Petition for a Writ of Certiorari — Chemical Carriers, Inc. v. Andrews

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JUN 29 1972

Supreme Court of the Bute

OCTOBER TERM 1972 - we

CuemicaL Carriers, Ino. and CuEemicaL Transporter INc.,

Petitioners,

against

Mraram Gertrupe AnpDrews, Executrix of the

Estate of Ricnarp ANDREws,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

TimotHy A. Hanan,

Counsel for Petitioners,

99 John Street,

' New York, N. Y. 10038.

TABLE OF CONTENTS

PAGE

Opinions Below ...........2.eeeeeeceeceneececese 1

en ac hms kee WKRAADA CT ARUP SRee 2

Questions Presented .............sesescecessenceee 2

Ete eis eee patian bce d heehee bee aKe 3

Reasons for Granting the Writ .................... 5

I—The decision of the Court of Appeals creates a

new legal prerequisite to an appeal which, in

addition to being without legal precedent, cre-

ates an intolerable burden on lawyers and

judges for it now requires that a litigant must

“argue” in the trial court the significance of

each and every piece of evidentiary matter or

be barred thereafter from relying upon said

evidence in an argumert presented to the Court

hii ic nuk enh banka gtindadcnce 5

II—May a licensed officer in charge of the allocation

of work details purposely not request additional

help from his employer in order to keep for him-

self the lucrative overtime pay arising out of the

absence of an additional mate, then make claim

upon his. employer, alleging the extra work

caused him to become tired and trigger a latent

NON a's bos cccuniceh oe os khater soba teh akae 7

Il—May a ship’s officer knowingly and willfully

conceal from his employer a debilitating physi-

cal condition for which there is no known cure,

and thereafter use it as the basis for a recovery

against his employer for injuries sustained by

ae oN Saab caer Su ea ewig Meee eon 5 9

a SSNS EDP grat eee ares ne NS ge 12

li TABLE OF CONTENTS

Aprenpix C—-Crder Amending Opinion ............

Aprenpix D—Judgment of the Court of Appeals ... 2%

Appenpix E—Order Denying Petition for Rehearing 2%,

CasEs

Carleno v. Marine Transport Lines, Inc., 209 F. Supp.

859 (E.D. Va. 1962), aff’d; 317 F. 2d 662 (4th

Cir. 1963), cert. denied; 375 U.S. 896 (1963) ....

Cossack v. United Fruit Co., 365 U.S. 731 (1961) ...

Drop Dead Co. v. 8. C. Johnson & Sons, Inc., 326 F.2d

87 (9th Cir. 1963), cert. denied, 377 U.S. 907

CN a ae

Holmes v. Mississippi Shipping Co., 301-F2d 474 (5th

Cir. 1972), cert. denied 371 US 802 (1962) ......

Marcopa County v. American Pipe & Const. Co., 431

Fe Bee TOU CAE, COTUE nn cco vccccscvecvenies

McCorpen v. Central Gulf 8.8. Corp., 396 F2d 547

(Sth: Ciry 2008)! ). ciavls. wsevolqes a. oem

Roberts v. United States, 316 F.2d 489, 497 (3rd Cir,

Cn ir a ei eaaed eekeen ee

Cf. United States v. Grosso, 358 F.2d 154, 158 (3rd

Cir., 1966); rev’d on other grounds, 390 U.S. 62

CMIMID hints. :atens akan callie nk ti riers eae

United States v. U.S. Gypsum Cc., 333 U.S. 364, 68

S. Ct. 525, 92 L. Ed. 746 at 766 0.0.0... ee eee

ll

il

iii

PAGE

Williams v. SS Richard de Larrinaga, 287 F2d 732

(4th Cir. 1961)

Wisconsin Barge Line, Inc. v. Coastal Marize Trans-

port, Inc., 414 F.2d 872, 875-76 (5th Cir. 1969) ..

98 USC 1254 (1)

42 Code of Federal Regulations, Chapter 32

Supreme Court of the United States

OCTOBER TERM. 1972

RSP

‘%

v

(nemicaL Carriers, Inc. and CuentoaL Transporter Inc.,

Petitioners,

against

Mrruam Gerrrupe Anprews, Executrix of the

Estate of Ricnarp ANDREws,

Respondent.

és.

7"

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

To the Honorable the Chief Justice of the United States

and the Associate Justices of the Supreme Court of

the United States:

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Third Circuit entered in the above entitled cause as

amended on March 30, 1972.

Opinions Below

The opinion of the District Court for the District of

Delaware, is not officially reported. It is reproduced in

Appendix A.

The opinion of the Court of Appeals for the Third Cir-

cuit is reproduced in Appendix B.

2

The order amending the opinion of the Court of

peals for the Third Circuit dated March 30, 1972 is repro.

duced in Appendix C.

The order denying the petition for a rehearing was

entered March 31, 1972.

The opinion of the Court of Appeals for the Third Cir.

cuit, is reported at 457 F2d 636.

Jurisdiction

The judgment of the Court of Appeals for the Third

Circuit was made and entered on February 15, 1972, and

amended pursuant to its order amending opinion dated

March 30, 1972. The order denying the petition for Te,

hearing was entered on March 31, 1972.

The jurisdiction of this Court is invoked under 28 U§(

1254(1).

Questions Presented

1. Must an attorney argue the significance of each and

avery piece of evidence to the trial court or be barred from

thereafter arguing its significance on appeal?

2. May a ship’s officer who is charged with the respon-

sibility for allocating work details and requesting snf-

ficient crew members to perform said work, who know.

ingly and wilfully fails to request additional crew mem-

bers in order to earn lucrative overtime pay and keeps for

himself the extra work, then impute responsibility for the

failure to have a sufficient crew to his employer as the

basis for a recovery by him for injuries resulting from his

voluntary assumption of extra work?

3. A ship’s officer should have an absolute duty to dis

close to his employer that he is suffering from a severely

3

debilitating disease, and the failure to disclose the exist-

ence of a disease should bar him as a matter of law from

making claim upon his employer for injuries resulting

therefrora.

Statement

Richard Andrews, the respondent’s late husband, in

early 1962 was serving as a third mate on a coastwise,

oceangoing chemical tanker known as the SS CHemicaL

Transporter. He had been a licensed officer in the employ

cf the respondents for more than 5 years.

“Unknown to Mr. Andrews’ employer, he was suffering

from a disease known as Menieres disease. He had been

aware of the subjective manifestations of this disease for

at least 8 months. Menieres disease causes dizziness, im-

balance and loss of motor control, Mr. Andrews’ widow

testified that since October of 1961, while at home on leave,

he suffered in her presence at least 3 episodes involving

dizziness, loss of balance or loss of motor control. She

stated that during these attacks he ‘‘wasn’t able to func-

tion’’,

The last of these incidents occurred in May of 1962,

just prior to Mr. Andrews’ return to the SS CHEMICAL

Transporter for the voyage here in question. On May 18,

1962, his personal physician, Dr. Hertzberger, in an at-

tempt to control Mr. Andrews’ loss of balance prescribed

for Andrews a medicine known as ‘‘Antivert’’. Despite

the fact Dr. Hertzberger never saw Andrews thereafter

and never saw what affect the taking of ‘‘Antivert’’ had,

he testified in 1969 (long after Andrews’ death) that An-

drews could have returned to work with ‘‘No restrictions.

No difficulties.”’ and he had ‘‘Recovered’’, The medical

experts produced at the trial by Mr. Andrews’ widow,

without exception all testified that there is no known cure

for Menieres disease and that it was frustrating and un-

predictable to treat.

4

Upon his return to the vessel, on May of 1962 as th

regular chief mate was on vacation Andrews assumed the

duties of acting chief mate and as such was second in com.

mand. His duties as chief mate required him to allocate

the work details, to request sufficient crew members to per.

form the work expected and to stand sea watch on the

bridge. The vessel went into drydock on June 10th. The

crew, including Andrews, was free to leave on that date.

Andrews volunteered to remain on board and to work dur.

ing this period. On June 14, 1962 he fell from a ladder

and sustained the serious injuries which ultimately led to

his death.

The respondent claims that on this voyage into drydock,

due to an increase in the work, it was the custom and prac

tice to have on board a fourth mate, and that because there

was not on board a fourth mate, Andrews had to (1) s-

pervise the tank cleaning operations, and (2) stand two

4-hour watches on the bridge each day navigating the ves.

sel. The tank cleaning carried with it premium pay which

was coveted by the mates and controlled by the chief mate,

The petitioners vigorously contested the actual hours

Andrews did work.

Andrews, as acting chief mate, was free to request a

fourth mate if needed to assist him. The trial court

found that ‘‘a reasonably prudent man in decedent’s posi-

tion would have requested a fourth mate rather than incur

such extra work and would not have continued working

after the termination of the voyage.’’ It further found

that the petitioners were negligent for not supplying a

fourth mate. It allocated negligence, one-third to Andrews

and two-thirds to petitioners.

The trial court found as a fact that Andrews, in addi-

tion to supervising the tank cleaning work, stood two

4-hour watches on the bridge each day and ‘‘as watch of.

ficer decedent was responsible for the navigation of the

ship and had to stay on the bridge at all times during his

shift.’’

ae FF eve eSelllDTele OUD

5

If Andrews did not stand the two 4-hour watches, re-

spondent’s theory of overwork failed for it admitted An-

drews be relieved only of watch standing had a fourth mate

been on board.

The petitioner argued on the appeal that the trial court’s

finding that Andrews stood two 4hour watches each day,

was ‘“‘clearly erroneous’’. In support of this claim

petitioners pointed out to the Court of Appeals that dur-

ing the period an officer is on watch, he is required to

make entries in and initial the watch log. The log for the

periods in which the trial court found Andrews to have

stood watch, contains no initials and no entries made by

him.

The Court of Appeals disposed of this argument with

the following comment: ‘‘If it were not for the failure of

respondents to present this argument to the district court,

we might well be inclined to remand the case to the dis-

trict court for reconsideration and amplification of its

findings on this factual issue as presented by the record in

this case.’ It then affirmed the findings of the trial court.

Reasons for Granting the Writ

I

The decision of the Court of Appeals creates a new

legal prerequisite to an appeal which, in addition to

being without legal precedent, creates an intolerable

burden on lawyers and judges for it now requires a

litigant must “argue” in the trial court the significance

of each and every piece of evidentiary matter or be

barred thereafter from relying upon said evidence in

an argument presented to the Court of Appeals.

The Court of Appeals has confused ‘‘issue’’ with ‘‘ar-

gument”’. The issue in dispute was two-fold and neither

was abandoned by petitioners. It was first, did Andrews

overwork and second, if so was it voluntary.

FeO gee eee ee

bala eeilin tet

The petitioners in the trial court took issue with the

statements of two witnesses (one of whom testified by

deposition), who testified on behalf of Andrews with re

spect to the number of hours he spent tank cleaning and

the amount of time he spent on watch. The tank

records contradict the enormous nuraber of hours these

two witnesses claimed were spent by .1adrews tank clean.

ing. Further neither was in a position to see if he did or did

not stand watch.

Andrews could not be engaged in tank cleaning at the

same time he was on watch on the bridge navigating the

vessel. They were mutually exclusive.

After the trial court concluded Andrews had stood two

4-hour watches, petitioners on appeal pointed ont that

dvring the period the trial court found he was in fact on

watch Andrews never signed or made an entry in the log

as watch standing officer. It was petitioners’ contention

that written records made contemporaneous with events

and prior to the injection of a motive to falsify or exag.

gerate (Andrews’ fall), which indicate that he did not

stand watch, required the Court of Appeals to reverse the

trial court on this critical finding. United States v. U. 8.

Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 at

766.

The Court of Appeals has recognized that im all prob

ability Andrews did not in fact stand the watches. Its re-

fusal to reverse on this issue, which is critical to respond

ent’s theory of liability for it concedes that the mere s-

pervising of the tank cleaning does not constitute over-

work and claims only that he was overworked because he

had, in addition, to stand watch for two 4-hour periods

each day. The issue then is overwork. The cases cited by

the Court of Appeals for the Third Circuit do not require

as a prerequisite to the discussion of a fact in the Court

of Appeals, that it have been fully discussed during writ-

ten or oral arguments in the trial courtX Absent a stipuls-

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tion of fact, it is for the trial court to weigh all of the

evidence in its resolution of the issues in litigation.

4 Marcopa County v. American Pipe & Const. Co.,

431 F.2d 1145 (9th Cir. 1970) ;

Wisconsin Barge Line, Inc. v. Coastal Marine

Transport, Inc., 414 F.2d 872, 875-76 (5th Cir.

1969) ;

Drop Dead Co, v. 8. C. Johnson & Sons, Inc., 326

F.2d 87 (9th Cir. 1963), cert denied, 377 U.S. 907

(1964) ;

Roberts v. United States, 316 F.2d 489, 497 (3rd

Cir. 1963) ;

Cf. United States v. Grosso, 358 F.2d 154, 158 (3rd

Cir., 1966) ; rev’d on oth + grounds, 390 U.S. 62

(1968).

The issue was ‘‘overwork’’, not the significance of each

and every item of evidence. So long as the issue is con-

tested, the issue may be raised and must be dealt with ap-

propriately by the Court of Appeals.

May a licensed officer in charge of the allocation of

work details purposely not request additional help

from his employer in order to keep for himself the

lucrative overtime pay arising out of the absence of an

additional mate, then make claim upon his employer,

alleging the extra work caused him to become tired

and trigger a latent disease.

Andrews was the acting chief mate on the SS CxemicaL

Tuawsporter. As such he was in charge of requesting and

securing a crew adequate to perform the work to be ex-

pected. The failure to request an extra mate permitted

Andrews to keep for himself, at a higher premium pay rate,

the supervision of tank cleaning. The trial court and the

8

Court of Appeals found that Andrews was negligent in not

requesting a fourth mate to assist him. It then imputes the

negligence of Andrews in not securing an adequate crew to

his employer and finds Andrews is entitled to recover from

his employer for the injuries allegedly brought about by the

absence of a fourth mate.

The Court of Appeals has found that Andrews created

a condition upon which he relied as the basis for his claim

of -negligence against his employer. Petitioners allege

that as a matter of law Andrews is not entitled to recover

against his employer for injuries arising from his own

negligent acts.

It is not disputed that had Andrews requested a fourth

mate, one would have been supplied. The trial court and

the Court of Appeals have found as much. It was An.

drews, the chief mate, who knew what work needed to be

done, not his employer in some shore side office.

Further, Andrews was free to leave the vessel at least

3 days prior to his fall. His employer did not know he

was suffering from a disease causing dizziness, loss of bal.

ance and motor control. He, allegedly fatigued, volun.

teered to stay. Andrews, as acting chief mate, controlled

his own fate. He should not be able to permit the vessel

to operate without a fourth mate, keep for himself the

more lucrative work, voluntarily stay on board the vessel

and then use the combination of said acts as a basis for

recovery against his employer.

The Courts of Appeals and the Supreme Courts have

long since found that where a condition is created by the

seaman, he is not entitled to be compensated. Carleno v

Marine Transport Lines, Inc., 209 F. Supp. 859 (E.D. Va

1962), aff’d; 317 F. 2d 662 (4th Cir. 1963), cert. denied:

375 U.S. 896 (1963). Holmes v. Mississippi Shipping Co.

301 F2d 474 (5th Cir. 1972), cert. denied 371 US 802 (1962)

Williams v. SS Richard de Larrinaga, 287 F2d 732 (4th

Cir. 1961).

May a ship’s officer knowingly and wilfully conceal

from his employer a debilitating physical condition for

which there is no known cure, and thereafter use it as

the basis for a recovery against his employer for in-

juries sustained by him.

Andrews was suffering from fainting, dizziness and loss

of balance. The medical experts at the trial testified it

was Meniere’s disease.

Dr. Hertzberger defined Meniere’s disease as follows:

‘‘Meniere’s disease is a very indefinite syndrome,

characterized by ringing in the ears, sometimes dizzi-

ness, sometimes not. Its cause is not definitely

known. We know what it is. It is a collection or in-

crease in fluid pressure of the fluid in the semi cir-

cular canals. Why it occurs nobody knows .. .’’.

‘It varies tremendously. Sometimes it is very brief,

a small, slight attack. Other times the attack will

last for some time or reoccur. There is no rhyme or

reason to it. Unfortunately it is a very indefinite sort

of disturbance.’’

Dr. Hertzberger was further asked the following ques-

tion and gave the following answer:

“Q. I gather to this day even in the profession,

somewhat mysterious? A. It is, indeed.’’

Dr. Max Lee Ronis, one of plaintiff’s non-treating pro-

fessional witnesses, described Meniere’s disease as follows:

“It is generally accepted that Meniere’s disease

syndrome, is precipitated by stress, physical and/or

emotional stress.’’

“Tt may be hours to several days before the end

result of the stress manifests itself in the symptoms

that the stress produces.’’

10

‘« .. Meniere’s syndrome, . . . is characterized by a

tirade of symptoms, of tinnitus, hearing loss and dizzi.

ness or vertigo.”? _

‘‘Tt is unpredictable to physicians generally becanse

the stress which precipitates the attack is very often

not understood. It could be on a psychological basis

or a physical basis.’’

And then, assuming his conclusion,

‘“‘The fact that we call it unexplained merely at.

tests to our inability to understand all the factors that

might be going on in the particular individual.’’

Dr. Halbert Fillinger, the second of plaintiff’s non-treat-

ing professional witnesses, a specialist in forensic pathol-

ogy, described Meniere’s disease as follows:

‘Tt is really a syndrome more than disease, your

honor, with a variation in presentation of symptoms.

Primarily it consists of dizziness, often momentary

‘weakness; it may result in severe headaches; it is as-

sociated with ringing of the ears; it is frequently a

problem of balance and general motor coordination.”

Dr. Fillinger described the inability of the medical pro-

fession to treat Meniere’s disease as follows:

‘<Tts exact cause is not fully understood. It isa

symptom which presents itself and regresses. The

person may have symptoms of Meniere’s disease. He

may improve with or without therapy, and then it

may reoccur. It is an ungratifying disease to treat

because of this. It may be severely incapacitating

and it may be only transitorily so.”’

Andrews was an experienced, licensed ship’s officer. He

was aware, at least since October of 1961, that he was suf-

fering from a condition that caused him to faint, lose his

balance and motor control. At no time did he seek free

ll

medical treatment from the experienced doctors at a U.S.

Public Health Service Hospital to which he was entitled

as a matter of law. Cossack v. United Fruit Co., 365 US

731 (1961). It is clear that had he done so his condition

would have become a matter of medical record and his

employer informed of said fact on the medical report of

duty status promulgated under 42 Code of Federal Regu-

lations, Chapter 32. By going to a family doctor this re-

port was not made out.

Petitioners are the owners and operators of the vessel.

They must rely upon the ship’s officers to exercise respon-

sibility and a high degree of care in the exercise of their

duties. It is petitioners’ contention that a ship’s officer

should be required to reveal to his employer physical in-

frmities which may preclude him from performing his du-

ties and the failure to do so is negligence as a matter of

law.

Petitioners assert that with respect to a ship’s officer,

particularly one entrusted with navigation, the failure to

disclose a potentially debilitating disease, is negligence as

a matter of law.

The failure of the trial court and the Court of Appeals

to find negligence on the part of Andrews for this conceal-

ment is contrary to the decisions of other Courts of Ap-

peals. See McCorpen v. Central Gulf S.S. Corp., 396 F2d

547 (5th Cir. 1968), and the authorities cited therein.

More importanly, petitioners urge that this court should

enunciate a new standard whereby a licensed officer should

be held to an absolute duty to reveal to his employer that

he is suffering from a debilitating disease.

12

CONCLUSION

For the reasons aforesaid, it is respectfully prayed

that a writ of certiorari be granted to review the judg.

ment of the United States Court of Appeals for the

Third Circuit.

Respectfully submitted,

TimotHy A. Hanan,

Counsel for Petitioners,

99 John Street,

New York, N. Y. 10038.

la

APPENDIX A.

Opinion of the District Court.

In THE

UNITED STATES DISTRICT COURT

For tHe District or DELAWARE

In Apmrratty No. 1844

+

ad

Mmum GertrupE Anprews, Executrix of the Estate of

RicHarp ANDREWS,

Libelant,

v.

CuHemicaL Carriers, Inc. and CHEMICAL

TRANSPORTER, INo.,

Respondents.

7%

a

Arthur Inden, of Young, Conaway, Stargatt & Taylor,

Wilmington, Delaware; and Marvin I. Barish, of

Freedman, Borowsky and Lorry, Philadelphia, Pa., of

counsel, for libelant.

William E. Wiggin, of Richards, Layton & Finger, Wilm-

ington, Delaware, for respondents.

OPINION

Wilmington, Delaware

June 19, 1970

Wricut, Corer JUDGE.

2a

Appendia A.

I.

This action was brought in admiralty by Richard

Andrews, third mate aboard the S.S. Chemical Transporter,

against the owners and operators of the vessel to recover

damages for personal injuries allegedly caused by the un-

seaworthiness of the vessel and the negligence of respond-

ents. Upon the death of libelant, Miriam G. Andrews, his

wife and executrix of the estate, was substituted as libelant.

Jurisdiction in admiralty exists, as alleged, under the

Jones Act, 46 U.S.C. § 688 et seq., as that act amends and

supplements the general maritime law.

In accordance with the terms of the pretrial order,

libelant abandoned certain theories of unseaworthiness and

negligence asserted in the pleadings and proceeded at trial

solely on the theory that inadequate manning of the vessel,

resulting in excessive work for decedent, constituted both

unseaworthiness and negligence.

II.

At all material times, Richard Andrews was employed

by respondents as third mate and relief chief mate aboard

the S.S. Chemical Transporter, a tank vessel engaged in

the coastal transportation of chemicals.

Once every year the S.S. Chemical Transporter went into

drydock for its annual overhaul and inspection. At ap-

proximately 8:18 a.m. on June 7, 1962, the vessel left New

Haven, Connecticut, to go into drydock at the Baltimore

shipyard, where it arrived about midnight of June 9, 1962.

Since all tanks aboard the vessel had to be clean and

gas-free in order to pass inspection by shipyard officials,

it was standard procedure for the crew of the SS. Chemi-

cal Transporter to begin tank cleaning when the vessel left

New Haven on her voyage to drydock. Because of the

extra work involved in preparing the ship for drydock, the

vessel usually carried four mates instead of the normal

8a

Appendiaz A.

three. This practice of carrying a fourth mate when the

yessel was to enter drydock was the established custom and

practice in the coastwise trade for a vessel such as the

§.8. Chemical Transporter.

However, because of the ship’s rotation system, the chief

mate Moller was on vacation during the trip from New

Haven to Baltimore in June 1962, leaving only three mates

aboard the vessel. Although Moller had given the com-

pany three month’s notice of his vacation and had informed

the captain of his departure, no one requested him to re-

main aboard for the last trip into drydock. The captain

did not attempt to obtain a fourth mate by asking Moller

to remain or by contacting the union, which could have

supplied a mate upon request.

Tank cleaning operations were conducted throughout the

voyage until 6:00 am. June 10th, when the inspectors

boarded the vessel at the Baltimore shipyard. Tank clean-

ing is a strenuous operation and is accomplished with the

aid of a ‘‘butterworth’’ machine. A butterworth machine

isa bronze device, weighing approximately 25 to 30 pounds,

with a hose attached. When lowered into a tank, the

machine rotates by ejecting hot water under high pressure.

As acting chief mate in Moller’s absence, decedent was

required to supervise tank cleaning operations. Decedent

also participated in the actual cleaning of the tanks, which

induded climbing down into the tanks to inspect them

when butterworthing was completed and helping to move

the hose and butterworth machine.

In addition, decedent had to stand watch during this

period. A regular watch consisted of two four hour shifts

aday. As watch officer, decedent was responsible for the

navigation of the ship, and he had to stay on the bridge

at all times during his shift. Had there been four mates

aboard, decedent would not have been required both to

stand watch and supervise tank cleaning. Decedent also

performed certain administrative duties, such as verifying

4a

Appendia A.

and recording overtime of the crew, supervising the dis.

charge of cargo and the mooring of the vessel.

Although he appeared fatigued and told a member of the

crew that he was glad the trip was over so that he could

relax, Andrews elected to continue work in drydock. On

June 14, 1962, while climbing a ladder aboard ship, he fell

backwards sustaining craniocerebral injuries. He died of

bronchopneumonia on October 7, 1964, as a result of those

injuries.

Prior to this voyage decedent suffered three separate

incidents of dizziness, mild deafness and ringing in the

ears in October 1961, February 1962 and May 1962. On

May 18, 1962, he consulted a doctor regarding these symp-

toms. The doctor examined him and diagnosed “‘slight

Meniere’s disease,’? annoying but not disabling. The

physician prescribed medication but he said that decedent

was able to perform his work without restriction or diff-

culties. Decedent did not inform respondents, the captain

of the vessel nor any of its crew of his disease, nor did

decedent ask the cap‘ain to obtain a fourth mate for the

voyage into drydock.

Expert medical testimony established that the fall was

caused by the Meniere’s disease syndrome which was acti-

vated by the stress decedent experienced while working

aboard the vessel and that but for the extra work and

resulting stress decedent probably would have continued

in a relatively asymptomatic state.

iil.

The action of libelant, as executrix, embraces two claims,

both of which originate from the same wrongful act

1The Jones Act, 46 U.S.C. § 688 et seq., provides the same

remedy for injury or death for all seamen that is provided for rail-

road workers under the Federal Employers’ Liability Act (FELA),

(footnote continued on following page)

5a

Appendia A.

One is for the wrong to the decedent and is confined to his

personal loss and pain and suffering before he died. The

other is for the wrong done to the beneficiaries, the dece-

dent’s widow and his two children, who are entitled to re-

cover the pecuniary loss which they sustained through the

death of the decedent. St. Louis, I.M. & S. Ry. Co. v. Craft,

937 U.S. 648, 658 (1915), quoted with approval in Van

Beeck v. Sabine Towing Co., 300 U.S. 342, 347 (1937). Two

theories of liability were advanced in support of these

claims: unseaworthiness and negligence.

Prior to the recent decision by the Supreme Court in

Moragne v. States Marine Lines, Inc. —— U.S. ——, 38

US.L.W. 4498 (June 15, 1970), libelant had no right of

action for Andrew’s death if it resulted from unseaworthi-

ness alone. Gillespie v. United States Steel Corp., 379 U.S.

148 (1964). The Harrisburg, 119 U.S. 199 (1886). The

Court reached its result in the instant case, therefore, with-

out consideration of the vessel’s seaworthiness. Moragne

does not change that result, since the evidence establishes

respondents’ negligence, and since, under either theory, the

(footnote continued from preceding page)

45 U.S.C. §§ 51-60. Section 688 provides:

“Any seaman who shall suffer personal injury in the course

’ of his employment may, at his election, maintain an action for

at law, with the right of trial by jury, and in such

action all statutes of the United States modifying or extending

the common-law right or remedy in cases of personal injury to

railway employees shall apply; and in case of the death of any

seaman as a result of any such personal injury the personal

representative of such seaman may maintain an action for

damages at law with the right of trial by jury, and in such

action all statutes of the United States conferring or regulating

the right of action for death in the case of railway employees

shall be applicable. Jurisdiction in such actions shall be under

the court of the district in which the defendant employer re-

sides or in which his principal office is located.”

Section 1 of the FELA, 45 U.S.C. § 51, which defines the scope

of liability under the Jones Act, permits recovery for wrongful

death. Section 9 of the FELA, 45 U.S.C. §59, provides for the

survival after death of the seaman’s negligence claim.

=

6a

Appendiaz A.

damage award must be reduced by an amount proportional

to the degree to which decedent’s negligence operated to

cause the accident. Pope & Talbot v. Hawn, 346 U.S. 4%

408-09 (1953); 2 M. Norris, The Law of Seamen 4 627 (24

Ed. 1962).

Prerequisites for recovery under 46 U.S.C. § 688 are:

(1) that decedent was employed by respondents, (2) that

decedent was a seaman on a vessel owned or operated by

respondents and over which respondents had command, and

(3) that respondents, or one for whom they were respon.

sible, were guilty of negligence proximately causing the

fatality. Savard v. Marine Contracting Inc., 296 F. Supp.

1171, 1177 (D. Conn. 1969). The only issue disputed at

trial is whether respondents were negligent.

Negligence under the Jones Act has been defined as “a

failure by defendant to observe the degree of care required

under the circumstances.” Potter Title & Trust Co. v. Ohio

Barge Line, Inc., 184 F.2d 432, 433 (3d Cir. 1950), cert.

denied, 340 U.S. 955 (1951). The nature of the business

and the dangers involved determine the amount of care

required in any particular case. The test for determining

whether the care used is proper and commensurate with the

danger is the supposed conduct of the reasonably prudent

man. See Roberts v. United Fisheries Vessels Co., 141

F.2d 288, 291 (1st Cir. 1944), cert. denied, 323 US. 753

(1944).

-It has often been held that the concept of negligence

under the Jones Act should be liberally construed since

‘‘it is not the relatively narrow common law concept of

negligence, but a more liberal one commensurate with the

broad remedial purposes of the Federal Employers’ Li-

ability Act and the Jones Act.’’ Forgione v. United States,

202 F.2d 249, 252 (3d Cir. 1953), cert. denied, 345 U.S. 966

(1953); see Cortes v. Baltimore Insular Line, Ince., 287

U.S. 367, 375 (1932); Jamison v. Encarnacion, 281 US.

635, 640 (1930).

a

as &

BSEeaesnc er Scooiw KPSP aaa

PASrts AS Ss

Ta

Appendiz A.

The failure to provide sufficient manpower to perform

a job constitutes negligence. Compare Rosenquist v.

Isthmian S.S. Co., 205 F.2d 486 (2d Cir. 1953); Gold v.

Groves, 182 F.2d 767 (3d Cir. 1950).

In light of the established custom and practice in the

trade for a tanker such as the S. S. Chemical Transporter

to carry four mates on its voyage into annual drydock, a

practice usually followed by the S.S. Chemical Trans-

porter, the Court concludes that a complement of three

mates was inadequate. In view of the extra work that had

to be performed on this particular trip, a fourth mate was

necessary to insure a safe and equitable distribution of the

workload.

The failure to assign a fourth mate to the S.S. Chemical

Transporter was a breach of the duty to observe the care

required under the circumstances. The breach of this duty

was the proximate cause of the injury and death of dece-

dent. Respondents must be charged with this negligence

because they knew or should have known that the vessel

was undermanned: they were aware a year in advance that

the vessel would go into drydock and had ample notice that

Moller’s vacation would coincide with this event. Re-

spondents also had notice of the amount of work required

on the voyage immediately preceding the annual] drydock,

and should have known that the absence of a third mate

would cause the chief mate to sustain a workload poten-

tially inimical not only to his own safety but to that of the

ship and crew. The Court finds therefore that respond-

ents were negligent and that their negligence was a proxi-

mate cause of the accident and resulting injury and death.”

* Negligence cannot be predicated, as suggested by libelant, upon

a violation of 46 U.S.C. § 235 since it was not established (1) that

the captain permitted decedent to take charge of the deck watch

upon leaving or immediately after leaving port without decedent's

having had at least six hours off duty immediately preceding the

time of sailing or (2) that decedent was required to do duty to

exceed nine hours of any twenty-four while in port, including the

date of arrival, or more than twelve hours of any twenty-four at sea.

8a

Appendia A.

Although contributory negligence is not a bar to an

action under the Jones Act, the doctrine of comparative

negligence applies to reduce the amount of any damage

award in the proportion by which decedent’s fault con-

tributed to his injuries and death. The Court must there.

fore consider whether decedent was himself negligent and

whether his negligence was a proximate contributing cause

of the accident.

Shortly before he shipped out, decedent suffered his

third episode of dizziness, deafness and ringing in the

ears, which symptoms were diagnosed as Meniere’s dis-

ease. He was treated by a doctor who pronounced him fit

to continue his work. Decedent engaged in the physically

taxing work of tank cleaning, though his responsibility as

acting chief mate was merely to supervise and assist. De-

spite his awareness of the customary crew complement,

evidenced by a remark to another crew member that more

help was needed, he did not request a fourth mate. Al-

though decedent appeared fatigued and stated that he was

glad the voyage was over so that he could relax, he volu-

teered to work in drydock.

A reasonably prudent man in decedent’s position would

have requested a fourth mate rather than such extra work

and would not have continued working after the termina-

tion of the voyage. The Court is not prepared to hold, as

libelant urges, that one who voluntarily undertakes stren-

uous work over long hours shall be blameless for the ef-

feets of his own exhaustion. Decedent’s partial responsi-

bility for the accident and the resulting injuries and ulti-

mate death must cause the award of damages hereinafter

determined to be reduced by one third.

IV.

The personal loss of the decedent consists of the follow-

ing elements: (a) medical and funeral expenses, (b) pain

9a

Appendiz A.

and suffering and (c) loss of earnings between date of the

accident and date of death.

Decedent’s medical and funeral bills amounted to

Decedent’s cerebral injuries caused a complete paralysis.

Although he was able partially to reduce the paralysis by

physical therapy and he progressed to the point where he

could walk between side rails, he never regained the ability

to speak. He responded to communications by a squeeze

of the hand and incomprehensible gutteral sounds. He

apparently understood his condition, and it caused him

visible anxiety and anguish.

He was released from the hospital in Baltimore in

October 1963, and permitted to go home with his wife, a

nurse. After four days at home, she concluded that it was

impossible for him to remain there. He became violent and

destructive and prevented his family doctor from approach-

ing or examining him.

Seeking more intensive care, she sought to have him

admitted to the Public Health Service Hospital in Boston.

After considerable argument, during which decedent lay on

a stretcher within view and hearing, the hospital admitted

him. He was subsequently transferred to a rehabilitation

hospital, from which he was discharged after four days as

10a

Appendia A.

not subject to rehabilitation. He spent the remainder of his

life in the Connecticut State Mental Hospital at Norwich,

where he died in October 1964, of pneumonia.

Upon the foregoing facts, the Court concludes that an

award of $100,000.00 for pain and suffering is appropriate,

Decedent was injured on June 14, 1962, and he died on

October 7, 1964. In 1961, the last full year before his

accident, he earned $15,998.93. His federal income tax

amounted to $2,932.10. His net earnings were thus

$13,066.83. Petition of Oskar Tiedeman & Co., 236 F.Supp.

895, 906-07 (D.Del. 1964). Taking this figure as the annual

base wage, decedent would have earned approximately

$30,446.00 in the two and one-third years between his ac-

cident and his death. His net loss of earnings is there-

fore $30,446.00.

¥.

The loss to the beneficiaries consists of compensation

for deprivation of the reasonable expectation of pecuniary

benefits that decedent would have provided had his life

not been shortened by the accident. The amount of con-

tributions by the decedent during his lifetime has a direct

bearing on such reasonable expectation. Cleveland Tank-

ers, Inc. v. Tierney, 169 F.2d 622, 624 (6th Cir. 1948).

The age of the beneficiaries and of the decedent at the

time of his death, their health, financial condition and rela-

tionship are intangible factors to be weighed also in any

determination of the value of the reasonable expectation of

pecuniary benefits from the decedent Wade v. Rogala,

270 F.2d 280, 285 (3d Cir. 1959).

At the time of his accident, decedent suffered from

Meniere’s disease and had had three attacks within the

nine months prior to the accident. He was otherwise in

excellent physical health, and according to Dr. Fillinger

he would have experienced no shortening of his life ex-

lla

Appendia A.

pectancy, which was 23.1 years at the time of his death.

It is of course possible that illness would have shortened

his working days. It is equally possible, in fact more likely,

that he would have received promotions and increased

wages. They are imponderables upon which the Court

Decedent turned over to his wife all his earnings with

the exception of $540 per year, which he retained for his

personal needs. Those needs decreased by $300 the year of

his death, because in that year the obligation to support a

minor child by a previous marriage terminated, the child

having reached majority. Thus libelant might reasonably

have expected to receive $15,758.93 per year, the differ-

enee between the base wage of $15,998.93 and $240. She

is entitled to compensation for the loss of her reasonable

expectation of receiving that sum for the years decedent

would reasonably be expected to earn it, i.e., until he was

65. In calculating her loss, income taxes paid by decedent

will not be considered.‘

This armount must be reduced to present value by appli-

cation of a discount rate of 4%. The portion of the

amount which represents loss of benefits prior to trial

shall not be reduced by application of the discount rate,

however. See Mascuilli v. United States, 411 F.2d 867, 872

(3d Cir. 1969).

*In the seven years since the accident, wages for a third mate

have increased from $29.10 per day to $36.70 per day. Wages for

a chief mate have increased from $34.41 per day to $42.58 per day.

will not speculate.

*The authorities are divided on whether income taxes should be

subtracted from expected earnings in calculating loss of benefits to

beneficiaries following a decedent’s death. See, as favoring the

deduction, Southern Pacific Co. v. Guthrie, 180 F.2d 295, 302 (9th

Cir. 1949), cert. denied 341 U.S. 904 (1951). Contra Cunningham

v. Rederiet Vindeggen A/S, 333 F.2d 308, 314 (2d Cir. 1964) ;

— Indemnity Co. v. Givens, 263 F.2d 858, 863 (Sth Cir.

).

12a

Appendiz A.

Libelant is also entitled to recover for herself and her

two minor children a sum for past and future loss of

decedent’s services, guidance, and care, if they are capable

of pecuniary evaluation. The record does not establish

the value, if any, of such services, guidance, and care, and

the Court declines to make any award for those factors.

See Michigan Central R.R. v. Vreeland, 227 U.S. 59, 73-74

(1913).

The parties are required to calculate the damages al-

lowed by this opinion and to reduce the total amount by

one-third. Upon receipt and approval of that calculatica,

the Court will enter a judgment ‘or libelant.

The foreoging shall constitute tie findings of fact and

conclusions of law required by Rule 52(a) of the Federal

Rules of Civil Procedure.

Wilmington, Delaware

June 19, 1970

13a

APPENDIX B.

Opinion of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For tHe Tarep Cirecurr

a

Nos. 71-1008 and 71-1009

4.

v

MiniaM GERTRUDE ANprEws, Executrix of the Estate of

Ricnarp ANDREWS,

v.

Cuemicay Carriers, Inc., and

CuemicaL Transporter, Inc.

CuemicaL Carriers, Inc.,

Appellant in No. 71-1008

CuemicaL Transporter, Inc.,

Appellant in No. 71-1009

AppeaL From THE Unrrep Srates District Court

For THE District or DELAWARE

Argued December 16, 1971

Before Biccs, Van Dusen, and Hunter,

Circuit Judges

Oprnion oF THE CouRT

(Filed February 15, 1972)

Van Dusen, Circuit Judge.

This is an appeal from a decision and order of the

District Court for the District of Delaware (sitting in ad-

14a

Appendix B.

miralty) requiring Chemical Carriers, Inc. and Chemical

Transporter, Inc. to pay damages in the amount of

$221,335.47 to Miriam Gertrude Andrews, Executrix of the

Estate of Richard Andrews. The action was brought by

Richard Andrews on March 4, 1963, pursuant to the

Jones Act, 46 U. S. C. § 688 et seq., to recover damages for

injuries received by him on June 14, 1962, which caused

his death on October 7, 1964.1 ‘The district court found

that the respondents had been negligent in failing to pro.

vide sufficient manpower during a June 7-10, 1962, voyage

into drydock at the Baltimore, Maryland, shipyard and

that this negligence was the proximate cause of the injury

and death of Andrews. The district court also found that

Andrews himself was negligent in failing to request addi-

tional manpower during the voyage and in continuing to

work after the ship arrived in drydock on June 10, 1962;

the award of damages was reduced by one-third to reflect

the district court’s assessment of Andrews’ comparative

negligence. The respondents appeal from the district court

decision. For the reasons to be stated, we have concluded

that the arguments advanced by the respondents on appeal

are unpersuasive and affirm the judgment of the district

court. After careful consideration, we find that none of the

pertinent findings of the district court which are subject to

review on these appeals, including those discussed below,

are clearly erroneous. See F. R. Civ. P. 52(a) ; McAllister v.

United States, 348 U. S. 19 (1954); Petition of M é J.

Tracy, Inc., 422 F.2d 929, 931 (3rd Cir. 1969.)*

1 After Andrews’ death, Miriam Gertrude Andrews, his wife

and the executrix of his estate, was substituted as libellant.

2 See United States v. United States Gypsum Co., 333 U. S. 364,

394-95 (1948) (“A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake

has been committed.”). It is not our province to state whether

we would have made the findings included in the district court

opinion.

: eres

15a

Appendiz B.

The focal point of this case is the June 7 to June 10,

1962, voyage of the S. S. Chemical Transporter—a tank

vessel engaged in the coastal transportation of chemicals—

into the Baltimore, Maryland, shipyards for its annual in-

spection and overhaul. Andrews, while normally the third

mate aboard the vessel, served as acting chief mate during

this voyage because the regular chief mate was on vacation.

Although in most cases the vacancy created by a mate’s

vacation would not be filled and the S. S. Chemical Trans-

porter would normally carry three mates (including the

chief mate), there was evidence to support the district

court’s finding that on the voyage into drydock in prepara-

tion for the annual inspection of the tanks by shipyard

officials, it was the established custom and practice in the

coastal trade for a vessel to carry all four mates (the nor-

mal complement) because of the extra work involved in

supervising the tank cleaning operations carried out by

the crew. On the June 7-10, 1962, voyage of the S. S. Chem-

ical Transporter into drydock, however, a fourth mate was

not provided. The district court found that, as a result of

this undermanning, Andrews, as acting chief mate, was re-

quired to both supervise the tank cleaning operations and

stand his regular watch of eight hours per day. The district

court also found that the stress resulting from this extra

work activated a Meniere’s disease syndrome which An-

drews had suffered in the past, which caused Andrews to

fail off a ladder aboard ship on June 14, 1962, sustaining

craniocerebral injuries which resulted in his death on

October 7, 1964.

Respondents argue that even if they were negligent

in failing to provide a fourth mate during the June 7-10,

1962, voyage into drydock,® the determination of the dis-

*Although there is a suggestion by the respondents that this

finding of negligence for their failure to provide a fourth mate is

not supported by the record, the record requires the rejection of

this contention.

16a

Appendiz B.

tric: court that this negligence was the proximate cause of

Andrews’ injuries is erroneous as a matter of law either

(a) because Andrews could have avoided the overwork and

resulting stress which caused his injuries by delegating

supervision of the tank cleaning operations to one of the

many others on board who were qualified to do this work,

or (b) because had Andrews not concealed from respond-

ents his several experiences of dizziness, mild deafness and

ringing in the ears, which a doctor had diagnosed as “‘slight

Meniere’s disease’’ on May 18, 1962, he would not have been

even permitted to serve on board the S. S. Chemical Trans-

porter, much less perform the work that resulted in his

injury and death. However, on the first issue, the district

court found that ‘‘as acting chief mate . . . decedent

[Andrews] was required to supervise tank cleaning oper-

ations’’ and this finding is adequately supported by the

record. On the second point, although the district court

made no finding regarding an intentional concealment

and no conclusion regarding a negligent concealment, the

respondents were not thereby prejudiced because the re-

fusal of the district court to find on this record that this

concealment was the sole proximate cause of Andrews’

injuries is not clearly erroneous since respondents have

cited no record support for the proposition that Andrews

would not have been permitted to serve on board or to

perform his June 7-10, 1962, work had respondents been

made aware of Andrews’ condition (see Reply Brief at 20).

Accordingly, we reject these arguments advanced by the

respondents.

Respondents also maintain that the written jog en-

tries, pay records and tank cleaning reports contradict the

less reliable oral testimony that during the June 7-10, 1962,

voyage Andrews stood his regular watches, in addition to

supervising the tank cleaning work,‘ and that therefore

‘Respondents argue that an examination of the log book of

the S. S. Chemical Transporter (PX-1) reveals that it was the cus-

(footnote continued on following page)

17a

Appendiz B.

the basis of Andrews’ claim of stress brought on by ‘e-

quired and unusual overwork is completely undermined. If

it were not for the failure of respondents to present this

argument to the district court,’ we might well be inclined

to remand the case to the district court for reconsideration

and amplification of its findings on this difficult factual

issue as presented by the record in this case. Cf. Roeder v.

Alcoa Steamship Co., 422 F.2d 971, 973-74 (3rd Cir. 1970) ;

Simpson v. Union Oil Co., 411 F.2d 897, 900 n. 2 (9th Cir.

1969). However, there was oral testimony to support the

(footnote continued from preceding page)

tom and practice of the watch standing officer (Andrews included)

to make various entries and initial each watch stood, but that in

the period June 7 through June 10, 1962, Andrews made no factual

entries and never entered his initials as the watch standing officer ;

instead, all of the entries and initials entered during this period

are those of Wathne and Mollevik, the other two mates aboard.

Also, the tank cleaning reports for the June 7-10, 1962, period and

the pay records for this period are consistent with Andrews not

having stood his regular watches during this voyage (see PX-3,

PX-4, DX-2). ;

The evidence that Andrews did in fact stand his regular

watches during this June 7-10, 1962, period consisted primarily

of the testimony of two crew member friends of Andrews given

more than five and seven years, respectively, after the June 14,

1962, accident (see the testimony of Rios and Linneman at 15a,

I7a, 54a, 6la ). Captain Evans, who commanded the S. S.

Chemical Transporter during the month of June 1962, also testi-

fied in December of 1969 that Andrews stood watch during the

June 7-10, 1962, voyage, although he could not say how frequently

he stood watch and thought that Andrews was relieved for four

of his normal eight hours per day by the other two mates on

board (see 203a, 265a-266a).

‘The argument was not made in any brief filed before the

district court (including Defendants’ Post-Trial Memorandum

(Docket No. 69) ) ; it was not made in respondents’ Proposed Find-

ings of Fact and Conclusions of Law (Docket No. 72) ; and it was

not made at the oral argument held on January 29, 1970, before

the district court (see Docket No. 79, N. T. 33, 37-38, 39-40, 43-44).

Indeed, this argument was only first advanced in this court in the

Reply Brief filed by respondents.

18a

Appendix B.

finding of the district court on this point,’ and we believe

that sound principles of judicial administration preclude

this court from considering arguments on issues of fact

not raised or presented to the district court. See, e, g,

Maricopa County v. American Pipe & Const. Co., 431 F.2d

1145 (9th Cir. 1970); Wisconsin Barge Line, Inc. v. Coastal

Marine Transport, Inc., 414 F.2d 872, 875-76 (5th Cir,

1969); Drop Dead Co. v. 8. C. Johnson & Sons, Inc., 3%

F.2d 87 (9th Cir. 1963), cert. denied, 377 U. S. 907 (1964);

Roberts v. United States, 316 F.2d 489, 497 (3rd Cir. 1963);

Cf. United States v. Grosso, 358 F.2d 154, 158 (3rd Cir,

1966), rev’d on other grounds, 390 U. S. 62 (1968). Thus,

respondents’ argument on this issue is rejected.

Respondents also argue that the district court’s redue-

tion of damages by one-third due to Andrews’ own negli-

gence is grossly inadequate and fails to reflect the compara-

tive degrees of negligence. The record requires the con-

clusion, however, that the district court’s determination of

this issue is justified by the record.

The remaining arguments advanced by respondents have

been considered and are rejected.

Accordingly, the judgment of the district court will be

affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

6 See n. 4, supra.

19a

APPENDIX C.

Order Amending Opinion

UNITED STATES COURT OF APPEALS

For tHe Tarrp Crrourr

+.

+

Nos. 71-1008 and 71-1009

+.

as

Miriam GertTrRUDE ANpDREws, Executrix of the Estate of

Ricuarp ANDREWS,

Vv.

Cuemicau Carriers, Inc., and

CuemMicaL Transporter, Inc.

CHemicaL Carrizr, INc.,

Appellant in No. 71-1008

CuemicaL TRANSPORTER, INC.,

Appellant in No. 71-1009

+.

aa

Present: Biaes, Van Dusen and Hunter, Circwt Judges.

OrpER AMENDING OPINION

It is Onperep that footnote 5 of the February 15, 1972,

slip opinion is amended to read as follows:

5. The respondents did argue before the district

court that Captain Evans’ testimony indicated that

Andrews was relieved for a portion of his regular

* watches during the June 7-10, 1962, voyage. Thus, at

20a

Appendiz C.

the January 29, 1970, oral argument before the district

court, respondents’ attorney declared:

“There is also testimony by the captain that not only

would he [Andrews] have been relieved from tank

cleaning and permitted merely to stand watch, but

he was also actually relieved for approximately two

hours a day on watch standing. This is another

example of the way the time the man has spent has

been sort of puffed up.” (Emphasis added.)

(Document No. 79, N. T. 43-44).

But at no time before the district court did respondents

either argue that Andrews stood none of his watches

during the June 7-10, 1962, voyage or direct the district

court’s attention to the log book of the S. S. Chemical

Transporter (which was available and introduced into

evidence before the district court) in support of this

claim as they do now before this court. These argu-

ments were not made in any brief filed before the

district court (including Defendants’ Post-Trial Memo-

randum (Document No. 69)); they were not made in

respondents’ Proposed Findings of Fact end Conclu-

sions of law (Document No. 72).; and they were not

made at the January 29, 1970, oral argument (see Doe.

No. 79; N. T. 33, 37-38, 39-40, 44). Thus, at the Janv-

ary 29, 1970, oral argument, the attorney for respond-

ents declared immediately after his reference (quoted

above) to Captain Evans’ testimony that Andrews was

relieved from some of his watch duties: “I think truly

that he [Andrews] did put a great deal of time in on

this voyage, but I do think also he did put it in elee-

tively” (Doc. No. 79, N. T. 44). Indeed, these claims

were only first advanced in this court by the Reply

Brief filed by respondents. It seems clear from the

record in this case that the respondents, having failed

21a

Appendiz: C.

in their defense arguments presented to the district

court initially, have now on appeal advanced argu-

ments which could have been, but which were not, ad-

dressed first to the district court. Under these circum-

stances, we reject respondents’ suggestion that the

case be remanded to the district court on this issue.

By tae Covrr:—

Fraxcis L. Vaw Dusew

Cireuit Judge

Dated: March 30, 1972.

APPENDIX D.

Judgment of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For Tae Turep Cmovurr

sé.

Nos. 71-1008 and 71-1009

+.

>

—_—_——_—<—-

MreusMm Gerrauve A xprews, Executrix of the

Estate of Ricnarp ANDREWS

Cuemroa, Carriers, Inc. and CumcaL

Transporter, Iwo.

Cuemica, Carriers, Lyo.,

Appellant in No. 71-108

Cuemica, Transporter, Inc.,

Appellant in lo. 71-1008

+

a4

(D. C. No. 1844 in Admiralty)

Present: Bices, Van Dusen and Huwter, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the .......--++++e++ ‘

District of Delaware and was argued by counsel.

23a

Appendiz D.

On consideration whereof, it is now here ordered and

this Court that the judgment of the szid Dis-

trict Court, filed November 2, 1970, be, and the same is

hereby affirmed, with costs taxed against appellants.

ATrTestT:

Tuomas F. Quixn

Clerk

February 15, 1972.

Costs taxed in favor of appellee as follows:

Brief for appellee $378.85

Certified as a true copy and issued in lieu

of a formal mandate on April 10, 1972.

Test: Tomas F. Quix»

Clerk, United States Court of Appeals

for the Third Circuit.

24a

APPENDIX E.

Order Denying Petition for Rehearing.

UNITED STATES COURT OF APPEALS

For THe Txirp Circuit

-

Nos. 71-1008 and 71-1009

a

Mreuam Gertaupe Anprews, Executrix of the

Estate of Ricnarp ANDREWS

v.

CremroaL Carrrers, Inc. and CH=MrToaL

TRANSPORTER, LNO.

Cremicat Carriers, Inc., Appellant in No. 71-1008

CuemicaL Transporter, Ixc., Appellant in No. 71-1009

v

Sur Petition ror REHEARING

Present: Serrz, Chief Judge, and Bices, Van Duvsex

Apisert, Apams, Gispons, Roseny, Rosen and

Hunter, Circuit Judges.

The petition for rehearing filed by appellants in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all the other

available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision hav-

ing asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in bane, the petition for

rehearing is denied.

By the Court,

/s/ Franots L. Van Dusex

Judge

Dated: March 31, 1972.