too close to the stern of the Little Edward and at

too fast and dangerous speed under the circum-

stances.”

Semet-Solvay Division, in its answer to the Com-

plaint filed by Miller, admitted “that defendant

owned M. V. Semet and that its employees were

operating it up river when its port lead barge came

into collision with the stern of .M. V. Little Edward.”

It also admitted as set forth in the Statement

of the Case of Miller in his Brief filed in the Court .

of Appeals, that “at or about 8-9 P.M. on said date,

the Little Edward was proceeding upstream with

its tow in the vicinity of Mile 26”.

The only other evidence: in regard to how or

why the collision occurred is contained in the testi-

mony of Otis McGowan, plaintiff Miller’s witness,

on pp. 21 through 23 of Reporter’s Transcript of

| @owan’s testimony, said transcript being part of

the record in this action, and on file with this Court.

His testimony was to the effect that he was sleep-

ing in the pilot house of the Little Edward, was

roused from his sleep by shouts of the pilot, turned

to his rear, saw the Semet lead barge not more than

25 feet to the rear of the Little Edward, didn’t wait

to find out if the barge was coming in a straight line,

or coming in a curve or at an angle, but jumped down .

in the hold of the vessel at a further shout from the

ie

‘pilot. for him to awaken Miller. He further stated.

that his vision was not good enough for him to judge

distance and speed without staring. The collision oc-

curred immediately thereafter. |

Plaintiff offered no other witness as to how or

why the collision occurred.

Defendant, Semet-Solvay Division, offered no

evidence to rebut plaintiff evidence.

} The jury found for the said defendant, and the

District Court entered judgment thereon.

The Circuit Court of Appeals for the Fourth

Circuit reversed, stated that plaintiff, Miller, was

entitled to a peremptory direction, and remanded

with an Order for a new trial limited to the issue of

damages. |

Judgment was entered accordingly by said Cir-

‘cuit Court of Appeals on February 17, 1969, and a

rehearing was denied on March 7, 1969.

’ ARGUMENT OF REASONS FOR

GRANTING WRIT

In regard to Questions Presented, both (1) and

(2), the decision of the Circuit Court of Appeals of

the Fourth Circuit conflicts with both decisions of

other Circuit Courts of Appeals and with decisions

of this, the Supreme Court, in regard to the burden

that the plaintiff has, in an action such as this, of

establishing a cause of action by a preponderance of

the evidence.

6

The only evidence in this case before the Court

of Appeals were the admissions by the defendant

that both vessels, the Semet, the defendant’s vessel,

and the Little Edward, the plaintiff’s vessel, were

_ traveling in a general upstream or upriver direction .

on the Kanawha River when the lead barge of the

Semet came into collision with the stern of the Little

Edward, and the testimony of Otis McGowan, testi-

mony as set forth in the Reporter’s Transcript in the

record of this case. His testimony was as is set out

above, in Petitioner’s Statement of the Case.

There was no testimony or evidence of any kind

submitted by the plaintiff of either the position or

course of either the Little Edward or the Semet

prior to that time, the speed of either vessel, the

weather conditions, whether both vessels were at

the time under way in the same direction, one be-

hind the other, or whether, in fact, the Little Edward

was moving forward atthe time the collision oc-

curred. There was no testimony that the Semet was

in fact overtaking the —_ Edward.

Specifically as to the alles violation ™ the de-

fendant of the Navigation Rules For the Red River

of the North, ete., Rule 22, supra, the plaintiff has

shown no more than that both vessels were traveling

in a general upstream direction prior to the collision,

and that a second or two just prior to impact, defend-

ant lead barge was 25 feet somewhere to the rear of

the Little Edward.

The question of the quantum of proof necessary

to establish the Semet as.an ‘‘overtaking vessel’’ was

set out by Judge L. Hand in Tra 8S. Bushey & Sons

hehe In SA Na ota ae as a ,

7

v. Standard Oil Co., 2nd Cir., 197 F 2d 788, 790, as

follows: *' Lt is‘not enough that a vessel is two points

-abaft another vessel’s beam to make the first an

‘overtaking vessel’; she must be steaming at a

ereater speed so that if she keeps on at her existing

speed, the vessel behind will pass the vessel ahead

----, for those steady courses which the rules pre-

suppose are not determined by the vessel’s headings

or speeds at any given moment. but by the future

movements of each, so far as the other can reason-.

ablv forecast.” |

This sanie matter was taken up again by the First

Cireuit-and Judge Hand's interpretation of the

statute was confirmed in Hulton Company v. Arrow

Builder's Supply Corp., 2nd Cir., 371, F 2d 944, 947,

and: the Court stated: **It (the rule) was intended

to govern the situation in which two vessels are un-

derway in the same direction, one behind the other,

with the one proceeding at a greater rate of speed.

than the gne in front. - - - - The overtaking rule only

applies to vessels on steady courses.”

Petitioner believes that the First Circuit’s inter-

pretation of the elements necessary under the statute

to prove the Semet an ‘tovertaking vessel’ conflicts

with what the Fourth. Circuit, in the instant case,

has implied is necessary to prove the same. Peti-

tioner believes that the First Cireuit realized that

certain facts are necessary to be proven by the plain-

tiff, under the statute, before the onerous burden

of the rule of the Pennsylvania, 19 Wall. (86.U.8.)

125 (1873) is. applied. If it were otherwise, the

burden of proving the violation of the statute would

be left open to surmise, speculation and conjecture.

ee ee ee

- See 53 Am. Jur. § 323, p. 262 and § 358, p. .287;

88 C.J.S., Trial, § 2084, p. 439; Martin K. Eby Con-

‘struction Co. v. Neely, 10th Cir., 344 F 2d 482.

Fourth Circuit’s decision in the instant case, as

a matter of practicality, would require the plaintiff

to prove only that two vessels were traveling in the

same general direction, and that one, for some un-

known reason, struck the rear of the other to stamp

the striking vessel as an “overtaking” vessel, and

in violation of the statute. The fact that the striking

vessel was 25 feet somewhere to the rear of the other

an instant prior to collision, with no explanation at

all by the plaintiff of how its vessel, or the striking

one got into that exact position, would seem to ¢all

for some proof by the plaintiff of how each got into

that collision position and not leave the matter open

to speculation.

The Fourth Circuit’s decision conflicts with other .

Circuits, and this Court, inasmuch as it, as a practi-

cal matter in a suit involving collision, has stated

that plaintiff is not obligated to present testimony

or evidence of facts which would overcome the pre-

sumption that éach vessel is being operated i in a safe

manner. :

As stated by Griffin on Collision, Sec. 24, Burden

of Proof, quoting Swayne, J., in the Clara, 102 U.S.

200 (1880), ‘‘The libelants peought the case into

Court and thus assumed the affirmative. The burden

of proof rested primarily on them. If in this or in

any other respect there was delinquency on the part

of the respondents, it was for the libelant to prove it.

-***Tn a cause of collision, the plaintiff, in order to

9

recover entire damages, must prove both care on his

part and want of it on the part of the defendant.”’

Further, Griffin states: ‘‘If the libelant fails to sus-

tain his burden of proof, the libel will be dismissed,

but ‘where there is a reasonable doubt as to which

party is to blame, the loss must be sustained by the

party on whom it has fallen’. (The Grace Girdler,

7 Wall. 196, 203, [1869] ; Middlesex Co. v. The Albert

Mason, 2 Fed. 821 [1880] ; the Negawnee, 20 Fed. 918

[1884]; the Joseph Stickney, C.C.A. 2, 56 Fed. 156

[1893]). This general. rule -has, been laid down in

‘many cases (the L. P. Dayton, 120 U.S. 337, [1887] ;

the Relief, Ole. 104, Fed. Case 11693 [1845] ; the Mel-

notte, 1 Bond 453, Fed. Case 8812 [1861]; Bergen v.

the Joseph Stickney, 1 Fed. 624 [1880]; the Charles

L. Jeffrey, C.C.A. 1, 55 Fed. 685 [1893])”’.

_ See also Deisel Tanker F. A. Verdon, Ine. v.

Stakeboat No. 2, 2nd Cir., 340 F 2d 465, 467, wherein

it is stated : ‘‘ When the owner of the Verdon brought

its case into Court it assumed the affirmative. With

respect to the factual issue of whether the Stakeboat —

was lighted, the burden of proof rested upon it. The

general principle was stated in Commercial Mol-

lasses Corp. v. New York Tank Barge Corp., 314 U.S.

104,'112, 118, 62 S. Ct. 156, 161, 162, 82 L.Ed. 89

(1941), ‘Wherever the burden rests, he who under-. .

takes to carry it must do more than create a doubt

which the trier of the facts is unable to resolve. ***If -

the determination of the question is left in doubt,

that doubt must be resolved against the shipowner’.’’

See also Pacific Tow Boat Co. v. States Marine Corp.

of Delaware, 9th Cir., 276 F 2d 745, 750; Burns Bros.

v. Long Island R. Co., 2nd Cir., 176 F 2d 406, 408;

Baker, Carver & Morrell Ship Supplies v. Mathiasen,

10°

etc., 2ud Cir., 140 F 2d 522, 525 and The J. J. Hill,

7th Cir., 260 F. 655, 656,

As has been stated on numberous occasions, the

mere fact that there was a collision gives rise to no

presumption of fault. Fault must be proven.

The Fourth Circuit’ p opinion 4 in the instant case

overlooks that important principle as set. out in the

cases cited above and in Gilmore and Black, Law of -

Admiralty, 396 (1957) and thus conflicts with the

law awapplied in these eases.

CONCLUSION

For the foregoing reasons it is respectfully re-

quested that this Court issue its Writ of Certiorari

to review the decision below.“

Respectfully submitted.

NORMAN -K, FENSTERMAKER,

Counsel for Petitioner. -

JENKINS, SCHAUB & FENSTERMAKER

704 Fourth Avenue

Huntington, West Virginiii

Of Counsel

u

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

. (February 17, 1969)

PER CURIAM:

A collision involving’ two motor. vessels, each

* pushing tows, upon the navigable waters of the Ka-

nawha River in West Virginia, after dark on April 4,

1963, is the subject of this action. Both were proceed-

ing upstream, M/V Little Edward ahead of M/V

Semet. Without explanation or excuse, the latter

shoved one of her towed barges into and over the

stern of the Little Edward. At that time, relieved

from deck duties, her master, James Miller, had

turned in for rest or sleep in his = in the after

end of the vessel.

Thrown from his ~— by the concussion, the

master was painfully hurt. He claimed damages of

the Semet-Solvay Division, Allied Chemical Corpora-

tion, the Semet’s owner and operator, for his in-

juries, suing in the diversity jurisdiction of the Dis-

trict Court, and put his case on the negligent naviga-

- tion of the offending Semet. The jury found for the

defendant; the Court approved; the plaintiff ap-

peals; and we reverse.

In particular, the charges of negligence are in-

competency in her crew, her failure to observe “the

rules of the road and applicable statutes” arid “to

keep the Semet. under proper control and avoid col-

lision, in operating same too close to the stern of the

a Little Edward and at too fast wal | dangerous speed

under the circumstances”. |

The happening of the collision in the manner al-

ready described is undisputed. No proof in exonera-

tion or extenuation was attempted. Although the ac-

ction was on the Court’s law side, maritime principles

were determinative. Pope & Talbot, Inc. v. Hawn,

- 346 US 406 (1953). Aside from official rules of navi-

gation and statutory directions, prudent seamanship

is demanded of the mariner. Default in its exercise

is negligence. A collision course reasonably observ-

able, visually or otherwise, must be avoided. Obvious-

ly, that obligation was breached here. The evidence

suggests nothing obscuring the presence of the Little

Edward to the Semet. oe to prevent collision

is not even intimated.

At this location cn the Kanawha, “every vessel

overtaking any other [is required to] keep out of

the way of the overtaken vessel”. Western River

Rules, No. 22, 33 USC 347. An overtaking vessel is

defined as one “coming up with another vessel from

any direction more than 2 points abaft her beam”.

As she was immediately astern of the Little Edward,

the Semet was more than two points behind the beam

of the Little Edward. The burdened vessel, the Semet

was bound to stay clear. This caution finds counter-

parts in the International. Rules, Inland Rules and

the Great Lakes Rules. 33 USC 146th, Rule 24; 33

USC 209, Article 24; and 33 USC 287, Rule 22. Thus

the duty is a familiar one. The Pennsylvania, 86 US

125 (1873) ; The No. 25, 266 Fed. 331 (2 Cir. 1920).

_ The violation of this rule spells negligence. When

the Semet transgressed this commandment without

. a>

13

warrant, and disregarded. the privilege of the Little

Edward to proceed without subordination to the fol-

lowing vessel, the Semet became liable for consequent

injuries. No attribution of fault is laid to the Little

Edward. The record discloses on her part no requisite

lights.missing, or no change of course or speed, ac-

counting for the failure of the Semet to avoid her.

Nothing here unmakes the liability of the Semet.

The judgment of the District Court approving

the jury’s verdict is not supportable. Errors in the

admission of evidence and in instructions to the jury

are urged by the plaintiff for reversal. We need not

consider them, for wé are convinced that he was en-

‘titled to a peremptory direction to the jury to find

the defendant answerable for his injuries. In our re-

mand we shall order a new trial limited to the issue

of damages, as we think the appellant should not be

taxed again with proving liability.

Reversed and remanded.

4

APPENDIX B

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

(February 17, 1969)

outils from the United States District Court for

the Southern District of West Virginia.

_ This cause came on to be heard on the record

from the United States District Court for the South-

ern District of West Virginia, and was — by

counsel. |

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of

the said District Court appealed from, in this ¢ause,

be, and the same is hereby, reversed with costs; that —

this cause be remanded to the United States District

Court for the Southern District of West Virginia, at

Huntington, with instructions for a new trial limited

to the issue of damages, consistent with the opinion

of the Court filed herein.

/ 16

APPENDIX C

ORDER OF THE UNITED STATES COURT ;

OF APPEALS FOR THE FOURTH CIRCUIT

(March 7, 1969)

ORDER DENYING REHEARING

Upon consideration of the petition of appellee,

Semet-Solvay Division, Allied Chemical Corporation,

fora rehearing, the Court finding no ground there-

for, it is <

ORDERED that the rehearing be, and it is, here-

by denied.