# Petition for Writ of Certiorari — Robertson v. Sanyo Maru > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0177%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 854 ## Text ‘wae. 5 Pane. © 7 . Aer ere | 1370 ° | ——— - a ad J | wt AUF ee K gts | Paes 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 : f $m a 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 >, 4 | 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. —_— . 5 ; “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 .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 - @ oo: - p) * 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 J paws © - 2 ~ © pont operaicrs, But who had not worked 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. 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 o 5 ‘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— 16 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. *% “THE COURT: | | | | | I find that the whole sequence of events was quite a 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 18 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 A 19 Court that Findings of F acts, Conclusions of Law, and “Jud; gmeiit thereen have prev iously been entered in this e 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. 4 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. * ¢ 21 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 - e 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). e : 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 . 4 ‘ > ps ‘ ; , oy . Mitchell v. .Traicler Racer. Ine.'3 tells us ‘yak n gence and unseaworthiness are to. be ‘ditierentioted. Oo am ge 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 ~ on 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 P “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. 1 ‘ eo ——— 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- m. ¥ 28 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 a 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). 7 a .° 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 31 (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. 32 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; + “ ee 7 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 deféndants-appellees be condemned to pay one-half of © ‘said costs. ¥ April 15,1970 | - Issued As Mandate: MAY 8, 1970 | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0177%3A1. Public record. Not legal advice.