Opposition Brief — Philippine Ace Lines v. Seattle Stevedore Co.

PHILIPPINE ACE LINES,

Petitioner,

vs.

SEATTLE STEVEDORE COMPANY,

& Corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respectfully submitted,

PAUL C. GIBBS

Counsel for Respondent

1440 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101

————_—_——_—_——.... ——-—---~

—————— ——

PRATH PRINTING ComPaNY <@E seatris. waswinero~

OGRE AIA RE BON NA 7M

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

NO. 73-554

PHILIPPINE ACE LINES,

Petitioner,

vs.

SEATTLE STEVEDORE COMPANY,

a corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respectfully submitted,

PAUL C. GIBBS

Counsel for Respondent

1440 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101

—

—

REEL BEE EL STORE NOL IETS YT Hire

TABLE OF CONTENTS

REGIE OE HI GI ona nsesnnnserccnscsncesernsssccincnncesnonies 1

Reasons for Granting Wit ..........0....c-0-ccccsssceresseceess 2

IC a Oe AT PAD PTOI RET Ra 8

PEL ES I IEE

PDPCI OPCS IA ALLL IGE

nee ace ad

agra

prranrrne Ot ee RS

Ce eee ee et) ee ie

TABLES OF AUTHORITY

Cases .

Page

Burkhard v. Burkhard, 175 F.2d 593, 596

(CA 10, 1940) .......ssscsscrnsessessensesneensessnessnnsenensnnserees 8

Crumrady v. “Joachim Hanrik Fisser’, 358 U.S.

432, 3 L.Bid.2d 413, 79 S.Ct. 445 aaa 5

Delaneuville v. Simonsen, 437 F.2d 597, 602

(CA 5, 1971) .......-soscecneccenesenneennessnneensscennscnnesccnsesesers 5

Guidry v. Texaco, Inc., 430 F.2d 781 (1970) ........---- 6

Italia Societa v. Oregon Stevedoring Co., 376

U.S. 315, 11 L.Ed.2d 732, 84 S.Ct. 748 (1964) ...... 6

Matton Oil Transfer Corporation v. The Dynamic, ,

123 F.2d 999 (CA 2, 1941) .........-------eeeeeeetereee 7

Ryan Stevedoring Co. v. Pan-Atlantic 8.8. Corp., 4

350 U.S. 124, 100 L.Ed. 133, 76 (

S.Ct. 2B2 (1955) .......-.--ecececccrecesesssneensesensrsnesensessecs 3, 4

Switzer Bros., Inc. v. Locklin, 297 F.2d 39, 45

(CA 7, 1961) cert. denied, 369 U.S. 851 (1962) .. 8

Waterman 8. 8. Corp. v. Dugan & McNamara,

364 U.S. 421, 5 L.Ed.2d 169, 81 S.Ct. 200 (1960) .. 6

Weyerhaeuser 8. 8. Co. v. N acirema Co., 355 U.S.

563, 2. L.Ed.2d 497, 78 S.Ct. 438 PD cascevescnsses 4

Rules

BRP 52 (8) «...cn.c-cesssssssseosscsresensssensnsenseneneensonenensnanenees 7

Rule 19, Supreme Court Rules ............---:-:1e 9

Texts

Norris, The Law of SEamMen ...........-----s errr 4

-_ - 28 SOE RUN EENRTERI NONI LAD YoN TANGY PTSD RE AINA SH Sve ONT

ie ey eee

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

NO. 73-554

PHILIPPINE ACE LINES,

Petitioner,

vs.

SEATTLE STEVEDORE COMPANY,

a corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent can accept the Petitioner’s statement

of the case except for two inaccuracies or omissions.

First, Respondent wishes to make it abundantly

clear that it at all times denied that it had breached

its warranty of workmanlike performance.

ew eas ae Me pe

PEE EM PETS NY

aurea

rose

a ae ok eA

— NO eee eee ee

Reeyeames _ Bs vee bai Ie

|

a.

Secondly, Respondent disagrees with Petitioner’s

statement that the Court’s only meaningful action

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 con-

any Ay stevedore operations aboard the SS

TIND on October 27, 1967.”

(R. 66.)

The Court clearly found that if anyone breached its

warranty of workmanlike performance, it was not

the Respondent, but was the stowing stevedore in

Japan. The Court found in Finding of Fact 12:

“The stowing or loading stevedore in Japan

failed to properly lash or shore the cargo of

ipe in the upper ’tween deck No. 2 Hatch of the

TIND , permitting it to shift athwart-

ships and other directions during its voyage

eng J apan to Seattle, Washington in October

*

(R. 65.)

and in ruling on the sufficiency of Petitioner’s proof,

concluded:

“I think the wrong stevedore had been sued

3 here.”

: (Tr. 41.)

REASONS FOR GRANTING WRIT

1. Decision of the Court of Appeals is in-

: consistent with and contrary to prior

decisions of this Court.

It is axiomatic that “the facts make the law.”

“a Petitioner cites cases with reference to the steve-

dore’s warranty of workmanlike performance. Yet

each of these cases begs the factual question in-

MARLO WEP TRY 0 e:.. —_

a bi te se tee PTS Mes ee

IE OT POC MEME Og hk we

ae te ye

volved in the instant case. Petitioner has not cited

a single case in which indemnity was imposed in the

absence of one of the following conditions:

(1) The stevedore company was negligent in

performance of its cargo handling opera-

tion;

(2) The stevedore company utilized an im-

proper method of loading or discharge;

(3) The stevedore company supplied or utilized

defective gear in its cargo operation; or,

(4) The injured longshoreman, provided by the

stevedore, was contributorily negligent

(negligence imputed to stevedore com-

pany).

None of these factors was found to exist by the trial

court, nor was there evidence to support such a con-

clusion.

In Ryan Stevedoring Co. v. Pan-Atlantic 8.8.

Corp., 350 U.S. 124, 100 L.Ed. 133, 76 S.Ct. 232

(1955), a discharging longshoreman was injured due

to improper stowage of 3200-pound rolls of paper.

The cargo was improperly secured and the stowing

stevedore failed to utilize wedges and dunnage to

hold the rolls in place. Indemnity was imposed

against the stowing stevedore. Coincidentally, the

stowing stevedore was also the discharging steve-

dore; however, the breach of workmanlike service

was due to the improper method of stowing and in

no way related to the method of discharge or to any

contributory negligence of the injured longshore-

man. The court observed:

“And a like liability for breach of contract

accrues to a shipowner against a stevedoring

FRY ECR ERIM LN TRIE

4

in any a when the —— im-

wage of cargo causes an on

to some one other than roe | its

a An es, gh er the ——

e employer o

heaguheceuan makes no ference

“The shipowner here holds petitioner’s un-

controverted agreement to perform all of the

sh — stevedoring operations at the time

an

i

loaded. That agreement necessarily includes

rage Soe v. Pan-Atlantic 8.8. ro x

U.S. 124, 100 L.Ed. 133, 140, 141, 142 (1955).

In the instant case, we would agree with the Peti-

tioner that it may well have a valid claim for breach

of warranty of workmanlike performance due to im-

proper stowage against the stowing stevedore in

Japan. As the trial court noted, “I think the wrong

stevedore has been sued here.” (Tr. 41.)

The Petitioner’s allusion to Norris, The Law of

Seamen, may be relevant to the stowing stevedore

in Japan, but certainly has no applicability to the

Respondent here.

In Weyerhaeuser 8.8. Co. v. Nacirema Co., 355

U.S. 563, 2 L.Ed.2d 497, 78 S.Ct. 438 (1958), the trial

court directed a verdict for the stevedore on the

third party claim. At the outset the Supreme Court

noted:

“The question here involves the right to trial

by jury under principles of maritime liability

and held that it was improper for the court to direct

a verdict. The Supreme Court merely reversed on

the indemnity issue for submission of that issue to

the jury as the finder of the facts. It is unknown

how the issue was determined following remand.

Here the trial court, as trier of the facts, has re-

solved that issue for the Respondent on the evi-

dence. The court found no substandard performance

by the Respondent nor was there evidence to sup-

port such a conclusion. The comment of the court in

Delaneuville v. Simonsen, 437 F.2d 597, 602 (CA 5,

1971), is appropriate here:

“Indemnity was denied, not because the con-

duct of Shipowner precluded enforcement, but

rather because Stevedore did not breach its

WWLDP. This result is faithful to Weyerhaeuser

Steamship Co. v. Nacirema Operating Co., 1958,

355 U.S. , 78 S.Ct. 438, 2 L.Ed.2d 491, 1958

A.M.C, 501.”

In Crumady v. “Joachim Hanrik Fisser”, 358 U.S.

423, 3 L.Ed.2d 413, 79 S.Ct. 445 (1959), the trial

court, as trier of the facts found that the stevedore

utilized a circuit breaker set at twice the safe work-

ing load and moved the head of the boom in an ef-

fort to clear the cargo from the sides of the hatch

and that this created a load on the topping-lift

greatly in excess of its safe working load. This was

the primary cause of the parting of the topping-lift

and consequent fall of the boom. The trial court’s

findings of negligence and improper method were

supported by two expert witnesses. The Supreme

Court affirmed the trial court’s imposition of in-

demnity due to the negligence of the stevedore,

which brought the ship’s unseaworthiness into play.

In the instant case there was no evidence of negli-

ee ee we te

gence nor improper method on the part of the Re-

stevedore to support any such finding. The

trial court found the proof deficient (Tr. 41, 42, 44,

and F.F. 14).

In Waterman 8.8. Corp. v. Dugan & McNamara,

364 U.S. 421, 5 L.Ed.2d 169, 81 S.Ct. 200 (1960), the

district court had directed a verdict for the steve-

dore company, holding that a shipowner had no

right for indemnity in absence of a direct contrac-

tual relationship between them. The Supreme Court

reversed, holding that privity was not a necessary

prerequisite and remanded the case to the district

court for retrial of the indemnity issue. It is un-

known how the issue was determined following the

remand, but it is possible that indemnity was al-

lowed based upon the improper method in removing

the lateral support from the vertical column of

hundred-pound bags in the unloading operation, al-

lowing it to collapse and injure the longshoreman.

Italia Societa v. Oregon Stevedoring Co., 376 U.S.

315, 11 L.Ed.2d 732, 84 S.Ct. 748 (1964), is illustra-

5 tive of cases allowing indemnity where the steve-

4 dore has supplied and utilized defective gear. There,

4 the unseaworthiness was created by a defective

4 rope, unfit for its intended use, supplied by the

stevedore company. The instant case did not involve

any defective gear.

2. The decision of the Ninth Circuit con-

flicts with the decision of the Fifth

Circuit in Guidry v. Texaco, Inc., 430

F.2d 781 (1970).

* Petitioner’s contention is without foundation.

» Guidry v. Texaco, Inc., 430 F.2d 781 (1970), differs

7 POPOL OETA RAS IT LEON EPI TI I LO Fr AE IE HS

7

factually from the case at bar and in no way con-

flicts with the decision herein. There the court

found that the ship repairer breached its warranty

of workmanlike performance in utilizing a hazar-

dous method of discharging the pipes, and in utiliz-

ing tools and personnel not reasonably suitable for

the job at hand. In the instant case there was no evi-

dence of improper method, nor of unsuitable tools,

gear, or personnel. Consequently, the trial court

found that the Petitioner failed to prove that the

Respondent breached its-warranty of workmanlike

performance (F.F. 14, R. 66). The trial court’s find-

ings are not clearly erroneous.

3. The District Court did not perform its

duty under FRCP 52(a) in that the

District Court failed to “find the facts

specially and state separately its con-

clusions of law thereon.”

Contrary to Petitioner’s assertion, the Court’s

Findings of Fact did meet the requirements of

FRCP 52(a). In the case cited by Petitioner, Matton

Oil Transfer Corporation v. The Dynamic, 123 F.2d :

999 (CA 2, 1941), the Court made absolutely no

Findings of Fact. Furthermore, the Court there ob-

served:

“We realize that to enforce the rule in an

over-scrupulous way may impose onerous la-

bors on a district judge, beyond those actually

needed for a fair presentation of an appeal. We

think it appropriate to say that we are not dis- j

posed towards such an enforcement, nor have :

we at any time required any overelaboration of ;

detail or particularization of facts. We agree 3

fully with the spirit and the terms of the reso-

Ot re enorme. cameo mes + aneeegerpargecenersem See eam nte eo som

lution passed by majority vote of the judges at

our Judicial Cateones of last June recom-

‘that the trial judge make brief, per-

tinent findings in respect to contested matters

and file the same in connection with his opin-

ion.’ This puts the emphasis where it should be,

namely, on brief and pertinent findings of con-

tested matters, and also upon a finding made as

a of the judge’s opinion and decision,

rather than the delayed, argumentative, over-

detailed documents we by winning coun-

sel after the event which often appear in appel-

late records, though they are not effective aids

to adjudication. See Gibbs v. Buck, 307 US. 66,

78, 59 S.Ct. 725, 732, 83 L.Ed. 1111; Epstein v.

Goldstein, 2 Cir., 107 F.2d 755, 758.

“Of course, we do not mean to imply that a

trial court is not privileged to seek such aid of

counsel, both as to the facts and the law, * * *.”

In the instant case, the Ninth Circuit noted that

Petitioner failed to request more specific findings.

(A-2.) Switzer Bros., Inc. v. Locklin, 297 F.2d 39,

45 (CA 7, 1961), cert. denied, 369 U.S. 851 (1962) ;

Burkhard v. Burkhard, 175 F.2d 593, 596 (CA 10,

1949).

CONCLUSION

The issue in the instant case was strictly factual

—an iss.ie resolved in favor of the Respondent by

the District Court and affirmed by the Ninth Cir-

cuit Court of Appeals. In this regard, the decision

sought to be reviewed is in no way in conflict with

another court of appeals or this Court. Nor can it be

said that there are any special and important rea-

BEE IL OE AMIE LN EA EOL

sons for granting review within the contemplation

of Rule 19, Supreme Court Rules. Accordingly, the

petition for writ of certiorari should be denied.

Respectfully submitted,

PAUL C. Gisss

Counsel for Respondent

1440 Washington Building

1325 Fourth Avenue

Seattle, Washington 98101