# Petition for Writ of Certiorari — Philippine Ace Lines v. Seattle Stevedore Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1073%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 1069 ## Text 1 ae 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 9 | | | 1 | 4 0 „ * 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) : i 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? — rr 3 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 — . — areas 4, — ͤꝙ—— K L . iS 4 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). * e eee e eee e e = = P ˙ - n POE ESA DAR TS ste RN — MO ow r lt — 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; eee eee — ee EN et eee ed En ub BI * ec / (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 PPP ———— P 7 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- . M UR GR Ra aes, Ot highs e RARE debe ed ee ee ee * 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 — dee — — . g 1 8 . e e 10 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) 2 Pe Panter P 11 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 8 en wenne * APs an 6 W „ A-1 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, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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. PPP 1 . 7 yd REET IT 2 ON. 2 FATE OG PPP ˙ Ao ete — — A-2 Seattle moved for an involuntary dismissal pursuant to Fed.R.Civ.P. 4l(b). The district court entered judgment for — bir 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 nn — 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 i — every proposed theory of breacn of Seattle's warranty of oe workmanlike service. See Switzer Bros., Inc. v- Locklin, 3 3 2 5 : 3 3 8 a ; : B ———— ee „ RST AIO Peri ag re — r er u R 8 N n A NN r · u 2 8 8 , K & & © oe Be 2 A-3 297 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. ee B-1 * bad rr 2 E. 1 = | D a ; UNITED STATES COURT OF APPRiS? 9 1973 2 : FOR THE NINTH CIRCE Ras Bp MATSEWS. CLERK 3 2 N ws af evens ‘ é 7 „ 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 i 21 denied. 2 2 0 24 25 26 27 2 2 20 1 f 20 é 32 eser Sevens . ite States Sasteset ü.. 2s 2 ngezes, Ca. zzerzza. Sera sy Gesigazatczon. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1073%3A1. Public record. Not legal advice.