Brief for the Respondent in Opposition — Enso-Gutzeit O/Y v. Siderewicz

IN THE

Supreme Court of the United, States

Ocroser Term, 1971

Ewso-Gurzeit, O/Y, Fixy. Lryes, Lip, O/Y

and Connecricur Terminat Co., Inc.,

Petitioners,

—against—

Ropert SipEREWICz.

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Jacop Rassner

Attorney for Respondent

15 Park Row

New ‘York, New York 10038

Jacop RassNER

and

AuAN C. Rassner

on the Brief

INDEX

PAGE

RG ke I er dnl cereale | 1

OIE saint ek Sh 2 oa ei a 8 2

Questions a SAS gD i Lina Sed Ne 3

ARGUMENT

Point I

The holding by the Court of Appeals does not con-

flict with this Court’s decision in Usner vy. Lucken-

bach Overseas Corporation, et al., 400 U.S. 494,

91S. Ct. 514 (1971), or with this Court’s summary

action in Zim Israel Navigation Co. v. Taraboc-

chia, 401 U.S. 930, nor is it detrimental to uni-

formity of decision under maritime law .................... 4

Point II

The decision by the Court of Appeals for the Sec-

ond Circuit was in strict conformity with the hold-

ing by this Court in Usner v. Luckenbach Overseas

Corporation, et al., 400 U.S. 494, 91 S. Ct. 514

(1971).

An unsafe condition, irrespective of notice or

-eausation, constitutes breach of warranty of sea-

I Sai ithaca scncceecumatarncnctiasdariciseenmienens 6

il

PAGE

Pornt III ~

‘There is nothing in the record to support the con-

tention that a sole isolated act of negligence by a

longshoreman was the cause of the accident.

Contributory negligence on the part of a fellow

longshoreman does not bar recovery, as a matter

of law, for a maritime accident due to breach of

warranty of seaworthiness 0.0000. 3

Point LV

The concept of unseaworthiness expressed by this

Court in the Usner ease, supra, has been com- .

pletely adhered to by the court below.

The question of causal relationship under the facts

presented was a factual issue to be determined by

UE ce accent Ae 11

TABLE OF CASES

A. & G. Stevedores vy. Ellerman Lines, 369 U.S. 355 _.... 8

Blassingall v. Waterman Steamship Corp., 336 F.2d

RRND care cleats ae 4,6

Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 79

A Ne uterine ee 5, 8

DeGioia v. U. S. Lines Co., 304 F.2d 421 (1962) 0... 9

Grillea v. United States, 232 F.2d 919 (2d Cir.

ne es none er rd Be! 4,8, 9,10

PAGE

Knox y. United States iiina Company, 294 _— 304

Gn NC NN ite ..9, 10

LaCapria v. Compagnie Maritime = 427 F.2d 244

ERP cuter cue i eS idadincqumbbobian 6, 9

Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct

UP sactahentacoutintitaie eae ainccin en leonscieh msaedecebieassiucuiakesme acne. 8

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

Pe I ND iiss so diccccitetecen scene series 7

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

| |) nce ites bensasadetbddeiabiion so scioe 8

Puddu v. Royal Netherlands latin Company, 303

F. 2d 752 (2nd Cir., 1962) 002.2... Seeaelaneecuseanees 10

Radovich y. Cunard Steamship Co., 364 54 Fd 149 (1966) 6

Reid v. Quebec Paper Sales & Transportation Co., 340

te SN ose 10

Robillard v. A. L. Burbank & Co., 186 F. Supp. 198 ...... 9

Sia Shipping Co. v. Sieracki, 328 U.S. 85 2000. 8

Skibinski v. Waterman S.S. Co., 360 F.2d 539 6, 10

"Smith v. Lauritzen, 201 F. Supp. 663 (E.D. Pa. 1962) .. 10

Tarabocchia v. Zim Israel Navigation Co., 446 F.2d

re en ee ey tor .

Thompson v. Calmar S.S. Corp., 331 F.2d 657 (1964) ..

Usner v. Luckenbach Overseas Corp., et al., 400 U.S.

494, 91 S. Ct. 514 (1971) .. DIT Rao RE TOTS 4,5, 6, 7,8

Zim Israel Navigation Co. v. Tarabocchia, 401 U.S.

cena LARA ASR ET ORIEN RCL IL DEORE TOOT ITT Ota 4

IN THE

ouprene Court of the United States

OcroBer Term, 1971

Ewso-Gurzeit, O/Y, Finn Liyes, Lp. O/Y

and Connecticut TERMINAL Co., Inc.,

Petitioners, .

—against—

Rosert ‘SipEREWICz,

Respondent.

—<>—

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Statement of the Case

This action was brought:to recover damages for personal

injuries sustained by the respondent while working as a

longshoreman.

The case was tried in the United States District Court for

the District of Connecticut before the Hon. J. Epwarp

Lumsarb, Chief Judge of the United States Court of Ap-

peals for the Second Circuit, sitting by designation, and a

jury.

At the close of respondent’s case, the Court granted the

petitioner’s motion to dismiss the complaint on the basis

that a cause of action had not been established.

2

The United States Court of Appeals for the second Cir-

cuit reversed and ordered a new trial (p. 7a-8a).'

Petitioners then applied to the Court of Appeals for

a rehearing and suggested that a rehearing be held in bane.

The petition for a rehearing was denied (p. 9a) and as

no active Cireuit J udge requested that a vote be taken on

the suggestion that a rehearing be held in bane, that peti-

tion was also dénied (p. 10a).

t.

Facts

On the 10th day of December, 1965, the merchant vessel

FINNEAGLE was discharging bales of wood pulp at the State

Pier, New London, Connecticut (Tr. 4, 43, 48, 93).*

The established usage and custom and precise printed

Safety and Health Regulations for Longshoring required

that each draft be limited to eight bales and that two bale

hooks be provided for each bale (Tr. 5-8, 11, 12, 44, 49, 66,

97, 98).

Just prior to the accident an extra ninth bale was tied

by rope onto the customary eight bales, creating an unsafe

condition (Tr. 15-16, 24, 31, 32, 44, 47. 66, 99). When the

draft was landed on the dock the hooks were first removed

from the eight bales. The ninth bale was tied to the other

eight bales in such a way that the draft had to be lowered

further in order to untie the ninth bale (Tr. 17, 44). This

‘Numbers in parentheses followed by the letter “a” refer to the

pages in the appendix to the petition for a writ of certiorari.

* Numbers in parentheses preceded by “Tr.” refer to pages of the

trial transcript which has been certified by the Clerk of the Court

of Appeals and flied in this Court.

resulted in sixteen hooks lying scattered on the dock (Tr.

oe i

After the ninth bale was untied, a signal was given and

the winchman commenced taking up the falls to which the

hooks were attached (Tr. 66, 94). The dangerous method of

adding a ninth bale resulted in the hooks being dragged on

the dock instead of staying clear, causing one hook to snag

in a crevice on the dock (Tr. 17, 18, 44, 45, 66, 67, 77, 78,

109). When the winchman took up the slack on the falls,

the hook snapped loose and struck the respondent with

great force (Tr. 43, 68).

The winchman testified that he had acted in a careful,

proper and prudent manner, free from any. negligence,

and corroborated respondent's contention that the unsafe

condition of the draft was the proximate cause of the acci-

dent (Tr. 94, 97, 99, 108, 109).

Questions Presented

Respondent submits that the questions presented by

this case are as follows:

1. Does an unsafe condition brought about as a result

of bad practice by longshoremen constitute a breach of war-

ranty of seaworthiness?

2. Does contributory negligence on the part of a fellow

longshoreman bar recovery, as a matter of law, for a mari-

time accident due to breach of warranty of seaworthiness?

3. Under the facts of this case is causal relationship be-

tween the unseaworthiness and the injury to respondent

a question of fact for the jury?

ARGUMENT

POINT I

The holding by the Court of Appeals does not conflict

with this Court’s decision in Usner v. Luckenbach Over-

seas Corporation, et al., 400 U.S. 494, 91 S. Cr. S14

(1971). or with this Court's summary action in Zim

Israel Navigation Co. v. Tarabocchia, 101 U.S. 930, nor

is it detrimental to uniformity of decision under mari-

time law.

The Court of Appeals, rather than conflicting with the

Usner v. Tarabocchia decisions, cited them and applied

them. The Court simply held that a jury would have to

determine whether or not the acts of the longshoremen

made “the whole procedure unsafe” (p. 5a) and “If putting

nine bales in the draft made the vessel unseaworthy, ...”

(footnote 5, p. 5a).

See:

Blassingill vy. Waterman Steamsh ip Corporation,

336 F.2d 367 (1964).

Petitioners urge a promulgation of a new principle of

law which constitutes a radical departure from well set-

tled and uniform law, ax pointed out in the opinion of the

Court below (footnote 5, p. da):

“9. If putting nine bales in the draft made the vessel

unseaworthy, the shipowner would not be saved from

liability because it may have been negligent of the

stevedoring company to use that technique. Grillea vy.

United States, 232 F.2d 919, 929.23 (2d Cir. 1956);

a)

Thompson y. Calmar S.S. Corp., 331 F.2d 657, 659 (3rd

Cir. 1964); see Crumady v. The Joachim Hendrik Fis-

Ser, 358 U.S. 423, 427-28 (1959).”

Petitioners have gone to great lengths in searching the

record for evidence of negligence, which arguments when

urged Th the Court below were dealt with by the Court in

footnete 6 of its opinion as follows (p. Ga):

“6. We refer to the evidence of Bartnicki at App. 16-18

and 41 and plaintiff at App. 77-78 which can be under-

stood as saying that in that specific instance the hooks

were still dragging or close to the pier. The apparently

conflicting testimony on which appellees rely can pos-

sibly be read as referring to a general practice of a

longshoreman’s gathering the hooks up in his arms be-

fore they are returned to the vessel, rather than to

the actual and precise events at the time of this acci-

dent.”

Petitioners’ complaint that the Court below failed to be

bound by the holding in the Usner and Tarabocchia cases,

Supra, is contrary to the very language of the opinion, the

Court below having stated (p. 5a): '

“Usner v. Luckenbach Overseas Corp., supra, holds

that an isolated, personal, unforeseeable act of negli-

gence by a fellow longshoreman does not make the ship-

owner liable on the ground of unseaworthiness, if the

condition of the ship, her appurtenances, her cargo and

her crew were all satisfactory. See Tarabocchia y. Zim

Israel Navigation Co., 446 F.2d 1375 (2d Cir. 1971).”

POINT Il

The decision by the Court of Appeals for the Second

Circuit was in strict conformity with the holding by this

Court in Usner v. Luckenbach Overseas Corporation,

et al., 400 U.S. 194, 91 S. Ct. 514 (1971).

_ An unsafe condition, irrespective of notice or causa-

tion, constitutes breach of warranty of seaworthiness.

Considering the testimony adduced at the trial and the

exhibits offered in evidence, a question of fact was raised

as to whether or not the draft in question created an un-

safe condition and was therefore unseaworthy.

Skibinski vy. Waterman Stcamship Corporation,

360 F.2d 539; )

Blassingill vy. Waterman Steamship Corporation,

366 F.2d 367 (1964);

Radovich ¥. Cunard Steamship Co., 364 F.2d 149

(1966);

LaCapria vy. Compagnie Maritime Belge, 427 F.2d

244 (1970).

The Court of Appeals found as follows (4a, 5a):

“Plaintiff's proof on this point is not uncontroverted,

but there was clearly enough to go to the jury. One

witness testified that ‘two hooks have always been the

rule,’ that it is customary to hook each bale, and that

it is not usual for the hooks to drag when there are

only eight bales. Another testified that eight bales is

the ‘standard procedure,’ that ‘Iwihen the draft is

landing with the nine [bales], you have problems with

the hooks’ *{bJecause the hook contains the lifting ap-

7

paratus has to be dropped lower to take the rope sling

off * * *,” and that when hooks drag along the dock

that is a competent producing cause for the hooks

catching. Plaintiff’s own evidence was that the custom

and usage was to use eight bales with two hooks to the

hale; that it is a dangerous practice to use nine bales;

and that if you do use nine bales ‘[yJou have to lower

the cargo hooks down around two more feet * * *° or

‘from 2 to 3 feet more than you normally do.* This

testimony, if believed, was enough to ground a verdict

that the addition of the ninth bale made the whole pro-

cedure unsafe.”

In the case of Usner vy. Luckenbach Overseas Corpora-

tion, et al., 400 U.S. 494, 91S. Ct. 514 (1971), this Court

indicated that there would be no liability for unseaworthi-

ness if the accident in question were caused by the instan-

taneous negligent acts of a longshoreman which did not

ripen into an unsafe condition. Thus, in Usuer, there was

nothing defective about the flooring nor the winch, or the

sling which struck the plaintiff.

In the case at bar, a jury could find that the accident was

caused by the fact that the draft was improperly loaded

and was thus not reasonably fit and safe to be unloaded

without danger of injury.

The opinion of the Court in the Usner case, supra, cites

with approval the decision in Mascuilli v. United States,

387 U.S. 237, STA S. Ct. 1705 (footnote 19).

In Maseuilli, supra, the accident resulted from a tight

line condition which was ereated by the longshoreman. The

tight line condition was lield to be unseaworthy, just as

8

the improperly loaded draft could be found in the instant

ease to be unseaworthy.

The fact that the draft was loaded shortly before the

accident occurred does not relieve the shipowner from its

obligation to provide a seaworthy vessel.

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

S. Ct. 926 (1960).

See also:

Crumady v. The Joachim Hendrik Fisser, 358 U.S.

423, 79'S. Ct. 445; | |

Mahnich vy, Southern S.S. Co., 321 US. 96, 64

S. Ct. 455;

Grillea v. United States, 232 F.2d 919.

This Court in Usner vy. Luckenbach Overseas Corpora- |

tion, et al., supra, stated in part as follows:

“A vessel’s condition of unseaworthiness might arise

from any number of circumstances. Her gear might

be defective,’* her appurtenances in disrepair,"' * * *

The method of loading her cargo, or the manner of its

stowage, might be improper.’ For any of these rea-

sons, or others, a vessel might not be reasonably fit for

her intended purpose.” (Emphasis supplied.)

The applicable footnotes 13, 14 and 17 are as follows:

Mahnich v. Southern S.S. Co., supra;

Seas Shipping Co. vy. Sieracki, 328 U.S. 85;

A. & G. Stevedores vy. Ellerman Lines, 369 U.S.

399 }

Gutierrez v. Waterman S.S. Co., 373 U.S. 206.

See also:

LaCapria vy. Compagnie Maritime Belge, supra;

DeGioia v. United States Lines Company, 304 F.2d °

421 (1962) ;

Robillard v. A. L. Burbank & Co., 186 F. Supp.

193.

POINT III

There is nothing in the record to support the conten-

tion that a sole isolated act of negligence by a longshore-

man was the cause of the accident.

Contributory negligence on the part of a fellow long-

shoreman does not bar recovery, as a matter of law, for

a maritime accident due to breach of warranty of sea-

worthiness, .

A shipowner is not immune from liability for injuries

resulting from unseaworthiness brought about by consecu-

tive negligent acts of fellow employees. Negligent acts ean

and in this case did create an unseaworthy condition.

The respondent’s fellow longshoremen here added a ninth

bale to a draft and thus created the condition complained

of, that is a dangerous, unseaworthy draft.

In the case of Thompson vy. Calmar Steamship Corpora-

tion, 331 F.2d 657 (1964) the Court stated at page 659:

“Further, the unséaworthiness of a vessel or its equip-

ment may arise from acts of the longshoremen crew

or, indeed, of the injured longshoreman himself. Gril-

lea v. United States, 232 F.2d 919 (2d Cir. 1956) ; Knox

- V. United States Lines Company, 294 F.2d 354 (3d

10.

Cir. L9GL); Smith v. Lauritzen, 201 F. Supp. 663 (.D.

Pa. 1962).”

See also:

Reid vy. Quebec Paper Sales & Transportation

Company, 340 F.2d 34 (1965).

In the case of Skibinski v. Waterman Steamship Cor-

poration, supra, the Court stated at page 542:

“[6) This case also presents the question of whether

the defect ‘should be considered as an incident in a

continuous course of operation’ and not as an unfitness

of the ship. Grillea v. United States, 232 F.2d 919, 922

(2d Cir. 1956).

In defining unseaworthiness we are not coheerned with

the conduct or process by which fitness’ is changed to

unfitness. Our focus is upon the resulting condition, of

the ship. See Puddu vy. Royal Netherlands Steamship

Company, 308 F.2d 752, 757 (2d Cir.), cert. denied, 371

U.S. 840, 83S. Ct. 67, 9 L. Kd. 2d 75 (1962) (Hays, J.,

concurring ).’

Here, the longshoremen, by improperly using an open

mouth hook, fashioned an apparatus which was pat-

ently unsuitable for the job to which it was put.”

11

POINT IV

The ‘concept of unseaworthiness expressed by this

Court in the Usner case, supra, has been completely

adhered to by the court below.

The question of causal relationship under the facts

presented was a factual issue to be determined by a jury.

There was ample evidence in the record from which a jury

could determine that the accident was proximately caused

by the unsafe method of unloading the cargo or the unsea-

worthy draft.

Respondent testified as follows (Tr. 66):

“Q. Just before you were injured, what is the last

thing you remember happening on the dock? A. Well,

' the load that came over there was nine bales and

eight of these bales had two hooks in each one and

the ninth one held with a rope and this was ‘attached

to the cargo hooks. The bales came down on the dock

and it a normal thing when they put that odd one

on they do it later and you have to take that rope sling

off the cargo hook and you have to lower it down more

So one guy can reach up and take it off the cargo hook. —

When they had done this it left the loose hooks laying

loose around the dock.”

Respondent further testified (Tr. 77, 78):

“Q. What happened to the hooks? A. Because of

the nylon choker on the ninth bale, they had to lower

the hook down and let the sixteen flange hooks laying

‘all the way around the dock. After they were all un-

12

hooked, 1 took and pulled the rope together which

brings the hooks closer to eachother and it started

to go up and caught on the caplog.”

One of the witnesses, Stanley Bartnicki, testified (at. 4%,

18):

“Q. Do you know what made the eight hooks drag?

A. Yes because being the ropes were low enough to get

it off the hook it had te drop it down lower to get that

sling off and then you throw the sling on the side and

wait until it is empty and throw it back up again.”

Daniel Murphy, the winchman, testified (Tr. 109):

“Q. When hooks drag along the dock, is that a eom-

petent producing. cause for the hooks catching? A,

Yes, it is.”

CONCLUSION

The decision by the United States Court of Appeals for

the Second Cireuit clearly demonstrates that it does not con-

fliet with any decisions by this Court or by the Courts of

any other Circuit, nor does it substantially affeet or change

any principles of maritime law.

The petition for a writ of certiorari should be denied.

Jacosp RAsSNER

lttorney for Respondent

Jacop RassNer

and

‘“ALran C. Rassner

On the Brief.