Opposition Brief — Luttrell v. United States

ju the Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-533

JOHN M. LUTTRELL, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner, a seaman, brought this action under 46

U.S.C. 688 to recover damages for the injury he sus-

tained when he fell while getting out of a lifeboat

which was secured on the davits of a United States

vessel on which he was employed. The district court,

finding that the lifeboat had not suddenly moved when

petitioner attempted to climb out of it and that there

was a reasonably safe means of exit from the life-

boat, held that the vessel was not unseaworthy and

(1)

eC re |

denied petitioner recovery. The court of appeals af-

firmed (423 F. 2d 1197), and this Court denied

certiorari on November 16, 1970 (400 U.S. 915).

On June 1, 1971, petitioner filed a motion for new

trial pursuant to Rule 60(b) Fed. R. Civ. P., alleging

that he had newly discovered evidence which had

been intentionally withheld by counsel representing

the government. The district court denied that mo

tion as well as a subsequent motion for reconsidera-

tion (Pet. App. 37-38). The court of appeals dis-

‘The issue at trial was whether there was a reasonably

safe method of leaving the lifeboat. Petitioner relies on this

document (1) to identify the type of lifeboat involved in the

accident; (2) to show that the injury occurred during a life-

crew did not

participate in the drill. But there never

as to the identity or type of lifeboat involved in

petitioner’s case is not helped if it weighed

than 9000 pounds. Moreover, a lifeboat drill is

first on one side of a ship and then on the other

tioner’s own testimony was that at the time of the accident

lifeboat drill had already been completed on his side of the

&

Fé

Hut

a copy of it at the trial apparently was that he

never asked for it. Both courts below have rejected

petitioner’s contention that he has demonstrated facts

which would entitle him to a new trial. There is

nothing warranting further review."

It is therefore respectfully submitted that the pe-

tition for a writ of certiorari should be denied.

NovEMBER 1972.

* Petitioner’s attorney also seeks review of the

of costs against him by the district court. This

not raised below and accordingly is not properly bef

Court. In any event, the district court justifiably concluded

this

required him to pay such excess costs pursuant to 28 U.S.C.

1927.

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