Petition for Writ of Certiorari — Philippine Ace Lines v. Seattle Stevedore Co.

1

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IN THE

Supreme Court of the United States

Octosrer Term, 1973

NO. —SWAWA—k,], «4

PHILIPPINE ACE LINES,

Petitioner

vs.

SEATTLE STEVEDORE COMPANY,

a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Respectfully submitted,

THEODORE A. LE Gros

Counsel for Petitioner

2910 Seattle-First National

Bank Building

Seattle, Washington 98154

TABLE OF CONTENTS

Page

Opinions of Courts Below). ...... 2

Juristen . 4 2

Questions Presents .... ..... ..... 2

Statement of the Case . . ...... 3

Reasons For Granting the Writ 4

r o 12

Appendix A. ...... ...... ...... ..... A-1

Appendix 8. .. ....— ..... ...... ..... B-1

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TABLES OF AUTHORITY

Caren

Page

COrumady v. eer: HV DRIN FISSER,

$68 U. B. 423 ne 5

Guidry v. Tewaco ry et ” 480 r. 0%

POL (NOT) ů ) . . . . 9, 10

Halia v. Oregon Btevedoring Oo., 570 U.S. 315 9

Matton 0 Transfer Corporation v. THE

DYNAMIC, et al 123 F (2d) 999 „

Ryan Stevedore Co., v. Pan- Atlantic AH Corp.,

350 ULB. 124 5, 6

Waterman NR Corp. v. Dugan and McNamara,

304 U.S. 421 8

Weyerhaenser NN Co. v. Nacirema Co.,

365 U.. 563 ee

Rules

FRCP 41(b) 7

FRCP 52 (a) 2, 4

Statutes

28 USC Soo. 1254 (1) 2

Texts

Moore's Federal Practice 5A, Purpose, Nature

of Findings, page 2700 —[—P 12

Norris, The Law of Seamen, Section 715, p. 459 5

IN THE -

Supreme Court of the United States

OcroBER TERM, 1973

NO. ...... .

PHILIPPINE ACE LINES,

Petitioner

VS.

SEATTLE STEVEDORE COMPANY,

a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI j

TO THE UNITED STATES COURT OF APPEALS 1

FOR THE NINTH CIRCUIT

Petitioners pray for a writ of certiorari to review

the judgment of the United States Court of Appeals d

for the Ninth Circuit entered in the above-entitled

case on May 29, 1973 as to which rehearing was

denied on June 29, 1973.

PEI CRU RIG ge AE SNL PRR RNR p =e ,

= OPINIONS OF COURTS BELOW

The opinion of the Court of Appeals has not yet

been reported. It is printed herein as Appendix A.

Order denying rehearing and modifying opinion is

printed herein as Appendix B.

JURISDICTION

The Judgment of the Court of Appeals was en-

tered May 29, 1973 (Appendix A). A timely petition

for rehearing was filed June 12, 1973 and was de-

nied June 29, 1973 ( Appendix B).

Notice of action by the Circuit Court in denying

Petition for Rehearing was given by mail making ap-

plicable Federal Rules of Appellate Procedure Rule

26(c). This Petition for Writ of Certiorari is filed

less than ninety days after the denial of the rehear-

ing petition.

The jurisdiction of this Court is invoked under 28

U.S. C. Sec. 1254 (1)

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QUESTIONS PRESENTED

1. Upon the facts as found by the Trial Court did

not the Circuit Court err in not holding that Philip-

pine Ace Lines was entitled to full indemnity?

2. Alternatively, did not the Court of Appeals err

in not remanding the case to the District Court with

instructions for the District Court to make and enter

findings of fact as required by Rule 52(a) of the

Federal Rules of Civil Procedure?

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STATEMENT OF THE CASE

This is an action brought by Petitioner seeking.

full indemnity from Respondent in the sum of $75,-

000.00 paid by it to longshoreman Jack Turner aris-

ing out of a personal injury suffered by that long-

shoreman aboard Petitioner’s vessel TINDALO in

Seattle on October 27, 1967 together with sums ex-

pended for attorney’s fees and disbursements in de-

fense of the personal injury action. It is agreed that

the settlement was reasonable for the injury sus-

tained and that the fees and expenses incurred were

reasonable for the services rendered. Petitioner’s ac-

tion was predicated upon a breach of warranty of

workmanlike service owed by Respondent to Peti-

tioner. Respondent’s only defenses as set forth in

its contentions as contained in the Pretrial Order

were:

“1. The plaintiff's payment to Jack H. Turner

was voluntary and without the 3 ob-

ligation of plaintiff to Jack H. Turner being

established.

2. Plaintiff was not subject to liability to Jack

HF. Turner.

3. The plaintiff failed to give adequate and

timely action and tender of the defense

thereof.” (R. 19-20)

Respondent made no other defenses to Petition-

er’s cause of action. Nowhere is it contended that

there was any conduct on the part of Petitioner to

preclude indemnity. At the conclusion of Petition-

er’s case, Petitioner moved pursuant to FRCP 41(b)

for dismissal. The trial Court granted this motion.

Respondent by moving under Rule FRCP 41(b)

asked the Court to dismiss “on the ground that upon

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the facts and the law, the plaintiff has shown no

right to relief.” This, of necessity, involves applying

facts to the law. In this case the facts are undis-

puted. The Court is required, once the motion is

granted, to prepare findings and conclusions as pro-

vided by FRCP 52(a). In this case, the Court’s only

meaningful action as required by these rules was in

its Finding of Fact 14:

“That plaintiff failed to prove by a prepon-

derance of the evidence that defendant breached

its warranty of workmanlike service in conduct-

the stevedore o tions aboard the SS TIN-

D on October 27, 1967.” (R. 66)

The Court made no conclusion of law denoted as

such in that regard. Finding 14 must, therefore, be

considered both as a finding of fact and conclusion

of law.

The Court of Appeals by its memorandum deci-

sion (Appendix A) affirmed the decision of lower

court and denied indemnity.

REASONS FOR GRANTING THE WRIT

1. Decision of the Court of Appeals is inconsis-

tent with and contrary to prior decisions of

this Court.

The District Court found by undisputed evidence:

(1) That the cargo in question was in dis-

array (R.63) ;

(2) This condition was known to defendant

prior to the discharge of cargo (R.65) ;

(3) The defendant had contracted to per-

form all required stevedore services in

the discharge of cargo (R.64) ;

(4) That Turner was injured when struck by

pipe being discharged (R.65-66).

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Against these facts are to be applied the so-called

Ryan doctrine of the stevedore’s warranty of work-

manlike service.

The warranty of workmanlike service owed by

Respondent to Petitioner is set forth in Ryan Steve-

doring Co. v. Pan-Atlantic 88 Corp. where the Court

stated:

“The shipowner here holds petitioner’s uncon-

troverted agreeemnt to perform all of the ship-

owner’s stevedoring operations at the time and

lace where the cargo in question was loaded.

t agreement y includes petition-

er’s obligation not only to stow the pulp rolls,

but to stow them Properly aad safely. Sense.

tency and safety of stowage are inescapable ele-

ments of the service undertaken. This obligation

is not a quasi-contractual obligation imp in

law or arising out of a non contractual relation-

ship. It is of the essence of petitioner’s steveaur-

ing contract. It is gee warranty of work-

manlike service that is comparable to a manu-

facturer’s warranty of the soundness of its man-

ufactured product. The shipowner’s actior. is

not changed from one for a breach of contract

to one for a tort simply because recovery may

turn upon the standard of the performance of

petitioner’s stevedoring service.” Ryan Steve-

doring Co. v. Pan-Atlantic 88 Corp., US 124,

100 L.Ed 133, 141, 142, 76 S.Ct. 232.

The Supreme Court equates this warranty to the

manufacturer’s guarantee of the soundness of its

manufactured product. Norris in his treatise The

Law of Seamen devotes a section to Products Lia-

bility causes because of its importance. Elements

necessary to effect recovery in such cases accord-

ing to Norris are:

“(a) Product is capable of causing injury;

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(b) Defendant is identifed with the product

, in question;

(c) The injury was proximately caused by the

uct.” 2 Norris, The Law of Seamen,

tion 715, P. 457.

Translating those requirements to this case, it is

apparent from the admitted facts and the findings

that:

(a) The product (stevedore service) is capable

of causing injury (R. 65-66) ;

(b) Defendant stevedore contractor was iden-

tified with the product (stevedore serv-

ice) (R. 64) in that defendant was per-

forming the discharge operation;

(c) Inj was proximately caused by the

product (stevedore service) (R. 65-66) in

that longshoreman Turner was injured

when struck by pipe being discharged by

defendant.

On such showing alone, there is a breach of warranty

within the holding of Ryan. This breach of warranty

is entirely independent of any theory of negligence.

Ryan is followed by the Supreme Court’s decision

in Weyerhaeuser 8.8. Co. v. Nacirema Co., wherein

the Court stated:

“We believe that respondent’s contractual ob-

ligation to perform its duties with reasonable

safety related not only to the handling of cargo,

as in Ryan, but also to the use of equipment, in-

cidental thereto, such as the winch shelter in-

volved here. American President Lines, Ltd. v.

Marine Terminals Corp. (CA 9 Cal) 234 F2d

753, 758; United States v. Arrow Stevedoring

Co. (CA9 Cal) 175 F2d 329, 331. If in that re-

respondent rendered a substandard per-

ormance which led to foreseeable liability of

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petitioner, the latter was entitled to

absent conduct on its part sufficient to

recovery.” Weyerhaeuser 8.8. Co. v. Nacirema

re 355 U.S. 563, 2 L.Ed. 2d 491, 494, 78 S.Ct.

4

From these two cases, it is abundantly clear that

even though the condition of the No. 2 hold consti-

tuted an unseaworthy condition, this fact does not

preclude indemnity where the stevedore contractor

with knowledge of the condition performed work in

the

hold and, in fact, undertook movement of the

cargo from the hold. By its discharge methods, the

stevedore contractor “brought into play the unsea-

worthy condition of the vessel.” This principle was

enunciated in Crumady by the Supreme Court stat-

ing:

“We think this case is governed by the prin-

ciple announced in the Ryan case. The warranty

which a stevedore owes when he goes aboard a

vessel to perform services is plainly for the ben-

efit of the vessel whether the vessel’s owners

are parties to the contract or not. That is

enough to bring the vessel into the zone of mod-

ern law that recognizes rights in third-party

beneficiaries. Restatement, Law of Contracts,

§ 133. Moreover, as we said in the Ryan case,

oss, igor 4 and safety of stowage are ines- ©

capable elements of the services undertaken.’ |

350 U.S. at 133. They are part of the stevedore’s |

warranty of workmanlike service that is com-

parable to a manufacturer’s warranty of the

soundness of its manufactured product.’ Id 350

US at 133, 134. See MacPherson v. Buick Motor

Co. 217 NY 382, 111 NE 1050, LRA 1916F 696,

Ann Cas 1916 C 440, 13 NCCA 1029. :

We conclude that since the negligence of the

stevedores, which brought the unseaworthiness ©

of the vessel into play, amounted to a breach of ©

the warranty of workmanlike service, the vessel

may recover over.

The ju eee an oe als is re-

versed and the judgment of the District Court

is reinstated.

It is so ordered.” Crumady v. JOACHIM

HENDRIKE FISSER, 358 US 423, 79 S.Ct. 445,

3 L.Ed. 2d 413, 417, 418

To similar effect is the Supreme Court’s Water-

man 88 Corp. v. Dugan & McNamara decision where-

in it is stated:

“In atu Stevedoring Co. v. Pan-Atlantic

Corp. US 124, 100 L.Ed. 133, 76 S.Ct. 232, it

was established that a stevedoring contractor

who enters into a service ment with a ship-

owner is liable to indemnify the owner for dam-

ages sustained as a result of the stevedore’s

breach of his warranty to perform the obliga-

tions of the contract with reasonable safety.

This warranty of workmanlike service extends

to the handling of cargo, as in Ryan, as well as

to the use of equipment incidental to cargo

handling, as in Weyerhaeuser S.S. Co. v. Nac-

irema Opera Co., 355 US 563, 2 L.Ed. 2d 491,

78 S.Ct. 438. The warranty may be breached

when the stevedore’s negligence does no more

than call into pla the vessel’s unseaworthiness.

Crumady v. JOACHIM HENDRICK FISSER,

358 U.S. 423, 429, 3 L.Ed. 2d 413, 418, 79 S.Ct.

445. The factual allegations of the third-party

complaint in the present case comprehend the

latter situation.” Waterman S. S. Corp. v. Dugan

&McNamara, 364 U.S. 421, 5 L.Ed. 2d 169, 171,

81 S.Ct. 200

Crumady speaks in terms of negligence but subse-

quent decisions of the Supreme Court have made it

most emphatically clear that negligence is not a pre-

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requisite to a finding of breach of the warranty of

Workmanlike Service.

a v. Oregon Sevedoring Co., the Court

eld:

“Although in 1 the stevedore was negli-

gent, he was not found liable for negligence as

such but because he failed to perform safely, a

basis for liability including negligent and non-

negligent conduct alike.” Italia v. Oregon Steve-

doring Co., 376 U.S. 315, 11 L.Ed. 2d 732, 738 j

2. The decision of the Ninth Circuit conflicts

with the decision of the Fifth Circuit in

Guidry v. Texaco, Inc., et al, 430 P.2d 781 1

(1970) .

Under somewhat camparable facts, the Fifth Cir- i

cuit upheld indemnity: ‘

“* * * [T] hat Texaco’s own conduct precludes

recovery. Gulf Copper’s position is based on the

dictum in Weyerhaeuser S.S. Co. v. Nacirema

Operating Co., Inc., supra, to the effect that a

shipowner may recover indemnity against a

stevedore company for breach of the warranty

of workman like performance ‘absent conduct

on its [the shipowner’s] part sufficient to pre-

clude recovery.’ See also Waterman S. S. Corp.

v. David, 353 F.2d 660 (5th Cir.), cert. denied

384 U.S. 972, 86 S.Ct. 1863, 16 L.Ed.2d 683

(1966). There is no question here that Guidry

and Balsano were asked to work in a dangerous

position to do a dangerous job. But this does not

constitute conduct on the part of Texaco suffi-

cient to preclude recovery of indemnity against

Gulf Copper. Admittedly the place, method,

tools and personnel furnished to remove the pipe

were not reasonably fit for the job, but Texaco

had every right to look to Gulf Copper to know

that they were proper and if not to take steps

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to see that they were made reasonably fit. The

district court found that the only place to work

was the catwalk, but such being the case Gulf

Copper should have taken steps to make the

catwalk a reasonably fit place to work. Since

Gulf Copper did not do so, the ultimate respon-

sibility must rest upon its shoulders under

Ryan, supra. To the same effect is our holding

in Grigsby v. Coastal Marine Service, supra,

wherein we said:

‘The tank entry was done with the full

knowledge of Coastal’s representatives. In-

deed, it was done to effectuate Coastal’s work

—the discharge by portable pump of the

water accumulated in the wing tank. Obvious-

ly the tank was not safe for men at that time,

either actually or under applicable safety reg-

ulations (* * *). Even though the tank was

not meant to be safe for persons, once it be-

came necessary to enter it, the service con-

: tractor had the obligation not to perform its

4 work in a way which would make the vessel

: unseaworthy, i.e., unfit for man. * * * It was

not reasonably fit for the presence of men be-

cause the contractor had failed and contin-

ued to fail to take those steps which were re-

quired to make it reasonably safe—i.e., test,

ventilate or equip workers with the safety ap-

pliances needed (* * *).’

‘To this extent, it was the action of the con-

tractor which created the unseaworthy condi-

tion.’ 412 F.2d at 1031-1032.

We therefore affirm on the issue of indem-

nity.” Guidry v. Texaco, Inc., et al, 430 F.2d 781

at 785 (CA 5-1970)

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3. The District Court did not 7 — its duty

under FRCP 52 (a) in that the District Court

failed to “find the facts Specially and state

separately its conclusions of law thereon”.

After expressing its concern as to the sufficiency

of the Trial Court Findings, the Ninth Circuit af-

firmed the District Court without remanding for

further findings. This was done notwithstanding

the failure of the trial court to comply with Rule

52(a) of Federal Rules of Civil Procedure. In these

circumstances, the decision of the Second Circuit

in Matton Oil Transfer Corporation v. THE DY-

NAMIC, et al, 123 F.2d 999 is particularly appropri-

ate. The court there stated:

“Consequently we do not feel we can properly :

dispose of this case without the help which ob- ;

servance of the rule would afford us. Moreover, ;

the insistence of the Supreme Court upon appro-

priate findings should not be disregarded. Mayo

v. Lakeland Highlands Canning Co., 309 U.S.

310, 316, 60 S.Ct. 517, 84 L.Ed. 774, and cases

cited; Interstate Circuit, Inc. v United States,

304 U.S. 55, 58 S.Ct. 768, 82 L.Ed. 1146; cf. Smith

v. Lykes Brothers-Ripley S.S. Co., 5 Cir., 105

F.2d 604, certiorari denied 308 U.S. 604, 60 S.Ct.

F.2d 816, 819.” Matton Oil Transfer Corporation

v. THE DYNAMIC, et al, 123 F. 2d 999, 1,000,

1001

We likewise believe the nature and purpose of

findings and the duty of the trial Judge to make

them is well stated by Judge Frank in United States

v. Forness:

“It is sometimes said that the requirement

that the trial judge file findings of fact is for

the convenience of the upper courts. While it

does serve that end, it has a far more important

1

of care on the part of the

the facts.” For, as

knows, to set in precise words

the evidence, the facts are thus-and-so gives

way when it comes to expressing that impres- |

sion on paper. The trial court is the most impor-

tant agency of the judicial branch of the govern-

ment precisely because on it rests the responsi-

| bility of ascertaining the facts.” When a federal

trial judge sits without a jury, that responsibil-

| : ity is his. And it is not a light responsibility

: since, unless his findings are ‘clearly erroneous,’

no upper court may disturb them. To ascertain

the facts is not a mechanical act. It is a difficult

art, not a science. It involves skill and 2

ö 3 As fact-finding is a human ae t can,

4 of course, never be perfect and infallible. For

| that very reason every effort should be made to

q render it as adequate as it humanly can be.“

Purpose, Nature of Findings, Moore’s Federal

Practice 5A, page 2708

CONCLUSION

For the foregoing reasons, petitioner prays that

this petition for writ of certiorari be granted.

Respectfully submitted

THEODORE A. LE GROs

Coumsel for Petitioner

2910 Seattle-First National

| ; Bank Building

: Seattle, Washington 98154

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UNITED STATES COURT OF WPL ED

POR THE NINTH CIRCUIT

(Lal 231973

YDENMIS R. arne. LEEK

b. S. COURT OF „FFC

PHILIPPINE ACE LINES,

Plaintiff-Appellant,

-vs- No. 71-1289

SEATTLE STEVEDORE COMPANY,

a corporation,

Defendant-Appellee.

PHILIPPINE ACE LINES,

Plaintiff-Appellee,

-vs- No. 71-1506

SEATTLE STEVEDORE COMPANY,

a corporation,

)

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def endant-Appellant.

Appeal From che United States District Court

For the Western District of Washington

Before: HUFSTEDLER and WALLACE, Circuit Judges,

and HILL*, District Judge

MEMORANDUM

A Philippine Ace Lines vessel was improperly loaded

with a cargo of steel pipe in Japan. On her trip to Seattle,

rough seas aggravated the problem, and the cargo was in some

disarray when the hatches were opened there. While off-

loading the pipes from one of the holds, a longshoreman was

injured. He sued for damages and Philippine ultimately set-

tled. Philippine then brought an indemnity action against

Seattle Stevedore Company, the employer of the loncshoreman.

tried to the court,

At the conclusion of Philippine's case in ecnief,_/

*Honorable Irving Hill, United States District Judge, Los

Angeles, California, sitting by designation.

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Seattle moved for an involuntary dismissal pursuant to

Fed.R.Civ.P. 4l(b). The district court entered judgment for

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Philippine for the cost of its defense of the longshoreman‘s

action and for Seattle for the amount of its compensation

claim withheld by Philippine from the amount due under the

settlement to the longshoreman. The court denied Philippine's

indemnity claim. Cross-appeals followed and we affirm in j

part.

oon oo vw *#& 46 WN

The district court found that Philippine “failed ‘

10 to prove by preponderance of the evidence that [Seattle] ;

11 breached its warranty of workmanlike service The

question of “whether the stevedore in workmanlike fashion

13 attacked the problem presented by the known unseaworthy con-

dition. . cannot be answered as matter of lav... . but is ; 3

rather a question of fact. Judith Ann Liberian Transport

Corp. v. Crawford, 399 F.2d 924, 926 (9th Cir. 1968).

Philippine properly points out that there are many ways for

a stevedore to breach its warranty of workmanlike perfor-

mance: the injury may be a result of the individual long-

8 8 8 3 8 *

shoreman's negligence; the stevedore may be negligent in its

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discharging plan, its supervision or through the negligence

of other longshoremen, its employees. We would prefer to

know the basis for the trial court's finding that Philippine

failed in its burden of proof. We have noted that the det

ter practice decrees that cases tried to a judge should be

resolved by findings that embrace the preliminary, as well as

the ultimate, issues." Townsend v. Benavente, 339 F.2d 421,

422 (9th Cir. 1964). However, in this case, Philippine did

not ask for more specific findings and we must therefore

s 8 NW ANR N 8 8

assume that the district court found against Philippine on

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every proposed theory of breacn of Seattle's warranty of

oe

workmanlike service. See Switzer Bros., Inc. v- Locklin,

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297 F.2d 39, 45 (7th Cir. 1961), cert. denied, 369 U.S. 85}

(1962); Burkhard v. Burkhard, 175 F. 2d 593, 596 (10th Cir.

1949). Because we cannot say that the findings of the trial

court were clearly erroneous, we must affirm on this point.

Counsel for Philippine properly confesses error in

that part of the judgment of the district court which granted

at torneys fees to Philippine for its defense of the action

brought by the injured longshoreman. The part of the

judgment awarding fees is vacated.

AFFIRMED in part.

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a ; UNITED STATES COURT OF APPRiS? 9 1973

2 : FOR THE NINTH CIRCE Ras Bp MATSEWS. CLERK

3 2 N ws af evens

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„ PHILIPPINE ACE LINES, )

* )

° é Plaintiff-Appellant, ) No. 71-1289

e ; )

: s )

7 + j

» SEATTLE STEVEDOR= COFPANY, )

8 2 corporation, )

; )

9 7 def endang-àppel lee. )

) ORDER

10 . )

- * PHILIPPINE ACE LINES, )

)

- 5 Plaintiff-Appellee, )

)

4 -vs- )

13 i )

1 SEATTLE STEVEDORE COMPANY, ) No. 71-1506

0 a corporation, )

)

* detendant-Appellant.

16 )

17

18 Before: HUFSTEDLER and WALLACE, Circuit Judges,

* and HILL*, District Judge

: 20 r Plaintiff-appellant's Petition for Rehearing is

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21 denied.

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