# Petition for a Writ of Certiorari — Smith v. Olsen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1040

## Text

i

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 — , .
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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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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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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-

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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. ***”’

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1444%3A1. Public record. Not legal advice.