Opposition Brief — Sohio Petroleum Co. v. Oil Transport Co.

JURISDICTION

This Court has discretion as to whether or not it will

review this case under the authority granted in Section

1254(1), Title 28, United States Code.

QUESTIONS PRESENTED

(1) Whether or not Ryan should be expanded so that

it imposes liability by way of indemnity upon a shipowner

and in favor of a shipper of cargo who had no exposure to

potential liability without fault?

(2) Whether or not Sohio, the shipper, can recover

attorneys’ fees and litigation expenses incurred in success-

fully defending an action brought by Plaintiffs predicated

on the alleged negligence of Sohio alone and unrelated to

the negligence, if any, o1 Oil Transport and/or Green-

ville?

STATEMENT OF THE FACTS

On January 5, 1961, Sohio entered into a contract

with Oil Transport, which contract is designated a “Liquid

Cargo Charter Party”, for the transportation of crude oil,

from Hartford, Illinois, to Sohio’s facilities at Mayersville,

Mississippi. On August 28, 1961, Oil Transport, as Char-

terer, subcontracted one shipment to Greenville by an

instrument designated as “Barge Charter Party”. These

two documents are found in the Appendix in the Court of

Appeals.

In its Petition for Certiorari, Sohio makes certain

statements concerning the language contained in the Liquid

Cargo Charter Party between Sohio and Oil Transport.

9)

In connection therewith, it is quite relevant to consider

the language contained in the force majeure clause of the

Barge Charter Party between Oil Transport and Green-

ville, where it is provided that:

“The tow, its captain and Owner [Greenville] shall

not . . . be responsible for any loss or damage arising

or resulting from ... inherent defect, quality or vice

of the cargo; [or] any act or omission of the Charterer

[Oil Transport], owner [Sohio], shipper [Sohio] or

consignee of the cargo, their agents or representatives

A fai reading of the two charter party agreements leads

to the sensible conclusion that each party was to bear

responsibility for its own negligence, while neither party

was to be responsible for the other’s negligence.

On September 7, 1961, during the discharge of cargo

at the Sohio facility at Mayersville, Mississippi, Kenneth

Ray McClure Hobart and Roy Lorenzo Jones entered the

hold of one of the barges and died due to suffocation caused

by the saturation of the atmosphere in the paricular com-

partment with hydrocarbon gases which drove out the nec-

essary supply of oxygen. Subsequently, suit was brought

by Hobart against Sohio under the Mississippi Wrongful

Death Act, with Hobart alleging that the crude oil owned

by Sohio was unusually dangerous, that Sohié” knew, or

should have known, of the unusually dangerous character-

istics of the crude oil, and that Sohio failed to give any

warning thereof to the Greenville crew of which Hobart

and Jones were members. Sohio’s negligence in “failing

to warn” was alleged to be the proximate cause of the

death of Hobart and Jones.

Factually, the allegations of negligence brought by

Hobart and the proof introduced at trial by Hobart were

directly strictly against Sohio. At no time during the course

6

of the proceedings did Hobart attempt to impose upon Sohio

liability for any actions for which Oil Transport and/or

Greenville should be held ultimately responsible. The

alleged negligence with which Sohio was charged was not

in any way derivative from acts or omissions of Oil Trans-

port and/or Greenville. Rather, the matters over which

Sohio was unsuccessfully sued related peculiarly to Sohio

and to Sohio alone.

REASONS FOR DENYING CERTIORARI

(a) The Decision of the Court of Appeals Does Not Conflict

with the Decision of the U. S. Court of Appeals for the

Fourth Circuit in General Electric Company v. Moretz.

The thrust of Sohio’s Petition for Certiorari is that

there is a conflict between the decision below and the

decision of the U. S. Court of Appeals for the Fourth Cir-

cuit in General Electric Company v. Moretz, 270 F.2d 780

(4 Cir., 1959), cert. den. 361 U.S. 964 (1960). Sohio insists

that the Fourth and Fifth Circuits have rendered con-

flicting interpretations of Ryan and that this Court should

now resolve that alleged conflict.

Greenville submits that this purported conflict between

the Circuits is simply not there. With deference we submit

that Sohio’s characterization of Moretz as an —

of the Ryan doctrine is mistaken.

(1) The Fourth Circuit’s Decision in Moretz Is in.

No Way a Ryan-Compelled Decision.

There are several reasons why Moretz' does not con-

flict with the holding of the Court of Appeals below.

1. Since the facts of Moretz are fully discussed in the Petition

for Certiorari, that discussion will not be repeated here.

> ae ees

7

Mcst important of these is the fact that the holding of

Moretz on the indemnity question is not dependent upon

Ryan at all. In fact, if the entire discussion of Ryan

in Moretz (see pages A50-A52, Appendix “E” to the Peti-

tion for Writ of Certiorari; 270 F.2d at 788-789) were

deleted, the opinion of the Court would not suffer. A careful

analysis of Moretz reveals that the Court reaches the

decision to impose indemnity on Mason & Dixon (the

carrier in that case) on grounds wholly independent of

the Ryan doctrine. Moretz is based on the carrier’s own

negligence in violating specific I.C.C. regulations [49 C.F.R.,

§192.9] which formed a part of the contract between ship-

per and carrier. There is no question of inherent or implied

_ obligations shouldered by the carrier - - - they are spelled

out in black and white in the regulations. The Moretz

Court finds that the contract between Mason & Dixon and

General Electric consisted of the bill of lading covering the

shipment issued under the published tariff, and several

applicable statutes and regulations. The Court then finds

that Mason & Dixon was guilty of a negligent breach of

certain duties imposed upon it by the whole contract, that

the breach of those duties was a proximate and super-

ceding cause of the injuries suffered by plaintiff, and that

Mason & Dixon should indemnify General Electric for those

sums General Electric was required to pay the plaintiff.

All of this is done without any reference to Ryan or to a

Ryan-type implied duty to indemnify.

Then, and only after the indemnity issue has been

decided, the Court discusses Ryan and its progeny. Nothing

in that discussion supports the view that the Moretz Court

thought the result it reached was compelled by the Ryan

doctrine, or even that Ryan was necessary by the deci-

sion. Nothing in Moretz indicates that a different result

would have been reached there had Ryan never been de-

cided. Moretz refers to Ryan as involving “a similar ques-

MG ae cage HATERS

8

tion in . . . [an] analogous situation”. 270 F.2d at 788.

And, to beister the justice of the result it had already

reached, Moretz notes that “the default of the shipper in

the pending case was no greater than that of the shipowner

in the cited cases [Ryan and progeny]”. 270 F.2d at 789.

In short, the discussion of Ryan in Moretz is pure dicta.

(2) The Posture of the Indemnitors Here and in Moretz

Are Significantly Different.

A second significant distinction between Moretz and

the opinion below is that the legal postures of the alleged

indemnitors (Oil Transport and Greenville in this case,

Mason & Dixon Lines, Inc. in Moretz) are different. In

Moretz, Mason & Dixon was subject to potential liability

for its own negligence and also for violations of certain

statutory duties. Here, however, Greenville was subject

to liability for its own negligence (under the very strict

standard of the Jones Act, 46 U.S.C. §688; the Hobart and

Jones boys were “Jones Act seamen’) and was also sad-

dled with an absolute, non-delegable duty to maintain the

M/V WALTER WILLIAMSON and her tow in a sea-

worthy condition at al’ times. Indemnity aside, Green-

ville was already saddled with much greater potential li-

abilities than was Mason & Dixon. It is one thing to subject

a carrier in the position of Mason & Dixon to potential li-

ability to its shipper by way of indemnity, but it is quite

a different matter to impose indemnity obligations on

Greenville which was surely laboring under a heavy

enough burden of potential liabilities as was.

(3) The Nature and Source of Indemnity Here and

in Ryan Are Different from That in Moretz.

; A third reasoi why Moretz and the decision of the

Court of Appeals below are not in conflict is mentioned

above. It is found in the nature and source of the alleged

9

warranty and duty to indemnify in each case. In Moretz,

the duties imposed upon Mason & Dixon are found in the

entire written contract between the shipper and the carrier.

Provisions of certain statutes and I.C.C. regulations were

made a part of that contrac‘, and it was the breach of these

that subjected Mason & Lixon to indemnity. In J.oretz

the carrier’s duties are clearly spelled out as principles of

positive law affecting the parties. Reference to equitable

principles or implied obligations in no way aided the

Moretz Court in casting upon the carrier a duty to in-

demnify. By way of contrast, the Ryan doctrine, sought

to be imposed upon Greenville here, has always consid-

ered its warranty and resulting indemnity to be implied

out of the relationship between the shipowner and the

stevedoring company. It has always been founded upon

equitable principles. The absolute, non-delegable warranty

of seaworthiness imposed upon the shipowner, together

with the stevedoring company’s implied-in-fact warranty

of workmanlike service, have always been the triggering

factors. The source of the Ryan-type warranty, unlike the

warranty found in Moretz, is in no way statutory or regu-

latory.

Moretz did not find the basis for its indemnity holding

in the inherent relationship between the shipper and the

carrier, nor did it devolve that holding from the necessity

for protection of the shipper from the harshness of any

warranty of its own as strict as the warranty of seaworthi-

ness. Moretz instead looked to the provisions of certain

statutes and regulations which it held to be a part of the

contract between the shipper and carrier. The legal prin-

ciples necessary to the decision in Ryan and Moretz, re-

spectively, though similar in their substance, derive trom

entirely different generic sources. Likewise, the interpre-

tation of Ryan in the Fifth Circuit’s decision in the case

at bar construes legal principles wholly different in point

10

of origin from those of Moretz. Therefore, the failure of

the Court of Appeals below to permit indemnity here is not

in confli-c with the holding of the Fourth Circuit in Moretz.

(4) The Fourth Circuit Has Never Considered Moretz

to Be in the Mainstream of Developing Ryanism.

Perhaps the best evidence of the proposition that the

alleged conflict between the Circuits urged by Sohio is

somewhat ephemeral is found within the Fourth Circuit

itself. In American Export Lines v. Norfolk Shipbuilding

& Drydock Corporation, 336 F.2d 525 (4 Cir., 1964), the

Court applied the Rzan doctrine in favor of the owner pro

hac vice of a ship which had been delivered to the ship-

yard. Since the ship was subject to potential liability for

unseaworthiness, e.g., West v. United States, 361 U.S. 118

(1959), its owner pro hac vice had the need for protection

traditionally found in Ryan cases. Therefore, the Court of

Appeals correctly emphasized the “potential liability”, 336

F.2d at 527, of the ship, and held that the shipyard must

indemnify the owner pro hac vice for expenses incurred

in the successful defense of the original personal injury

cinim.

What is significant about the American Export Lines

case is th t it never mentions Moretz. Chief Judge Sobeloff

who was 21 member of the panel which decided Moretz,

never once refers to Moretz in his American Export Lines

opinion. Rather, he relies on Ryan and several other Su-

preme Court cases, as well as Ryan cases in the Fourth

and other circuits. The compelling inference is that (1)

Moretz does not involve an actual application of Ryan and

(2) Moretz is outside the mainstream of developing

Ryanism.

The same conclusion can be extrapolated from Rederi

A/B Dalen v. Maher, 303 F.2d 565 (4 Cir., 1962), also a

aa

traditional Ryan-type case in which Moretz is never men-

tioned.

In the Fourth Circuit cases in which Moretz is dis-

cussed, it has been uniformly distinguished. Norfolk &

Western Railway Co. v. Anderson’s-Black Rock, Inc., 350

F.2d 917 (4 Cir., 1965); Casella v. Norfolk & Western Rail-

way Co., 381 F.2d 473 (4 Cir., 1967).

We have not found a single case in the Fourth Circuit

or elsewhere that has considered Moretz to be a Ryan-com-

pelled decision. Analogous on its facts, maybe. Compelled

as a matter of law, no.

(b) The Fifth Circuit’s Interpretation of the Ryan Doctrine

Is Correct.

A further reason why certiorari should not be granted

here is that the construction given Ryan consistently in

the Fifth Circuit is in keeping with the spirit and intent,

as well as the letter, of Ryan and its progeny. See, e.g.,

Weyerhaeuser Steamship Co. v. Nacirema Operating Co.,

355 U.S. 562 (1968); Crumady v. The Joachim Hendric

Fisser, 358 U.S. 423 (1959); and Italia Societa v. Oregon

Stevedoring Co., 376 U.S. 315 (1964). Indeed, not only is

the decision below a faithful application of the Ryan doc-

trine, but also it appears at least by implication in the later

decisions of this Court that any conflict between the Fourth

and Fifth Circuits has been resolved in favor of the position

taken in the Fifth Circuit.

In Ryan, and in the cases following Ryan, the courts

have frequently talked of the need for providing protection

to the shipowner. This need derives from the absolute

and non-delegable duty of seaworthiness which the general

maritime law imposes upon all vessel owners. The

Osceola, 189 U.S. 158 (1903); Mahnich v. Southern S:S.

Co., 321 U.S. 96 (1944). In the typical situation, the

12

stevedore takes control of the vessel during the loading

and unloading operations and by law, because of the

stevedore’s expertise and the vessel owner’s reliance upon

that expertise, an implied warranty is written into the

stevedoring contract to require the stevedore to perform

the loading or unloading operation in a workmanlike man-

ner. If this warranty is breached, and if the vessel owner

suffers some loss as a proximate result of that breach, then

the vessel owner is given the right to sue the stevedoring

company by way of indemnity. Because the shipowners

are faced with potential liability under Sieracki? without

regard to their negligence and at a time when they have

surrendered control of their vessels, and because of the

special expertise of the stevedore company in conducting

loading and unloading operations, the equitable doctrines

of the general maritime law have been invoked to give

the shipowners much needed protection.

In our case, however, the owner of the vessel involved

(the party who was saddled with the absolute, non-dele-

gable duty of providing a seaworthy vessel) has become

the alleged indemnitor, not the indemnitee as in Ryan. In

our case, the indemnitee, the party asking the Court for the

favored treatment of Ryan doctrine, is the party from whom

and to whom the cargo (Wyoming Sour Crude Oil), was

being shipped. Of course, Sohio like any other party was

exposed to liability to any person injured by Schio’s negli-

gence. But the legal duties owed by Sohio to the crew

working on September 7, 1961, were not nearly as great as

the duties owed by the shipowner in the Ryan case. By

the same token, Sohio’s need for protection in the form of

the indemnity doctrine is by no means as great as the ship-

owner’s need for protection in the Ryan situation.

2. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872,

90 L.Ed. 1099 (1946).

13

We recognize the fact that the Ryan doctrine has been

extended beyond the classic longshoremen-shipowner-

stevedore situation. We are not aware, however, of any

case in which the Ryan indemnity has been held to exist

in favor of a party who did not need special protection be-

cause of the peculiar factual or legal position occupied by

that party.

The cases in the Fifth Circuit, construing the Ryan

indemnity doctrine, in addition tc the opinion there in the

case at bar, are legion. See eg., Halliburton Company

v. Norton Drilling Company, 302 F.2d 431 (5 Cir., 1962);

Delta Engineering Corporation v. Scott, 322 F.2d 11 (5

Cir., 1963); Ocean Drilling & Exploration Co. v. Berry

Brothers Oil Field Service, Inc., 377 F.2d 511 (5 Cir., 1967),

cert. denied 389 U.S. 849 (1967); Centraal Stikstof Verkoop-

kanter, N.V. v. Walsh Stevedoring Company, 380 F.2d 523

(5 Cir., 1967); Loffland Brothers Company v. Roberts, 386

F.2d 540 (5 Cir., 1967), cert. denied 389 U.S. 1040 (1967);

Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d

1011 (5th Cir., 1969), cert. dis., 396 U.S. 1033 (1970); and

Smith Petroleum Service, Inc. v. Monsanto Chemical Co.,

420 F.2d 1103 (5 Cir., 1970). See also Bue, Admiralty Law

in the Fifth Circuit—a Compendium for Practitioners, 4

Houston L. Rev. 347, 408 (1966).

A few representative statements of Fifth Circuit’s

point of view are as follows:

In the Ocean Drilling case, this Court stated:

“While freely implementing this contractual obligation

of the stevedore to indemnify the shipowner in accord-

ance with the liberal spirit of Ryan, we have hesi-

tated, however, to extend it beyond those controversies

involving the ‘special rules governing the obligations

and liability of shipowners’ which necessitated its

formulation and justify its application.” 377 F.2d at

513 [Emphasis added]

14

In the Loffland Brothers case, the Court again dis-

cussed the severe burdens placed upon the shipowner by

the warranty of seaworthiness and made the following

comment:

“Recognizing this unique obligation on the part of a

shipowner, we have held that the Ryan doctrine is

closely tied to a vessel and this obligation which the

Shipowner owes to those employed on the vessel...

We are accordingly extremely hesitant to extend the

burdensome Ryan doctrine to situations not substan-

tially similar to those which gave birth to the doc-

trine.” 386 F.2d at 549 [Emphasis added]

And, in the instant case, the Court of Appeals fully con-

sidered the development of the Ryan doctrine and con-

cluded that

“The predicate of the doctrine is the shipowner’s

absolute nondelegable liability under the seaworthi-

ness guaranty.” 445 F.2d at 439.

These expressions, we believe, are fully consistent

with the scope and substance of Ryan and the later cases

in this Court construing Ryan.

Of these Fifth Circuit cases, all of which are post-

Moretz, it is relevant to note that petitions for certiorari

were filed and denied in at least two, Ocean Drilling & Ex-

ploration Co. v. Berry Brothers Oil Field Service, Inc.,

supra; and Loffland Brothers Compony v. Roberts, supra.

In both of these cases the Fifth Circuit’s interpretation

of Ryan pervades the opinion of the Court. Certiorari was

denied in both cases in 1967.

We do not presume to know ihe reasons why certio-

rari was denied. in Ocean Drilling and Loffland Brothers.

We believe, however, it fair to assume that one of three

possible reasons motivated the Court: (1) The decisions

15

of the Court of Appeals were correct, (2) no conflict was

found with the interpretation of Ryan in other circuits,

or (3) the issue simply was not important enough to merit

review. If one or more of these reasons did guide the

Court to deny certiorari in Ocean Drilling and Loffland

Brothers, surely such reason or reasons would be equally

compelling here.

We find nothing which has occurred since Ocean

Drilling and Loffland Brothers which would require a dif-

ferent disposition of the instant petition for certiorari.

There have been no intervening decisions in this Court

which casts doubi upon the correctness of the Fifth Circuit’s

interpretation of the Ryan doctrine in this case. The al-

leged conflict, if any, with the Fourth Circuit’s Moretz

decision is no greater than it was in 1967. And, we know

of no reason why the issues raised here are of any greater

importance now than they were in 1967.

In short, we believe the denials of certiorari in Ocean

Drilling and Loffland Brothers constitute substantial au-

thority for the denial of certiorari here.

In addition it is noteworthy that certiorari was denied

in Moretz, 361 U.S. 964 (1960). This, too, says something

about the importance of the question being raised here.

The construction given Ryan in the Fifth Circuit may

also be found in other Circuits. A case in point is the de-

cision of the United States Court of Appeals for the Second

Circuit in Schwartz v. Compagnie Generale Trans-Atlan-

tique, 405 F.2d 270 (2 Cir., 1968). In Schwartz, the original

cause of action against the shipowner had been asserted

by one who was not owed a duty of seaworthiness. The

shipowner sought to implead the plaintiff’s employer, the

United States Government, under the Ryan doctrine. In

Schwartz, the Court held that, since there was no duty

2

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16

of seaworthiness owed to the plaintiff by the owner of

the vessel, there were no underlying equitable considera-

tions which would allow the indemnity suit over ard

against the employer of the plaintiff. The Court began

by noting that:

“This warranty doctrine is one of several special rules

developed to further a policy of both minimizing 4ac-

cidents to seamen and stevedores which arise out of

the hazards of their ship board occupation and com-

pensating those workers who do fall victim to these ac-

cidents.” 405 F.2d at 275.

The Court then went on to note that one of these “special

rules” was the warranty of seaworthiness and then con-

cluded that the plaintiff was not within the scope of that

watranty. The Court then stated:

“The Courts have recognized that the doctrine of sea-

worthiness, which creates ligbility without fault, places

an extremely heavy burdén of liability on the ship-

owner. Indemnity is peryhitted the shipowner because

his reliance upon an indgpendent contractor frequently

results in the shipowner’s vicarious liability for injur-

ies without fault ... Since any equitable considerations

underlying the decision of courts to require indemnity

by applying the implied warranty of workmanlike ser-

vice are ultimately derived from a shipowner’s liabil-

ities under the seaworthiness guaranty, where there is

no such possible liability, as in this case, there can be

no requirement of indemnity under the warranty doc-

trine.

The fact that a shipowner may be found liable to plain-

tiff due to the ship’s negligence is hardly an injustice

per se requiring this court to invoke an artificial equita-

ble doctrine of indemnity. The shipowner is obli-

gated to pay plaintiff only if it was negligent, and if,

as a proximate result thereof, Schwartz suffered in-

juries; .. .” 405 F.2d at 276 (Emphasis added]

“ee TERE Sep mr WER,

17

The Second Circuit’s construction of Ryan is thus precisely .

the same as that prevailing in the Fifth Circuit.

It is also relevant to note at this point that in a recent

case, admittedly factually distinguishable, the United

States Court of Appeals for the Tenth Circuit has refused

to expand Ryan beyond its originally intended scope.

Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247 (10 Cir.

1971).

(c) This Is Not a Proper Case for Reselving Any Conflict

Between the Fourth and Fifth Circuits Because There

Is an Independent Basis Upon Which the Judgment

Below Must Be Sustained.

Even though the Court should believe that a conflict

exists between the Fourth and Fifth Circuits, Greenville

submits that this is not a proper case for resolving that

conflict. If we assume arguendo that the Moretz indem-

nity rules shouid be applied here, Sohio still is not entitled

to recover from Greenville and Oil Transport. This is be-

cause, even under Moretz, the facts of this case do not

give rise to a right of indemnity against Greenville and Oil

Transport.

The basis upon which Hobart sued Sohio is totally un-

related, factually and legally, to any conduct on the part of

Greenville which might be construed as a breach of any

warranty owed by Greenville to Sohio. Although the situs

of the accident was upon the navigable waterways of the

United States, the cause of action asserted by Hobart

against Sohio was wholly civil and non-maritime in na-

ture. The suit was predicated upon Mississippi wrongful

death statute, with Hobart alleging negligence on the part

of Sohio. Jurisdiction was based upon diversity of citizen-

ship, not upon the maritime jurisdiction of the court. The

specific act of negligence with which Sohio was charged

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18

was an alleged failure to warn the Hobart and Jones boys

of the dangerous nature of the cargo, Wyoming Sour Crude

Oil. Sohio is not charged with committing any act or omis-

sion for which Oil Transport and/or Greenville should ul-

timately be held responsible. The alleged negligence in

the principal case was that of Sohio and of Sohio alone.

The cause of action against Sohio was not derived from

any actions, negligent or otherwise, for which Oil Transport

and/or Greenville were responsible. As the District Court

noted:

“In the case sub judice the demand contained in the

complaint is not bottomed on an act of negligence, or

failure to perform a duty on the part of the carriers, or

either of them, but rather on the alleged acts of neg-

ligence committed by the shipper, the owner of the

cargo, in that the shipper failed to warn the crew mem-

bers of the dangers inherent to the oil, which were

known to it but unknown to the crew of the vessel.”

Petition for Certiorari, Appendix, p. A. 18.

In the Courts below, Sohio carefully constructed a

factual theory upon which it rests the conclusion that

Greenville breached its alleged warranty of workmanlike

service. Aside from the fact that neither Judge Clayton

nor Judge Smith made factual findings remotely resembling

those made by Sohio (which in and of itself proves fatal to

Sohio’s cause), even if we assume those facts to be true,

they are in no way related to the “failure to warn” negli-

gence cause of action asserted by Hobart against Sohio.

We realize that the basis of liability from the stevedore to

the shipowner does not necessarily have to be the same as

the basis of liability from the shipowner to injured worker

—the former being contractual in nature, while the latter

sounds in tort. This difference, however, is legal, not

factual. The factual basis upon which the Ryan indemnity

suit is predicated must be substantially related to, if not

19

identical to, the origin of the cause of action asserted by

the injured longshoreman and the resulting loss to the ship-

owner. There must be a causal coni.cction between the

actions of the indemnitor which breached the implied war-

ranty and the loss sustained by the indemnitee.

In the instant case, this necessary causal nexus, even

assuming Sohio’s version of the facts to be true, cannot be

found. The loss was occasioned by Hobart’s belief that

there was some inherently dangerous quality in Wyoming

Sour Crude Oil of which not only the decedents but also

the master and entire crew of Greenville’s vessel were un-

aware. Sohio’s loss was sustained because Hobart filed a

lawsuit against it predicated solely upon the alleged neg-

ligence of Sohio, which was unrelated to anything done or

left undone by Greenville. Assuming ar,uendo that there

was a factual basis upon which Greenville Towing might

have been held liable to Hobart, his Complaint and proof

make no mention thereof.

The cases in this Court are clear that, even where a

three party lawsuit is covered by the Ryan doctrine, the

third party plaintiff must establish factually that the third

party defendant breached the implied warranty of work-

manlike service and that the breach proximately caused the

loss sustained by the third party plaintiff. Weyerhaeuser

Steamship Co. v. Nacirema Operating Co., supra; Atlantic

and Gulf Stevedores, Inc v. Ellerman Lines, Ltd., 369 U.S.

355 (1962); International Terminal Operating Co. v. N. V.

Nederl. Amerik Stoomv Maats., 393 U.S. 74 (1968). In

any lawsuit, tort or contract, the plaintiff must establish a

factual causal connection between the breach of a legal

duty owed by the defendant and the loss sustained by the

plaintiff.

Here, the alleged negligence in the principal action suc-

cessfully defended by Sohio was the allegation that Sohio

VA PISANI,

PMO yet MONO

20 |

failed to warn the members of the crew of the vessel and

barges involved of certain alleged dangers having to do

with the crude oil being transported. There is no allega-

tion whatsoever in the Complaint that Greenville knew of

these alleged dangers, and no proof at the trial implicated

Greenville in the alleged “failure to warn”. In fact, the

principal contention of Hobart throughout has been that

Sohio failed to warn the crew of Greenville’s vessel of these

dangers. Clearly, the negligence involved in. these allega-

ticns is not imputed to Greenville. This negligence, if any,

was strictly that of Sohio and Sohio alone. How then can

it be said that Greenville Towing Company is responsible

for Sohio’s attorney’s fees and litigation expenses incurred

in the successful defense of the principal action here in-

volved?

In the above view of the matter, this case becomes less

than attractive as a vehicle for resolving any conflict be-

tween the Fourth end Fifth Circuits. Even though this

Court should find that such a conflict exists, and even

though that conflict should be resolved as Sohio suggests,

the judgment below must still be affirmed. Because of the

absence of a causal relationship between the conduct of

Greenville and the theory on which Hobart brought suit

against Sohio, indemnity does not lie. Accordingly, the

granting of certiorari here would be in vain.

The Court has in the past recognized the validity of

the objection being raised here. In S/S Monrosa v. Carbon

Black Export, 359 U.S. 180 (1959), the Court noted that

“while this Court decides questions of public im-

portance, it decides them in the context of meaningful

litigation. Its function in resolving conflicts among

the Courts of Appeals is judicial, not simply adminis-

trative or managerial. Resolution here of the extent

to which these bill of lading provisions [the issue in

conflict among the circuits] may be given effect by

21

our courts can await a day when the issue is posed less

abstractly.” 359 U.S. at 184.

Here, the District Court correctly held that the facts

of this case take it outside of Ryan even if Ryan applies.

There is in this case, therefore, an independent or al-

ternative ground on which the judgment below can be sus-

tained. Where this is so, the appearance of a conflict be-

tween the Circuits does not constitute an adequate rea-

son for the grant of certiorari.

CONCLUSION

For the reasons stated above, Respondent respectfully

and with deference suggests that there is neither a con-

flict between the circuits nor are there any special or

important reasons present in this case to support the

granting of the Petition for a Writ of Certiorari. The de-

cision of the Court of Appeals in the instant case is sound.

There is no reason for further review.

Respectfully submitted,

HAROLD R. DeMoss, Jr.

BRACEWELL & PATTERSON

First City National Bank Building

Houston, Teyrs 77002

JAMES L. ROBERTSON

CAMPBELL, DELONG, KEapy,

ROBERTSON & HaGwoop

119 North Broadway

Greenville, Mississippi 38701

By:

JAMES L. ROBERTSON

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