# Petition for Writ of Certiorari — James v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0400%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 907 ## Text 7 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 vn. Fag ov fe Cases Cite Page Amador v. A/S J. Ludwig Mowinkels Rederi, 224 F 2d 437 (CCA 2d) cert. den. 350 U.S. 901, 76 S.Ct. 179 .... 30 Andrews v. Olin Mathieson Chemical Corp. (8th Cir. 2004) $34 F. Sd 482, 4988 we eee av Arizona v. Anelich, 206 U.S. 110, 56 S. Ct. 707 ....... 30 Ballwanz v. Isthmian Lines, Inc. 319 F 2d 457 (4 Cir. Ne i kw Gass 29 Bredy v. Southern Railway Co., 320 U.S. 476, 479, 64 S. eae EET a nO 11,17,33 Callen v. Pennsylvania R. Co. 162 F 2d 832 .......... 15 Carpenter v. Baltimore & Ohio R. Co., 109 F 2d 375... 18 Chesapeake & Ohio R. Co. v. Smith, 42 F 2d 111; cd. OR UR GR GR TAG. GR nn cccccccccccccccccccces 18 Crumady v. The Joechim Hendvik Pier, 358 U.S. 423, 79 S.Ct. 445 EASTER PO SIS eee Co tee ree ee Pe paiacacnns 19 D’Amico v. Licyd Brasileiro Patrinonic Nationale 364 F i ae ee eins Sebo dine eneete doses 21 Didinger v. Pennsylvania R. Co., 89 F 24798 .......... 18 Dowell, Inc. v. dowers, 166 F 2d 214 ................ 11 AD if Poge - Biliott v. Chicago, M-& St. P. Ry. Co. 24 8. C2. 85. 180 sores MOTE EE ME BLL 18 Ferrara v. Sheraton McAlpin Corporation, 311’ F. 94 294 a Oty Tee Ne FE eT, ake . 1 Gibbs v. Kiesel $82 F 9d 917 (1967) ................ 20 Gritlen v. United States 23% F. 2d 919 nenesendotnde ae Hegans v. Parrell Lines, 237 F 9d 477................ 1 Harris v. Smith, 372 F 2d 806 (1967) ................ 16 Hemphill v. Mississippi Power Co., 04 F 24971 ........ a Holley v. Manfred Stansfield, 186 F. Supp. 212 (ED Va. NER RRME RV GE 5. ews = tied . 19 Hussein v. Isthmian Lines, Inc., 405 F 2d 946 (5 Cir. 1968) 8 Imperial Oil, Led. v. Drlik, 294 F 24 4 eerccccescccese ll - dune T., Inc., v. King, 290 F 2d 404 pcecccoccccoece 1,29 Kincade v. Mikies, (6th (Cir.) 144 F. 9d 784 ote beeeees 17 Knox v. United States, 294 F 2d 354 (3rd Cir. 1961) ... 19 Lowery v. Hocking Valley RB. Co., 60 F 24 78 ..... — Maccarone v. A/S Inger, 262 F 2d 560 (overriding cable). 11 Mehnich v. Souther 8. 8. Co., 881 U.S., 96, 64 8. ce. EE thd ennsnddandbesdnen Sibianmesieimaabins 11,30 Metager v. 88 Kirsten Torm, 245 F. Supp. 227 (D. Md. PED 50 ctccsnccbinssisanphcebasnienici 19 iti’ Powe Minneapolis St. P. & S. S.M. R. Co. v. Metal-Matic, Inc. 8 Gir. 1063, SBS F. Bd OOS, O10 ... eee 17 Mitchell v. Trawler Racer, Inc., 362 U.S. $39,608... ED cccccccccccccccewccccccccccceccesccccees 18 Mc Nello v. dohn B. Helly, Inc. 383 F 34 06 (1980) .... @ Nentesbet, inc. v. B. F. Raboy @ Co. 31 AD. 24 804, STE é0n0060600660060600000000 pasese 31 Nashville, C. @ St. L.R. Co. v. York, 127 F 24. 606... 18 Melson v. Robin Line 6.8. Co., 39 F 20 490 ........... “3 C’xien v. Wilys Motors, Inc. 386 F 24 163 (1967) . ebin 30 Paluch v. Brie Lackawanna Railroad Company, 387 F 2d a ees ciainndianene sees 9 Petterson v. Aleska Ghipping Co., 206 F 24 478, offd 347 US. 396 LPR ieeS600600000600600000008 30 Pike v. Geand Trunk Ry. Co,, 39 F. 255 aneketabonens 18 Pettchand v. Liggett & Meyers Tobacco Company, 360 F. i tn pnncncneceedoetenseaneeeecetrs 10 wv Reid v. Quebéc Paper Gales & Tranep. Co. Lad., 340 F 2a BOB Gir. 10GB)... cw ccnes seteeeeeees 19 Rogers v. U.S. Lines, 206 F 2d 57, rev. per cur. 347 U.S. 084, 74S. Ct O49 ........ eeeeccssesocsosscecosssbl 30 Sams v. Haines, 299 F. Supp. 746 (2980). neeecees pane 7 ; fen Antonio. Tike, 267 F 2d 983 (2988). wanes pee 15 Seance ¥. Poo! Shipping Co. Lad 296 F 24729 ..... 30 Sees Ghipping Co. v. Sigrachi, 296 U.S. 85, 08 8. Ch. 672.230 Suennon v. UL. 119 F. Supp. 106, 295 F. 34.487 ..... 10 | Shokuwen Shimabukuro v. Higevoshi, 140 F. 94 13, of. $82 US. 755,648. CL 1270.................05e0 8 / Sn v2 Latm, 01. Sap. 088 GD Pa 108. 19 Southam R. Co. v. Deer, 240 F.73......... aealaaiaall 30 Southern Railway-Casolina Division Co. v. Bennett, 233 |___FAN tet 30 Speague v. The Texas Company, 250 F. 24 123 am 28 Standard O8 Go. of New York v. RL. Pitcher Co. 289 F. MT citiiliintinn tii sneneiiiainiates ED 18 Vv Page Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 (2d Cir. 1960) ed. 342 U.S. 904,71 8 Ct. 614........ 19 Sweeney v. Erving, 228 U.S. 233, 338. Ct. 416 ........ 30 Texas Menhaden Company .v. Johnson, 332 F. 2d 527 (5 il ee Rata NR a 30 Wing v. Rockport Steamship Company, 30 F.R.D. 349, (1962)........ a Ra bats ws 18 Other Authorities a ea as iivacsscacncess 4 Rule 51,28 US.C.A. ...... Stent ale? oH vi IN THE _ SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1969 PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR. THE FIFTH CIRCUIT. Your petitioner prays that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit entered on June 24, 1970. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit FP. 2d and there were no opinions rendered in the District Court. : The judgment of the-United States Court of Appeals for the Fifth Circuit was entered June 24, 1970. A petition for 1. Is the principle of uniform and equal justice to all controlling on United States Courts of Appeal as to dis- cretionary matters. Has an appellant the right to have a Court of Appeals review errors such as the Court has held by many | prior decisions were reviewable? 2. Do statements to a jury by counsel as to the law to which exceptions are not sustained and, in substance, held to be correct, have the same legal effect as instructions by the 3. is a lMtigant entitled to dear, unambiguous, unconfusing and relevant instruction as to the law, free from The Court below has enunciated a principle of law in conflict with its prior uniform holdings in other comparable situations. The decision by the Court below has enunciated a York attorney, all of which constitutes a radical departure from the American concept of justice, as enunciated by this Honorable Court and uniformly by other United States Courts of Appeal. | There has been a complete reversal of the well established law as enunciated hy this Court that liability for breach. of warranty of seaworthiness is not dependent on negligence, which principle was overruled, in substance, by the Court below affirming the correctness of the statement by. respondent's counsel that in order for petitioner to be entitled to a verdict he had to prove that Charlies F. Greer personally committed a wrong or negligent act. e STATEMENT OF THE CASE On the 6th day of January, 1966, petitioner had his right leg mangled aboard the shrimping vessel ROVING GAMBLER when caught by a cable wrapped around a drum when he attempted to correct an override by kicking the cable back into position. In order to receive the benefit of Rule 56 of the Federal Rules of Civil Procedure, petitioner, for the purposes of the motion, consented to adopt the shipowner’s factual version of the accident, thereby all controversial issues of fact were eliminated as to the physical condition of the work area and equipment involved. The shipowner charged contributory negligence on the part of the seaman in using his foot instead of his hand to correct the override. The shipowner did not put at issue any question as to the physical condition of the work area or the drum or cable involved. The motion was denied. At the trial, the same facts were urged.as a basis for a directed verdict in the seaman's favor. 4 In the absence of any controversial issue of fact as to the physical conditions of the work area and equipment, the matter was one within the exclusive province of the Court to decide as a question of law, and it was error for the Court to refuse to act in accordance with the provisions of Rule 56 of the Federal Rules of Civil Procedure and the uniform and well established law laid down by this Honorable Court and other Courts, as hereinafter more particularly set forth. The Master of the vessel was Captain Pacetti whose deposition was taken, which demonstrates the absence of any controversial issue of fact as to the unseaworthiness being the proximate cause of the accident. The following are quotes from pages 47 and 48 of the Captain's deposition. “Q. Shouldn't the cables wind on the drum evenly without having to resort to what you call kicking the cables? A. “¥es.” “Q. How would that have anything to do with his leg being caught in the drum? A. Well, without it, he would have been able to dis- engage the friction. Q. Yes, sir, Sane eee Eee Ripe ah ayes 4 Me with his foot being caught in the drum? § —_ A. it — it wouldn't have had nothing to do ‘‘Pundamental error is a basis for appeal, irrespective of the fact that a precise exception was not taken.” The record is devoid of any adequate instruction as to the applicable law of the case, in total disregard of the fact nn Sala sop tit Salas Lawrene, In the ca of Sams o. Hains a Supp. 746 (1969) comments on this question as follows: (750) As observed by Judge Brown in the Fifth Circuit case of dune T., Inc. v. King, 290 F. 2d 404, at 406: “What is customary in a trade may be evidence of due care—here the reasonable fitness element on the concept of seaworthiness—but it is not the legal measure of the ny." Her & te fet Gat 0 Gene mn enw te economically unfeasible.” The absence of a man at the cable to guide it while it was being taken up so as to prevent the foreseeable override constituted unseaworthiness, on the basis of the absence of a sufficient number of men to perform the work in question st the time in question. Hussein v. Isthmian Lines, Inc., 405 F. 2d 946 (5 Cir. 1968) In the light of the charge, the jury could not possibly understand that it would be justified in returning a verdict in tever of petitioner on the basis of liability -jithout faut The Court recailed the jury and, in effect, took from the petitioner the right to obtain a verdict in his favor on the basis of unseaworthiness. The Court’s charge, in effect, was a directed verdict in favor of the respondent, as no seaman could ever recover a ' verdict in his favor for any accident brought about by an ‘O.unsafe condition of the structure of the ship or its gear or S The decision by the Court below is in conflict with its prior decision in Hussein v. Isthmian Lines, Inc., supra, — wherein the Court stated at page 947: “{1-3] The duty to furnish a seaworthy vessel (a vessel and appurtenances reasonably fit for their intended use) is absolute and is completely separate from the shipowner’s duty under the Jones Act to exercise reasonable care. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S. Ct. 926, 4 L. Ed. 2d 941, 948 (1960). This duty is a type of liability without fault and may be violated without regard to negligence. Seas Shipping _ Company v. Sieracki, 328 U.S. 85, 94, 66 S. Ct. 872, 90 L. Ed. 1099, 1106 (1946). Since the record contains evidence from which the jury could have found that the appellant was required to work on a greasy ladder, and was not furnished the proper equipment to do the job assigned to him, the erroneous refusal to give the requested charge was prejudicial. Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 8. Ct. 1410, 18 L. Ed. (1967).” In the case of v. Erie Lackawanna Reilroed . Company, 387 F. 24 996 (1968), the lower court adopted the conflicting principle, quoting from the decision in Freifield v. Hennessy, 363 F. 2d 97; 99 (3 Cir: 1965), as follows: S “Where it. is apparent on the face of the record that counsel failed to object to a fundamental and Highly prejudicial error, and this failure may have resulted in a miscarriage of justice, the error must be noticed and rectified.” See also Ratay v. Lincoln National Life Insurance Company, 378 F.2d 209 (1967). Also Freifield v. Hennessy, 353 F. 2d 97 (1965) where the Court held at page 99: (2 “The defendant argues that since the : plaintiff interposed no objection to the court's instructions he ° resulted in @ miscarriage of justice, the error must be noticed and rectified. Ibid. This exception to the general tule is applicable to the instant case. The judgment of the court below will be reversed and the action will be remanded with instructions that a new trial be ordered.” That the charge by the trial court was defective, and the court below in error is clearly demonstrated by the 4ecision in the case of Pritchard v. Liggett & Myers Tobacco Company, 350 F.2d 479 (1965). Quoting from the concurring opinion of Cissuit dudge Posoman, the Sellowing qppens ot page 487: ie itt die teainn but also because of another error. It instructed the jury that they could not find an express warranty unless the seller ‘actually intended to be bound by his statement.’ Such a requirement is contrary to the law of Pennsylvania since the adoption of the Sales Act of 1915 by which Pennsylvania departed from its previous adherence to the English rule. See 1 Williston on Sales (Rev. Ed. 1948). § § 196-200; cf. Rothermel v. Phillips, 292 Pa. 371, 375-376, 141 A. 241 (1928). The true test is not whether the seller actually intended to be bound by his statement but rather whether he made an affirmation of fact the natural tendency of which was to induce the sale and which did in fact induce it. Act of — May 19, 1916, P.L. 543, §12, 69 Purdon’s Pa. Stat. Annot. §121; 1 Williston on Sales (Rev. Ed. 1948). $199.” The admission by the Captain that the cable was overriding is further proof of unseaworthiness. Shannon v. U.S. 119 F. Supp. 706, rev'd on other 10 Pounds, $06 F. 2d 457. ae ie a * en pe en Oe kinky or hed some other similar defect, or that theré was some mal-alignment of the winch itself, and that, in and of iteelf, is likewise evidence of unseaworthiness. Shannon v. r Co ies Mannich & Southern 8:8. Co., 381 US. 96, 648. In the case of Hagans v. Farrell Lines, 237 F. 24477,2 ” drifting cable was held to constitute unseaworthiness. Maccarone v. A/S Inger, 262 F. 24 600, (ovmiting cable) “Imperial Oil, Ltd. 6, Drith, 234 F. 24 4 | Grillea v. United States, 282 F. 24°919 In the case of Brady v. Southern Railway Co., 820 U.S. 476, 479, the Court held as follows: | “When the evidence is such that without weighing the | credibility of the witnesses there can be but one The decision by the court below was in conflict with the Court of Appeals in the Fifth Circuit, in the case of Dowell, Inc. v. Jowers, 166 F.2d 214, where the court stated at page 221: % Poke he . “Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., following section 728c, provides thai no party may assign as error the giving or failure to give an instruction unless he distinctly presents to the trial court § ee his ground for objection. This conforms to the practice generally followed in appellate procedure everywhere. Hence, the error in instructing the jury in this case cannot be complained of by the defendant. If it is considered at all, it must be on motion of the court. The court’s right in a proper case to consider on its own motion errors patent upon the face of the record where no objection was made, was considered by the United States Court of Appeals for the District of Columbia in Shimabukuro v. Nagayama, 1944, 140 F.2d 13, 15. We find ourselves in thorough accord with the decision in that case. | ‘The power of an appellate court on its own motion to consider grounds of error not raised below is not one which should be exercised in an ordinary case. ‘But where it is apparent to the appellate court on the face of the record that a miscarriage of justice may occur because counsel hag not properly protected his client by timely objection, error which has been waived below may be considered on review. Mr. Justice Black has recently said: “There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.’ Hormel v. Helvering, 1941, $12 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037.’ ——We think that in the interest of justice the court here must act upon its own motion. So acting, we hold that the trial judge’s charge to the jury constitutes reversible error.” . 12 The decision by-the court below was in conflict with the decision of the United States Court of Appeals, District of Columbia, in the case of Shokuwan Shimabukuro v Higeyoshi Nagayma, 140 F.2d 13, c.d. 322 U.S. 755, 64 S. Ct. 1270 where the court stated at page 15: “The power of an appellate court on its own motion to consider grounds of error not raised below is not one which should be exercised in an ordinary case.” But where it is apparent to the appellate court on the face of the record that a miscarriage of justice may occur because counsel has not properly protected his client by timely objection, error which has been waived below may be considered on review. 2 Mr. Justice Black has recently said: ‘There may always be exceptional cases or particular circumstances which will prompt ea reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below. 4 Heretofore this court has noticed error which parties waived by failure to object at the trial court, to avoid injustice in criminal cases.° There is no logical reason for refusing to exercise our power to notice fundamental error in cases where personal or property rights are involved, and our Rule 17(i), which states the principle, makes no distinction between civil and criminal actions."S — 2mr. Justice Stone in Duignan v. United States, 1927, 274 U.S. 195, at page 200, 47 S.Ct. 566, at page 568, 71 L.Ed. 996, said: ‘This court sits as a court of review. It is only in exceptional cases coming here from the 13 = federal courts that questions not pressed or passed upon below are reviewed.’ 3Sibbach v. Wilson & Co. Inc. 1941, 312 U.S. 1, at page 16, 61 S.Ct. 422, at page 427, 85 L.Ed. 479, where Mr. Justice Roberts said: ‘The District Court treated the refusal to comply with its order as a contempt and committed the petitioner thereafter. Neither in the Circuit Court of Appeals nor here was this action assigned as error. We think, however, that in the light of the provisions of Rule 37, it was plain error of such a fundamental nature that we should notice it. Section (b) (2) (iv) of Rule 37 exempts from punishment as for contempt the refusal to obey an order that a party submit to a physical or mental examination. The District Court was in error in going counter to this express exemption. The remedies available under the rule in such a case are those enumerr‘ed in Section (b) (2) (i) (ii) and (iii). For this error we reverse the judgment and remand the cause to the District Court for further proceedings in conformity to this opinion.’ 4tiormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037. SPreed v. United States, 1920, 49 App. D.C. 392, 266 F. 1012; see Schwartz v. United States, 1926, 56 App. D.C. 106, 106, 10 F.2d 900, 901 (citing additional authorities). McAffee v. United States 1939, 70 App. D.C. 142, 160-151, 105 F.2d 21 (death penalty); McKenzie v. United States 1942, 75 U.S. App. D.C. 270 126 F.2d 533 (death penalty); Boykin v. United States, 1942, 76 U.S. App. D.C. 147, 130 F.2d 416 (appeal and record perfected under unusual circumstances). 14 S:Points Not Presented. Points not presented (errors not assigned in criminal cases from the district court) according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not presented or assigned.’ ; And see Neufield v. United States, 1941, 73 App. D.C. 174, 190, 118 F.2d 375, 391; ‘A plain error may, of course be noticed, especially in a criminal case, even though not assigned.’ (emphasis added) The decision by the court below is in conflict with the decision in Callen v. Pennsylvania R. Co., 162 F.2d 8382, where in substance the court held that the court's error is not cured by the court's effort to explain the situation without charging on its own motion to disregard the erroneous construction of the law by defense counsel. The Court said at page 835: “That type of gytruction was especially important in view of the confusion which had been created over the status of the release.” ‘ The affirmance by the lower court of the decision of the trial court, refusing to consider fundamental error, is in conflict with the holding in the case of San Antonio v. Timko, 868 F.2d 983 (1966), wherein the court held at page 986: 15 73 L.Ed. 706 (1929), which we will consider on appeal even though the point was not raised at trial. Ferrara v. Sheraton McAlpin Corp. 311 F.2d 294, 297 (2 Cir. 1962); Dowell, Inc. v. Jowers, 166 F.2d 214, 221, 2 A.L.R. 2d 442 (5 Cir.). cert. denied 334 U.S. 832, 68 8.Ct. 1346, 92 L.Ed. 1759 (1948); Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S. App. D.C. 271, 140 F. 2d 13, cert. denied, 322 U.S. 755, 64 S. Ct. 1270, 88 L.Ed. 1584 (1944); 5 Moore, Federal Practice § 46.02, pp. 1903-04. When we combine this episode with the previous improprieties in summation and the exceedingly thin character of the evidence, we are convinced the judgment cannot be allowed to stand. See F. W. Woolworth Co. v. Wilson, 74 F.2d 439, 442-443 (5 Cir. 1934). The judgment is reversed and the cause remanded for a new trial.” “The decision by the court below is in conflict with the decision by the United States Court of Appeals, 8th Circuit, in the case of Harris v. Smith, 372 F.2d 806 (1967), where the court stated at page 815: “An additional ground of error, although not urged - on appeal, should be noticed by this court because of its substantial effect upon the rights of the parties. It is within the discretion of this court to notice plain error in civil appeals. As the late Judge Thomas stated for this court in General Finance Loan Co. v. General Loan Co., 8 Cir. 1947, 163 F.2d 709, at 711: ‘We may, however, in our discretion consider a plain error apparent on the face of the record for the purpose of avoiding a manifest miscarriage of justice, 16 or where the issue raised is one of public concern, even in a civil case. Kincade v. Mikles, 8 Cir., 144 F. 2d 784; National Aluminate Corporation v. Permutit Co. 8 Cir., 144 F.2d 93.’ See also, Andrews v. Olin Mathieson Chemical Corp. 8 Cir., 1964, 334 F. 2d 422, 428; Minneapolis St. P. & S. S.M. R. Co. v. Metal-Matic, Inc. 8 Cir., 1963, 323 F. 2d 903, 910.” The refusal by the court below to consider fundamental error is in conflict with the holding by the Court of Appeals in the 2nd Circuit, in the case of Ferrara v. Sheraton McAlpin Corporation, 311 F.2d 204 (1962), where the court stated at page 298: “When the integrity of a trial court's judgment has been called into question by a substantial departure. from those rules, an appellate court cannot put aside this responsibility merely because of the inadvertence of appellant’s counsel at trial. That responsibility compels us to reverse this judgment. Reversed and remanded.” The Supreme Court of the United States in Brady, Admx. v. Southern Railway Co., 320 U.S. 476, 64 S. Ct. 232 (Dec. 1943) laid down the following principles of law as being controlling: (p. 284) “When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice 17 rs ‘without submission to the or by judgment aad eeeiait de enti tu oe direction of the triel the result is saved from the mischance of speculation over legally unfounded claims.” Since the early cases of Elliott v. Chicago, M. & St. P. Ry. Co., 14 8. Ct. 85, 150 U.S. 245, and Pike v. Grand Trunk Ry. Co., 39 F. 255, our Courts have uniformly held that the absence of an issue of fact in a personal injury action for damages, rendered the question one of law for the Court, In the case of Standard Oil Co. of New York vu. R. L. Pitcher Co., 289 F. 678, the Court stated that while the question of what was proximate cause was ordinarily for the jury, yet, where the whole evidence offered not dispute upon material points, it became a question of law for the Court. See also: Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S. Ct. 189; Wing v. Rockport Steamship Company, 30 F.R.D. 349 (1962); Didinger v. Pennsylvania R. Co., 39 F. 2d 798; Chesapeake & Ohio R. Co. v. Smith, 42 F. 2d 111, c.d. 282 U.S. 856, 51 S. Ct. 32; Lowery v. Hocking Valley R. Co., 60 F. 2d 78; Carpenter v. Baltimore & Ohio R. Co., 109 F. 2d 375; Nashville, C. & St. L. R. Co. v. York, 127 F. 2d 606; 18 Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Cf. 926; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423. 79 8. Ct. 445; Metzger v. SS Kirsten Torm, 245 F. Supp. 227 (D. Md. 1965); Smith v. J. Lauritzen, 201 F. Supp. 663 (ED Pa. 1962): Knox v, United States, 294 F. 2d 354 (8d Cir. 1961): Holley v. Manfred Standsfield, 186 F. Supp. 212 (ED Va. 1960); Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 (2d Cir. 1950) c.d. 342 U.S. 904, 71 S. Ct. 614; Reid v. Quebec Paper Sales & Transp. Co. Ltd. 340 F. 2d 34 (2d Cir. 1965); Petitioner, having stipulated to the elimination of any controversial issue of fact by adopting respondent's version, renders the question of liability one of law, calling for the exclusive decision by the Trial Court. ‘ Implicit in the respondent's contention that ’ the petitioner was guilty of negligence in using the jury rig which was dangerous, is the admission that the winch was not. reasonably safe for the purpose intended. The negligence of the petitioner, if any, does not constitute a basis for exoneration from liability for 19 unseaworthiness. The allegation that the petitioner admitted that he kicked the cable in order to have it function properly is the fact that the cable did override and did not function in a seaworthy manner. The respondent's contention that petitioner's conduct created the unseaworthiness in question has no support in law. , This contention is not the law, but is contrary to well established and uniform law, as pointed out in the case of Skibinski v. Waterman Steamship Corporation, 360 F. 2d 539 (1966), where the Court stated at page 542: ¢* Vv “In defining unseaworthiness we are not concerned with the conduct or process by which fitness is changed to unfitness. Our focus is upon the resulting condition of the ship. See Puddu v. Royal Netherlands Steamship Company, 303 F. 2d 752, 757 (2d Cir.), cert. denied, 371 U.S. 840, 83 S. Ct. 67, 9 L. Ed. 2d 75 (1962) (Hays, J., concurring).”’. os In the case of Gibbs v. Kiesel, supra, the Court of ' Appeals for the Fifth Circuit considered that-it was not error to decide the question of liability as a matter of law and have the jury pess upon uncontroverted and admitted questions of fact. . : The admitted and uncontroverted facts in the instant supported the motion for summary judgment and said _ motion should have been granted in petitioner’s favor on As recently as December 22, 1965, the Court pr ine Second Circuit in the case of D'Amico v. Lord (p. 972) of Appeals Further proof that petitioner was denied a fair and. impartial trial: In the opening statement respondent's counsel misstated ‘the law as follows: (96, 97 of minutes) And answer that question specifically. MR. RASSNER: That is objected to, Your Honor. That certainly is not the law. Our first cause of action is that, conceding that Charlie Green did nothing wrong. THE COURT: All right. ‘MR. RASSNER: I object to counsel telling the Jury what the law is. THE COURT: I have your objection. Now, ladies and gentlemen, there are two causes of action in this case. One is predicated on the question of unseaworthiness, and you will be instructed about the law applicable The other is on the charge of negligence, and you will be _ instructed about that. And you may proceed.” This erroneous. mis-statement of the law by respondent's counsel was given the force and effect of the law of the case by the Court going into a lengthy discussion of the unrelated Sete < aeromee, oars ie Seneerag cabanas Oy the Court. “uit must appear that the injury was the natural and probable consequence of the negligence or wrongful act or unseaworthiness and that it ought to have been foreseen in the light of the attending circumstances.” ‘This is not the law and clearly erroneous. | This misinformation as to the applicable law is“s0 ‘a io” the “At the conclusion of the Court's instructions, petitioner's counsel felt that the instructions constituted a directed verdict for the defendant and stated so in the following words: ; on 23. that otherwise the vessel was seaworthy - - + would be prejudicial to the Plaintiff; and I respectfully ask Your Honor to charge the Jury that the definition of unseaworthiness includes the absence. And I think it is basic and fundamental - - - the absence of a sufficient number of men to do a particular job. Since we have made a concession that everything that Your Honor has mentioned was seaworthy, it leaves us with nothing. We have no basis for a verdict then if Your Honor doesn’t charge them. And it is in the Pretrial Order. We haven't any basis for a finding of unseaworthiness without that charge. THE COURT: I will give considerations to those matters.” The Court thereupon reconvened the jury to correct his erroneous instruction, but failed to do so. When the jury was recalled for further instruction after petitioner’s -counsel raised objection to the charge, there was no correction, in fact rather approval, in substance, of the erroneous comments by respondent’s counsel of the law of the case, which is demonstrated by the following which took place during respondent’s counsel’s opening statement: “Now, obviously in any accident - - - particularly an accident of this nature - - - somebody has to have done something wrong. 24 MR. RASSNER: May I have my objection sustained and the Jury instructed to disregard that “somebody must be Proven to have done something wrong’? THE COURT: I am going to instruct the Jury and I am sure that counsel will argue this within the framework of I have your objection, counsel. You may be seated. MR. RASSNER: May I have the instruction to the Jury now to disregard the last comment of counsel? THE COURT: No, sir. You may proceed, counsel. MR. BEVERLY: To begin again: Obviously, in any accident - - - particular one of this type - - - somebody has to have done something wrong. MR. RASSNER: I object to that, Your Honor. Now, he has done that twice and that is not the law. © eosin pen tenes ane Counsel is entitled to latitude in arguing, and I am instructing him that he may do that, and he understands what the Court's instructions will be and I believe he will do that within that framework. And I have your objection, counsel. All right, you may proceed. MR. BEVERLY: Yes, sir. Your Honor, if I could be allowed to complete my sentence, maybe this would alleviate part of counsel from New York's problem. Again, in an accident of this type - - - as in most every accident - - - somebody has to have done something wrong. In this case, somebody did do something wrong. Now, the allegations are, of course, that Charles Green did something wrong.” Instead of correcting these erroneous, misleading and prejudicial statements of the law, the Court ordered petitioner’s counsel to “sit down”. The Court erroneously refused to sustain petitioner’s objection to respondent’s counsel’s appeal to prejudice and passion end to the inference that the respondent was uninsured, as appears by the following: “Now, Charlies Green is a man who was born and raised here in Fort Myers, Florida. He started working in the fishing business as a young man. He has grown up in the fishing business. MR. RASSNER: If Your Honor please, I object to that. This is an appeal to prejudice. THE COURT: Counsel, I am going to ask you to restrain yourself now. You are out of order in making that statement. . The Jury is entitled to determine this. In the meantime, I will ask you please to be seated. MR. RASSNER: Yes, sir. THE COURT: All right. You may proceed. MR. BEVERLY: The point is this. This is a man who has grown up in this community, and whether he was in this community or any other community is immaterial. The fact is that this is a man who has worked all his life and he is going to continue working for the remainder of his life; and money, to him, doesn’t come any easier than it does to me or any other working man. So keep in mind that he is the individual Defendant in this lawsuit. That your verdict, if returned against Mr. 27 Green, will be against Mr. Green, individually.” Further. prejudice to the petitioner’s case was the comments by the Trial Court to petitioner’s counsel to “sit down” when petitioner’s counsel was endeavoring to protect the rights of a seaman in the Federal Court by means of voicing what petitioner’s counsel considered valid objection. It is respectfully submitted that the Court was in error in failing to act sua sponte in correcting the following incorrect statement by respondent's counsel of the law of the case. **Because, again, we are-back to the same thing; and that is who did what wrong? “: Bl Remember I asked you on Opening Statement to place one question in your mind and attempt to keep it there throughout the duration of this lawsuit and see how you would answer it. That question was: What did Charles Green do wrong? And I would simply suggest to you at this point that the evidence is, I think, very clear that Charles Green has done nothing wrong.” ‘The Court below was in error in sustaining a judgment entered on a verdict arrived at in the absence of any understandable or applicable instructions as to the law of the case. In the case of Sprague uv. ee a 250 F. 2d 123, the Court stated: “Because of the undisputed evidence on the-subject as to ~