Opposition Brief — Hyman-Michaels Co. v. National Cargo Bureau, Inc.

Ie aS RR as a,

.

‘ .

>. ‘ s

* e

. . Ad

. .

4

A .

2 .

.

.

.

. ‘

. “

.

i .

e

Py

. 2

. ——

. ‘

.

.

.

: 0

“

‘s

' 3 "

“st

*

“ .

° .

” .

- :

.

‘

‘. . 4

‘ .

ASH MANIATIS Race stamens he area ‘ Oe re

— _— 7 y “ RRS 4 ee witha: wer : ne vm

.

HYMAN-MICHAELS | COMPANY anil

LAKES SHIPPING & TRADING COMPANY

: _ Petitioners, —

NATIONAL CARGO BUREAU, INC.,

payer

: HYMAN MICHAELS COMPANY,

Petitioner,

| NATIONAL CARGO BUREAU,INC,,

es Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRITS OF CERTIORARI TO. THE

.. UNITED-STATES COURT OF APPEALS __

FOR THE SIXTH CIRCUIT. —_..

_.DAVID V. MARTIN. -

| Detroit, Mich, 40226

ae Respondent ~ - ,

.

.

.

os

ee ~ “ *

«

2

‘

Pgs 4

a .

.

‘. *

.

é . "9

.

.

‘ * .

pO REO ee

.

os ty

<4

: .

in ‘

oe rs 7

.

: 2 2

e_>

°

° .

.

“ °

-

. . .

.

-

.

“ .

.

~ &

ae j

EXPLANATION—REFERENCE GUIDE

7m Respondent’s Brief there are page references tor

1. The trial transcript which are designated. as

(R) ;

2. The Joint Appendix, filed in the Cireuit Court |

of. Appeals which are designated as (a); |

3. The Supplemental Appendix attached to Ap-

- pellee’s Brief, filed in the Circuit Court of: Appeals,

which are designated as (c);

‘4. The Appendix attached to the Petition for

Writ of Certiorari which are designated as (aa).

IN THE

Suprene Court of the United tates

~ OCTOBER TERM, 1971

| No. 1837

HYMAN-MICHAELS COMPANY and

LAKES SHIPPING & TRADING COMPANY

: Petitioners,

WV. ;

NATIONAL CARGO BUREAU, INC.,

| No. 1837

HYMAN-MJCHAELS COMPANY, a

Petitioner,

*

NATIONAL CARGO BUREAU, INC.,

Reapondént:

ee BRIEF IN OPPOSITION TO

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

-FOR THE SIXTH CIRCUIT. |

= TS eae SS as Seok tae

1 ‘ ” .

RESPONDENT’S COUNTER-STATEMENT

. _ OF QUESTIONS PRESENTED -

WHEN A DEFENDANT VOLUNTARILY SETTLES

PLAINTIFF’S CLAIM DURING TRIAL, WITHOUT,

_ AT THE-TIME OF SETTLEMENT, FIRST OFFERING

THE THIRD PARTY’ DEFENDANT THE OPPOR-

TUNITY TO TAKE OVER DEFENSES, DOES

- PARTY. PLAINTIFF HAVE. THE BURDEN OF

' PROVING THAT HE WAS ACTUALLY LIABLE TO

THE PLAINTIFF AS A CONDITION PRECEDENT —

‘TO ESTABLISHING A RIGHT OF INDEMNITY

AGAINST THE THIRD PARTY DEFENDANT?!

Il.

DID THE COURT OF APPEALS ERR: IN HOLDING

THAT THE FINDINGS OF -FACT MADE BY THE

DISTRICT COURT WERE NOT CLEARLY ERRO-

_ NEOUS AND SUPPORTED THE CONCLUSION

(phrased in contract terms) THAT NATIONAL CAR-

GO. WAS NOT LIABLE FOR ITS BREACH OF

CONTRACT BECAUSE THE: INJURY TO THE SHIP

AND ITS CARGO WAS UNFORESEEABLE?? .

1 This question relates poe to the jury case because in the Judge-

tried case the District Judge found N.C.B. not liable for other .

reasons.

2 This ‘question would not: apply to the jury case; its 9 eee if

any, would be in connection with the udge-tried case.

2

STATEMENT OF THE CASE

For the ‘purpose of consideration of this Petition, and .

excepting as hereinafter indicated, Respondent, National

Cargo Bureau (hereinafter referred to as N.C.B.) accepts

Petitioner’s Statement of thecase.

‘EXCEPTIONS: _D

1. The 130° F pee| to in 46 C.F.R. 146 .27-100

is advisory and refers to the temperature of turn-

. ings on the dock and not aboard the ship. (R 8617,

8618, 8619, 8621). ;

2. The Coast Guard Regulations were complied

with. (61aa).

3.: While the Gyda was in Detroit and.-in Montreal,

the Shipowner and Petitioner employed experts (not

‘N.C.B.) to advise concerning the cargo heating.

* (141a, 155a, 158a, 159a, —_ 228a, ca 185a, 188a,

-189a). |

4, Temperatures qoderated while the vessel was.

in Detroit. (58aa). ,

5. Damage to the ‘ship in Montreal was slight.

a

6. The District J udge held that the N.C.B.-Hyman

contract related to activities in Muskegon only.

(39aa).. | |

7. The District pag also held that the N.C.B.

was not liable for the breach of its contract in Mus-

kegon, because the damage (expressed in contract

term$) was not reasonably foreseeable, on account of

all the occurrences between 6-18 and 7-14-61 while

the ship (Gyda) was enroute from —o to

: Philadgtphia. (58aa, =

v

3

REASONS FOR NOT GRANTING THE WRITS.

‘4 |

THERE IS NO REAL OR EMBARRASSING -CON- |

FLICT OF OPINION AND AUTHORITY BETWEEN

THE CIRCUIT COURTS OF APPEAL.

Petitioner opens its argument by stating:

‘‘The various Courts of Appeal are at hopeless

odds as to the requirements which must be met by

an indemnitor proceeding on a theory of indemnity ~

based upon a contract.’’ (Petition for Writ, at p. 10).

Petitioner concludes its argument by stating:

‘“‘One Court @f Appeals has now written an en-

tirely new condition. into, what had heretofore been

accepted law,. given, of course, netice and the op-

portunity to defend. The point needs clarification’’.

(Petition for Writ, at p. 17).

Respondent does not believe either of these statements

are correct. Respondent does not believe there is a real

and embarrassing conflict of opinion and authority between

the Circuit Courts of Appeal. Such a conflict is a condi-

tion precedent to the granting of the Writ. Layne & Bowler

Corp. v. Western Well Works, Inc., 361 U.S. 387, 393, 4

S Ct. 422, 423, 67 L Ed 712; F.R.C.P.19(b).

Petitioner contends that the law in several Circuits is

different than the law enunciated by the Sixth Circuit in

406 F. 2d 1039 (14aa), and Petitioner cites ten cases in

ae

+

support of its contention.? Respondent -respectfully sub-

mits that these cases are not in conflict with the Sixth

Cireuit’s ruling. The several cases cited by Petitioner aré

distinguishable. '

Waterman v. Dugan, 364 U. S. 421 didn’t deal with the

necessity of defense tender. It dealt with the necessity of

a direct contractual relationship between..the shipowner

and the stevedore and rules.that such a relationship was‘

not necessary. The holding is not-in conflict with the Sixth

Circuit Court of Appeals holding in 406 -F. 2d 1089. (14aa).

Rederi A/B Dalen v. Maker, 303 F 2d 565 (C.C.A. 4)

involved a situation where the third party defendant steve-

to avoid indemnity for attorney fees. The ‘Sixth Cireuit

: >. Was dealing with an entirely different situation in- 406 F

2d 1039. (14da).

Jennings v. U.S. 374 F 2d 983 does not payer Peti-

tioner’s position but rather Respondent’s position, and

the Sixth Circuit Court of Appeals so held. (2laa, 22aa)

“The indemnitee’s unilateral acts, albeit reason-

‘able and undertaken in good faith, cannot bind the

indemnitor ; notice and an opportunity to defend are

the indispensable due process satisfying elements”’.

(374 F. 2d at 986) (emphasis added) .

a

ie

3 Dramanti v. A/S Inger, 314 F 2d 395 (C.C.A. 2, 1963), cert denied

375 US 834; West Coast Terminals Co. of Calif. ¥ Luchenbach SS

Co., 349 F 2d 568 (C.C.A. 9, 1965) ; California Stevedore & Ballast

Co. v. Pan-Atlantic Steamship Cor., "291 F 2d,, 252 (C.C.A. 9, 1961) ;

Chicago R.I. and P.R. Co. v. Dobry Flour Mills, 211 F 2d 785

(C.C.A. 10, 1954), cert. denied 348 U.S. 382; Jennings v. U.S. 374

F 2d, 983 (C.C.A. 4, 1967); St. Louis Dressed Beef Co. v. Mary-

land Casualty Co., 201 U.S. 173; ;Chicago Vv. Robbins, 67 U.S. 418;

ys

dore, during trial, settled with the plaintiff and then sought .

Waterman Steamship Co. Vv Dugan & McNamara, ‘Inc., 364 U.S.

- 421;Rederi A/B Dalen v. p ete. 303 F 2d 565 (C.C.A. 4, 1962) ;

Moses-Ecco Co, v. Roscoe-Ajax Corp., 320 F 2d 685 (1963).

J

. 4)

The other cases cited by Petitioner are not applicable

and were distinguished by: the Court of Appeals. either

because the third party was tendered the defense and re-

fused it (22aa); or because the claim for indemnification

was founded on a judgment and actual liability had been

established (22aa); or because the defendant’s claim —

against “the third party was founded upon a written. con-

tract of insurance or indemnification where the insurance

company or indemnitor agreed to defend ¢ or to pay damage

claims against another (22aa). ;

The Court of Appeals was correct in habting that the

general rule is that an idemnitee must show actual liability

to recover against the indemnitor (2laa)‘, and that there

was no reason for departing fro oma this rule because Hyman

had not tendered the defense,.and by so doing had not

afforded N.C.B. the opportunity of asserting Hyman’s

defense to the plaintiff’s action as provided for by F.R.C.P.

14 (24aa). The inconvenience that might be caused in re-

quiring tender is not sufficient to deprive Respondent of .

its rights under F.R.C.P. 14.

II

THERE IS NO MATTER OF GENUINE PUBLIC .

INTEREST AT STAKE; PETITIONER MAKES

NO CLAIM THAT FINDINGS OF FACT .WERE

_ CLEARLY ERRONEOUS; PETITIONER SIMPLY

DISAGREES WITH THE FINDINGS OF FACT MADE

BY THE DISTRICT COURT WHICH WERE AF-

FIRMED BY GE COURT OF APPEALS.

4The Toledo, 122 F. 2d 255 (2nd Cir.), pect. denied, Isbrandtsen-

Moller Co. Vv. The Toledo, 314 U.S. 689, 62 S. Ct. 302, 86 L, Ed. 55

(1941); Jennings Vv. United States, 874 F. 2d 983 (4th Cir. 1967);

Nelson v. Sponberg, 51 Wash. 2d 371, 818 P. 2d 95t (1957); Dunn

v. Uvalde Asphalt Paving Co., 175 N. Y. 214, 67 N.E. 439 (1903) :

Donald v. Guy, 127. F. 228 (E. ’D. Va. 1903). :

6.

Petitioner does not state a reason to support the grant-

ing of a Writ. Petitioner does not demonstrate how a

matter of public interest is involved, Petitioner does not

contend that the conclusions of law and/or fact are clearly

erroneous.. ae

_ Petitioner is simply voicing disagreement with the Dis-

trict Court’s and the Appeal Court’s interpretation of the

evidence so as to conclude that -N-€.B. was not liable for

breach of its contract because the damage was not rea-

sonably foreseeable. The evidence showed that the damage .

was remote in time and space from the breach and that —

there were a number of intervening events, besides the

- Captain’s applying water to the cargo. (7aa, 10aa, 1laa,

o8aa, 59aa). :

Petitioner. should be otal “from criticeina ‘the Dis-

trict Court’s terminology because Petitioner actively con-

tributed to the District Judge’s use of this language, '(1laa) ~

for instance, by submitting Requests to Charge which used

the terms ‘‘proximate cause’’. (368c, 369c, 370c).

Further, the selection of technically incorrect language

(‘‘proximate cause’? rather than ‘‘unforeseeable’’) by

the-District Court is not a reason for reversal or remand

because ifthe decision below fs correct, it must be

affirmed, although the lower court relied upon a wrong

ground or gave a wrong reason. Frey ¢& Son v. Cudahy

' Packing Co., 256 U.S. 208; United States v. American Ry.

Express Co., 265 U.S. 425; United States v. Holt State

Bank, 270 U.S. 49, 56; Langnes v. Green, 282 U.S. 531; .

Stelos Co. v. Hosiery Motor-Mend Corporation, 295 US. _.

237, 239; cf. United States v. Williams, 278 U.S. 255;

Hevcias v. Gowan, 302 U.S. 238; Riley Co. v. Commis-

sioner, 311 U.S. 55.

’ A

cy

7 ° ;

CONCLUSION

Examination of the cases relied upon by Petitioner will

: Gemonsteate that there is not an embarrassing conflict be

‘tween the Circuit Courts of Appeal.

Petitioner’s Reason IT is not a valid: reason for grant-

_ing of the Writ, because a matter of public interest is not

involved; and because the findings below are not clearly

erroneous; and because the giving of a wrong reason for

a correct result is not a basis for reversal or remand.

Respectfully submitted, |

DAVID V. MARTIN

1805 Ford Bldg. -

Detroit, Mich. 48226

Attorney for Respondent

MARTIN, BOHALL, JOSELYN, |

HALSEY & ROWE, P.C. ye Aaa

Of Counsel