Petition for Rehearing — Patterson v. Humble Oil & Refining Co.

neers

ot AD ae

ROBERT WAYNE PATTERSON,

, Petitioner,

@ versus a

7

HUMBLE OIL & REFINING COMPANY,

‘. Respondent.

Potition for Rehearing on or Reconsideration of Petition ©

For Certiorari .

Samuel C. Gainsburgh | 7

1718 Nat. Bank of cies Bidg.

New Orleans, La. 70112

ATTORNEY FOR PETITIONER

Of Counsel: ©

KIERR and GAINSBURGH

New Orleans, Louisiana

, o”

TABLE OF CONTENTS

TARLE OF CASES

PETITION FOR REHEARING |

CERTIFICATE OF SERVICE °

TABLE OF CASES | |

Alaska Steamship Co. v. Petterson, 347 U.S. 396.

74 S.Ct. 601, 98 L.. Bd. 499° 1954)

Crumady v. The J. H. Fiswer, 358 U.S, 423, 79S Cr.

445, 3 L.Ed. 2d 413 (1958)

Mascuilli v. United States, 387 U.S. 237, 87 S.Ct.

1705, 18 L.Ed. 24 743 (1867) )

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 .

S.Ct. 926, 4 L.Ed. 2d 941 (1960)

Patterson v. Humble Oil & Refining Co., 5 Cir.

1970. 423 F.2d 883 *

Pope & Talbot v. Hawn, 346 U-S. 406, 74 S.Ct. 202,

98 L.Ed. 143 (1954) |

“Schell v. Chesapeake & O. R. Co., 395 F. 2d 678

(CCA 4 1968)

Seas Shipping Co. v. Sieracki. 328 US. 85

Usner v. Luckenbach Overeses Carp. ___. US.

__, 27 L.Ed. 2d 562, 91 S.Ct. (1971)

Watz v. Zapata Off-Shore Co., 431 F. 2d 100

(CCA 5, 1970)

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 10970

‘ No. 182

ROBERT WAYNE PATTERSON,

‘i Petitioner,

versus

HUMBLE OIL & REFINING COMPANY,

Respondent.

=

Petition for Rehearing on or Reconsideration of ?e-

tition for Certiorari

TO THE HONORABLES THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Petitioner, Robert Wayne Patterson, respectfully

petitions herewith for a rehearing on or a reconsidera-

tion of his petition for certiorari for the following rea-

sons: ;

Subsequent to the filing of the original petition, the

United States Court of Appeals for the Fifth Circuit has

confirmed that its opinion herein constitues an abridg-

ment of the traditional seaworthiness warranty that

Your Honors have held protects shoreside employees

domg traditional seamen’s work aboard vessels in

navigation. i

2

In Wate v. Zapata Off-Shore Co.,' the Court of Appeals

states. :

“This Circuit appears to have developed an-

other doctrine with regard to repair contracts

that would also exempt | the vessel owner]. Pat-

terson v. Humble Ol] & Refining Oo., 5 Cir.

1970, 423 F.2d 683." (Emphasis added.)

This “doctrine.” may it please Vour Honors, misap-

plies the principles enunciated in Mitchell v. Trawler

— Recer, Inc..* in Alaska Steamship Co. v. Petterson.* in

Crumady vr. The J. H. Fiaser® and in Mascuilli v. United

States* as recently interpreted in Usner vo. Lucken-

bach Orerseas Corp” The “doctrine” developed by the

Fifth Circuit is in diametric conflict with Pope & Taibot

r. Harwn® and Schell vr. Chesapeake & O. R. Co.®

Tt is now crystal clear that the Court of Appeals for

the Fifth Circuit intends to, and does, distinguish be-

breach it, while the former, such as petitioner, are not

80 protected.

o

This tinmovetive distinction is cleariy contrary to

Mr. Justice Black's decisicy: in Pope & Talbot ¢. Havon'®

wherein the Court was asked, but refused, to make a

“We are asked, however, to distinguish this

case from our holding (in Seas Shipping Co. v.

Sierecki, 328 U. S. 65). Rt is pointed out thet |

Sierecki was a ‘stevedore.’ Hawn was not. And —

Hawn was not leading the vessel. On these

grounds we are asked to deny Hawn the pro-

tection we held the law gave Sieracki. These

slight differences in fact cannot fairly justify

the distinction urged as between the two cases.

*** |Hawn's} need for protection from unsea-

worthiness was neither mere nor less than that

of the stevedores then working with him on the

ship or of seamen who had been or were about

to go on a voyage. All were subjected to the

same danger. All were entitied to like treat-

ment under law.”" (Emphasis edded)

Petitioner suggests that his need for protection from

the unsecured bearing cap that fell on him, a danger

brought into play bv his co-employees’ removal of the

chain fall, was no less than the need for protection

of Messrs. Crumady"* and Mascuilli'* from the danger-

“ges US. 412-413. ,

‘20f Crumady v. The J.H. Fisser. supra. note 5.

*°Of Mascuilli v. U.S. supra, note 6.

£

conditions that were brought inte play by their

longshoremen. Yet. if the instant deciston and

its “doctrine” are allowed to prevail, petitioner will not

have received “like treatment under law.”

Por the reasons above mentioned and heretofore set

forth, petitioner seeks rehearing on or reconsideration

of his application for a writ ef certiorari, to the end

that said application will be granted and the decision

‘of the Court of Appeals for the Fifth Circuit will be

reviewed and reversed, with petitioner's case being

remanded to that Court for consideration of other legal

issues presented by petitioner's appeal.

Respectfully submitted,

-e' 1718 Nat. Bank of Commerce

Building

. New Orleans, La. 70112

Attorney for Petitioner

Of Counsel:

KIERR and GAINSBURGH

Samuel C.