# Petition for a Writ of Certiorari — Chemical Carriers, Inc. v. Andrews > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1009%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 874 ## Text Sunrems Soori, ¥. $. a x az 4 ; == = OD) — 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- oe @ arene Ys ®& ~~ “se fe TT Bee ee So ee ~ , Vr OS S&S & 7 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: ‘ —_—_——_—<—- 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1009%3A1. Public record. Not legal advice.