Petition for Writ of Certiorari — Luttrell v. United States

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

FILE COPY

MICBAEL ROCAK, fa.'

In the Supreme Cowt

of the United States

OCTOBER TERM 1972

JOHN M. LUTTRELL,

Petitioner,

THE UNITED STATES OF AMERICA,

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_ ADELBERT G. CLOSTERMANN

639 Park-Haviland Hotel

Portland, Oregon 97205

Counsel for Petitioner

sralilicemsimmnmmttemmmnanatiiaaed

STEVENS-NESS LAW PUB. CO.. PORTLAND. ORE. ®-78

woke

SUBJECT INDEX

Page

Opinions Below 1

Jurisdiction -. 2

Statutes Involved - 2

Questions Presented for Review 3

Question Presented Fairly Compromised _-._... 3

Statement of the Case 4

Reasons for Granting the Writ 14

1. The Decision below imposing a time lim-

itation on an admiralty ward disclosing a fraud

practiced on the court by way of the sovereign-

fiduciary concealing material evidence and pre-

senting testimonial untruths to its benefit and

the seaman’s detriment is in conflict with de-

cisions of this Court requiring full truth and

disclosures and that rights of admiralty wards

be not imposed upon, thus precluding the exon-

eration of the fiduciary by a time limitation _ 14

A. Where is can be determined that a

fact-trier in a Jones Act case based his de-

cisional processes’ on false testimony,

coupled with concealment of material evi-

dence by the fiduciary and utilized com-

mon law grounds in exonerating the sov-

ereign fiduciary from liability, the judg-

ment becomes untenable .... 26

2. The imposition of a penalty on a mem-

ber of the bar of this Court petitioning the sov-

ereign on behalf of an aggrieved admiralty

ward of this Court is violative of counsel’s oath,

inconsistent with free government, the spirit of

constitution and ethics of the profession. It ‘

imposes a disability on the seaman 29 x

POE TEE TRE ONE a OIE BIRR LICL

bs Pit FIN SoS

SUBJECT INDEX (Cont.)

Conclusion is 36

Appendix ‘ 37

Motion for new trial denied. United States

District Court for Oregon—Alfred T. Goodwin,

judge 37

Motion for reconsideration of denial for mo-

tion for new trial — United States District

Court for Oregon — Alfred T. Goodwin, judge 38

Opinion United States Court of Appeals grant-

ing Respondent’s motion to dismiss Appellant's

appeal _ Fe

Opinion United States Court of Appeals deny-

ing en banc hearing—May 23, 1972 —___ 39

Statutes Applicable _._...---. 40

INDEX OF AUTHORITIES

Page

Cases

Aaron Burr Cases, Robertsons Rep. 11, 517

(1908) 16-17, 24

Ackerman Vv. U. S., 340 U.S. 193 1950) 18-19, 31

Agullar v. Standard Oil Co. of N. J., 318 US. ™

724

Arizona V. Anelich, 298 U.S. 110 (1986) _.28, =

Aronfsk Vv. Bostian, 133 F.2d 290 (8 Cir.) ___.

Atchison, Topeka & Santa Fe R. Co. v. Barrett,

(9 Cir. 1957) - cceceunca aa

Atkins v. Dick, 14 Pet. (U.S.) 114 18

Bank Line v. U. S., 76 F. Supp. 801, 804, 168

F.2d 183, 188 (2 Cir. 1947) 17, 23

Beadle Vv. ~ 7 , 298 U.S. 124 .. 2

oe ter Supply Co. V. Mobile, 186 U.S. -

Boddie v. Connecticut, 401 U.S. 371, 377 | . 83

Braen V. Pfeifer Oil Co., 361 U.S. 206 28

Brady v. Maryland, $73 U.S. 87 22

Burton v. We gg Timber Co., 1 F.R.D.

571, 574 ( PRR CAL EYE ee ee Oo 31

Can t988) S. Corp. v. Taylor, 303 U.S. 525 .

Castrow v. Moore-McCormick S.S. Co., 325 F.2d

Chisolm v. House, 160 F.2d 632, 643 (10 Cir.

1947) 18

Cresmer v. U. S.. 9 F.R.D. 203 (E.D. N.Y.

1949) 29

pieerweghe v. Missouri, 4 Wall 277, Se 24

ethane 15-16

;

Fat

PROSE AIST NTS IY TENG POE

bah ahd cae aan a Fe rt

INDEX OF AUTHORITIES (Cont.)

Page

Giglio v. U. S., 92 S. Ct. 763 (1972) 22, 29

Graves v. U. S., 150 U.S. 118 (18938) —----.. 38

Grosjean v. American Press, 297 U.S. 283, 249.

50 1

Harris v. New York, 401 U.S. 222 --........ 21

Hazel Atlas Co. v. Hartford Empire Co., 322

U.S. 288 (1944) 20, 31

In re Schnable, 61 F. Supp 386 24

Johnson Vv. Waters, 111 U.S. 640 18

Klapprott v. U. S., 335 U.S. 601, modified in

336 U.S. 942 oie

Loubriel v. U. S., 9 F.2d 807, 808 (2 Cir.) _. i7

Luttrell v. U. S., 423 F.2d 1197 (1970)

. 9, 12, 19, 20, 21, 24

Mapp v. Ohio, 367 U.S. 643 25

Marbury v. Madison, 1 Cranch (U.S.) 49, 58 —. 34

Matt v. U. S.. 268 US. T47 ———--.-.--- 25

Mine Workers v. Illinois Bar, 389 U.S. 2117

(1967) 32

Murray v. Hoboken Land & Development.Co.,

18 How. 276 (U.S. 1856) —... a 88

Nichoalds v. McGlothlin, 330 F.2d 454 (10

Cir.) 18

People Na

Pope and

INDEX OF AUTHORITIES (Cont.)

Railroad Trainmen v. Virginia Bar, 377 U.S. 1

(1964) 32

Richardson v. Green, 133 U.S. 30 -.-_...--------. 18

Robertson V. Baldwin, 165 U.S. 275, 287 ___...._... 15

Rogers ¥:~Missouri-Pacific, 352 U. S; 500 (1957) 27

Sanders v. Leech, 158 F.2d 486 (5 Cir.) 27

car h v. Atlantic Coast Line R. Co., 178

F.2d 258, 15 A.L.R.2d 491 (4 Cir.) -....... 18

Schneider v. "Irving ton, 308 U.S. 147 _.._... 18, 35

Slattery v. U. S. "331 F.2d 37 (5 Cir.) - 27

Smith v. Kay, 7 ‘HL. Cas. 750, 11 Eng. Reprint

299 H.L. 23

Smith v. Richards, 13 Pet. (U.S. 19

—_ Oil Co. v. Smit 308 ‘U.S. 424

1989) _....

eng V. repidde, 213 U.S. 419 18

: Thomas Vv. Collins, 323 U.S. 516, 530 __...____..__. 24

| Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54,

| reako “oat T ific C C 822

onites V. Tra: ic Carriers Corp.,

) F, Supp. 722 (1 1970) > is

| U.S. v. Aaron Burr, 25 Fed. Cases 191 (1808) =

U. S. v. De Francis, 50 F.2d 497 __.....--.--__..

U. ae V. Se iatod and Russo (Pentagon Papers -

U. S. v. Gen. Motors Corp., 2 F.R.D. 528, 530

(N.D. Ill. 1942) __.... 29

Le”) 2 |, eee 21

U. +568) yers, 181 F. Supp. 525 (D.C. Cal.

U. S. v. Staples, 256 F.2d 290, 293, 294 ae

sf peaoeom Sie

U.S. v. The Amistad, 15 Pet. (U.S.) 518 18

U.S. v. Throckmorton, _ 2S eens 18

U. S. Bulk Carriers V. yas Toy 400 U.S. 351 18

Vaughn v. ‘Atkinson, Un ae... 23

eS SRR ey eee

INDEX OF AUTHORITIES (Cont.)

Watkins v. U. S., 354 U.S. 178 —_..--..--..-........ W

Weber v. Aetna Casualty Co., 97 S. Ct. 1400

(1972) es 1

West Va. State Bd. of Educ. v. Barnett, 319

U.S. 624, 639 bi 31

Willis v. Town, 182 F.2d 892 (8 Cir. 1950) __. 26

Woodruff v. Trapnell, 10 How. 190, 207 (US,

1850)

Constitutional Provisions

Ty, B Cees. Ant. 3, 33... 2

U. S. Constitution, 1st Amendment - 2, 18, 30

U. S. Constitution, 5th Amendment -......... 2, 13, 31

Statutes

RS "of iy —— RRReeceennemesstnommnnnnn rears 2, 20, 26

Bik oe Remeron 2, 26

BE Ef R ! pt RR neeeeenerreercoreenn 2

28 U.S.C.A. 2901 2

} 2 , | 6 26

pe SS Gaara 9

dk onciiauceeeeinligaonsie 2

I ci acecncscienacomsenbuoomconnanntied 2

46 C.F.R. Parts 90 et seq. 2,17

Rules

Supreme Court of the United States, Rule 19(b) 2

Federal Rules Civil Procedure, Rule 52a -....3, 5, 26

Federal Rules Civil Procedure, Rule 60b

: Stchikes ata ea 2, 3, 4, 14, 19, 20, 28, 26, 35

Texts

Anno. 61 A.L.R. 519 19

2 Cooley, Constutional Limitations (8th Ed.

1927) 885 -.. 30

INDEX OF AUTHORITIES (Cont.)

Gilmore and Black, Law of Admiralty 384 _. 25

Restatement 593, Judgments § 122, comment E

at p. 596 _... 20

Restatement, Torts § 542b..- 19

patises

Xcess to Official Information, a Neglected Con-

CST in Right, 27 Ind. L. J. 209 et seq. -

Goveknment rig | from Discovery, 59 Yale

aw Journal 1451 - 29

Iu the Supreme Court

of the United Stutes

No.

JOHN M. LUTTRELL,

THE UNITED STATES OF AMERICA,

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the Ninth Circuit entered on March 23rd,

1972 and the order denying an en banc rehearing en-

tered on May 23rd, 1972.

The Opinions of the United States District Court

for Oregon are set forth herein (Appendix pp. 37, 38).

Or oe ee RRR ere te ee tere te

The opinion of the Court of Appeals is unreported and

is set forth (Appendix p. 39) and the opinion de

nying the petition for rehearing is unreported and

is set forth (Appendix p. 39).

JURISDICTION

Jurisdiction to review the judgment by Writ of

Certiorari is found in 28 U.S.C.A. 1254 (1) and 2901,

and Rules of this Court 19 (b). Original jurisdiction

was based on the Jones Act (46 U.S.C. 688).

STATUTES INVOLVED

U. S. Constitution, Art. 3, § 2 (Apx. p. 40).

U. S. Constitution, Ist Amendment (Apx. p. 40).

U. S. Constitution, 5th Amendment (Apx. p. 40).

46 U.S.C.A. 688, Jones Act (Apx. p. 42).

45 U.S.C.A. 51, FELA (Apx. p. 42, 43).

46 U.S.C.A. 740, Public Vessels Act 695 of June

1948 (Apx. p. 41).

18 U.S.C.A. 1001 (Apx. p. 45).

18 U.S.C.A. 1018 (Apx. p. 45).

Rules & Regulations for Cargo Vessels, Title 4

C.F.R. Parts 90 et seq. (Apx. pp. 43, 44).

Rule 60b, Federal Rules Civil Procedure (Apx. p

45).

This petition is being filed within the time limita-

tion dated August 12, 1972 as extended to and in-

cluding October 2nd, 1972 by the Honorable William

. Douglas.

QUESTIONS PRESENTED FOR REVIEW

1. Is the judiciary constitutionally justified in ex-

culpating a sovereign-fiduciary from its wardship re-

sponsibilities by imposing a one year time limitation

on a new trial motion (Rule 60b) sought by an ag-

grieved admiralty ward of this Court where the:

a. fact-finder admittedly relied on the untruth-

ful trial testimony of a Coast Guard official, and the

fiduciary denied discovery of requested records to

court and counsel in a seaman’s case based on negli-

gence and unseaworthiness;

b. when more than one year elapsed after judg-

ment entry and after suicide death of Coast Guard

officer witness, plaintiff’s counsel discovered that the

sovereign-fiduciary knowingly concealed from court

and plaintiff’s counsel pertinent and material official

and testimonial untruths of said witness prejudicial

to the seaman’s rights and to the advantage of the

Sduciary, by bei ted from liability in a

Jones Act case.

Fairly Comprised is the Following Subsidiary Question

A. Can judgment favorable to the fiduciary sov-

ereign be constitutionally sustained (Rule 52a) where

the fact-trier’s decisional processes were grounded on

the harsh common law principles supported by the sov-

ereign’s knowing and intentional false testimony, con-

cealment and refusal to produce requested documen-

tary truths, all being contrary to the requirements of

federal statutes and extremely prejudicial to plain.

tiff’s cause?

2. Is it constitutionally sustainable for the federal

judiciary to impose a severe and substantial monetary

penalty on counsel for an aggrieved admiralty ward

requested by special counsel for the sovereign in a

Jones Act case where plaintiff’s counsel discovers and

attempts to bring to the court’s attention the knowing

and intentional chicanery, marketing of untruths and

massive statutory defaults practiced by the sovereign

which were previously undisclosed to the fact-trier

all of which resulted in prejudicing the constitutional

rights of the admiralty ward of this Court?

STATEMENT OF THE CASE

The judgment (Apx. p. 39) sought to be reviewed

is the Ninth Circuit affirming the denial of new

trial motions (Rule 60b) of the District Court of Ore-

gon (Apx. p. 37, 38) sought by an aggrieved admiralty

ward based on discovery of new facts inimical to the

interests of the sovereign-fiduciary revealing testi-

monial untruths and statutory defaults on which the

court relied in exonerating the fiduciary shipowner

from negligence and unseaworthiness in a Jones Act

suit brought by a seaman sustaining permanent in-

juries on duty and aboard defendant’s vessel Alfred

Victory on September 14th, 1966, tried to the court

on May 18th, 1968 and adverse judgment entered

May 28, 1968.

Thereafter and during unsuccessful appellate proc-

esses based on Rule 52a F.R.C.P., plaintiff’s counsel

on February 23rd, 1970 learned of the suicide death

of Commander Bertram Ronneberg, U.S.C.G. occur-

ring about November 23rd, 1969 while on duty at

Seattle. Ronneberg was a primary government wit-

ness, On Which the fact-trier admittedly relied in his

decisional processes.

On April 1st, 1970, the Portland Coast Guard of-

fice released to plaintiff’s counsel pertinent extracts

of Ronneberg’s official coast guard inspection book,

previously never available to counsel. Such book was

a part of the vessel’s official record and contained ref-

erences to plaintiff’s injuries. Ronneberg testified

from personal knowledge of said book. Examination

thereof revealed massive statutory defaults and his

untruthful testimony in court on which the fact-trier

relied, despite strong evidence revealing defaults given

by ships officers as adverse witnesses and authorized

to speak on behalf of the shipowner. Contentions of

plaintiff were in fact supported by his superiors with-

in the ship’s discipline.

Based on the fact-triers whole hearted indorsement

of Ronneberg’s in trial testimony “he had no axe to

grind” and the assurances by special counsel to court

and plaintiff's counsel that requested statutory rec-

ords were not available which would have revealed

witness identity, presence of personnel at assigned

stations and duties surrounding the events in which

Luttrell was injured, confirmed the fact that discoy-

ery was denied when and revealed in the inspection

book, supported the untruthful in trial testimony of

Ronneberg.

Plaintiff’s new trial motion (R. p. 98, 138) fae-

tually supported a fraud on the court situation (Rule

60 b) (Apx. p. 45) justifying his relief from an ad-

verse judgment. The sovereign resisted the motion

and the reconsideration thereof in short summary

hearings before the Honorable Alfred T. Goodwin

without any hearing of any kind other than said sum-

mary hearings. The court also assessed a financial

penalty of $400.00 against plaintiff's counsel request-

ed by special counsel (Apx. p. 38).

Judge Alfred T. Goodwin was neither the fact

trier nor was he possessed of the record. It would have

been procedurally correct for these motions to have

been heard by the Honorable William N. Goodwin, the

fact-trier, possessed of the record, who heard the wit-

nesses. He should have had the opportunity of cor-

recting his own record.

Appellant’s timely appeal was thwarted after the

filing of briefs, by respondents filing a motion to dis

miss based on the appeal being vexatious, frivolous

and untimeliness. Appellant’s resistance was an &

ercise in futility. Thus far the sovereign has not been

required to respond to any of the new allegations raised

in the motion by appellant (Apx. p. 39).

es AP NAT ET Se oF TSS

Appellant’s motion for an oral argument, en banc

hearing was similarly denied (Apx. p. 39).

The facts surounding petitioner’s injury reveal

that Commander Ronneberg was a 17-year veteran

Coast Guard officer primarily in the marine inspec-

tion division, he was the responsible Coast Guard of-

ficer in matters concerning the Alfred Victory. He

was custodian of the official records. He was obliged

to enforce maritime safety regulations ( Apx. p. 43,

44) (Title 46 C.F.R., Parts 90-98) and certify the

vessel’s compliance among other statutory obligations.

He was the sovereign’s designated official to cer-

tify and accept the rehabilitation of the Alfred Vic-

tory for duty in the Vietnam sea life from a local ship-

yard.

Ship’s company consisted of 48 men, newly em-

ployed and at the time of the injury generally un-

identified to each other.

Petitioner was an untrained and untutored per-

son who obtained this job as ordinary seaman about

a day or so before the injury. His seagoing experience

consisted of only 10 days about 20 years previous to

the injury.

On September 14th, 1966 Commander Ronneberg

was supervising a presailing statutory boat drill for

the vessel’s certification required when the crew was

new. This required the full participation of all crew

(Apx. pp. 43, 44). Concurrently the vessel was prepar-

ing for imminent departure for sea, the harbor tug

alongside and pilot on the bridge. These various sea-

going duties dissipated supervision.

Petition responded to his boat drill duties by

leaping from the top of a 48-inch high pipe rail on the

cabin deck into his No. 3 lifeboat starboard about 40

inches outboard. An AB seaman in the lifeboat in-

structed petitioner to assist in the provisioning of

the boat, a task required to have been accomplished

prior to the drill. He exited the boat in the same man-

ner as entering, he missed the rail due to movement

and fell about 18 feet or so to the deck below sustain-

ing permanent injuries.

Coast Guard official injury reports and vessel's

injury reports reveal Luttrell was injured while at-

tending to certain boat drill duties. While the duties

he was performing were during the drill, he was not

performing the duties prescribed in the boat drill be-

cause of his being told to assist in the provisioning

of the boat, also an essential task (Apx. p. 43).

He denied performing the precise duties described

in the reports. Ronneberg was the custodian thereof.

This was his nemesis because for him to comply with

the injury reports would have been an untruth. This

then revealed the statutory defaults. Ronneberg ac-

cepted and approved the injury reports. He was there

at the time.

Ronneberg’s inspection book, an official record

previously denied to plaintiff and the court, recorded

petitioner as being injured and performing duties

during the drill. It also revealed massive statutory

defaults and disclosed that Ronneberg testified un-

truthfully at the trial generally as follows, all of which

is documented in plaintiff’s motion by reference to the

transcript of testimony. The sovereign also emphasized

the ship-shape testimony relied on by the fact-trier

during the unsuccessful appeal in Luttrell v. U. S.

(1970), 423 F.2d 1197:

1. That the lifeboat weighed about 9000

pounds. (Plaintiff’s counsel identified the boat

from the book and the manufacturer revealed the

boat weighed 3250 pounds.) The crucial issue be-

ing whether the boat could be moved and thus be

unsafe. Testimony revealed it could be moved. But

the fact-trier’s opinion revealed, based on Ronne-

berg’s testimony on which he relied and stated,

“that you can’t move 9000 pounds of steel.”

2. That Luttrell was injured after the drill

was over, which provided the fact-trier with the

basis that Luttrell was a volunteer. The inspec-

tion book reveals that Ronneberg specifically

noted in his official record that Luttrell was in-

jured during the drill. The fact-trier relied on

Ronneberg’s false testimony that the drill was

over and then made the common law pronounce-

ment that petitioner was a volunteer in his duties.

3. That the vessel was accepted prior to the

injury. Counsel found from the inspection book

that the acceptance papers may have been dated

prior to the injury but the book reveals that the

acceptance was not valid until delivery of the pa-

pers to the Master by the Coast Guard Accepting

Officer until after the injury. The issue being

whether the vessel was seaworthy at the time of

POA

EEA Me a Ny ann

Paar, ate Ta

the injury. Ronneberg testified the vessel was

accepted prior to the injury and thus seaworthy.

The fact-trier relied on that testimony.

4, That the Drill was satisfactory. The truth

gleamed from the inspection book reveals that 15

crew members of the 48-man crew were water

borne port side in two of the vessel’s 4 lifeboats,

leaving undisclosed the presence of the balance of

the crew. Each lifeboat would require the pres-

ence of 12 men, based on a 48-man crew, for the

execution of congressional mandates and Coast

Guard regulations in a pre-sailing boat drill. This

reveals a statutory default which would have sup-

ported lack of full crew participation in the statu-

tory drill, and supports dissipation of crew and

supervision because it becomes impossible to have

a full participation when the vessel is preparing

for sea. Lack of full crew participation and super-

vision contributed to plaintiff’s injuries.

5. That the boat was provisioned prior to the

drill. Plaintiff testified that he was provisioning

the boat during the drill contrary to statute and

regulatory provisions. The issue being whether

the boat was provisioned and ready for sea prior

to the drill. Ample testimony supported this de-

fault (Apx. p. 43).

6. That access to the lifeboat was safe. Ron-

neberg testified that the access was safe. Testi-

mony by ships’ officers revealed the only access

as follows: (1) seaman could jump from the

cabin deck rail outboard 40 inches to the 2 inch

gunwale of the lifeboat (2) climb or slide down

greasy cables (3) or step on a greasy cable and

pull up into the boat. There was no safe method

and this is supported by the physical facts (Apx.

p. 43).

Testimony revealed that private shipowners

had eliminated the hazardous and unsafe method

of seamen entering and departing the lifeboat by

erecting a railed walk-way from the cabin deck

into the boat.

Prior to the trial counsel for plaintiff requested

production of statutory records (1) Portland crew list

(2) Station bill (Apx. p. 44) showing duties of all

crew during emergencies—lifeboat and fire drills are

emergencies, and (3) No. 8 lifeboat crew list (Apx. p.

44), a document required to list assigned crew and

their duties therein. These documents were denied

by special counsel asserting that such were unavail-

able to court and plaintiff’s counsel. This then denied

witness identity to plaintiff and assigned duties of

crew at the time of the injury.

Ronneberg’s official inspection book only became

available after his suicide death, long after trial and

more than one year had elapsed after adverse judg-

ment entry. Counsel had in fact suspected that less

than the truth was revealed by the sovereign.. His

continued explorations into the truth were fruitful,

but not within the time limitation imposed by the

Ninth Circuit.

The matters were brought to the court’s attention

outside the record during the appellate processes by

notice only as required by professional ethics that the

full facts were knowingly concealed by the sovereign ~~

Pere Sete eC yt

adversary."

The adversary failed to take cognizance of the

discovery of their concealment, which required plain-

tiff to bring these matters appropriately to the court's

attention (fact-trier) by the new trial motion reveal-

ing frauds practiced on the court and during the ap-

pellate processes (R. 98, 187). For counsels’ efforts to

comply with professional ethics, his oath, standards

of this Court and obligations to an admiralty ward of

this Court he was penalized financially at the request

of special counsel who had knowledge thereof or at

least had knowledge that there were records outstand-

ing. This would have revealed the truth. Special coun-

sel also represents powerful private shipping interests.

The motion referenced untruths as recorded in the

trial record of Luttrell, supra, that the court and

counsel were denied knowledge thereof and that Ron-

neberg testified wrongfully and falsely and such was

known to sovereign’s counsel. This prejudiced the

seaman to the advantage of the sovereign. Had the

sovereign revealed the inspection book, the sovereign’s

witnesses would have been required to speak the truth

which in turn would hav supported and sustained

plaintiff’s contentions.

Counsel states in his affidavit therein that there

was no basis for deposing Ronneberg, a representative

1 Certiorari was denied in this Court October term 1970,

Case No. 587. This Court is requested to take judicial notice

thereof of matters patent on the face of the record. Matters

outside the record which may be inferred from facts are not

ere notice. Bienville Water Supply Co. V. Mobile,

of the executive endowed with the oath of fidelity to

and being privileged by his commission to represent

the executive. Counsel for plaintiff feels and asserts

that he is complying with his obligations to this Court

by commendably restraining himself in asserting the

chicanery, untruths and lack of process by bringing

these matters to the attention of the court.

The gross material and prejudicial misstatements

of fact made by Ronneberg in his official capacity was

the admitted basis on which the fact-trier based his

judgment exonerating the sovereign shipowner.

This new evidence requires the attention’ of the

fact-trier, it was denied to the court based on repre-

sentations that the records were not in existence.

There is neither support of the sovereign’s posi-

tion in the Constitution or in case law pronounce-

ments of this Court which justify the sovereign with-

holding from the court or plaintiff’s counsel records

vital to the truth, either detrimental or favorable, sur-

rounding events wherein a ward of this Court seeks

relief.

The sovereign shows an unjustified complacency

with the facts as well as an astonishing insensitivity

to constitutional responsibilities under the Due Proc-

ess Clause of the 5th Amendment pertaining to dis-

closures of evidence, to 1st Amendment rights regard-

ing right to petition the sovereign for grievances, and

right to express himself, rules of court requiring dis-

closures and bar association professional ethics rules

requiring government counsel to reveal all facts so

that rudimentary demands of justice can be achieved.

This case cries out for review.

In the context of Rule 60b, it becomes obvious

that the lower court considered the discovery of the

new evidence as being within a time limitation of one

year. But when the discovery thereof took place, the

time limitation had long passed. This record was

simply never available, why it was unavailable is not

specifically known, however examination thereof re-

veals many reasons. It simply supported defaults and

then when viewed in the light of Ronneberg’s in trial

testimony, it revealed misleading and untruthful testi-

monial assertions. The discovery thereof then mani-

fested a fraud on the court situation which brings into

focus “or to set aside a judgment for fraud on the

court.” This Court has never set a time limitation on

this focus and other courts of appeal have similarly

not set a time limitation for relief.

The Ninth Circuit did not find appellant’s motion

frivolous or vexatious, it simply imposed a time limita-

tion (laches). The proof was concealed in the enemy

camp until discovery by counsel long after the fact.

Counsel alluded to the questionable probative value of

the evidence presentd to the court in the unsuccessful

appellate processes. Therein the respondents repre-

sented to the appellate court that the drill was over,

that the lifeboat weighed over 9000 pounds, that the

vessel was seaworthy. These and other representa-

tions made to the fact-trier were destructive of peti-

tioner’s rights. The sovereign denied concealment of

the records.

It is one thing to question the probative value of

the evidence and it is quite another thing to discover

evidence that impeaches the judgment or shatters the

verity thereof. This cannot be characterized as harm-

less error.

The concealment of the inspection book coupled

with the questionable unavailability of the statutory

records denied the rudimentary demands of justice

to the seaman and violated the judicial environment

with a maximum pollution index.

Seamen are wards of the court and nation and fed-

eral courts remain as guardians of seamen, the agency

chosen by Congress to enforce their rights, this by

assignment of the Constitution and supplemented by

the statutes in order to assure protection of their

rights in this unique calling; compare Robertson v.

Baldwin, 165 U.S. 275, 287; Garrett v. Moore-McCor-

= 7” EP raw rr

mick Co., 317 U.S. 239. The sovereign created the pres-

ent status by failing to reveal and then preesnting mis-

leading testimony on which the fact-trier relied. Such

does not constitute a judicial determination providing

for res judicata. Any doubt on that score should be

decided in favor of the seaman as ward of this Court;

compare Tsakonites V. Transpacific Carriers Corp.,

322 F. Supp. 722 (1970). Under these circumstances

the denial herein can lead to all manner of future

abuses, it could bring back the old common law rules

now long discarded by this Court; it could license liti-

gants to conceal evidence and present misleading testi-

mony and could circumvent the requirements of reme-

dial legislation entrusted in this instance to this Court

to see that its seamen wards are not imposed upon.

In Seamen and FELA cases, the shipowner pos-

sesses records and controls the proof power essential

to the rights of the injured seaman, even though full

discovery is presumably available, instantly it was not

and the seaman’s power of proof was destroyed; com-

pare Gardner V. National Bulk Carriers, 310 F.2d 284

(5 Cir. 1962). The enforcement of the procedural rule

presently under review would simply make this Court

the instrument by which an injustice is continued;

compare People Nat’l Bank v. Mary E., 191 U.S. 272.

The withholding of information is a pervasive

tendency of public officials, the reason may be evil or

good, but no court should allow a public official t

decide what facts the litigants, in a matter of concern

to the court, have a right to know. Compare, Aaron

Burr Cases, Robertsons Rep. 11, 517 (1808) and Ac-

cess to Official Information, a Neglected Constitu-

tional Right, 27 Ind. L. J. 209 et seq [1951]. Luttrell

was a victim of concealment wherein the shipowner

simply conformed the reports to the drill require-

ments. This effectively countered the negligence and

contentions, although in this respect he was aided by

the testimony of the ship’s officers. On the other

hand, the sovereign by concealing its own records, it

was then able to represent to the court through the

purportedly impartial and authoritative testimony of

Ronneberg that all was shipshape. This then became the

basis of the adverse opinion resulting in the injustice

complained of and supports the reason necessary for

the new trial or a vacation of the judgment by a fact-

trier.

Injustice may be done in admiralty cases, if the

government withholds information; “but right cannot

be done if the government is allowed to suppress facts

in its possession”; compare Bank Line v. U. S., 76 F.

Supp. 801, 804, 168 F.2d 133, 138 (2 Cir. 1947) ; Lou-

briel v. U. S., 9 F.2d 807, 808 (2 Cir.).

The fiduciary status creates additional demands

of disclosures thus bringing into focus that Rule 60b

is a remedial rule on the part o f the court to correct

injustice. Compare Grosjean v. American Press, 297

U.S. 233, 249-50.

The Court construed and applied this rule in Klap-

prott v. U. S., 335 U.S. 601 (1949), modified in 336

U.S. 942 in a judgment denaturalizing Klapprott. The

Serger

a hee a]

government contending that his motion four years

after judgment showed nothing more than excusable

neglect which came under the one year limitation. In

disposing of that motion the court “furthermore Rule

60b strongly indicates on its face that courts are no

longer to be hemmed in by the uncertain boundaries

of these and other common law remedial tools.”

There is no language in the rule limiting the au-

thority of the court in vacating judgments or to grant

a new trial and being remedial justifies this Court un-

der the circumstances to do so in the interests of jus-

tice. Justice cannot be accomplished where there is an

active and knowing concealment of the truth from the

court. The lower courts by invoking a time limitation

on discovery of concealment in a fiduciary status af-

fects the due process to which litigants are entitled

under our system of government; compare Scarbor-

ough v. Atlantic Coast Line R. Co., 178 F.2d 258, 15

A.L.R.2d 491 (4 Cir.), and U. S. Bulk Carriers v. Ar-

guelles, 400 U.S. 351.

The fiduciary status aggravates the fraud on the

court involving its own ward. It is elementary that

fraud vitiates a judgment; compare Strong v. Repide,

213 U.S. 419; Richardson v. Green, 133 U.S. 30;

Nichoalds v. McGiothlin, 330 F.2d 454 (10 Cir.);

Atkins v. Dick, 14 Pet. (U.S.) 114; Johnson v. Wa-

ters, 111 U.S. 640; U. S. v. Throckmorton, 98 US.

61; U.S. v. The Amistad, 15 Pet. (U.S.) 518; Schneider

v. Irvington, 308 U.S. 147.

Strong argument was made to this Court in Acker-

man V. U. S., 340 U.S. 193 (1950) supporting a fidu-

ciary status under Rule 60b in a naturalization suit

in which petitioners relied on the advice of an immi-

gration official custodian of their persons. The major-

ity supported the contentions of the government that

a fiduciary relationship was not substantiated. Doug-

las, J., dissented, pointing out that the petitioners

were in the custody of the government official and

should have been able to repose confidence in his ad-

vice, coining an expression “that fiduciary relations

given its best meaning encompasses the relationship

between the petitioners and the official in whose cus-

tody they were.” He stressed the humane spirit of

Rule 60b as being neutralized by the majority frus-

trating the purpose of the rule. The draftsmen not in-

tending that the court be limited to specific grounds.

The result follows that the majority would have

granted relief in Ackerman had a fiduciary status

been proven, and the dissent focuses on a custodial

relationship that makes for a fiduciary relationship.

Instantly in Luttrell, the fiduciary status exists with-

out any question and this Court has reserved unto it-

self the protection of seamen.

The granting of the motion is justified when the

facts as revealed endow the sovereign with superior

knowledge; compare Smith v. Richards, 13 Pet. (U.S.

26, and Anno., 61 A.L.R. 519; Restatement, Torts

§ 542b.

Renneberg also had fiduciary requirements, as does

special counsel for the government, to reveal and not

TONE eee eee ee ee

ra a ar

I ALERT LTS FT ORCC

PONT NEPAD tp treme Rie

Co te CR es 2

conceal. Rights and duties go hand in hand with re.

sponsibilities. The federal judiciary should resolve

doubts in favor of the admiralty ward.

This Court recognized the inherent power to grant

relief when fraud was practiced in it in Hazel Atlas

Co. v. Hartford Empire Co. (1944), 322 U.S. 238.

This was a patent case fraud which justified the court

vacating a 1932 judgment based on an accomplished

plan to deceive the patent office. In Atlas, supra, a

fiduicary status did not exist and relief was granted.

Certainly in Luttrell the fiduciary status is an ag-

gravated situation. Fraud raises its evil in a variety

of circumstances; compare Chisholm v. House, 160

F.2d 632, 643 (10 Cir., 1947) and U. S. v. Myers,

131 F. Supp. 525 (D.C. Cal. 1955) ; see also Restate-

ment 593, Judgments § 122, comment E at p. 596.

In Myers, supra, the court discussed the sanctity

of official requirements under the statute (18

U.S.C.A. 1001) as being designed to insure to the

whole world, government and employees and general

public alike that any record, document instrument or

statement made by a government employee, great or

small, in his official capacity in the course of his of-

ficial duties can ve relied upon by all.

In Atchison, Topeka & Santa Fe R. Co. v. Barrett,

(9 Cir. 1957), Rule 60b was held remedial and to be

broadly and liberally construed, the burden being on

the moving party. In Luttrell, the burden is satisfied

because the fact-trier exonerated the sovereign based

on the dominating credibility and endowed responsi-

bility of the responsible Coast Guard official Ronne-

berg. Petitioner can submit no better evidence than

such court admission which now make that judgment

untenable. It becomes more so because the Ninth Cir-

cuit held as follows in the original case:

“This case falls in the area where the trial

judge, on all of the evidence, could have found in

favor .of either party. We are certain we-cannot

find that the court was required to find in favor

of plaintiff. Thus we cannot say that the find-

ings, conclusions and decree (judgment order) are

clearly erroneous.” Luttrell v. U. S., 423 F.2d

1197 (1970).

Hence when the above opinion is equated with the

fact-trier’s reliance on the testimony of Commander

Ronneberg and the now revealing documentary truths

previously excluded from judicial scrutiny, there is a

direct relationship between denial of truth, reliance

on untruths and the shattering of the judgment; com-

pare U. S. v. Neff, 212 F.2d 297. The sovereign has

never been required to respond. Certainly they cannot

now say there was no concealment of the records

which they represented to the Ninth Circuit, wherein

appellant’s appeal processes were defeated; compare

Harris v. New York, 401 U.S. 222.

Special counsel is the representative of the govern-

ment and the government acts as a party through the

agency of the attorney who directs and manages the

government participation in litigation. Herein there

is a direct continuity because of the knowledge of spe-

cial counsel and the records of Commander Ronneberg.

iter ee

OR ee Le PL ac ees

Bn RUM AEE Ph HP OE EE SEE :

92 ;

This Court has made it abundantly clear that delib-

erate deception of a court by presentation of known

flase evidence is incompatible with rudimentary de.

mands of justice, notwithstanding there be an obliga-

tion to disclose; compare U. S. v. Aaron Burr, 25 Fed.

Cases 191 (1808) and Giglio v. U. S., 92 S. Ct. 763 ©

(1972) ; Brady v. Maryland, 373 U.S. 87.

The requirements for disclosure in civil and crim-

inal cases appear to be the same, compare Aaron Burr

cases, supra, and at least in fiduciary situations there

should be no less than the same rationale. Where the

government is a party to the litigation, the courts

have adroitly circumvented obstacles by imposition of

indirect inducements to disclose information, compare

Gardner v. National Bulk Carriers, 310 F.2d 285 (5

Cir. 1962).

Certainly in a matter so vital to the protection of

this seaman from what appears to be a serious breach

of fiduciary relationship, it would take little of the

court’s time to examine the full record as revealed in

the motion, examine the testimony of Luttrell, testi-

mony of Ronneberg; and at the same time require the

sovereign to respond as to why this record was not

revealed and explain the questionable verity of Ronne-

berg’s testimony, compare Ex parte Virginia, 100 US.

339, 348.

This Court has made it clear that when the state,

although not soliciting false evidence, allows it to go

uncorrected when it appears this is also a denial of

the rudimentary demands of justice, and a “new trial

Ris ee ORS HP Sh eet

is required if the false testimony could in any reason-

able likelihood have affected the judgment- of the

" jury,” compare Giglio, supra. A new trial or a reversal

of the original judgment is not only justified but re-

quired in the interests of constitutional justice. The

facts have not disappeared, all the records, exhibits,

testimony and all thereto pertaining are available for

examination. Herein, the government’s exoneration

was based almost entirely on the absence of their stat-

utory records and the “shipshape testimony” of Ron-

neberg.

The sovereign should not be permitted to erect

procedural barriers, because when a person has prac-

ticed deception with a view to a particular end, he

cannot be allowed to deny its materiality; compare

Smith v. Kay, 7 H.L. Cas. 750, 11 Eng. Reprint 299

H.L. The mind boggles at the imposition of the time

limitation relieving the keepers of the silence from ex-

posure; compare Vaughn v. Atkinson, 369 U.S. 527.

The court in O’Ueil v. U. S., 79 F. Supp. 827

solved a government non-disclosure situation in an ad-

miralty case by simply refusing to permit the govern-

ment to oppose the petitioner’s claim, compare Bank

Line v. U. S., supra. Aid to Luttrell has not surfaced

despite the remedial features of Rule 60b as evidenced

by the teachings of this Court.

Currently before this Court is a non-disclosure

situation in which Douglas, J. granted defendant’s mo-

tion suspending a criminal trial (U. S. v. Ellsberg and

Russo, Pentagon Papers Case), this Court concurring

ORY ti

Levy i

bt Bra 5

MOAI NEN IIE YA SAT rt

¥ A ETH I ONC

De Peg Nad, CPLR Ss RBG

in which the government assertedly failed to disclose

certain information. In Elisberg, supra the failure to

disclose might well affect the liberty of defendants. In

Luttrell, the failure to disclose affected his right to

have due process of law before the court, his rights

were affected, and the sovereign benefited.

Certainly litigants and all the people in these

United States have a right to know of public transac.

tions and how far they are conducted with fidelity and

ability; compare Aaron Burr’s cases, supra. Certainly,

the freedom of information and the freedom to obtain

information and the disclosure of information protects

society from those in power. Absent such disclosure

and freedoms the 1st Amendment is infringed, and

which instantly affects petitioner’s rights under the

5th Amendment pertaining to equality and due proc-

ess; compare Cummings v. Missouri, 4 Wall 277, 325;

Thomas V. Collins, 323 U.S. 516, 530.

Courts can no longer tacitly assume that access to

information is uniformly permitted in view of this

and other cases revealing arbitrary concealment. In-

stead the courts must expressly accord constitutional

recognition to acquisition as they have to dissemina-

tion of information.

Fraud on the court arises variously, motive is of

no consequence; compare, a bankrupt perpetrated

fraud on the court by violating a statutory duty, see

In re Schnable, 61 F. Supp. 386; see also Aronfsk v.

Bostian, 133 F.2d 290 (8 Cir.), a naturalization was

vacated in U. S. v. De Francis, 50 F.2d 497.

Be eC 2 ASAP SRM to SRLS OO L TS I Be HR MEE ATS wT Tt

Citizens of a free democracy must possess the le-

gal right and the legal right must be not denied to

examine and investigate the conduct of the sovereign’s

affairs. The right must be elevated to the position of

highest sanctity. Implicit is the right to know what

the government is doing. The doings of the sovereign

herein hark too much to government by decree. Dicta-

tor countries control the judiciary, the press and the

very roots of government itself, such a state suppres-

ses facts and admits so.

In our society there can be no influence more dis-

turbing than surveillance by an adversary of its wit-

nesses infiltrating the obligation of the oath.

It follows that courts fail in the exercise of their

appellate jurisdiction by not correcting judgments

obtained by fraud, or abdicate their responsibilities

by not granting a hearing to an aggrieved petitioner.

The sovereign appears to be in violation of the char-

ter of its own existence. Due process of law and equal

protection are property rights; compare Matt v. U.S.,

283 U.S. 747; Mapp v. Ohio, 367 U.S. 648.

Justice Black very significantly pointed out in

Pope and Talbot v. Hawn, 346 U.S. 406, see also com-

ment in Gilmore and Black, Law of Admiralty 384,

that seamen are to have the advantage in any court

of whatever rules of law substantive or procedural

which may be the most favorable to them. Therein

the court indicated that it claimed seamen’s personal

injury litigation as its own.

SRE 905 Je pe —

EO xa eR See ee Sa a ae

st =

oS PATO Oy pare

In view of the remedial pronouncements of this

Court that Rule 60b is remedial, and the facts cer.

tainly support the grounds of the motion as a fraud

on the court situation, such justifies this Court in

granting the motion. Certainly Justice Black in Hawn

has created a double protection to the seaman, this

Court concurring regarding the advantages to sea-

men. Even under the remedial features of the rule,

without the advantage of being a seaman, the motion

should be allowed. Add to that the consideration of

being a seaman, there is no doubt it should be allowed.

A. Where is can be determined that a fact-

trier in a Jones Act case based his decisional

processes on false testimony, coupled with

concealment of material evidence by the

fiduciary and utilized common law grounds in

exonerating the sovereign fiduciary from

liability, the judgment becomes untenable.

The theory behind Rule 52a F.R.C.P. is that the

fact-trier had the opportunity to judge the cre« ibility

of witnesses; compare U. S. v. Staples, 256 F.2d 290,

293, 294 (9th Cir. 1958). It follows that Ronneberg’s

testimony is impeached by his own official report (see

18 U.S.C.A. 1001), and his official writings (18

U.S.C.A. 1018) and communicating falsely with the

Congress (33 U.S.C.A. 361).

The physical facts presented in appellant’s motion

show that the fact-trier’s findings were inherently im-

probable thus losing Rule 52a insulation; compare

Willis v. Town, 182 F.2d 892 (8 Cir. 1950). Absent

Ronneberg’s testimony, the adverse findings lose foun-

dation; compare Sanders v. Leech, 158 F.2d 486 (5

Cir.) ; Slattery v. U. S., 231 F.2d 87 (5 Cir.).

The Court by assessing his findings on the verity

of Commander Ronneberg’s testimony can now be

shown to have arrived at his conclusionary findings

by a misapplication of the law, the findings then must

be set aside; compare Castrow v. Moore-McCormick

SS. Co., 8325 F.2d 72; Aguilar v. Standard Oil Co. of

N. J., 318 U.S. 724.

Reliance on Ronneberg’s testimony then prompted

the fact-trier to characterize Luttrell as a volunteer

in the performance of his required duties. This re-

vealed application of the common law principles to

seamen’s cases which were long ago discarded by this

Court,in favor of the remedial legislation of the Jones

Act; compare Tiller v. Atlantic Coast Line R. Co.,

318 U.S. 54, 87 (1943), holding assumption of risk

as archaic and statutorily abolished in F.E.L.A. ac-

tions; Rogers v. Missouri Pacific, 352 U.S. 500

(1957), sustaining plaintiff’s verdict on the slightest

negligence in F.E.L.A. actions; Panama R. Co. v.

Johnson, 264 U.S. 375 (1924), upholding constitu-

tionality of the Jones Act which gave seamen injured

during course of employment same rights as applied

to railroad employees.

Statutory reports available to plaintiff, viz: in-

jury reports over the master’s signature, plus the

heretofore concealed inspection book, and ships offi-

cers’ testimony support the fact that Luttrell was in-

jured in the performance of his duties. The defaults

Se ae AR kee |

of the vessel became apparent when Luttrell was be.

ginning to assist in the provisioning of the lifeboat—

this may well have been a shipyard deficiency—but

was the master’s responsibility as a presailing require.

ment. Defaults were freely admitted by the ship's of-

ficers and other witnesses.

It follows the fact-trier’s decision was not only

based on the now shattered credibility of Ronneberg’s

testimony, he also utilized common law principles

which conflict with decisions of this Court; compare

Arizona Vv. Anelich, 298 U.S. 110 (1936); Beadle y.

Spencer, 298 U.S. 124; Braen v. Pfeifer Oil Co., 361

U.S. 206; Pope and Talbot v. Hawn, 346 U.S. 406. In

Hawn, Justice Black fashioned a significant mari-

time rule; “the harsh rule of the common law is com-

pletely incompatible with modern admiralty policy and

practice;” compare Calmar S.S. Corp. v. Taylor, 308

U.S. 525 (1938).

It is apparent that the fact-trier relied on the

testimony of Commander Ronneberg, and by applying

common law principles then was a victim of his own

processes. The decision as it stands is at variance

with the decisions of the Ninth Circuit, other circuits

and the Supreme Court itself. This conflict should be

resolved so that rights of seamen shall not be de-

stroyed in from time to time tranquilizing doses.

tory defauts related to the safety and seaworthiness

of the vessel, and his testimonial untruths.

No one has more eagerly resorted to discovery

than the sovereign and no one has been more grudging

in making it reciprocally available than the sovereign.

The sovereign’s attempts to thwart plaintiffs in dis-

covery efforts are labeled as unseemly and as an un-

just and tyrannical exercise of power; compare Cres-

mer V. U. S., 9 F.R.D. 203 (E.D. N.Y. 1949) and

U. S. v. Gen, Motors Corp., 2 F.R.D. 528, 530 (N.D.

Il. 1942) ; see also “Government Immunity from Dis-

covery,” 59 Yale Law Journal 1451. The sovereign is

committed to a higher degree of fairness than private

litigants; compare Woodruff v. Trapnall, 10 How.

190, 207 (U.S. 1850) and Giglio, supra.

Certainly the right to sue the government would be

a fiction if counsel were denied the right accorded by

the Ist Amendment to petition on behalf of clients

The drafters of the Bill of Rights had the Runney-

meade history in mind and well aware of the vital

need to keep people informed of non-secret govern-

mental operations. The 1st Amendment provides that

protection, and applies to the dissemination as well

as the acquisition of information; see 2 Cooley, Con-

stitutional Limitations (8th Ed. 1927) 885.

Secrecy in government is an excellent device to

conceal ignorance and error. Arbitrary governmental

suppression of facts present a greater justification

for judicial intervention; compare Watkins v. U. S,

354 U.S. 178.

Counsel is merely armed wtih natural intuitive

ness and his oath of office. He possesses not the su-

perior knowledge of the adversary, nor does he have

access to the extensive investigative facilities accorded

and available by the sovereign to the some time sov-

ereign’s special counsel who also doubles as counsel

for private powerful maritime interests. Query, cana

lawyer serve two masters without diferentiating be

tween sometime private practice and sometime gov-

ernmental obligations of the same significance. De

spite the handicap of denied discovery, plaintiff's

counsel did sniff out what appears to be untruths,

false testimony and perversions of judicial processes

The denial of the right to petition under the Ist

Amendment then brings into focus the denial of due

process of law under the 5th Amendment; compare

Burton Vv. Weyerhaeuser Timber Co., 1 F.R.D. 571,

574 (Or. 1941); West Va. State Bd. of Educ. v. Bar-

nett, 319 U.S. 624, 639.

The assessing of a severe financial penalty sug-

gests intimidation of counsel so that facts would not

be disclosed which prejudiced the rights granted sea-

men by this nation and the wardship resvonsibilities

of this Court.

Ours is a profession of justice, without fear of in-

timidation based on concepts of applying rational

standards defined by the Constitution and reverence

to the iconoclastic precedents of our heritage.

Counsel in his efforts to bring these matters to

the attention of the fact-trier for review, and such

right is not only accorded by this Court but demanded

for the protection of the wards of this Court resulted

in hostile adversary and judicial reaction.

Reference to Ackerman, supra, and Hazel Atlas

certainly justify the correctness of counsel’s efforts.

Notwithstanding those cases and the teaching of this

Court therein, the penalty is contrary to the teachings

of Weber v. Aetna Casualty Co., 97 S. Ct. 1400 (1972)

and the expressed rule set by Justice Black in Pope

and Talbot v. Hawn, supra regarding the humanitar-

ian attention to seamen. It becomes and suggests ef-

forts to suggest the imposition of disabilities on an

admiralty ward by binding his counsel with tethers

not intended by a judiciary in a free country.

This also brings into focus the extent this Court

has expressed in applying humanitarian principles in

Panama R. Co. v. Johnson, 264 U.S. 375, 388; The

Arizona v. Anelich, 298 U.S. 110 (1936); Socony

Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939) and

numerous others.

At the moment and of concern to this Court, the

case has far reaching connotations in subverting the

expressed national concerns for the protection of not

only seamen, but citizens in every walk of life con-

cerned or litigating with the government. Penalizing

counsel in his sincere efforts to bring matters to the

attention of a fact-trier of any description then be

comes a denial of process which can ultimately result

in disaster and loss of freedom to our citizens. Cer-

tainly it defys the Runneymeade lessons securing in-

dividuals their rights of law of the land that the sov-

ereign be not arbitrary in the exercise of that power

which now appears to be assumed; compare Murray v.

Hoboken Land & Development Co., 18 How. 276 (US.

1856) and Ochoa v. Hernandez y Morales, 230 US.

139 (1913).

Instantly there is present the abridgment of the

right to petition; compare Black, J., in Railroad

Trainmen V. Virginia Bar, 377 U.S. 1 (1964); Mine

Workers v. Illinois Bar, 389 U.S. 217 (1967).

The sovereign’s only interest presently is to intim-

idate or bring retribution to counsel for exposing

for what appears to be a perversion of process by the

sovereign concealing its own defaults. Counsel sought

relief in the only forum available to him, the forum

that should hear and there appears no real overriding

significance why he should not bring this and similar

matters to the attention of the covrt; compare, Boddie

v. Connicticut, 401 U.S. 371, 377.

A case that cannot be tested by principle is not

law and untruths should not be canonized in the judi-

cial processes.

This case reeks of consolidation with private in-

terests. The sovereign has within its power to produce

witnesses whose testimony and records would have

elucidated the circumstances surrounding the injury.

They chose not to do so, instead they chose to conceal,

and then to tether counsel so he wouldn’t reveal. It

should be noted that where a person has within his

power to produce or reveal witnesses and records ex-

plaining the transaction, and such person fails there-

in, a presumption is created that the explanations

would be unfavorable; compare Graves v. U. S., 150

US. 118 (1893).

Ironically counsel is penalized by the sovereign for

revealing what the sovereign denied. Censorship

breeds conformity. The lower courts thus sanctioned

this invasion.

Were this a case in which this Court required the

appointment of counsel to protect, represent or other-

wise appear on behalf of persons whose rights were

infringed under the organic law, this Court would

consider the matter ripe for adjudication.

vPre > *

YORE CI SILER TR, Se ORR RRR By wre werraT

This case also suggests that counsel compromise

his oath to this Court, thus jeopardizing the wardship

responsibilities of this Court and nation to its pm

tected persons. This ultimately would reduce advocacy

te the most obsequious of flatterers and the most ser.

vile tools to those in power at the moment. Puppets in

the judicial processes?

This penalty is inconsistent with the existence of

in a free government, it is without precedent to jus-

tify it and is against the spirit of the constitution and

all the foundations on which it was erected.

Since the days of Magna Charta, men have been

free to challenge the arbitrary authority of the sov-

ereign, albeit it was necessary to apparently tickle

King John’sthroat with a blade at the historic Run

neymeade meeting.

Counsel is challenging the penalty as imposing a

disability on a seaman ward of this Court who is en-

titled under the organic laws of this land to be heard,

he also challenges the propriety in intimidating or

bringing retribution against him. The rights of peti-

tion, the rights of redress are at stake and the rights

of the courts to be open to listen, to hear and adjudi-

cate impartially all affecting the interests of fre

men; compare Marbury v. Madison, 1 Cranch (U.3.)

49, 58.

Lawyers are a part of the judicial system. Mat

ters of importance should be brought to the attention

of the courts. This is an important factor in our sy

tem of government. Government counsel similarly

have an important role, all towards the achievement

of fair and impartial justice, absent any cog in these

roles, the administration of justice suffers. If our

people are to remain free, there must be the necessary

freedom of expression, petition and all those retained

rights in support. The Bill of Rights is in support,

the Constitution is in support; compare Schneider v.

Irvington, 309 U.S. 147, 161.

It is the untethered expressions of this Court that

makes the liberty of its citizens safe.

It conclusively appears from the foregoing that

petitioner’s motion for a new trial under Rule 60b

was warranted. That the courts below erred by erect-

ing barriers to the rudimentary demands of justice in-

consistent with the teachings of this Court in admir-

alty cases. That an additional barrier to the rights of

seaman, viz: the tethering of counsel within limits pre-

scribed and set by the adversary fiduciary and to the

advantage of the adversary is inconsistent with the

rights of people, irrespective of their walks or station

in life to be heard and have their rights adjudicated.

Hence the courts below by imposing a time limita-

tion on an apparent fraud on the court situation af-

fects the dignity of this Court. This also becomes a

matter of concern to this Court because the courts be-

low have so far departed from the accepted and usual

course of judicial proceedings as to call for the inter-

vention of this Court’s power of supervision.

CONCLUSION

This Court should exercise its inherent power 0.

vindicate and protect the dignity of its constitutional’

authority where an apparent fraud has been pras |

ticed on it. This is a decision of importance not merely”

in the interests of the parties but in the interests of ”

justice that decisions of lower federal courts shall not °

be permitted to stand where there is on the very face

importance affecting not only the people engaged in

that their rights be not infringed. And attorneys, that —

their oaths and obligations be not compromised.

For these reasons and to set right a miscarriage

of justice that will adversely affect the rights of all *

persons, and members of the bar, Writ of Certiorari 7

the Ninth Circuit.

Respectfully submitted,

ADELBERT G. CLOSTERMANN

Attorney for Petitioner

APPENDIX

Motion for new trial denied. United States District

Court for Oregon—Alfred T. Goodwin, judge.

This matter came on regularly for hearing before

the undersigned judge on June 21, 1971, upon plain-

tiff’s Motion for a New Trial under Rule 60 F.R.C.P.

Plaintiff appeared by Adelbert G. Clostermann, his at-

torney; defendant appeared by Erskine B. Wood of

its counsel. The court having considered the motion

and the statements of counsel for the respective par-

ties; and having reviewed the record, from which it

appears that this case was heretofore tried in this

Court and Findings of Fact, Conclusions of Law and

Judgment entered on the 27th day of May, 1968, and

that plaintiff thereafter filed a motion to set aside

the judgment and for a new trial, which motions were

heard and denied on the 21st day of June, 1968, and

that plaintiff took an appeal to the United States

Court of Appeals for the Ninth Circuit, and the Court

of Appeals, by per curiam opinion and judgment on

February 17, 1970, affirmed the judgment of the dis-

trict court; and that plaintiff then petitioned the

Court of Appeals for rehearing which petition was

denied by the Court of Appeals on May 21, 1970; from

which record the Court now finds that plaintiff has

“had his day in Court” and that there are no grounds

for a new trial.

NOW, THEREFORE, IT IS HEREBY OR-

DERED that, plaintiff’s Motion for a New Trial be

and the same hereby is denied.

DATED this 24th day of June, 1971.

/s/ Alfred T. Goodwin

ALFRED T. GOODWIN

United States District Judge

| Motion for reconsideration of denial for motion for

new trial—United States District Court for Oregon—Alfred

T. Goodwin, judge.

IT IS HEREBY ORDERED:

1. Plaintiff’s Motion for Reconsideration of Mo-

tion for New Trial, Rule 60 F.R.C.P. is hereby denied.

2. Defendant’s Motion for Assessment of Costs

against Plaintiff’s Attorney is allowed, and it is or-

dered that pursuant to 28 U.S.C. § 1927, costs are

allowed in favor of defendant and against Adelbert

G. Clostermann, personally, for having so multiplied

the proceedings in this case as to increase costs un-

reasonably and vexatiously, in having filed a Motion

for New Trial, Rule 60 F.R.C.P., more than three

years after trial of this case and after proceedings

in the Court of Appeals, and for having filed Motion

for Reconsideration of Motion for New Trial, Rule

F.R.C.P., after the Motion for New Trial had hereto-

fore been ruled upon and denied.

The amount of costs to be assessed and adjudged

personally against’ Adelbert G. Clostermann is left

open for further hearing and determination.

DATED this 10th day of August, 1971.

/s/ Alfred T. Goodwin

United States District Judge

Opinion United States Court of Appeals granting Re-

spondent’s motion to dismiss Appellant's appeal.

“Appellant’s motion for a new trial was not timely

because it was made over one year after judgment of

the district court (Fed. R. Civ. Proc. 60). On the

record presented to this Court, we have concluded

that adherence to the time requirement of Rule 60

does not result in a miscarriage of justice.”

March 23, 1972

/s/ Duniway and Hufstedler

Circuit Judges

Opinion United States Court of Appeals denying en

banc hearing—May 23, 1972.

Before: DUNIWAY and HUFSTEDLER,

Circuit Judges

The panel as constituted in the above case has

voted to deny the motion to vacate the order of dis-

missal and to reject the suggestion for hearing en

banc.

The full court has been advised of the suggestion

for an en banc hearing, and no judge of the court has

requested a vote on the suggestion for hearing en banc.

Fed. R. App. Proe. 35(b).

The motion to vacate the order of dismissal is de-

nied, and the suggestion for a hearing en banc is re-

jected.

RITTER MOS ETT APOIO INN PENS LO IR Ct I NN

‘-

Statutes Applicable

The constitutional provisions involved are:

The United States Constitution, Article 3, Section

“The judicial power shall extend to all Cases,

in Law and Equity, arising under this Constity.

tion, the Laws of the United States, and Treaties

made, or which shall be made, under their Av-

thority: To all Cases of Admiralty and maritime

Jurisdiction.

AMENDMENT I

CONGRESS shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Govern-

ment for a redress of grievances.

AMENDMENT V

No person shall be held to answer for a cap-

ital, or otherwise infamous crime, unless on a pre

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any crim-

inal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

The statutes involved are:

Public Law 695 of June 19, 1948 (c) 506, 62

Stat. 496; 46 U.S. Code, Section 740, (Public

Vessel’s Act).

“The admiralty and maritime jurisdiction of

the United States shall extend to and include all

cases of damage or injury to person or property,

caused by a vessel on navigable water, notwith-

standing that such damage or injury be done or

consummated on land.

In any such case suit may be brought in rem

or in personam according to the principles of law

and the rules of practice obtaining in cases where

the injury or damage has been done and consum-

mated on navigable water:

Provided, that as to any suit against the

United Sattes for damage or injury done or con-

summated on land by a vessel on navigable wa-

ters, the Public Vessel’s Act or Suits in Admi-

ralty Act, as appropriate, shall constitute the ex-

clusive remedy for all causes of action

after June 19, 1948, and for all causes of action

where suit has not been hitherto filed under the

Federal Tort Claims Act:

Provided further, that no suit shall be filed

against the United States until there shall have

expired a period of six months after the claim has

been presented in writing to the Federal agency

owning or operating the vessel causing the injury

or damage.”

A eat en A Tar

_ Eo ne Oe ——

ie —

2 EN BEF Sw ee

— a

TITLE 46 U.S.C.A. SecTION 688 JONES Act

Section 688. Recovery for injury to or death of

Seaman.

is located. Mar. 4, 1915, c. 153, Sec. 20,

1185; June 5, 1920, ec.

Section 51: The Federal Employers’ Liability Act,

$5 Stat. 65; 45 U.S.C.A.

“Every common carrier by railroad while en-

gaging in commerce between any of the several

States or Territories, or between any of the States

and Territories, or between the District of Co

lumbia or any of the States or Territories and

any foreign nation or nations shall be liable in

damages to any carrier in such commerce, ...

resulting in whole or in part from the negligence

of any of the officers, agents, or employees of

such carrier, or by reason of any defect or in

sufficiency, due to its negligence, in its cars, en-

gines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.”

ren as Fart ee a Fae SUT oe

eT Se Ee FT

— | FT ew! es

The Federal Employers’ Liability Act, 35 Stat.

66, 45 U.S.C.A. 54.

Sub-chapter 1, (Title 46 C.F.R., Parts 90 to 98

Inclusive). C. G. 257. January 3, 1966 (Extracts).

“Rails and Guards: Rails at least 36 inches

high or equivalent protection shall be installed

near the periphery of all weather decks accessible

to persons on board.”

94.15-10 (b) (2):

“Suitable access to the lifebcats shall be pro-

vided to enable the crew to prepare the lifeboats

for launching.”

94.20-5 (b):

“Equipment for LIFE boats: ‘Lifeboats . . .

shall be fully equipped before the vessel is navi-

gated....’”

97.01, 97.03-1:

“Operations: Provides for statutory penalties

for the violation of marine safety statutes.”

97.07:

“Provides for reports of casualty, to the Coast

Guard, in writing.”

97.13-10:

“Duties of crew: The station bill shall set

forth the special duties and duty station of each

member of the crew for the various emergencies,

This includes ‘the preparation and launching of

lifeboats.’ ”

97.15-5 (c):

“The person in charge of each lifeboat shall

have a list of its crew, and shall see that the per.

sons under his orders are acquainted wtih their

several duties.”

97.15-35:

“Fire and boat drills. The master shall be re

sponsible for conducting a fire and boat drill at

least once in every week. The scheduling of such

drills shall be at the discretion of the master ex-

cept that at least one fire and boat drill shall be

held within 24 hours of leaving port if more than

25 percent of the crew have been replaced at that

port.”

97.15-35 (b):

“The fire and boat drill shall be conducted as

if an actual emergency existed. All hands should

report to their respective stations and be prepared

to perform their respective duties specified in the

station bill.”

18 U.S.C.A. § 1001

Statements or entries generally.

Whoever, in any matter within the jurisdic-

tion of any department or agency of the United

States knowingly and willfully falsifies, conceals

or covers up by any trick, scheme, or device a ma-

terial fact, or makes any false, fictitious or fraud-

ulent statements or representations, or makes or

uses any false writing or document knowing the

same to contain any false, fictitious or fraudulent

statement or entry, shall be fined not more than

$10,000 or imprisoned not more than five years

or both.

18 U.S.C.A. § 1018

Official certificates or writings.

Whoever, being a public officer or other per-

son authorized by any law of the United States

to make or give a certificate or other writing,

knowingly makes and delivers as true such a cer-

tificate or writing, containing any statement

which he knows to be false, in a case where the

punishment thereof is not elsewhere expressly

provided by law, shall be fined not more than $500

or imprisoned not more than one year, or both.

FEDERAL RULES OF CIVIL PROCEDURE

Rule 60.

(b) Mistakes; Inadvertence; Excusable Ne-

glect; Newly Discovered Evidence; Fraud, ete.

On motion and upon such terms as are just, the

court may relieve a party or his legal representa-

tive from a final judgment, order, or proceeding

for the following reasons: (1) mistake, inadvert-

ence, surprise, or excusable neglect; (2)' newly

discovered evidence which by due diligence could

not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud (whether

heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an ad-

verse party; (4) the judgment is void; (5) the

judgment has been satisfied, released, or dis.

charged, or a prior judgmente upon which it is

based has been reversed or otherwise vacated, or

it is no longer equitable that the judgment should

have prospective application; or (6) any other

reason justifying relief from the operation of the

judgment. The motion shal! be made within a rea.

sonable time, and for reasons (1), (2), and (3)

not more than one year after the judgment, or.

der, or proceeding was entered or taken. A mo

tion under this subdivision (b) does not affect

the finality of a judgment or suspend its opera-

tion. This rule does not limit the power of a court

to entertain an independent action to relieve a

party from a judgment, order, or proceeding, or

to grant relief to a defendant not actually person-

ally notified as provided in Title 28, U.S.C., §

1655, or to set aside a judgment for fraud upon

the court. Writs of coram nobis, coram vobis, au-

dita querela, and bills of review and bills in the

nature of a bill of review, are abolished, and the

procedure for obtaining any relief from a judg-

ment shall be by motion as prescribed in these

rules or by an independent action.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.