Petition for Writ of Certiorari — Robertson v. Sanyo Maru

Supreme Court brief1970

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IN THE .

Supreme Court of the: United States

| OCTOBER TERM, 1970 \

io. ee oes

"os JAMES ROBERTSON, °°

a | og! ~ a “iy : % ee ..° Petitioner,

eet“ ascent estan :

ieee z a

M /§ SANYO. MARU; Her emptbes 3 tackle, apparel and

furniture; — SAWAYAPIA KISEN, K. K. .

. ’ Defendants, :

ye | ee | :

Z “PETITION FOR WRIT OF CERTIORARI ‘To: REVIEW x cepa a ee

pa THE DECISION OF. THE UNITED STATES COURT - at aM

~sY OF APPEALS FOR THE. FIFTH CIRCUIT ‘2° P

SO eS UNGAR, DULITZ ¢ & MARTZELL |

segs ee John R. Martzell , he 33 ; , a:

, 328 Chartres Street-Suite 100 * . Waray

3 ; New Orleans, Louisiana 70130 eet ae

¥ | Attorneys for Petitioner ae

‘ - a4 Z ‘

‘

r, :

9 ,

o—

Judgment of the United States | Court of P ApS

peais for the ir ifth Cir cuit

2 ; *

6: ‘ , . '

: ae

- bal , ;

.SUBJECT INDEX

ar . Page

a : he o : d . \

Citations’ to Opinio:s | Py

Jurisdiction aera A ahha estar Gos Ff

Jurisprudence invoived UE ea ADE ee Aen oe ere 2

Statement oi ihe Case hae te ore 13

_ Reasons for Granting the Writ of Ceriiorati. Tees

Concise. eee Pe eye Pa ice Peery “6

on Pe gd a ele oe deed

PPOOE OL SOrvice «2.8 cess. Fate Cy ka 7 -

APPEL eS ne eee ee &

Oral Findings of Fact amd Conciusiv: iS of

Law ot the United States Dist rict “Court,

_ Easterh Distr ict of Louisiana ee

APPENDIX “B” ...... ah COME eas Brin Beet 18

hae _ Eival Der ee of the Ui ited Siaies: pisirid, aT ig

Court, Kastern District oi. Louisiana ap

= 0 weer ae ?

‘APPENDIX “C” -r..30..5.. Pe brea cer ee

Judgment ot the Uniied States District Court, P

Eastern District ol Louisiana | ine

— ; -. z-

APPENDIX. 2 | Leen Fecace She sige ates js Ks

- Opinion of the Uniied States Court o1 apes

for the Fifth Ciregit ~° -- * e. f-

+ nae” ae rs ite

APPEND WR ogi. Fc ae ae 32

oo tie i

pe ee a oe a

——. +* TABLEOFAUTHORITIES.- (’2 + a

e i ahs : ‘ -“Page

Alexander 1 v, ‘Bethlehem Steel Corp., (2 Cir.) 382 |

= F.2d 963 oo eNO OR Se Reet eda oe va 8

Candiano v. Moore- McCormack ines, ‘Ine, (2 :

Cit.) 382 F.2d 961 2G ONE er rere iene ee Saas

Cleary i v. United States Lines, (2'Cir.) 411 F.2d

1009. Oe ete es totes Nae 5 o.

Duncan v. Piietasiorns Shipping Corporation, ae

(5 Cir. gh he Se Se aR REA CAA Oe “5-4

“Grigsby v. Caastal Marine Service of Texas, Inc.,

, Cir) 412 F.2d 1 ea eens 5

Luck enbach’ Overseas Corporation and Isthmian .

PZ Lines, Inc. v. Usner, (5 Cir.) 413 E.2d 984°... 5

Mascuilli v. United States, 387 U.S0237 ......... Paee

Tim v. American President Lines, Lid, (9 cir) 3

| 409 F.2d 385° Rah Caeeere Men eee ae

“Venable. v. A/S Der Rusosas Dampskelessel- |

,. skab; 4 Cir.) 399 F.2d. 347 fac pee es a we

¢ S

| IN THE Q

SUPREME: COURT OF THE UNITED STATES

. OCTOBER TERM, 1970 —

JAMES ROBERTSON, .

a 3 tinge Petitioner,

versus -

M/S SANYO MARU, ‘Her engines, tackle, apparel, and: . ’

sbochina “eal and: “SAWAYAMA: KISEN; K.K.,

es Defendants.

PETITION FOR WRIT OF eat ‘TO

REVIEW THE DECISION OF THE UNITED STATES -

COUR T OF APPEALS FOR THE FIFTH ‘CIRCUIT ae

James Robertson the ope ition er, pravs that a writ

_ of certior aii issue to revfew the judgment of the United

States Court-of Appeals for the Fifth Circuit, entered °

in, the above entiiled case on April 15,- 1970.

£ :

i crrations To OPINIONS BELOW -

oe ae \ j

y 2

. The oral ‘Findings ‘of Fact and Conclusions of ees

and the ‘final decree adopting: these Findings of Fact

_ and Conclusions of Law of’ the Judge: of the United

” States District Court, Eastern District of Louisiana’

nae “Section C are printed i in Appendix fe a “B” and |

they are unreported. = ‘oe ane So aaa

_ The Opinion of.the Judge of the United States District

‘Cia: ‘Eastern District of Louisiana, Section C.enter-

. ing judgment: against petitioner James Robertson and

in favor of defendant SANYO MARU, het engines,

_ tackle, apparel and furniture and SAWAYAMA KISEN, :

. KK. -is-printed as say iar . afd is sa tala iv at!

EE Gye. __ | Reece i Gas Pe Hiner oi.

—_—

;

“The Opinion of the United States Court of Appeals ,

for the Fifth Circuit: printed: in: Appendix s. is re-

‘ported at 424 F. 2d 5 20. . OA cuits ;

, The Judgment of the U nited States ‘Court of Appeals :

for the Fifth Circuit is printed as Appendix “#&” and

i, “As unreported. ros |

_ No application foy rehearing was-filed.

JURISDICTION, = -

The jurisdiction of this Court is invoked: pursuant

to Title : 28, Section “1254: lv: Uniied States: Code..

. cs.

« .

JURISPRUDENCE INVOLVED

(1) Mascuilli v. United States, 387 U.S. 237.

2) Candiano v, Moore-McCormack Lines, .

Inc, (2 Cir.) 382 F.2.961

(3) “Alexander wv. Be thiehem Pree Corp +m

Cir.) 382 F'2d.963.: ° | - ° a

- (4). Cleary v. Un ited States Lines, (2 Cir.) 411

F.2d 1009 7 :

(5) Venable potA S Forenede Danie :

lesselskab, (4 Cir.) 399 F.2d 347

"s as, Inc, (5 Cir.) 412 F2d 1011

(6) Grigsby eC. Coastal Marine Service of Tea-

yy (7) Luckénbach Overseas Corperation and-

F.2d 984. : Pe

(8) Duncan v. Transeastern Shipping Corpo-. *”.

ane ration, 5 Cir. 1413 F 2d 1023.*. - 1

(9). Tim v- gf se Prestdant Lines,’ Lid. | .

(9 Cir. ) 409 F. 2a 385. “. it eats ; ‘AX

era a tae STATEMENT OF THE,CASE: a

On May 25, 1961. James’ Robertson, Plaintiff- Appel-

lant, was employ ed by ihe Texla Stevedori ing Company

2*r

"0. unloading, opefations of the ‘SANY O MARU, a ves-

‘sel owned and operaied by Res ondent- Appellee Sawat

vama Kisen, K.K. In order io get into the. No. 5 hatch

‘jit was necessary to remove the.. “hat ch beams” with

the tw G si feam winches ai the No. 5 Ry itch. J Fames Role

ertson Was eper ‘ating | the inshore wii ch at thet time.

During the course of this removal of one of the hatch:

beams, the beamatruck james’ Roberisen causing con-

siderable injury to hjs right foot Ped Jog. SU, Was

-® ~ 7tr

brought agvinst the. SANYC k MARU « ad the S Sawavaria

Kisen, K.K. by James’ Robertsen, ee ging the unsea-

“worthiness of the SANYO MAR U hs: reason of th. mals

and. the negligence eof S a Wwayam: iK isen,, K. I. S. NW: wae

ma Kisen. KK. -impleaded tobertson’s ©: molov Cr .“Tex-

la Stevedori ing seeing Indempitv. The matier ae re ied

Isthmian Lines, Inc. v. Usner, (5 Cir.) 413. &

‘as a dongshoremar: ne) ‘operate a winch ine the course |

‘fui nctioning: of the wine n beirg: opera ied ‘by tobertson st

before Honorable’ “Alvin B. Rubin, United ‘St: i1eS Dis-

trict —. for the Eas stern, District. of Louisis waand

ow!

Wy |

~jam-o pinion’

ee ee v eae a eee

‘ eo

redhead: in judgment for the Respondent Sawayama

Kisen, KK. on the: grounds that the cause of the aeci-—

_, dent was the joipt fault of James Robertson and the. .

option winch runner, Charlie Jackson. From that judg-

ntent James Robertson appealed to the United States

Céurt of Seserie which. affir med District Court. James.

‘Robertson v. SANYO MARU (5 Cir.) 424 F.2d 520.

From ‘that decision oi the United States Court of.

Appeals dér the Fifth Circuit, James Roberson ow

‘secks a Writ of. Certiorari to the Uy itc ‘d Stajés. Supreme

~ ‘ j . 4 . ;

‘Cogn. *, .

. : °.

. REASONS FOR GRANTING THE WRIT OF CERTIORARI

the. issue.of wheth-

« ek

er or not Ae joint negligence ef:two tossshoremen

"Tisn Mic ‘ “9499 Rela Sinner

bine bis 3) t Cor wr {t squares Laced

which resulted in the injury of ene A them. resulted

in ufseawerthiness held that ‘under. the decisions -of

the United States Court cf Appeals for the Fifth Ci cuit

operational veg! tfc hee wes not to ‘be.equafed with ny?

| ve worthiness. 293 F. Sunp. 931, That decifion was af-

‘firmed by the United Sistes Court of Appeais for the

Circuit. 424 F.2d 520. The United States Courts: ’

Appeals are divided ‘on ‘whether th: “overa! tional

Pa py ire IPS

nesligente

= “

of a stevedore is defense ta a claim of

umseeeertniness by a lorgshcreman again: sishe Ves sel.

The United States Courts of Appeal ats sivon-di-

reethy -opposite interpre tations of this Court ’s per cur-

: Mascuilli v. United States. 387 is?

237. The seat that ‘maritime workers-in New York

and, Baltimore can achieve recovery for their injuries -

oY ‘ . A - ‘

- ie

° fh

7 and maritime workers in New Orleans ‘ond ieee Fran-

‘CISCO can be. denied recovery for their jijuries on the

‘same set of dasts.

The issue is whether the nesligent act of a stevedore

or an individual. Jon gshoreman renders a vessel unsea-

worthy in light-of the Maséuiili decision or on the basis

“of sound law whatever Muscuilli may -mean, See Wal-

dron v.- Méore- MeCorisache, , 386 U.S: 72%. The Second

Cireuit and the Fourih Circuit say .that it does. Can- :

diano v. Moore-McCormack ‘Lines, Pre. (2 Cir.) 382°

F.2 961; Alevander v. Bethlehem Steel Corporation, '

af of See beer et 2d 963; Cleary v. United States Lines,

“(3 Cir.) 411 F.2d 1009:. Verguble v..A ‘Ss Det Forenede

Dampskilesselskab (4 Cir.) 399 F.2d 347. The itth Cir-

cuit and the Ninth aN say that it does not. Grigsby

v. Coastal Marine’ Service of Tex. Inc. (5 Cir.) “ito -

F.2d 1011; Luckeabach. Qrerseas Corporation -and

Isthmian Lines. Inc. vs Usner (5 Cir. 1959) 413 F.2d

984; Dune aie ve Transe astern Shipping Corporation. (5

Cir. 1269) 413 F.2d 1023: Tim uy. American President

ene (9 Cir.j 409 F.2d 385, yet Le

This sect has @) eed certiorari ona Similar issue

“sin Usner. Luekenbach Gverseas Corp oration and

~ Isthmian fe tre: Supreme Court of the United

States, October Term, No, 675, Petitioner submits that

on a. ptecise finding of fact in the instant case. and

a thorough analvsis of ne law by the District Court.

\iitirmed by the Court f Apneals the precise issue

e presented to this soe. and that the conflict among

‘the Seals regarding the imy act of the Mascuilli case:

Pi . o . S

. ° os

- rye . ‘

Se be resolved by granting certiorari in the instant

“cease.” 4 | aa

CONCLUSION

Thts is the classic judicial confrontation which sup-

ports the certiorari jur isdiction of tltis Court. The mari-

»time law’ controlling four of. the largest ports in the

nation is in direct Conflict. The maritime industry and

those citizens w ho suffer injury while serving that in

dustry deserve a “uniform rule of law. This can onjfy

be achieved by this Court's issuing the wylits requested.

by Petitioner and resolving the conflict. an.

e § ‘

Respectfully submitted,

UNGAR, DULITZ &-

ef if MARTZELL |

a ES ‘ . $28 Chartres Street — Suite 100,

: New Orleans, Louisiana 70130°

is Felephone: ! 523- 6504

John R. Martzell

2 PROOF OF SERVICE.

. I, John R. Martzell, attorney: for ‘the petitioner arid

~ a member of the bar of ihe’ Supreme Court of the

. United States, hereby certify that on this day, I have

served copies af the foregoing application for writs

on: | mee Siete ro ,

Leon Sarpy, aha.

CHAFFE, McCALL. PHILLIPS, BURKE \

TOLER, HOPKINS & SARPY

+1500 National Bank of. Commerce Bldg.

New Orleans, Louisiana 70112

A.0. Christovich: Jr. ‘

CHRISTOVICH & KEARNEY \

American Bank Building

New Orleans, Louisiana 70130

by mailing a copy-thereof, posiage prepaid addressed

~ to — respective offices, this ——. day of July, 1970.

‘John R. oo tzell

APPENDIX A’. 4,

; Pe ie : | 3 be \ *

iy oe THE UNITED STATES DISTRICT COURT.

FOR THE EASTERN DISTRICT OF LOUISIANA | . ,

pias ORLEANS DIVISION.

_ JAMES ROBERTSON.

| AN ADMIRALTY

_ versus. ; . No. 4950

, M/S SANYO MARU, HER ENGINES, TACKLE,

APPAREL AND FURNITURE, AND -

SAWAYAMA KISEN, KK. 7

Filed: Jul. 10, 1968

EXCERP ek OF PROCEEDINGS ~« yap? a

——=

———_?

———

“APPEARANCES: ar. KS ee

. John R.,Martzell . |

e Ungar & Dulitz

328 Chartres Street

New Orleans, Louisiana

Attorney for Plaintiff a a

Leon Sarpy |

Chaffe, McCall, Phillips,

: Burke & Hopkins:

1500 National Bank of .

Commerce Building

~ New Orleans, Louisiana

Attorney for Defendant

. A | wae I

ame, en npahy. ; ; ¢

rf + “a ; aes a Wz, * ad J ¢ 5 a® »

: a ie Pas Py oe \ ; ‘

ant we ash SRE ee | en rhe, ‘

- ‘ fe 4.8 a

£ "eRe OO Sy ie

i sae a ta ,

- a . ar 2. ’ “te et : ‘

* auth Nalty:.. Hae Ge ea ate pes

oe ~Chatie, McCall, Phillips,” A eee et

Do at . Burke & Hopkins Ae a - a tee 88

1500 National Bank of ° :

; | Comme erce Building | .", |

New Orleais, Louisiana Pisa ay!

Attorney for Defendant. aes ;

A R. Chesstdvich, Jr. aaa" -_

1815 American B: ank Building

° ‘New Orleans, Louisiana

@ Attorney for third-party -

respondents: Téxia

sncaees. g Co. and

beet ae ucrigen tute! Liab. ins.

—_—_—

(The above entitled ard numbered ec: ause caine up,

_for hearhig, on July 5, 1968, in the courtroom at 400

Réga Street, ‘New Orleans. Louisiana. the HONORA-

BLE ALVIN PB . RUBI Ne District beac presiding. }.

pie PROC EEDINGS °

. ; ;

"AFTERNOON SESSION

THE COU nts :

Gentlemen. J am sai ng: to asl - the Re} sarter to take

this down. Ye will type it ae VOU a}

Ia f sort the-regu-

lar-tra crip ay d it eth be available for the prevailing |

ae t0 prep: 1Be findings of fact and to. be used as « *

a basis forthem.: . ; a ance

oe oe a eres

7 ff

“A Lav mé say by .way of preface, I think we ought: °

Ne. to dg in this case w hat I think we have done previously,

rll give the losing ‘party or parties fifteen. days within’

which’ to announce whether they haye any desire to

“appeal. “This is.not to alter sour Statutory appeal lim-

its, but if-you ‘indicate you 1_ have’ a desire to appeal,

then I will ask k the-prevailing party to prepare. detis tiled

findings 0T fact and conclusions of law, ‘In the: alssence,

—— howev er, of any desire ef anyone to appeal; I don’t

= see any point in putting the prevailing party to work~.

- - and ihe Court to the work*of rey ‘lewing those findings’

wee |e fact and coaciusions eo: law, and these oral findings

‘the record.’ o- oe

I perhaps should begin ‘bY, Saying, of course, neither

. apa DS

I nor perhaps anyone elge who’ has testified has any

“Way to, really\know what h: uppened on this afternoon

seven vears ago when this 2ccident, took piace, and

I don’t believe the witnesses actually know “what hap-

“pened then, which is jot to-sia that they have not .

at least in some instances, perhaps in all. hate testi--

fied to the best of their knowledge and xbitity. ‘It’s

nemories are infallible and our interests and desires

and time end cumstances | plays tricks with our

recogn

. memories. So cc that nec essarily in ceriding

~ a factual isstic. by the test rmonvyv'of fallible witnesses,

;

£ L,

sary follibility

“en seven vears later. when combjned with the neces-

of the adiudicatory age means that

oe eo ° a c

Ww hat we get idX not necessayily an ccrurate result. just

thethest one we Cc to.

of fact: will Be-transcribed and will become part of *

simply a matter that after seven vears none’ of our

.1n question, I base that’ on a number of factors:

”

Proceeding oW-that assumption, I tind that the goes

“thet has failed «to sustain. by a preponderance of the

“evidence the ‘burden on the: plaintitt of showing that

"there was ‘anything wrong. with the W inch on the day

“— * » . - .

; - a

- @ <

in part, I am infiuenced “by the ‘testimony of \ oe

Jackson and-by the fact chat. the witfch’ in question

\ Was used uneventiully ior the’ rem: aindek; of! the day.

Now, it’s quite true that. Many, Jackson said ‘he _exper-.

ienc®d some problems with tlrat winch, but. Knowing

human, nature, know) ing the nature’ of these accidents,

‘knowing the nature of what ¢ goes on on the. Water front,

I can't believe he used. that Ww inch the oe ithe hy

uiter a nan had been bu diy hurt, and experienced

" ,prebiems with it wnd didrrt say. ‘anything about them.

t am quite convinced irom ne ‘own observ ations of

Mr. Jackson on the witness stand, if he were in a

-position where someone eise had been becly hurt by *

& failure .omthe part ef this winch and -if he. thor ight

that wh Ac!

1 was tailing again, he would have e made

his Y: obléms known imme diately and joud!y ‘ So,-this

e a

is Gue of the fuciers thet i fluer ces my judgment.

+ -

A second facior, und quite persuasive to me. is the

testimony of Mer. Léecourt. I bélieve’ that this boom

was probably stationed in the® usual pi sition, and “J

have examined the sketch. offered as’ Co ok No. 1.

7s. . /

believe this ; iems i720 shew merel thie angle, as Mr.

} ~4

Ceok testified the Ict

outside the square are te th. and it is auite Wear,

. bag

7 - Fas F 47 <

thick, from the testimony that the boom was some-

where within the square of the hatch whatev ‘er might

. :

, ee a ae

° .

* shown on; here is‘clearly

oo:

ir.

have been its relationship to the pence line and, there-

- fore, I place little significance on the location shown.

: "here. It would have ‘been a.manifest inefficiency and

manifest, I think, to the, operators themselves, to put

-_this 4yoom anyw here but somewhere close to th® center

line of ihe hatch, because this would have depriv ed-

this boonr being to lift, it couldn't have lifted efficiently

if it-had been. over toward the port side of the vessel.

And. if we assume then, as Mr. Lecourt did, that the

boom was clése.to. but: on the port side. of the center’

line. then even’a failure on the part of the Steam would |

t have caused the accident.to happen in the manner.

S ie a ™

1 ohne did. a wa Pm

Finall¥, vhe third’ factual circumstance is ++ that,

I find high] creditable -—— the a: imi’ ed lv. hypoth otical

paws ©

pont

operaicrs, But who had not worked <ogether, that fhorn-

ing. and who just didn't get iheir efforts in conjunction,

end if we assume that Mr: Robe: ‘tson began to lift

Pe Mr. Jaeks@n.did find. cons eguen fly got t he boom

high-in-the:: air belatedly, Mr. Jackson put the: power

to ae winch ard suddenly his end swung.off and then

a: a : : ible: nil ie ;

Mr. Robertson, doing-what was cusfomeryv, began to

ek off immedintely, we avoy'd- get the swinging mo-

ion het would be neeessaryv to bring. the, beam for-

\ “3: h ~

ward, \strikins Mr. Robertson, as eres: cen doubt

that ‘it, Wid. Sot for aN these reasons‘ fd that the

plaintiff has not shown bv a preponderance of the evi-

dence ‘that there: was a.defect in the winch. - , :

. a . Md

hem of its’ principle operative effect; thé fun :ctiom of .

construction of,how the aecid ent might have happened .

° nd : “wr rt ‘ } : Se

Mr. Lecourt. We nad. wo-experienccd. \ ich

‘

a ee =e -

By way of-a side here, and because it may ultimately

>be nec essary to deal: with this in the findings ot: fact,

I place iitile ‘credence either on the statements’ giv en

by Mr.. Melton that there was nothing wrong’ with the

steam or on his statements made from the: witness -

stand that there was something wrong with the.steam.

<i do not place much credence in Mr. -Melion’s tesii-

mopy. F indicated to colnsel in a ‘conference ind

chambers that I don't think this was becaus @ Of any

‘deliberate efforts on the part of Mr. Melton. ‘to. tell

something other than the truth. I think from my judg-

ment of him and my appraisal df.his te\iimony, he

is, a person ‘who has some d lifficulty in. CiSting uishing »

Ww hut happen&® seven years ago from his mental re-

creation of. ‘the events, and that*he isetestify ing about

something, with ‘respect both to- the accident and the

statement, that exists in his mind (ruihfully according -

to what he sees: in his mind, but perh: aps‘ untrut hfully

or inaccurately, more properly, With respect to’ whe at’

heppered. So, I don’t! as I say, place much credence

_.or much reliability on the statement that Mr, Adams

“typed down that Mr. Melton: saw nothing Wrong with

- the: steam or sig was nothing w rong with the winch,

because I] don’t think Mr. Melton woild have knrosin

thet there was nothing Wrong, and I je r tle cre- £

| ‘dence in his. tes stimony now ted every! hing failod all e

Gas ' - ef a sudden. Ae. - Be ; - |

What causes me some doubt about the ase, gentle-,”

men:;, and the point at which I want to ask’ cofinsel

to Submit further memora anda, really relatas to’ wheth-

"er or not the Maseuilli case has any applicability here,

Although I have not re-read that case: in the light of

this case, as'I recall the facts. there, What was happen-

"ing in the Mase uilli case Ww us a lifting operation with

some special gear that was adoptetl to lifting heavy

tanks, a combination of fen winches, as I recall, an

: elabarate type of composite sling, and: the tank being

lifted dropped and, as. I recall the District Court iN

finding fact in that case, found there was no failure:

- on the port of the-sling or the winches. And somehow

or another, the Supreme | Court in an opinion that | et

must confess I do not now understand, said’ that. the

decision should have been for the injured longshore?

man, finding an unsea worthy condition. ‘on the part of

the vessel: ag : era i

| rs ; : r

is \ Now, I have ‘read sia I'm ‘acquainted WwW ith the os

toine decision, and “Thave » yead and I am acquainted

-with the. Candjan O° decision. J don't know: of any ather.

recent, deci isions in-this area, by ‘the Fifth Circuit sub-

. sequent to. Antoine, but if there are. I would ‘appreciate

counsel’calling them to. my attention in the post- -trial |

memorandum.

’

i ay

The area I have some doubt on is this:

. - ‘

” . i ¢

If we as ‘sume. that the accident was caused by the

’

-joint neg sligence of} Mr.. Robertson and Mr. Jackson

‘in failing to EY, and properly correlate their ef- ;

forts s in.the operation of these two, ship's winches, which

were: part of the ‘ships gear and which were being

used to unload ship’s cargo in a normal shipping func--

tion, if we “assume that this is whit happened, then

is there unseaworthiness under the doctrine of the Mas-

e &

cuilli case? os has *F “

-. such a way as ‘to bring this beam properly cut of the

-hatch and starbgawl to the point on the yessel w here |

‘vessel. ates, Wee ;

15_

¢.

Now, i tiadsas a fact here. ota the accident was’

caused in this manner. I assume ? th: it is, it was caused

son and by theif’ failure. to. correlate their efforts in

it was: to be deposited; antl. finding: this “as ‘a fact,

I'll’ give counsel, time to submit memoranda with re- |,

spect tg whether under theset facis*a case is madeé

out under. Mascui li and Candiano or indeed Ww het her

Candiano is ap cable to this Cir cuit.

With respect to the issue of indemnity, I think: there

is no doubt that in either event indemnity is ae: t the

> 5

" t

If ‘théve 3 is no ) judgment ‘oe the iatintitt here, then

I think clearly indemnity is due, because the suit ar ises

out of | ‘a. claim of unseaworthinéss by émploy ees, en-

gaged: by the stevedore, and the warranty of workman.

by the joint negligence of Mr. ‘Rober tson and: My. Jgick-_

like perfor ‘mince undey Ryan, as elaborated, in .the -

Subsequent cases, T think, clearly imposes lidbitity ’ on

the steve dore to indemntfy the vessel against the ex-

pense of defending a claims.

A s

kg 2

‘If there shoula be liability under the Masc uilli case,

than under the findings of fact have made. it*seems

acts of the employees of the stevedore, and again in-

demnity isowed. | - ° ae

I stippose- I ought to. say. a “ wond or oo bout: the ;

suggestion made in the ‘testimony that ‘Something the |

7 ‘ - o

‘to me that clearly this, arises out of the operatiofint—

Japanese sailors or seamen did around the winch pre- 3

sumably might have caused something to happen or

that they might have done Something, too, after the

accident to remedy whatever it’ was. that happened.

This is to me pure conjecture. If I accept as gospel

the fact testified to that Japanese seamen came to .

the winch after the accident, there was some tools ©

around but. no one saw what they did, I cannot assume

from that what I suppose the testimony was offered’

to suggest: That is, that these seamen realized some-

thing was wrong with the winch and, therefore, cor-

rectedgit, This -.would be a flight into sheer fantasy.

Nor can I accept as any more than fanciful, either

the suggestion that ‘by the attendance of the seamen

earlier on the winch to oil it or to do whatever it was

that they did, that they might have done something

to it that disturbed its operation. I don’t. say that this

: cold not have happened, but certainly it’s wifhin the

realm. of possibility, but I simply say which would

be fifty-fifty if we had to do it in terms of percentages,

MR.MARTZELL: © ~ | ae oe

Your Honor, in that same connsetian and. given the

jurisprudence with which the attornevs are going to

have to deal, it might help ‘if the Court could tell us

Whether or not it is. going to — which of. Mr. ‘Cook’s

evaluations in time from the moment of first lifting

the beam out-of ‘the slot until the accident, I think

the Court in citing the casé’to. us known what problem .

Ave are confronted with.

I find that the whole sequence of events was quite

17 *

brief in time, that there, was some lapse of time from’

start to finish, but I don’t think as much as five minutes, -

I do not believe that there were two separate and

distinct operations, as. Mr. Robertson now seems to

recall. I don’ believe they got the beam lifted part

Way, it began to swing, they steadied it and started

up again; I think’there was one continuous series of

events. beginning with the time that- Mr. Robertson

applied power and Mr. Jackson didn’t, _followed by

Mr. Jackson’s application ‘of power and - Mr. Robgrtson —

- Slacking off, and that this is what caused the accident;

and I must, therefore, c nclude ‘that although these

events follow closely on each other, they were sep

arate, and I would say they foYowed within perhaps

a minute or’a minute and a Half of. eqch other, as.

Mr. Cook testified, certainly that there was not a five-

~ minute interval between the’ time they started to lift

this beam and the time the unfortunate accident hap-.

pened, because, as we all know, in times like this events

move very quickly and what seems to be an eternity

to the observer is- very shprt on the clock. TI think

his estimate of -a minute of a minute end a half is

a pretty good one, .and in the ‘absence of something

better, I.would adopt that, —:

_Is there anything further that vou: gentlemen would

‘like to suggest?: . : ;

MR. SARPY: _

Pe ce

MR. CHRISTOVICH: .

No/ your Honor.

THE COURT:

Thank vou very much, gentlemen, I hope you have

-a pleasent holiday for the rest.of what remains of

a long week end. . .

‘APPENDIX B

I e

_, UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

e JAMES ROBERTSON. |

oe Plaintiff,

' (IN ADMRALTY)

' © No. 4950

SECTION- “C”

versus

SANYO MARU, her engines, tackle, apparel | and

furniture, and SAW: AYAMA KISEN, K.K..,

Defendants,

versus ..

‘ TEXLA STEVEDORING COMPANY.

_ Third-Party Defendants.

FINAL DECREE

ere Filed: Apr. 17, 1969

‘On motion of SAWAYAMA KISEN, K.K.; claimants

‘of the S‘S SANYO MARU. and upon suggestion to the

Court that Findings of F acts, Conclusions of Law, and

“Jud; gmeiit thereen have prev iously been entered in this

TiaAse,

And on further sugges stion that they- do gene that

a tinal decree be entered ee

ris ORDER! ™D, ADJUDGED AND DECREED that °

a final decree be and is nereby entered dn this case

on this 19ih day of April, 1969.

* 4

New Orleans, re

(Signed) ALVIN B. RUBIN

UNITED STATES

DISTRICT JUDGE

Respectfully submitted: | : ;

CHAFFE, McCALL, PHILLIPS, | >

BURKE, TOLER & SARPY. © |

(Signed) PAUL A. NALTY

:Paul A. Nalty

1500 Nat'l Bk. of Commerce Bldg.

New Orleans, La.’70112 (529-3121)

Attorney? for Sawayama Kisen, K.K.

CERTIFICATE

I Gs certify that a copy of the above and. fore-

going pleading has been this dav forwarded to all coun-

sel of record by depositing a copy .thereof, postage

20°

siaat in the United States eal on this 16 = of

Apr il 1969. .

- CHAFFE, McCALL,

PHILLIPS, PUNE, TOLER

/ BEART

(Signed) PAUL A. NALTY-

APPENDIX.C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION |

JAMES ROBERTSON,

~ , Plaintiff*,

) ~ ADMIRALTY

* versus | No. 4950

| | SECTION “C”.

“SANYO MARU, her. engines, tackle, apparel and

- furniture, and SAWAYAMA NKISEN, K. K.,

. Defendants,

versus

ities STEVEDORING COMPANY.

“Third- Party Betendants. |

*Although this is €Pre-1966 Admiralty case and the parties.should

be referred td as libelant, respondents, and third party re-

spondents, in this opinion they are referred to as plaintiff, de-

fendants and third party CerennaTs in accordance with current

practice. *

John R. Martzell, Esq.

Attotney for Plaintiff -

_Leon. Sarpy, Esq. ees . .

Attorney for Defendants — oon .

; ‘Paul A. Nalty, Esq. 7 |

: ~ Altorney for Defendants

A. R. Christovich, Jr., Esq.

. Attorney for Third-Party Defendants

RUBIN. District Judge:

Theologians: once debated how many angels might.

‘stand on the head of a pin. Metaphvysicians trained

in such a tradition may find it possible to rationalize

the decisions, dealing with the extent to whith a ship-

owner is liable for injuriés to “longshoremen: caused

‘by tirseaw' rihiness brought about bv the acts of fellow

longshor emer.’ The analvst must.consider the decision

in-Sierachi? hat a longshot ‘eman engaged in ship's

work h: aS a-cause af action against the shipowner for

‘unseaworthiness, as well as the: decision in Crunzdd y

v. The Joachim Hendtils Fisser? that the unseaworthi- |

nesS-on which such a ‘suit i& predicated can result

from the’ negligence of other longshoremen.

1See Venable v. A/S Det Forencede Dampskibsselskab, 4 Cir. 1968,

399 F.2d 347: the cases cited at_1967-68, 14 Loyola L: Rev. 176—

n. 16; La Capria v. Compagnie Maritime Belge. S.D.N.Y. 1968,

286 F.Supp. 980: and Cleary v. United States Lines Company,

S.D.N:Y. 1967, 287 F.Supp. 601.

2Seas Shipping Co. v. Sieracki, ‘328 U.S. 85, 66 S.Ct 872, 90 L:Ed.

1099 (1946). ;

‘ 3358 U. S. 423, 79 a Ct. 445, 3 L.Ed.2d it (1959).

22 -

4 = . >

The shipowner’s liability, in any event, is passed

on to the stevedore tinder the Ryan doctrine by virtue

of the stevedore’s warranty to perform the contract .

in & workmaylike manner.4 But the stevedore is in- |

-sulated from damage suits instituted by its longshore-

men- —— ees by the provisions of thé Longshore-.

men’s ang Harbor Workers’. Compensation Act

(“LHW”). The Act provides that the longshodreman’s

sole ce against his employer, the stevedore, is -

a claim for compensation benefits.5

\ Sig. . a,

Thus, under the Sieracki-Ryan-Crumady triad, the’

sievedore becomes liable to the shipowner when ,one

of its employees is injured as. the result of unseaworthi-

ness brought about by the negligence of its other em-

ploy ees. The liabifitv-is indirect, but it is nonetheless

real-4Fhe stevedore’s statuiory - immunity from, tort

claims by its, own employ ees endures today only when

a longshoreman is injured by the negligence of a fellow .

longshereman that does not result in unseawo thiness;

“in that event sole relief to, the injured longshoreman

is against his employer under the LHWA. mas

Meanwhile. the current of decisions expanding the

decirine of unseajvorthiness has carried us to the point |

where we know that it mav be occa’sioned by’an act,

of negligence.® that it may be transitory in nature,’

4Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S.

124, 76 S.Ct..232, 100 L.Ed. 133 (1956).

544 Stat. 1424, 1927, 33 U.S.C. §$s 901- 50. See particularly,: 33 US. C.

$905.

6Crumady - v. The Joachim Hendrik Waa: note 3 supra. F

7Mitchell v. Trawler Racer, Inc., 362. U.S. 539, 80 S.Ct. 926, 4 .

L.Ed.2d 941 (1960).

: i x 23 H me

‘and that it encompasses the failure to provide a rea-

sonably safe place to. work even when the hazardous

condition was created instantaneously.® The necessity -

for mapping a line between negligence that does not

result in unseaworthiness and negligence that does re-

sult in unseaworthiness and for articulating the factors

to@be considered has launctiéd an armada of cases,

not all of them completely consistent. Their chartings

have been analyzed, dissected, and postmortemmed.? -

The delicacy of the line raises the question whether

there can ever be negligence. that does -not. result in

unseaworthiness. : : ; _ *

In Mascuilli v. United States,'° the United States

Supreme Court granted a writ of certiorari. in-a cgse

that. appear ed-to involve this issue, -but its. per curiam

was so succinct that it has enabled lawyers to reac

into it wHat they will. Some interpret Mascuilli merely :

as finding unscaworthiness under the facts presented.

Otners view it as meaning that “ope ‘ational negligence

renders the vessel [per se] instantaneous!y unsea-

worthy."

In the present case. I have found as a fact that

-there- wasero defect in the . vessel or its equipment.

The plaintiff's injury wes caused by the joint negli-

eMascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed. 2d

743 (1967).

2See. e.g., Note, 1967-68, 14 Loyola L. Rev. 176 po Note, 42 Tul.

L. Rev. 648 (1968).

‘t0See note:8, supra.

1The qudte is from a comprehensive scidiunt note, 14 Loyola L.

_ Rev. 174 (1968), in which the author concludes, “.; » ng such

significant and far-reaching — in the law was intended

in Mascuilli. ” Id. at 187.

“J

+. one; it was negligently executed. s

. . : an nee ee 24 ears

gence of the plaintiff and another ‘winch operator in

failing properly to.correlate the operation of the two

winches. The.plan or method of operation was a safe |

. bs e

In an effort to determine whether this case presented

_ the issue of unseaworthiness, the court asked counsel

to brief the question:

Assuming that the gause cof the injury to Rob-

emtson’ was the joint negligence of, Robertson

“and, Jackson, the winch runners, in oper rating »

the winches, does the negligence create. unsea-

worthiness for w hich the shipowner is respon-

sible in damages to Robertson? aoe

Counsel for all, parties submitted excellent briefs. .

While there is still ae in my.mind about what course:

. aS . bee

1s. indicated. I have coneuded that, unless negligence

‘ig to be equated. with ur tseaworthiness, there wns no

unseaworthiness here, ard. hence recovery must be.

pain ‘ ° Beis .

‘ >

ps ‘ ; , oy .

Mitchell v. .Traicler Racer. Ine.'3 tells us ‘yak n

gence and unseaworthiness are to. be ‘ditierentioted.

i ? > . .

The duty to-p1 Provide a Seawerthy vessel ‘is.not a duty

- @

to ingure the safety ol the seaman. It is a duty “only

: ef Si Fe i YX k :

12Cf. Cleary v. United States Ljnes Company, S‘D.N.Y.: 1967, 287

F.Supp.,601; La Capria v. Compagnie Maritime Belge, S.D.N.Y..

1968, 286 F.Supp. 980; Taylor v. S.S. Helen Lykes, E.D. La.

1967, 268 F.Supp. 932, 935 n. 8; Lee v. M/S ‘Insco Jem, N.D._

Fla. 1966, 259 F.Supp. 670. \

13362 US. 539, 80-S.Ct. 926, 4 L.Ed.2d 941 (1960). nae, ‘

‘ o ~

to foradok: a ‘vessel and kiusleabenes reasonably fit |

for their intended use. The standard is not perfection,

“but reasonable fitness; not a ship that will weather .

every conceivable storm. or, withstand every imagin-.

able peril of the sea, but a vessel reasonably ‘suitable

for her intended service. Boydoin v. Lykes Bros. S.S.

n., 348 U.S, 336, 75 S.Ct. 382, 99 L.Ed. 354.4 |

‘The negligent misuse of" ‘gate. and sufficient “equip

ment may render a vessel unséaworthy. Waldron \x.

_ Moore- McCormack Lines, Inc., 1967, 386 US. 724; 727,

. 87 S.Ct. 1410, 18 L.Ed.2d 482: Crumady v. The Joachim |

Hendrik Fisser; 1959, 358 US. 423, 79 S.Ct. 445, 3 L.Ed.2d ;

433; Venable, v. A/S Det Forenede Dampskibsselskab, i

wo & Cir. 1968, 399 F.2d 347; Alexander v. Bethlehem § Steel —

Corp. 2 Cir. 1967, 382 F.2d 963; Candiano v. Moore-Mc-

Conn ck Lines, ue 2 Cir. 1967, 382 F.2d 961: Grillea

. United States, 2 Cir. 1956. 232 F.2d 919. But as the

per curiam in the petition for rehearing in ‘Venable

_ points out, not “every instance of operational negli-

gence necessarily creates liability under the unsea- -

worthiness doctrine.”'§ If “the manner in’ which the

longshoremgn performed their duties resulted in an,

unseaworthy condition,’'® then the vessel ownér (and

his indemnitor the. stevedoxg). ‘are liable. ‘While “...

everv act of negligence. no matter how short lived,

creites an unsafe concstion for those exposed to n, 7 ‘

141d. at 550, 80 S.Ct. 933, 4 L.Ed.2d at 948-49. i

15399 F.2d at 355. in

16399 F.2d at 356.

‘ 17Cleary v. United ‘States Lines ‘Comeansy: S.D.N.Y. 1967, 287

F.Supp. 601, 604 (quoting from Reid v. Quebec Paper Sales

& Transp. Co., 2 Cir. 1965, 340 F.2d 34, 37).

)

it does not necessarily drewte-an unseaworthy vessel.'8

The lesson of The Trawler ‘Racer ‘is that negligence

cannot be equated With unseaworthiness. Just as there

may be unseaworthiness in the absence of negligence,

there may be hegligence that does not result in unsea-

worthines is.*°

" * p*,

“The eventual solution to the problem created by the.

exposure af lorgshoremen to the various risks atténd-’

‘ant adipon stevedoring a vessel is legislative. Until, how-

ever, Congress acts to revise the statutory structure,

admiralty courts must thread their way through the

fog without clear charts. ’

c . i » ¥ .

. The ancient adoption of seamen as the wards of ad-

miralty and the current extension of the scope of the —

warranty. of-seaworthiness, both to afford broader pro-

tection io blue water sailors and to extend protection

to longshoremen who perform sailor's duties, combine

“to afford much broader relief to the injured longshore-

men. The longshoreman is eng gaged in an. occupation

as hazardous as any in modern indus siry; his work-life

“expectancy on the w harves has: been snid to.be as

short as seven years. .

“= ‘

The. distr ess flag of the vessel owner is more ap-

‘parent .than ‘real. The true burden of affording relief

‘elf it did, the vessel owner would be sneeeliuis to warrant a vessel

free of negligence, making‘ it the virtual insurer of the safety

of longshoremen. Compare Mitchell Vv. Trawler Racer, Inc., note’

7 supra, “the owner is [not] obligated to furnish an accident-

- free’ ship.” 362 U.S. at 550, 80 S.Ct. at.933, 4 L.Ed.2d at 948.

19Compare, dissenting _—— in | Wena, note 1 supra, 399 F.2d

at 354-55. - ‘ . a

to. the, injured. longshoreman falls on “the: ‘stev edore un-

der his warranty, usually gxpress bu today certainly |

implied. But there should De-a ‘More sensible way’ to’

handle the HIKE HFS éf ihe kisk than the roundehout |

and ‘uneconomic: voyage that one now be si ‘led, The

injured longshoreman. should nidt be permitted Cor r@-

quired) to fling his net twice, ont at his employer

directiy, another time in an effort to find unseawtr fii

ness, vessel owner liability, and: -ultimate paymeyt in

damages to add +o the limited s Statute y Compe: seition:

To the longshoreman injurga on tte job the diffe rence

between a hazard creaigd Ky unse: uvorthiness and one

created by negligencesis hardly more intelligible than

a chanty, chor ‘used in Sanskrit. He knows only that

he has been hurt, at least in part by the act of someone ;

else. If his injury ‘ame from something lawvers coll’

unseaworthiness. he gets more money to supplement

his- compensation... lf his injury comes f¢om something

these oracles call negligence, he is ‘restricted to com-

pensation. Put at this moment a sensible course van..

be set only legislativ ely.

‘

———

For the reasons rendered, judgment willNox » signed

in favor of the defendant and against the plaintiff,

There can be no doubt. however, that the vessel owner

“is, due indemnity for ih expenses of this litigation. |

Therefore judgment on the third party contplaint will

be rendered in favor ofthe defendant (the vessel gwn-

er) and against the third par tv defendant (the steve-

dore). This opinion, together with the findings of. fact

made at the conclusion of the ‘évidenc ‘e WHI serve. ai

lieu of findings of facet and carielusions of law.: Av foi ny

of judgment =. be prepared. by cow nsel for defend-

ants and submitted to opposing counsel. If counsel are

unable to agree,on the form otf judgment or the amount —

of indemnity due, they will notify. the court.

(Signed) ALVIN B. RUBIN

UNITED STATES |

DISTRICT JUDGE

é New Orleans, Louisiana

‘.April Ist, 1969 ..

lah tiacnins D

IN THE

UNITED STATES. COURT OF APPEALS

FOR THE bated CIRCUIT |

No. 28054... - :

‘ -- JAMES ROBERTSON,

) ‘-Plaintiff- Appellant,

versus: : oo

SANYO. MARU, her minke tackle, apparel and

furniture, and SAWAYAMA _KISEN, K.K.,

Defendants- Appellees

versus | ea

TEXLA STEVEDORING COMPANY,

ae Party Defendants.:

Appeal from the United States District Court for the

Eastern District of Louisiana _

—

(April 15, 1970) -

Before JONES, BELL and GODBOLD,

_ Circuit Judges. | |

GODBOLD, Circuit Judge: The appellant, a long-

shoreman, appeals from a second adverse judgment

on his claim for personal injuries.

Foliowing an earlier Sudement dismissing, plaintiff's °

claim against the vessel owner and the vessel owner's

claim against the impleaded stevedore, the, plaintiff

ietentad and. this court reversed on grounds not ma-,

terial.! On remand the. District, Court entered findings

and conclusions in favor of the vessel owner cand -a-

gainst the plaintiff and a judgment pursuant thereto.

_It,found also that the stevedore was obligated to indem-

nify: the vessel owner.‘for. expenses of litigation, but

the record contains no judgment based thereon.

a \ -

‘The appellant urges that there is plain error in the

findings of fact of the District’ Court that there was .

no defect. in the vessel or its equipment. Revi iew Of.

all ane evidence discloses no plain error.

The injury to appellant occurred when he and an-

" sRobertson v. Sanyo Maru, 374 F.2d 463 (5th Cir. 1967).

.° 30

’ other longshoreman were each operating a steam

winch at ‘a hatch of the vessel. In a joint operation,

utilizing the two winches, they were. lifting a hatch

beam, and as, they commenced to raise the beam it

‘swung and struck appellant. The trial judge found that

the joint lifting maneuver was negligently executed

by appellant and Jackson, the other winch operator.

“This gives rise to the second issue, w hether the joint

“O} erat tonal negligence” of the two winch operators

at the very moment of injury created instantaneous*

unseaworthiness by which the shipowner became liable

to appellant under the Ryan doctrine. Grigsby v. Coast-

“at Marine Service: of Texas, Inc., 412 F.2d 1011 (5th

Cir), pet. for cert. dism, . US. , 24 L.Ed.

2d 531 11970), decided subsequent to the trial below

is adverse to appellant on this jemi,

The court found thai the two winch operators failed

to coordinate their efforts but that they were experi-

enced winch operators. In ‘his formal findings the Dis-

trict Judge did not find that’ the two operators had

never worked together before, but in his oral findings iy

_ announced at the conclusion of the trial he did so state.

Assuming. that we may: consider this a finding for pur-

poses of rev iew, we do not consider it to impose lia-

bility for an unseaworthy crew under Waldron 1.

Motie-McCormack Lines, .386 U.S. 724, 18 L.Ed. - 2d

482 (1967). If appellant’s position were sound, crews

‘composed 6f constantly changing but experienced and

-eompetent seamen, performing. the diverse routine

“tasks aboard ship that require coordinated effort,

_would ereate a continuing liability for unseaworthiness

until they had practiced ‘together at their joint, tasks

(presumably having to. practice ashore and in perform-

ance of simulated duties. to avoid unseaworthiness

while doing so).

The stev eaare iells us that. it paid the expenses of

the first district court trial, and it asserts that its re-

sponsibility for indemnity. ended with the entry of the

first decree, not appealed from by the vessel. It urges»

that it did not appear in the first appeal, and on remand |

it w as not made a party by any subsequent pleadings,

SO that it can have no liability for additional costs

of defense, in fact. is not even a party.

‘There is nothing for us to review on this issue be-

cause no judgnrent has been -enter ed thereon. The Dis-

trict Court is the piace tor the stev edore to raise the

points which he makes.

The ithe iment im favor oi the vessel is AFFIRMED.

The case is REMANDED to the District Court on the

issuetof indemnity.

Costs are taxed cne- el! te the pisiaif’

the vessel.

APPENDIX E

UNITED STATES COURT OF APPEALS

-FOR THE FIFTH CIRCUIT

October Term, 1969"

nil

° : No. 28054

D. C. Docket No. Adm. 4950 “C”

JAMES ROBERTSON, .

; _Plaintiff-Appellant, |

versus —

~ SANTO MARU, her engine, tackle, apparel and

eu teens ans SAWAYAMA:-KISEN, K. K..

; . Defendants- “Appellees,

‘versus > eae

TEXLA STEVEDORING COMPANY, ~

eee Sore. aise aces

‘ Appeal tak the United Sta tes District Court tor the

Eastern District of Louisiana.

Filed: May 11, 1970

Before JONES, BELL and GODBOLD.

Circuit Judges.

JUDGMENT.

This cause came on to “ heard’ on the tr nscript

of the record from the United States District Court

for the Eastern District of Louisiana, and was argued

by. counsel; + “

ON CONSIDERATION WHEREOF, It is now -here

ordered and adjudged by this Court that the judgment

in favor of the vessel of the said District Court in

this cause be, and the same is hereby, affirmed; and

that this cause be, and the same is hereby remanded

to the said District Court on the issue of indemhity

in accordance with the opinion of this Court. |

-It is further ordered that plaintiff-appellant be con-—

demned to pay one-half of the costs in this Court, and

‘said costs. ¥

April 15,1970 |

- Issued As Mandate: MAY 8, 1970 |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.