Petition for a Writ of Certiorari — Smith v. Olsen

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TABLE OF CONTENTS

Appendix E Jurisdictional Provision and Statute...

ereea ey

Page

OPINIONS BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED 2

STATEMENT OF THE CASE 3

ARGUMENT =

RELIEF REQUESTED .... 14

INDEX TO APPENDIX ‘

Appendix A Opinion of United States District Court.. 1a

Appendix B Judgment and Order of United States

District Court aannccossseniaiiniaen aa

Appendix C Opinion and Judgment of Circuit Court

of Appeals, Sixth Cireuit 9a 4

‘Appendix D Order of United States Supreme Court

Extending Time to File Petition for

Writ of Certiorari 2. 16a

16a

il

CASES CITED

A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355...... 6,7

Carey v. Lykes Brothers Steamship Company, Inc.

455 Fed. Rep. 2d 1194 ee = 9

Gutierrez v. Waterman S.S. Co., 373 U.S. 206 -00.000........ 12

Manning v. M/V Sea Road, 417 F. 2d. 603 8,10

Mitchell v. Trawler Racer, 362 U.S. 539 5

Provenza v. American Export Lines, Inc.

324 F. 2d 660 Gimebsaiapialbieniendcenrei-oe: Caamaeaant ee

Ryan v. Pacific Coast nied Co., Liberia,

Be es Se Se cic eibaateaoenarniaiedanionaees 13

Siderewicz v. Enso-Gutzeit O/Y Finn Lines, Ltd.

ee Oe I pete riencicneen 11, 12

Usner v. Luckenback Overseas Corp. et al,

es I econ rcteceendpeicrercntcics aa 2,4,5

Venable v. A ir Det. Forenede Dampskibsselskab,

399 F. 2d 347 _ Siar ndaisdanccoeee erecta a aadenaaaee. ae

STATUTES CITED

Safety & Health Regulations for Longshoring,

a Ee i I Saveiceeinicetccenicsocientntencmmnonensl 2, 8, 12

See

Supreme Court of the Qnited States

October Term, 1972

FANNIE SMITH, ADMINISTRATRIX

OF THE ESTATE OF

JOSEPH SMITH, DECEASED, Petitioner,

vs.

OLSEN & UGELSTAD, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

Fannie Smith, petitioner, prays that a Writ of Certiorari

issue to review the judgment of the United States Court

of Appeals for the Sixth Circuit entered in the above-

entitled cause on May 8, 1972 affirming a judgment of the

United States District Court for the Eastern District of

Michigan, Southern Division.

OPINIONS BELOW

Opinion of the United States District Court for the

Eastern District of Michigan, Southern Division, filed

February 24, 1971, appears in Appendix A hereto, infra,

RPA ng eemiecce aye — , .

ii eS |

2

page la. The Judgment and Order of the District Court

was entered on March 30, 1971 and appears in Appendix

B hereto, infra, page 8a.

The judgment and opinion of the United States Court

of Appeals, Sixth Circuit, was entered on May 8, 1972

affirming the judgment of the United States District Court,

a copy of which judgment and opinion is appended hereto

as Appendix C, infra, page 9a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered May 8, 1972 ( Appendix

C, infra, page 9a). A request was timely made by peti-

tioner for extension of time in which to petition for a Writ

of Certiorari and was granted September 8, 1972 extend-

ing the time to October 5, 1972 (Appendix D, infra, page

16a.)

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254.1 (Appendix E infra, page 16a.)

QUESTIONS PRESENTED

1. Under the Supreme Court ruling in Usner v Lucken-

back Overseas Corp. et al, 400 U.S. 494 does a single

act of negligence by a longshoreman who uses an

improper, unsafe method of unloading cargo that is

in violation of Safety and Health Regulations for

Longshoring, render a vessel unseaworthy so as tc

permit recovery for resulting death of a fellow

longshoreman?

2. Does a violation of Safety and Health Regulations

for Longshoring render a vessel unseaworthy?

29 CFR Sec. 1504.83

3. Is the decision in the instant case by the Sixth Cir-

cuit Court of Appeals in conflict with the decisions

of the courts in other circuits?

one

3

STATEMENT OF THE CASE

During an unloading operation on the ship M/V Make-

fjell on October 14, 1968, longshoreman Joseph Smith was

crushed to death by a falling wooden crate containing glass.

His legal wife and administratrix of his estate, Fannie

Smith, petitioner herein, brought this action asserting the

maritime claim for unseawarthiness against the shipowner,

Olsen & Ugelstad, respondent herein.

The action was instituted pursuant to Rule 9(h) Federal

Rules of Civil Procedure as it pertains to admiralty and

maritime claims. Title 28 U.S.C. Section 1292 (a) (3).

The cargo in hold #4, where the accident occurred, con-

sisted of wooden crates of glass each weighing approxi-

mately one ton. The crates were stacked four tiers high.

They were unevenly stowed. Same size crates were not

stowed on top of each other. Each crate had three four-

inch skids attached to its base. The middle skid of the

fatal crate was rounded 12-13 inches making it unstable

and causing it to rock.

Prior to the accident most of the crates had been re-

moved from the hold. Remaining was a single line of

crates four tiers high in separate stacks against the for-

ward bulkhead. On the fourth level of one stack were two

smaller crates. These companion crates, sitting side by

side, covered a wider space laterally than those beneath

them in the column. As a result, the outside skid of each

of the companion crates extended beyond the sides of the

stacks below. To the right of this column were other stacks.

When the hilo operator removed the two crates under

the fatal crate, it left the fatal crate unsupported and

overhanging the crate below by several inches. The crate

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remained in this precarious condition for about thirty

seconds when it fell and killed the deceased.

Normal, safe procedure is to remove the higher crates

first. This was not done.

The Safety and Health Regulations for Longshoring

required (a) When necessary, cargo shall be secured or

blocked to prevent its shifting or falling. (b) In breaking

down, precautions shall be taken when necessary to pre.

vent the remaining cargo from falling. 29 CFR Art. 1504.83,

This was not done.

The Trial Court found that the cause of the accident was

the negligence of the longshoreman hilo operator in taking

down the crates in improper order; and, that ‘‘The Long-

shoring Regulations have the force and effect of law and

were plainly breached.”’

The Trial Court further held: ‘‘It is now clear that

instant unseaworthiness resulting from the operational

negligence of the stevedoring contractor or his servants

is not a basis for recovery by an injured longshoreman’”’

citing Usner v. Luckenback Overseas Corp., et al 400 US.

494, 27 L.Ed. 2d 562, 91 S.Ct. 514.

The Administratrix appealed to the United States Court

of Appeals for the Sixth Circuit which affirmed the judg-

ment of the lower court holding that the longshoreman’s

death resulted from an isolated, single, unforseeable per-

sonal act of negligence which did not create a condition

of unseaworthiness relying on Usner, supra.

Petitioner appeals from this decision.

ARGUMENT

Petitioner contends that Certiorari should be granted

because an important question as to the interpretation of

a Supreme Court decision regarding admiralty law is

involved.

5

Petitioner contends that the decision of the United States

Court of Appeals, Sixth Circuit, in the instant case, is con-

trary to the United States Supreme Court’s ruling in the

case of Usner v. Luckenback Overseas Corp., supra, upon

which it relied, and that it is necessary for this Court to

now clarify its interpretation of unseaworthiness.

QUESTION 1.

UNDER THE SUPREME COURT’S RULING IN

USNER v. LUCKENBACK “VERSEAS CORP., ET

AL, 400 U.S. 494 A SINGLE ACT OF NEGLIGENCE

BY A LONGSHOREMAN WHO USES AN IM-

PROPER, UNSAFE METHOD OF UNLOADING

CARGO THAT IS IN VIOLATION OF SAFETY AND

HEALTH REGULATIONS FOR LONGSHORING,

RENDERS A VESSEL UNSEAWORTHY SO AS TO

PERMIT RECOVERY FOR RESULTING DEATH OF

A FELLOW LONGSHOREMAN.

Petitioner states that the instant case combined (1) an

isolated single act of negligence on the part of a long-

shoreman, in using an improper method of unloading

cargo, and (2) a breach of Safety and Health Regulations

for Longshoring, and that these two factors, separately or

combined, constituted unseaworthiness differentiating the

facts in this case from the Usner case.

This is not merely an isolated act of negligence on the

part of a fellow longshoreman. The facts clearly indicated

to the Trial Court that an improper method of unloading

existed as well.

The District Court found in its Findings of Fact and

Opinion:

‘‘It was only after some of the lower crates were

removed that the fatal crate became insecure.’’ And,

“The stow of the fatal crate was such that its

5

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9 REPENS IE Ns

entire skid on the side nearest the center of the ship

was unsupported when the two crates were removed.”

The Trial Court further stated :

‘*Our necessary conclusion is that if the crates had

been removed from the stow in proper order, top

crate first, as the commonest prudence

this tragic accident would never, could never, have

occurred.”’

The Sixth Circuit Court of Appeals held that:

‘*Appellant correctly observes that an unsafe pro.

cedure prescribed for unloading cargo may result in

a condition of unseaworthiness. See A. & G. Steve.

dores v. Ellerman Lines, 369 U.S. 355 (1962)"’ And,

‘‘Unseaworthiness may occur when the unsafe

condition is only temporary or transitory. ’’ Mitchell

v. Trawler Racer, 362 U.S. 539.

The Sixth Circuit Court of Appeals goes on to discuss

whether Smith’s death resulted from an act of negligence

or a condition of unseaworthiness and states:

“Very likely a resolution of this problem will

often involve metaphysics as well as judgment. A

negligent act conceivably could produce a hazardous

condition or it might be completed without causing

this result. The determination of the distinction will

oftentimes be elusive and will depend upon the par-

ticular facts of the given case.”’

Assuming the above findings of fact and law by the Dis-

trict Court and Sixth Circuit Court of Appeals are ac-

curate, petitioner contends the Sixth Circuit Court of

Appeals came to an erroneous conclusion in its applica-

tion of the Usner case.

The negligence of the longshoreman and the improper

method of unloading were one and the same in the instant

case.

7

There was therefore, an unsafe procedure used by the

jongshoreman in unloading the cargo leaving the crates in

a dangerous and precarious posit’on and this dangerous

method of unloading when accompanied by the further

negligent act of the longshoreman resulted in the death

of Smith. This takes it out of the realm of the Usner case

and makes respondent liable for Smith’s death because it

rendered the vessel unseaworthy.

It becomes necessary to interpret the Usner case in the

light of the facts in the instant case for surely there is

but a thin line between an isolated act of negligence in im-

properly unloading cargo and an improper method of

unloading cargo resulting in a condition of unseaworthi-

ness. When does a single act of negligence in improperly

unloading cargo become a condition of unseaworthiness?

Whether the death of Smith resulted from a single act

of negligence in improperly unloading cargo or from the

improper method of unloading cargo resulting in a con-

dition of unseaworthiness is clearly a matter of semantics.

The vessel was unseaworthy because of the unsafe pro-

cedure prescribed for unloading cargo. See A d G Steve-

dores v. Ellerman Lincs, supra. Unseaworthiness may

occur when the unsafe condition is only temporary or

transitory (Mitchell v. Trawler Racer, supra.)

It is clearly a matter of rhetoric to say that a single

act of negligence in improperly unloading cargo resulted

in Smith’s death rather than that said act of negligence

in following an unsafe procedure of unloading created an

anseaworthy condition causing Smith’s death.

The Sixth Cireuit Court held in the instant case that to

distinguish between an isolated act of negligence in un-

loading cargo and an improper method of unloading cargo

2 BRA CON

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1 Rt, MERE

is often within the realm of metaphysics. It is a distinction

without a difference and it is, therefore, necessary for the

United States Supreme Court to clarify the Usner decision

to make its application more practicable and uniform.

Surely justice should have better guidelines and this Court

should provide them.

QUESTION 2

A VIOLATION OF SAFETY AND HEALTH REGU-

LATIONS FOR LONGSHORING (29 CFR Sec. 1504.83)

RENDERS A VESSEL UNSEAWORTHY.

Petitioner contends that the violation of Safety and

Health Regulations for Longshoring in the instant case

rendered the vessel unseaworthy.

The District Court found:

‘Safety and Health Regulation for Longshoring

required

(a) When necessary, cargo shal) be secured or

blocked to prevent its shifting or falling.

(b) In breaking down, precautions shall be taken,

when necessary to prevent the remaining

eargo from falling. 29 CFR Sec. 1504.83

‘The record is barren of any testimony as to

efforts of the longshoremen to prevent the crate from

falling.”

The Trial Court further found that ‘‘Longshoring Regn-

lations have the force and effect of law and were plaily

breached’’. (Italics ours.) citing Manning v. M/V Sea Road

417 F. 2d 603. Despite this finding, the Trial Court found

the ship was seaworthy.

The Sixth Cireuit Court of Appeals should not have ig-

nored the District Court’s findings that ‘‘The Longshoring

Regulations have the force and effect of law and were

plainly breached’’. Petitioner’s brief to the Sixth Circuit

Court argued that the stevedoring company and/or its em-

ployees failed to secure or block the cargo to prevent its

shifting or falling as required by Safety and Health Regu-

lations for Longshoring but this contention was not dis-

cussed by the Sixth Cireuit Court.

The violation of the safety regulations rendered the ves-

sel unsea worthy as a matter of law rendering the shipowner

liable for damages for injuries sustained as a proximate

result of the breach. Carey v. Lykes Brothers Steamship

Company, Inc, 455 Fed. Rep. 2d 1194.

In Carey v. Lykes Brothers Steamship Company, Inc.,

supra, (5th Cir., Feb., 1972) in Footnote 2 on page 1194 it

stated :

“The safety regulation was received in evidence

without objection at trial, and its violation appears

to he undisputed. Such regulations define the appro-

priate standard of care and failure to observe them

renders the vessel unseaworthy irrespective of knowl-

edge or negligence on the part of the shipowner. See

reeent decisions of this Cirenit and other jurisdiec-

tious to the effeet thet the violation of a safety regu-

ction renders the vessel unseaworthy as a matter of

leo rendering the shipowner liable for damages for

injuries sustained as a proximate result of the

breach. Citing Manning r. W/V Sea Road, (5th Cir.

1969) 417 F. 2d G03; Phipps v. S.S. Santa Maria,

(Sth Cir. 1971) 418 F. 2d 615: Simmons v. Gulf €

South American SS. Co., (5th Cir. 1968) 394 F. 2d

504: Griqshy v. Coastal Marine Service of Texas,

lue., (5th Cir. 1969) 412 F. 2d 1011; Tenable v. A/S

Det. Forenede Dampskibsselskab (4th Cir., 1968)

399 F. 2d 347."’

The case of Venable v. A/S Det. Forenede Dampskibssel-

skab 399 F. 2d 347 held among other things that a violation

10

of longshoring safety regulations renders ship unseaworthy

and if such unseaworthiness is the proximate cause of

longshoreman’s injury, it also renders shipowner liable.

In Manning v. M/V Sea Road, 417 F. 2d 603, a Govern.

ment Safety Regulation for Longshoring was breached in

that a manhole was left open in a part of the ship where

longshoremen were working. The Court held that the viola-

tion of the Governmental Safety Regulations for Longshor-

ing made the vessel unseaworthy and permitted recovery for

injuries to a longshoreman who stepped into the manhole.

The Court in the Manning case cited Provenza v. Amer.

ican Export Lines, Inc. (4th Cir., 1963) 324-F. 2d 660 and

said as follows:

‘‘Nevertheless if the violation of the regulations

by the stevedore created a dangerous condition

then the law is clear that the shipowner is in turn

also liable, even if he did not know of the dangerous

situation created by the stevedore, for that is the

nature of the owner’s duty of seaworthiness. Pope €

Talbot, Inc. v. Hawn, 346 U.S. 406."

‘‘Furthermore, we are also forced to the conelu-

sion that in the area covered by the regulations their

violation would render the ship unseaworthy, and if

such unseaworthiness was the proximate cause of

the plaintiff’s injury, it would also render the de-

fendant shipowner liable. * * ° ”’

‘‘Prior to the enactment of 33 U.S.C.A. Sec. 941

and promulgations of the regulations thereunder,

what constituted negligence or unseaworthiness was

to be determined by the jury under the definition

laid down by the courts. Now, with respect to long-

shoring, the statute law of the United States has

laid down definite standards * * * 324 F. 2d at 665”--

ll

QUESTION 3

THE DECISION IN THE INSTANT CASE BY THE

SIXTH CIRCUIT COURT OF APPEALS IS IN CON-

FLICT WITH DECISION OF COURTS IN OTHER

CIRCUITS.

Petitioner contends that the decision of the Sixth Cir-

«ait Court of Appeals in the instant case is contrary to

and in conflict with the decision and opinion of the Courts

of Appeal in other circuits and that these conflicting de-

cisions make it imperative for the United States Supreme

Court to clarify the rule laid down in the Usner case.

Decisions in other Cireuit Courts of Appeal have held

based on similar sets of fact that a condition of unsea-

worthiness existed.

In the case of Siderewicez v. Enso-Gutzcit O/Y Finn

Lines, Ltd. 453 Fed. 2d 1094 (Second Circuit, Jan. 4, 1972)

a longshoreman sued a shipowner for injuries through the

alleged unseaworthiness of a vessel which he was helping

to unload. He was hurt when one of the hooks after being

freed of bales in the unloading process, snagged on part

of the pier as the empty sling to which it was attached was

heing returned to the vessel. He contended the hook caught

in the pier because of improper method of unloading. The

District Court dismissed the case before submission to

the jury and longshoreman appealed.

The Court held on page 1095 that the Usner case re-

iterated that a ship’s unseaworthy condition could arise

from an improper method of loading her cargo and an

improper method of unloading falls into the same class

citing Gutierrez v. Waterman S. 8S. Co. 373 U.S. 206; Atlan-

ADE OT AUD UE ORS PE

tic & Gulf Stevedores, Inc. vy. Ellerman Lines, Ltd supra.

The general procedure was to discharge eight bales at

a time, each with two hooks, but there was testimony that

the particular draft unloaded to the pier just before the

accident contained an extra ninth bale tied by rope, with.

out hooks, to the other eight. This made the process un-

safe and unseaworthy because to discharge such an over-

load sling required it to be brought closer to the floor

of the pier with the likely result that the hooks would

drag on or near the floor after unloading and tend to

get snagged.

In addition, plaintiff relied on a portion of the Safety &

Health Regulations for Longshoring [29 CFR See. 1504,

81(e).]

The Court held that ‘‘on this evidence the jury could

decide that the improper condition of unloading pror-

imately caused the accident’’ and reversed the decision

of the lower court saying ‘‘on both of these issues, un-

seaworthiness and proximate causation, the jury could

reasovably find either way, and a direction for defendants

could not properly be made.”’

The Siderewicz case, supra, closely follows the facts

in the instant case. In that case there was an act of negli-

gence by a fellow longshoreman resulting from an im-

proper method of unloading. There was also a breach of

Safety and Health Regulations as in the instant case.

The Second Circuit Court in that case interpreted and

applied the Usner case differently from the Sixth Cireuit

Court in the instant case and arrived at a different con-

clusion. Clearly this conflict between Circuit Courts of

BSN RN gE RT SIO POOR i SANS Ab SN STORE EET ME

13

Appeal calls for a clarification of the law and of the ap-

plication of the rule in the Usner case.

In the case of Ryan v. Pacific Coast Shipping Co., Li-

peria, 448 F. 2d 525 (9th Circuit, Sept. 8, 1971) there was

an action by a longshoreman to recover for personal in-

jaries resulting from alleged unseaworthiness of the vessel.

Crane operator lifted load of steel pipe which he was

to put into a gondola car. This load was crooked and the

crane operator attempted to straighten out this load by

carrying the boom of the crane over and past the gondola

ar while lowering the load into the car, so that one end

of the load would strike the inner side of the gondola car

farthest from the ship and thereby cause the load to turn

and straighten, with the result that the gondola car tipped

over against the car on the adjoining track injuring the

longshoreman who was working between the cars. This

was the crane operator’s first hoist, (Italics ours)

It was a single negligent act of the crane operator who

used an unsafe, improper method of unloading cargo. This

is similar to the instant case in which the hilo operator

sed an improper, unsafe method of unloading cargo.

The shipowner in the Ryan case relied on the Usner case

while Ryan asserted that the case constituted an unsafe

method of unloading the ship’s cargo. The District Court

held the negligence of the crane operator in using an

unsafe method of unloading cargo rendered the vessel

mseaworthy. The Court of Appeals upheld the District

Court and said on page 527:

“The unsafe manner of unloading cargo utilized

by crane operator, Vie Bono, rendered the vessel

POPEYE unseaworthy.’’

‘‘Bono was a ‘‘qualified crane operator’’ and while

it is true that the accident occured on his first hoist

fa fis

OPRNAE LaOONE POIEAS CSE ESIELL NEY ORBIT AIL RE ay

Cw AL ated

14

(italics ours) — he had relieved Roberts as operator

immediately prior to the accident — several eye.

witnesses to the accident gave testimony to the ef.

fect that Bono appeared to have deliberately directed

the slingload of pipe against the side of the gondola

car and this evidence, together with other testimony

that to do so would constitute a feasible — albeit

an unsafe — way to align pipe to permit its loading,

in our estimation, provides support for the trial

court’s determination of the critical issue of fact.”

The facts in the Ryan case reveal that there were no

repeated acts of negligence in that case but only one, on

the first hoist, and yet the Court held that this negligence

in improperly unloading cargo rendered the vessel unsea-

worthy.

Again, we have an interpretation of the Usner case dif-

ferent from that of the Sixth Circuit Court of Appeals in

the instant case, and again, we must point out that because

of diversity of interpretation by the Circuit Courts that

a clarification must be made by the United States Supreme

Court.

RELIEF REQUESTED

Petitioner respectfully prays that this Honorable Court

grant its Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit.

POSNER AND POSNER

By

Samuel Posner

Elizabeth F. Posner

712 Penobscot Building

Detroit, Michigan 48226

Telephone: (313) WO 5-7784

Attorneys for Petitioner

. DATED: OCTOBER 3, 1972.

3 SRR Te ea Sr ie et ne NE OF AME Le vet he

Appendiz A la

APPENDIX A

IN THE DISRICT COURT OF THE

UNITED STATES FOR THE

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FANNIE SMITH, Admx.,

Plaintiff,

vs. No. 32042

OLSEN & UGELSTAD,

Defendants,

OPINION

(Filed February 24, 1971)

Civil Action #32042 is a civil action brought by Fannie

Smith, Administratrix of the Estate of Joseph Smith,

against Olsen & Ugelstad, owners of a ship, the M/V

MAKEFJELL. Mr. Smith was crushed by a falling crate

in the hold of that vessel during its unloading by the

Detroit Harbor Terminals, Inc., decedent’s employer, on

October 14, 1968.

Civil Action #32126 is a suit by the shipowner, Olsen &

Ugelstad, to recover indemnity for any sum adjudged due

the Administratrix in Civil Action #32042 and for the

expenses of defense.

The cases were consolidated for trial and were tried

before the Court on September 24, 25, and 29th, 1970.

The parties were ordered to file proposed findings of fact

and conclusions of law. Proposed findings and conclusions

were filed by Olsen & Ugelstad, defendant in Civil Action

#32042 and plaintiff in Civil Action #32126 on October 2,

1970. No other proposed findings and conclusions or ob-

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2a Appendia A

jections to those already filed have been received, despite

informal extensions of time.

FINDINGS OF FACT

Plaintiff Fannie Smith is a Michigan citizen who is

the Administratrix of the Estate of Joseph Smith, De-

ceased, now pending in Wayne County Probate Court,

Wayne County, Michigan.

Defendant in #32042 and Plaintiff in #32126, Olsen &

Ugelstad, is a Norwegian business entity which was at

all pertinent times the owner and operator of the M/V

MAKEFJELL, a general cargo vessel of Norwegian reg-

istry, containing five holds, engaged in commerce and

navigation upon the high seas and the Great Lakes.

Defendant Detroit Harbor Terminals, Inc., is a Mich-

igan corporation with its office and principal place of

business in Detroit and was at all pertinent times engaged

in stevedoring at its dock and warehouse facility on the

Detroit River.

Jurisdiction is founded upon the commission of a mari-

time tort upon navigable waters of the United States.

The accident occurred when the decedent, Mr. Smith,

as a member of a longshoreman gang employed by Detroit

Harbor Terminals, Inc., was crushed to death by a falling

crate containing glass.

The glass had been stowed by stevedores in Hamburg

and had survived the ocean crossing and seaway voyage

without shifting. Each crate weighed in excess of one ton

and was constructed of new, rough hewn wood and each

crate had three 4” skids permanently affixed to facilitate

loading, stowage and discharge by the use of hilos or

fork lift trucks.

Appendix A 3a

The crates were stowed in the forward end of the hold,

both port and starboard, four tiers high except near the

scuttle hatches where only three high stowage permitted

entrance to the hold for checking the cargo during the

voyage.

Immediately prior to the accident, most of the crates

of glass had been removed from the hold and there re-

mained only a single line of crates stowed flush against

the forward bulkhead and extending from the center of

the vessel to the starboard shipside. The remaining crates

varied somewhat in size. Two of the crates, including the

fatal erate, were 2/5” wide, 3’5” long and 3’6” high, slightly

smaller than the others. Immediately against the side of

the ship, crates of similar dimensions were stowed four

tiers high. These presented a smooth and even stow. How-

ever, inward from the shipside and in the fourth or highest

tier were stowed the two smaller crates on top of a column

of the wider crates with the result that the two smaller

crates overlapped the wider crate and were unsupported

at their outer edges. No dunnage was employed since

while all the crates were in stow they were quite secure.

It was only after some of the lower crates had been re-

moved that the fatal crate became insecure.

One of the wider crates was set immediately to port

of the fatal lift in the fourth tier. This crate was lifted

down by the hilo operator and set in the starboard for-

ea de oe

PERS OE VME LENS ARE SE Se

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OS NEP I

ward corner of the hold, out of the way, while the operator-

returned and picked up two of the wider crates which

were partly supporting the fatal lift. The stow of the

fatal crate was such that its entire skid on the side nearest

the center of the ship was unsupported when the two crates

were removed, Probably the fatal crate was jostled when

ELE OR CEEOL IINAS 1 TRE EL EY SUC ONE EEL OE I a IS

4a Appendia A

the operator lifted the two crates out of stow. However,

the fatal crate did not fall at this time. The operator took

the two crates to the center of the hold and set them down,

all of the longshoremen except the deceased following

along with the fork lift truck.

The deceased remained in the area where the two crates

had been removed and picked up an empty cigar box lying

loose in the hold and then proceeded to the point where

the two crates had been removed and placed his hand on

the last remaining crate of the column which had partly

supported the fatal crate and attempted to look behind

the remainder of the crates, apparently in hopes of finding

some cigars or other article left in the hold from a previous

voyage. At that time the fatal crate descended and crushed

his read against the remaining crate upon which he had

placed his hand to steady himself as he leaned over.

The Court estimates that the fatal crate was precariously

balanced some thirty seconds, the time necessary for the

hilo to back away from the stow with its load of two crates

and set them down in the center of the hold.

The fatal crate was largely supported in the original

stow by a column of crates which were not touched by

the hilo prior to the accident. The fatal crate overhung

the two erates which were removed to the center of the

hold by only about 5”, which is to say only a little more

than the width of its skid nearest the center of the ship.

We do not know how much the fatal crate was jarred out

of position by the removal of the two crates partly sup-

porting it, but even if it were not jarred out of position

at all, still it would have then been supported by only

two of its skids with one skid completely unsupported

and hence would have been in a precarious position.

Appendia A 5a

The fatal crate weighed about one ton. It is not clear

why it did not fall immediately after the removal of the

two crates if it were going to fall at all but perhaps the

movement of the hilo about the deck or the setting down

of the two crates caused slight vibration sufficient to

loosen it from its precarious position. The deceased did

not touch the fatal crate or attempt to move any of the

others except to rest his hand on one of the crates on

the deck. It seems unlikely that his movements could

have caused the fatal crate to fall.

Our necessary conclusion is that if the crates had been

removed from the stow in proper order, top crate first,

as the commonest prudence required, this tragic accident

would never, could never, have occurred.

Safety and Health Regulations for Longshoring re-

quired :

(a) When necessary, cargo shall be secured or

blocked to prevent its shifting or falling.

(b) In breaking down, precautions shall be taken,

when necessary, to prevent the remaining cargo

from falling. 29 CFR § 1504.83.

The record is barren ot any testimony as to efforts

of the longshoremen to prevent the crate from falling.

No ship’s equipment or crew were involved in the dis-

charge although one seaman, Francis Joseph, was in the

hold watching for pilferage or breakage.

The decedent, Joseph Smith, was born in Detroit on

November 18, 1933; had a high school education; was

married to Fannie Smith on September 20, 1959 and had

been employed by Detroit Harbor Terminals, Inc. as a

longshoreman in the shipping season since May, 1967.

RS! ADH PES or Cringe ete FULL AMET RE INIT et LLL AI SNA BAA, Te DRT NSRP SE: 1

6a Appendiz A

During 1968, up to the time of his death, Joseph Smith

earned approximately $3,700.00 as a longshoreman. Hov.

ever, at the time of his death he was separated from Fap-

nie Smith and was living with another family to whom

he gave all his earnings and was not contributing to the

support of Fannie Smith nor had he contributed to her

support for several years preceding his death. No children

were born of that marriage.

Death was instantaneous.

The shipowner has proved about $1,000.00 expended

for the testimony of the witness Joseph who attended

the trial from Oslo, but the Court reserves its ruling re-

garding expenses pending proof of attorney fees and other

costs or stipulation of counsel.

CONCLUSION

The Court has jurisdiction of the subject matter and

the partes in bot! suits. Gutierrez v. Waterman SS. Corp.

373 U.S. 206 (1963).

Xo shipowner negligence appears, and the Court finds

that the vessel and her cargo were seaworthy in all re-

spects.

The cause of the accident was the negligence of the

longshoremen in taking down the crates in improper order

coupled with the contributory fault of the deceased in

being in a place of danger bent on personal gain and witb-

out attention for his own safety. The contributory negli-

gence of the deceased is set at 35%.

The death ease (Civil Action 32042) is governed by

references to, but not by, the Death on the High Seas Act.

Moragne v. States Marine Lines, 398 U.S. 375 (1970).

* The indemnity case (Civil Action 32126) is governed by

Ryan Stevedoring v. Pan-Atlantic Steamship, 350 v.8.

el ~

Appendiaz A 7a

124 (1956), and its progeny.

The Longshoring Regulations have the force and effect

of law and were plainly breached. Manning v. M/V “Sea

Road,” 417 F 2d 603 (Sth Cir. 1969).

The shipowner is not liable in Civil Action #32042 be-

cause of the total absence of negligence of unseaworthiness

itis now clear that instant unseaworthiness resulting from

the operational negligence of the stevedoring contractor

or his servants is not a basis for recovery by an injured

jongshoreman. Usner v. Luckenbach Overseas Corpora-

tion et al., ...... U.S. —. (39 LW 4146, Jan. 25, 1971).

No damages are proved in the first case (#32042) be-

cause the death was instantaneous and no loss of consor-

tium exists in law, Igneri v. Cie. de Transporta Oceaniques,

993 F 2d 257 (2d Cir. 1963) or on the facts; and plaintiff

has lost no reasonably expected contribution, Petition of

Risdol € Anderson, Inc., 291 F. Supp. 353 (DC Mass 1968).

The negligence of the deceased, as well as that of the

other longshoremen, is a breach of the warranty of work-

manlike service owed by the stevedore, Detroit Harbor

Terminals, Inc., to the shipowner, Olsen & Ugelsted. Hart-

wit v. Reiss Steamship Co., 421 F 2d 1011 (2d Cir. 1970).

The shipowner is entitled to the reasonable expense in-

carred in defending the first suit. Strachan Shipping Co. v.

Koninklalke Nederlandsche S.M., N.V., 324 F 2d 746 (5th

Cir. 1963).

Appropriate orders shall be submitted in ten days.

It is so ordered.

/s/ Talbot Smith

United States District Judge

Detroit, Michigan

February 24, 1971

eer PE oo AE Se eeE ey,

8a Appendiz B

APPENDIX B

(Title of Court and Cause)

ORDER

At a session of said Court held in the Federal Build.

ing, City of Detroit, State of Michigan, this 30th day

of March, 1971.

PRESENT: HONORABLE TALBOT SMITH, 0.8

District Judge.

This cause having come on for hearing in open court

before the Honorable Talbot Smith and the Court having

heard and considered the evidence and arguments of

counsel and the Court having therefore entered its

Opinion with Findings of Fact and Conclusion of Law,

NOW THEREFORE, it is hereby ordered, adjudged and

decreed that judgment of no cause for action be entered in

favor of the defendant and against the plaintiff with costs

to be taxed in favor of the defendant within 30 days unless

sooner stipulated by the parties.

TABLOT SMITH

U.S. District Judge

A True Copy

FREDERICK W. JOHNSON, Clerk

By MARY ANN GOLDBURG

Deputy Clerk

Approved as to Form Only

POSNER & POSNER

fr -

Attorney for Plaintiff

712 Penobscot Building

Detroit, Michigan 48226

-Appendia C oa

APPENDIX C

_ No. 71-1574

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FANNIE SMITH, APPEAL from the

Plaintiff-Appellant, United States District

v. Court for the Eastern

OLSEN & UGELSTAD, District of Michigan,

Defendant-Appellee. Southern Division.

Decided and Filed May 8, 1972.

Before: The HONORABLE TOM C. CLARK’®, Associate

Justice, and MeCREE and MILLER, Circuit Judges.

MILLER, Circuit Judge. During an unloading operation

on the ship M/V Makefjell on October 14, 1968, longshore-

man Joseph Smith was crushed to death by a falling crate

containing glass. His legal wife, and the administratrix of

his estate, Fannie Smith, brought this action asserting the

maritime claim for unseaworthiness against the shipowner,

Olsen & Ugelstad.* In the same proceeding, the shipowner

—_*

10a Appendia C

sought indemnity from Detroit Harbor Terminals, Inc., the

stevedoring company which employed the deceased long.

shoreman.

The action was tried to the district court in admiralty.

The court found as facts that the vessel’s cargo of crates

was securely and properly stowed, and that the accident

occurred because supporting crates were negligently re-

moved from under the crate that fell. The court concluded

that the ship was seaworthy in all respects; that the death

was caused by the negligent act of a fellow longshoreman;

and that the stevedoring company failed to provide work-

manlike service and therefore was required to indemnify

the shipowner for reasonable expenses incurred in defend-

ing the action.? The administratrix appeals.

The M/V Makefjell was loaded with cargo in Hamburg,

Germany by German stevedores. The cargo in hold #4,

where the accident occurred, consisted of wooden crates

each holding approximately one ton of glass. The crates

were stacked four tiers high throughout the stow except

near the hatches where three tier stacks permitted entry

into the hold to check the cargo during the voyage. Each

crate had three four inch skids* attached to its base to faci-

litate handling and stowage Aside from stabilizing the stow,

2 Although we need not review the allegations of error as to other

findings and conclusions of the court below, we briefly mention those

findings. First, the court found the deceased guilty of contributory

negligence to the extent of 35% because he failed to watch for his

own safety while pursuing his personal interests rather than attend-

ing to his job. nd, the court found that Joseph Smith had

abandoned his legal wife and was living with and su ng an-

other family. The deceased had not contributed to his wife's

support for several years and the court concluded that she was

deprived of no reasonably expected contribution to her support.

3A skid is a wooden two-by-four runner attached to the bottom of

the crate. .

Appendiz C lla

skids served to separate the stacked crates so that the

blades of a fork-lift truck (hilo) could easily be inserted

under the crate. aoe

The Makefjell left Hamburg and proéeeded to Montreal

and then to the Detroit Harbor. The stow survived the

North Atlantic crossing without shifting. When the ship

arrived at Detroit, the stevedoring company sent its long-

shoremen and its equipment to unload the cargo. Prior to

the accident, most of the crates had been removed from the

hold. Remaining was a single line of crates four tiers high

in separate stacks against the forward bulkhead. On the

fourth level of one stack were two smaller crates. These

companion crates (sitting side-by-side) covered a wider

space laterally than those beneath them in the column. Asa

result, the outside skid on each of the companion crates ex-

tended beyond the sides of the stack below. To the right of

this column were other stacks. To the immediate left of the

column was a stack which a hilo operator was attempting

to remove when one of the companion crates fell. The top

erate of the latter stack had been removed without incident.

The operator then removed two crates which were lower

than the fatal erate and which partly supported it. This

crate remained precariously balanced for approximately

thirty seconds and then fell, striking Smith and instantly

killing him. The normal procedure is to remove the higher

erate first.

When the crate fell, Joseph Smith was supposed to have

been following the hilo truck and fixing slings around the

crates so that they could be lifted out of the hold. Instead,

he remained behind carrying an empty cigar box and peer-

ing behind the stacked crates apparently in search of some-

thing. ;

hens, OP

12a Appendig C

On appeal, the administratrix challenges both the factua)

findings and the legal conclusions of the district court. She

argues that the episode in hold #4 demonstrates that the

vessel was unseaworthy. In asserting her claims, we first

consider the assertions that the equipment used by the long-

shoremen was inadequate and that the cargo was improp-

erly stowed. The contrary findings by the court below may

be disapproved only if they are clearly erroneous. Rule

52(a), Federal Rules of Civil Procedure; Utzinger v. Uni

ted States, 432 F.2d 485 (6th Cir. 1970).

The applicable principles of maritime law are settled.

The concept of seaworthiness imposes upon the shipowner

the duty to furnish a vessel and appurtenances reasonably

fit for their intended use. Mitchell v. Trawler Racer, 362

U.S. 539 (1960). That duty extends to a longshoreman en-

gaged in unloading the ship. Seas Shipping Co. v. Sieracki,

328 U.S. 85 (1946). Part of the obligation is to provide rea-

sonably safe equipment, and the duty is nondelegable. Id.

Thus even though the equipment belongs to the longshoring

company and is used only by longshoremen, the shipowner

remains liable for injury caused by the unsafe equipment.

Alaska Steamship Company v. Petterson, 347 U. 396 (1954).

It is argued by appellant that the operator failed to re-

move the top crate first because the hilo was incapable of

accomplishing this. Four longshoremen offered their con-

clusions that the hilo would not reach the fourth level of

erates. Three said that the shaft to which the fork-lift

blades were attached was too short to raise the blades the

necessary height. One stated that the shaft was too long

and would hit the ceiling before the blades reached the

necessxiy height. Opposed to this testimony was the fact

that most of the crates of glass had already been removed

Appendia C 13a

githout incident prior to the accident. The ship’s watchman

testified that the hilo operator removed without difficulty a

erate which was stacked on the two supporting crates and

which was to the immediate left of the one that struck Smith

when it fell. In addition, the watchman testified that he later

saw the same hilo remove the companion crate. In view of

this conflicting evidence, we cannot say that the district

court was clearly erroneous in finding the hilo adequate for

its intended purpose.

Appellant also challenges the finding that the cargo was

seeurely stowed. She argues that different size crates should

not have been stowed in the same stack and contends that

dunnage should have been placed between the crates in each

stack to prevent their sliding.* The longshoremen testified

that dunnage was needed to secure the cargo. It is settled

that cargo stowed unsafely may render a vessel unsea-

worthy. Guitierrez v. Waterman S.S. Corp., 373 U.S. 206

(1963). There can be no doubt that uneven stacks or stacks

without dunnage could possibly be unsafe. But the cargo

here survived an ocean voyage without shifting and appar-

ently was stable until the supporting crates were removed.

The ship’s watchman testified that no dunnage was neces-

sary in this stow because all crates had skids and because

the stow was secure. While the record leaves some doubt

whether the stowage was perfectly secure, the evidence to

the contrary is not so convincing as to compel us to conclude

that the district court’s finding on this point was clearly

erroneous.

Appellant’s final attempt at establishing unseaworthiness

focuses upon the nature of the incident in hold #4 and upon

*Dunnage consists of pieces of board which may be placed between

the various layers of crates and which runs the length across the

crates. Its purpose is primarily to keep the stow level and secure.

l4a Appendia C

the legal consequences deriving therefrom. She contends

that improper unloading of the cargo created a dangerous

condition which rendered the vessel unseaworthy. Appel-

lant suggests in her brief that the removal of the support.

ing crates left the one that fell in a dangerous and unsup.

ported condition.’’ Olsen & Ugelstad argues that the result

of this ‘‘condition’’ was that the crate quickly fell. Appellee

contends that the death of Joseph Smith resulted from the

negligent act of the hilo operator and not from any condi-

tion of unseaworthiness. ~

Appellant correctly observes that an unsafe procedure

prescribed for unloading cargo may result in a condition of

unseaworthiness. See A. € G. Stevedores v. Ellerman Lines,

369 U.S. 355 (1962). And unseaworthiness may occur when

the unsafe condition is only temporary or transitory. Mit-

chell vy. Trawler Racer, supra. It is now clear, however, that

an isolated personal act of negligence does not constitute

unseaworthiness. Usner v. Luckenbach Overseas Corp., 40

U.S. 494 (1971). In finding that a single and unforeseeable

act of negligence created no condition of unseaworthiness,

the Supreme Court recently stated:

A vessel’s condition of unseaworthiness might

arise from any number of circumstances. Her gear

might be defective, her appurtenances in disrepair,

her crew unfit. The number of men assigned to per-

form a shipboard task might be insufficient. 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 service.

What caused the petitioner’s injuries in the present

case, however, was not the condition of the ship, her

appurtenances, her cargo, or her crew, but the iso-

Appendia C 15a

lated, personal negligent act of the petitioner’s fel-

low longshoreman. To hold that this individual act

of negligence rendered the ship unseaworthy would

be to subvert the fundamental distinction between

unseaworthiness and negligence that we have so

painstakingly and repeatedly emphasized in our de-

cisions. Id., at 499-500.

Thus it is necessary to determine whether the death of

Smith resulted from an act of negligence or a condition of

unseaworthiness. Very likely a resolution of this problem

will often involve metaphysics as well as judgment. A neg-

ligent act conceivably could produce a hazardous condition

or it might be completed without causing this result. The

determination of the distinction will oftentimes be elusive

and will depend upon the particular facts of the given case.

Here, as the District Court found, the ship’s cargo was

stowed securely and the hilo operator was aware of the fact

that the higher crates should be removed first. There was

evidence that he did not do this because he would have been

required to climb down from the truck and adjust the fork-

lift blades in order to remove the crates of smaller dimen-

sions which were on the top level. From this evidence it was

reasonable for the court below to find that the hilo operator

acted negligently and that no condition of unseaworthiness

was created or called into play.

The District Court’s determination that the longshore-

man’s death resulted from an isolated, unforeseeable act of

negligence and not from a condition of unseaworthiness is

further supported by the fact that the fatal injury occurred

within thirty seconds after the falling of the crate.

Accordingly, the judgment of the District Court is af-

firmed

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l6a Appendia D

—_—

APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. A-276 Sup

FANNIE SMITH,

Petitioner

v.

OLSEN & UGELSTAD

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel

for petitioned,

IT IS ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including October 5, 1972,

/s/ Potter Stewart

Associate Justice of the Supreme BRI

Court of the United States WRIT

Dated this 8th day of September, 1972. COUR’

APPENDIX E

JURISDICTIONAL PROVISIONS AND STATUTES

28 U.S.C., Sec. 1254 (1):

**Cases in the courts of appeal may be reviewed by the

Supreme Court by the following methods:

(1) By Writ of Certiorari granted upon the petition of

any party to any civil or criminal case before or after ren-

dition of judgment of decree. ***”’