Petition for Writ of Certiorari — Mitsui O. S. K. Lines, Ltd. v. Strachan Shipping Co.

LIBRARY

IN THE

Supreme Court of the United States

October Term, 1973

73- 626

MITSUI O.S.K. LINES, LTD., Petitioner

v.

STRACHAN SHIPPING COMPANY, Respondent

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

B. D. McKINNEY

JOSEPH D. CHEAVENS

Attorneys for Petitioner,

Mitsui O.S.K. Lines, Ltd.

Of Counsel:

BAKER & BoTTS

3000 One Shell Plaza

Houston, Texas 77002

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

ae ee

TABLE OF CONTENTS

Page

TDR GH AUTHOR EEMe ccc ccccccccesccccecveccses i

GEE TE Secs scecevascacesersevecsvecdeccess 1

FORBTI ccc ccccccescvcceccccecccecsccceoccos 2

QUESTIONS PREGENTED ccccccscccscccccccccsccces 2

STATE E GE CARD ceccccccsccccvccccccccecccece 2

REASONS FOR GRANTING THE WRIT ............. 5

SUE 6-54.66. 0:0-0:600660040506650000000008800008 12

Cee ee GF BRR UEGD soc ccvccvevcccecsccssees 12

APPENDICES:

A. Court of Appeals Opinion and Order Denying Rehear-

Pe on6000.00-056000000000000000400000050 0008000 13

B. Trial Court’s Memorandum and Order (Findings of

Fact and Conclusions of Law), Supplemental Memo-

randum and Order and Supplemental Memorandum

OE GOR FAN. UE 6.60065 0000 00s ee ccceceseacceess 21

INDEX OF AUTHORITIES

CASES Page

Arista Cia. de Vapores, S.A. v. Howard Terminal, 372 F.2d

og, ie A) A Nr ee ere errr 6, 11

Atlantic Coast Line R. Co. v. Erie Lackawana R. Co., 406

ee GP OEE ccenciecakaeeesewnbacenesenessenene 7,11

Chinese Maritime Trust, Ltd. v. Carolina Shipping Company,

C es fF ge errr rr rrt rere 6

Crumady v. The Joachim Hendrik Fisser, 358 US. 423

PE ékncdcdduadoubedanabeneesdese4s60eeacewsens 11

Damanti v. A/S Inger, 314 F.2d 395 (2d Cir. 1963) cert.

GD UN Wc. MU 0:b.000b6cb 0 608 000000650000 000 40 5

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342

ON ee aa 7,8, 11

Hartnett v. Reiss Steamship Company, 421 F.2d 1011 (2d

Cir. 1970), cert. denied 400 U.S. 852 .......sccccccees 5

SS LENA LUCKENBACH v. Walsh Stevedoring Company,

p we Ee 8 Ee | rT Tee err 11

McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334

(2d Cir. 1969), cert. denied 395 U.S. 946 .............

re

II

CASES

Mortensen v. A/S GLITTRE, 348 F.2d 383 (2d Cir. 1965)

Nicroli v. Den Norske Afrika, 314 F.2d 651 (2d Cir. 1964)

Pope & Talbot, Inc. v. Hawn, 346 US. 406 (1953).......

7 tae Co. v. Pan-Atlantic S.S. Corp., 350 US.

i EPI PTTL eELTTTereerrer Trier TTT

Seas Shipping Co. v. Sieracki, 328 US. 85 (1946).........

Southern Stevedoring & Contracting Co. v. Hellenic Lines,

Ss Dee Ber COUe Cie, SOGB) ncccccncccccccccns

Strachan Shipping Company v. Koninklyke Nederlanesche,

Se Geen PUD CE GN, BUND cececncsccccccevedccers

United States Lines, Inc. v. Jarka Corp. of Baltimore, 444

i a, CEE cob nceandsenedesshessecaenes

Waterman S.S. Corp. v. David, 353 F.2d 660 (Sth Cir. 1965)

ee On os oc cv ccexhe ah avenecenssvess

Weyerhaeuser S.S. Co. v. Nacirema Operating Co., Inc., 355

Sey SE Stic po cakcssndeekesssesexkeesdecasvcs

j

ae : EEE LIB TAN EIN HET WN NY Ri NGS

Bh a oy RIT Magia oe ye ag,

6, 10

ee a, Pee eee

IN THE

Supreme Court of the Vnited States

October Term, 1973

NO.

MITSUI O.S.K. LINES, LTD., Petitioner

vy.

STRACHAN SHIPPING COMPANY, Respondent

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

To The Honorable The Chief Justice And The Associate

Justices Of The Supreme Court Of The United States:

Petitioner, Mitsui O.S.K. Lines, Ltd. prays that a Writ

of Certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered in

this cause.

OPINION BELOW

The district court, by its Memorandum and Order of

October 21, 1971, made detailed findings of fact and

conclusions of law which were supplemented on Novem-

ber 12, 1971, and December 10, 1971. Those Orders

are attached hereto as Appendix B. The Opinion of the

United States Court of Appeals for the Fifth Circuit and

the dissenting Opinion of Judge Thornberry of that Court

NIC ERE I AL VO A B CR 6 MORI Ment

2

is reported at 479 F.2d 432 (1973) and is reproduced in

Appendix A to this Petition. The Order of the Court of

Appeals denying petitioner’s timely Petition for Rehearing

is reproduced in Appendix A.

JURISDICTION

The judgment of the Court of Appeals was entered

on May 23, 1973. Rehearing was denied on July 9,

1973. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Does the contributory negligence of the plaintiff-

longshoreman constitute, as a matter of law, a breach

by the stevedore-employer of its warranty of workmanlike

performance to the ship?

2. Should the vessel be denied indemnity against the

stevedore because the damages recoverable against the

vessel have been reduced by a finding of contributory

negligence?

STATEMENT OF THE CASE

This case is a familiar three-party suit initiated by long-

shoreman Preston Julian against petitioner, Mitsui O.S.K.

Lines, Ltd. (hereinafter called the “ship”), the owner

of the vessel on which Julian was working when he was

hurt. The ship, in turn, filed an action for indemnity

against respondent Strachan Shipping Company (herein-

after called “stevedore”), the stevedoring company which

employed the plaintiff when he was hurt. The district

court found the vessel to be unseaworthy, but found that

the plaintiff's negligence contributed 95% to cause the

accident since his actions were “so grossly careless that

j ’ :

ANY ee POLE ST TIN ENS LI NND NNR h CTTW ETN Atvane rete

ee

3

a court might characterize the injury as wholly self-

inflicted.” (Conclusion of Law 5). The district court,

however, denied indemnity on findings of no breach of

warranty by the stevedore and conduct sufficient to pre-

clude indemnity by the ship, even though the district

court had found that the ship's unseaworthy condition

“was not particularly formidable to those who follow an

active trade and its hazards might easily have been

avoided by the use of ordinary care” by the plaintiff,

the stevedore’s employee. (Conclusion of Law 5).

The ship appealed the denial of indemnity. The Court

of Appeals held that the trial court’s finding of no breach

of warranty was clearly erroneous since, “the longshore-

man’s contributory negligence was so substantial as to

require the conclusion that the stevedore breached its

warranty of workmanlike performance.” With J udge

Thornberry dissenting, however, the majority affirmed

the denial of indemnity on the following grounds:

“The district court was presented with a situation of

negligence imputed to the stevedore on the one hand

and unseaworthiness on the part of the ship on the

other. The Court could not prorate damages but

they were in fact prorated by the contributory negli-

gence holding and the subsequent holding on in-

demnity. The court left a 5% charge against the

shipowner for unseaworthiness by denying indem-

nity. Under the ‘factor’ rule, we cannot Say this

was error.”

The facts of the accident are very simple. The plaintiff

was injured when he stepped down from a winch plat-

form to the main deck of the vessel, some 23 inches

below. (S.F. 2) [Finding of Fact (2)]. As he stepped

down, “he lost his balance and fell to the main deck,

4

sustaining the injuries here complained of.” (S.F. 5)

[Finding of Fact (5)]. The trial court described the

plaintiff's actions as follows:

“Plaintiff attempted to negotiate the 26% inch step

down from the winch deck by merely stepping for-

ward as if it were an ordinary step. He did not look

down to the main deck before stepping. He did not

turn sideways and lower himself a leg at a time.

More significantly, he did not take the perfectly

natural precaution of supporting himself by grasp-

ing the available hanger winch frames as he stepped

down. Plaintiff obviously knew of the necessity to

make a long step from the winch deck because the

step was plainly visible and he had stepped up onto

the same deck two hours before. In view of this

knowledge, plaintiff's choice of method for negotiat-

ing the step was careless, imprudent, and revealed

an almost reckless lack of regard for his own safety.”

[Finding of Fact (5)] (Emphasis added)

The trial court, however, also found that the failure

to have a step or ladder between the main deck and the

winch platform rendered the vessel unseaworthy. The

: court said in Finding of Fact (3):

“Although the record is somewhat less complete on

the point than might be desired, the Court must

conclude that this means of access to and egress

from the winch deck (and the No. 5 hold) was not

reasonably fit for its intended purpose.”

Based upon these facts, the trial court made the follow-

ing Conclusion of Law:

“(5) Plaintiff was contributorily negligent. Although

the step did constitute an unseaworthy condition, it

was not particularly formidable to those who follow

an active trade and its hazards might easily have

3 eek l Met ME. mor be i

5 ;

been avoided by the use of ordinary care. The man-

ner in which the plaintiff descended the step was

so grossly careless that a court might reasonably

characterize the injury as wholly self-inflicted, thus

reducing the recovery by 100%. However, such a

disposition would not be in keeping with the spirit

of Manning v. M/V SEA ROAD, 417 F.2d 603

(Sth Cir. 1969), which teaches that the application

of comparative negligence should seldom, if ever,

result in the complete exoneration of unseaworthi-

ness. Accordingly, by redson of his own negligence,

plaintiff's recovery shall be reduced by 95%.”

(Emphasis added)

Despite these findings, the district court refused to

grant indemnity to the ship.

REASONS FOR GRANTING THE WRIT

1. The Fifth Circuit’s decision conflicts with

decisions of the Courts of Appeal for the Second,

Fourth and Ninth Circuits.

The ship’s cause of action for indemnity against

the stevedore is based upon breach of the stevedore’s

implied warranty of workmanlike performance, Ryan

Stevedoring Co., Inc. v. Pan-Atlantic §.S. Corp., 350

U.S. 124 (1956). The Second, Fourth and Ninth Cir-

cuits have held that the contributory negligence of the

plaintiff-employee is a breach of the stevedore’s warranty

as a matter of law. Second Circuit: Damanti y. A/S

Inger, 314 F.2d 395 (2d Cir. 1963) cert. denied 375

U.S. 834; Nicroli v. Den Norske Afrika, 314 F.2d 651

(2d Cir. 1964); Mortensen v. A/S Glittre, 348 F.2d 383

(2d Cir. 1965); McLaughlin y. Trelleborgs Angfartygs

A/B, 408 F.2d 1334 (2d Cir. 1969), cert. denied 395

U.S. 946; and Hartnett v. Reiss Steamship Company,

6

421 F.2d 1011 (2d Cir. 1970), cert. denied 400 US.

852. Fourth Circuit: United States Lines, Inc. v. Jarka

Corp. of Baltimore, 444 F.2d 26 (4th Cir. 1971) and

Chinese Maritime Trust, Ltd. v. Carolina Shipping Com-

pany, 456 F.2d 192 (4th Cir. 1972). Ninth Circuit:

Arista Cia de Vapores, S.A. v. Howard Terminal, 372

F.2d 152 (9th Cir. 1967).

The Court of Appeals for the Fifth Circuit in this

case rejected those authorities and held that the rule in

the Fifth Circuit was that the contributory negligence

of the plaintiff was only “a factor” to be taken into

consideration on the issue of the breach of the stevedore’s

implied warranty of workmanlike performance. After

noting that the 1972 amendments to the Longshoremen’s

and Harborworkers’ Compensation Act, 33 U.S.C. § 901,

abolished the ship’s cause of action for indemnity against

the stevedore-employer, the Court said:

“Without further consideration of the previous deci-

sions of this Circuit or the conflict with those of

the other Circuits, we note that Congress has re-

moved the underlying basis for the decision. More-

Over, we are not convinced that our prior decisions

are unsound.” (Emphasis added)

Thus, the Court of Appeals’ decision in this case ex-

pressly created a conflict between the Circuits. Only this

Court can resolve that conflict. Although the amend-

ments to the Compensation Act may reduce the number

of future cases of this kind, those amendments do not

have any effect upon the thousands of pending cases

arising out of accidents occurring before the effective

date of the amendments. Further, even under the new

statute, there are many kinds of cases in which Ryan

theories of indemnity are involved, which are unaffected

7

by the amendments, either because the injury is to a

person not covered under the Act (for instance, seamen,

certain shoreside workers, etc.), or the plaintiff bringing

the original action is not suing a “vessel” as defined

by Section 2, Paragraph (21) of the Act [33 U.S.C.

§ 902(21)], or because the action for indemnity is not

being brought against an “employer” as defined by the

Act. The continuing vitality of Ryan indemnity requires

resolution of this conflict between the Circuits.

2. By denying indemnity solely because the Dis-

trict Court “in fact prorated” the damages by its

contributory negligence finding, the Court of Ap-

peals adopted a new theory for denying indemnity,

a theory which not only should not be the law but

conflicts with this Court’s decisions in Halcyon Lines

v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282

(1952) and Atlantic Coast Line R. Co. v. Erie Lacka-

wana R. Co., 406 U.S. 340 (1972).

The Court of Appeals found that the plaintiff’s con-

tributory negligence “was so substantial as to require

the conclusion that the stevedore breached its warranty

of workmanlike performance.” This result was reached

by applying the Fifth Circuit’s “a factor” rule to the

undisputed facts. The Court of Appeals then denied

indemnity, however, on the following completely new

legal theory:

“The district court was presented with a situation

of negligence imputed to the stevedore on the one

hand and unseaworthiness on the part of the ship

on the other. The court could not prorate damages

but they were in fact prorated by the contributory

negligence holding and the subsequent holding on

indemnity. The court left a 5% charge against the

shipowner for unseaworthiness by denying indem-

nity. Under the ‘factor’ rule, we cannot say this was

error.”

This reasoning by the majority was not supported by

citation to any authority, and indeed no authority sup-

ports this novel approach. To put this new theory in

perspective it is appropriate to summarize briefly develop-

ments in the law in this field before this decision by the

Fifth Circuit. In Seas Shipping Co. v. Sieracki, 328 U.S.

85 (1946) and Pope & Talbot, Inc. v. Hawn, 346 US.

406 (1953), this Court held that longshoremen and other

shoreside workers did the traditional work of seamen

and thus could recover against the vessel not only for

negligence but also for unseaworthiness. In Halcyon

Lines v. Haenn Ship Ceiling & Refitting Corp., 342 US.

282 (1952), the Court held that the ship did not have

a right of contribution against the employer of these quasi-

seamen since, in the absence of legislation, there was

no right of contribution among joint tort feasors in non-

collision admiralty cases. The doctrine of unseaworthi-

ness, however, imposed liability without fault upon the

vessel, frequently for unseaworthy conditions created by

actions of the stevedore. Thus in Ryan Stevedoring Co.

v. Pan-Atlantic §.S. Corp., 350 U.S. 124 (1956), the

Court held that the vessel could recover indemnity

against the stevedore if the accident was caused by the

breach by the stevedore of an implied warranty of work-

manlike performance owing to the vessel. The ship’s

right of indemnity arose by reason of the contractual

relationship between the ship and stevedore. As a natural

corollary of that doctrine, the Court held in Weyer-

haeuser §.S. Co. v. Nacirema Operating Co., Inc., 355

U.S. 563 (1958), that the ship owner may recover in-

demnity even though negligent in some respect, provided

PA A a aN:

9

the ship owner is free from “conduct on its part sufficient

to preclude indemnity.” 355 U.S. at 567.

The “conduct to preclude indemnity” defense of the

stevedore has been rather extensively elaborated, pri-

marily in decisions of the Courts of Appeals. The Fifth

Circuit, in Waterman S.S. Corp. v. David, 353 F.2d 660

(1965), cert. denied 384 U.S. 972, held that the ship’s

right of indemnity is defeated only if “a vessel’s unsea-

worthiness prevents the stevedore’s workmanlike per-

formance, . . .” 353 F.2d at 665. Perhaps the fullest

elaboration of the doctrine is contained in Southern

Stevedoring & Contracting Co. v. Hellenic Lines, Ltd.,

388 F.2d 267 (Sth Cir. 1968), where the Court said:

“Whether or not the total conduct of [the shipowner]

was sufficient to preclude recovery is determined by

the law of contract, [citations Omitted] in that such

conduct, to preclude indemnity, must be sufficient

to bar the enforcement of the contract. [citations

omitted] The vessel’s unseaworthiness, although a

proximate cause of the accident, is not in itself con-

duct necessarily sufficient to preclude recovery.

[citations omitted] Without entering the thicket of

primary and secondary, or active and Passive negli-

gence, [citation omitted], the trier of fact must

weigh the substantiality of the fault of the ship-

owner against the breach of warranty by the steve-

dore to determine whether the former’s conduct is

‘sufficient to preclude indemnity.’ [citation omitted]

“The rule which has been forged for application in

this process is that only conduct on the part of the

shipowner which prevents the stevedore’s workman-

like performance is sufficient to preclude indemnity.

[citations omitted] However, in our case, it was not

the unseaworthiness of the ship which prevented

Southern’s workmanlike performance, but rather the

MUNROE YR erteE

10

breach of warranty by Southern which brought into

play the unseaworthiness of the vessel to produce

the accident. The trial court found the unseaworthi-

ness of the vessel should never have been brought

into play and that if Southern had adhered to its

warranty of workmanlike performance, the latent

defect in the swivel hook would not have been

tested.” 388 F.2d at 271-272 (Emphasis added)

Consistent application of these principles to this case

Clearly shows that the ship was not guilty of any conduct

sufficient to preclude indemnity as a matter of law. Since

the plaintiffs contributory negligence contributed 95%

to cause the accident and the unseaworthiness of the

vessel only 5% to cause the accident, and since the un-

seaworthy condition “was not particularly formidable to

those who follow an active trade and its hazards might

easily have been avoided by the use of ordinary care,”

one must conclude that the unseaworthiness of the vessel

did not prevent a workmanlike performance by the steve-

dore. Any holding that there was conduct sufficient to pre-

clude indemnity would not only conflict with the stand-

ards previously elaborated by the Fifth Circuit, but

would also be in conflict with decisions of the Second

and Fourth Circuits in Mortensen v. A/S Glittre, supra,

and U.S. Lines v. Jarka, supra, where there was found

to be no conduct sufficient to preclude as a matter of law.

The Court of Appeals in this case, however, did not

follow the established principles dealing with conduct

sufficient to preclude indemnity but, instead, created a

new theory for denying indemnity based upon proration

of damages. This new theory should be rejected completely

and not allowed to be established in the law.

First, this new theory is predicated on an erroneous

legal assumption. It assumes that, because the plaintiff's

11

damages have been mitigated by contributory negligence,

all that the ship is going to have to pay is the amount

of damages attributable solely to its primary liability.

That assumption is incorrect because it ignores the well-

settled rule that the ship’s indemnity claim is not only

for amounts it must pay to the plaintiff, but also for

attorneys’ fees and expenses incurred in the defense of

the case, even when the ship’s defense is successful. See,

e.g., Strachan Shipping Company v. Koninklyke Neder-

lanesche, 324 F.2d 746 (Sth Cir. 1963); SS LENA

LUCKENBACH v. Walsh Stevedoring Company, 395 F.2d

217 (Sth Cir. 1968). To allow the ship to recover its

attorneys’ fees and expenses when it is completely suc-

cessful, but to deny recovery for attorneys’ fees and ex-

penses when it is only 95% successful, is not only irra-

tional but would revive the long-discredited idea that a

ship cannot recover indemnity simply because there is

a finding of unseaworthiness or primary negligence. See,

e.g., Crumady v. The Joachim Hendrik Fisser, 358 US.

423 (1959). That notion was put to rest long ago, per-

haps so long ago that the majority of the panel of the

Fifth Circuit deciding this case simply forgot about it.

The majority's opinion has simply unfairly denied the

ship its chance to recover that sum from the stevedore,

even though the negligence of the stevedore contributed

95% to cause the accident. In Arista Cia. de Vapores,

S.A. v. Howard Terminal, supra, attorneys’ fees and ex-

penses were the only items of damage to the ship in-

volved in the case.

Second, the reasoning of the majority is unsound be-

cause it is an express effort by the Court of Appeals to

make an allocation of damages in an indemnity case in

violation of the rule of Halcyon Lines v. Haenn Ship

Ceiling & Refitting Corp., supra. That rule was rather

12

firmly reaffirmed last year in Atlantic Coast Line Railroad

Company v. Erie Lackawana Railroad Company, supra.

If the reasoning of the Court of Appeals is followed to

its logical conclusion, then the ship, in the very least,

should be entitled to recover 95% of its fees and expenses.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

be issued from this Court to review the Judgment and

Opinion of the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

.D. McKINNEY

JosEPH D. CHEAVENS

Attorneys for Petitioner,

Mitsui O.S.K. Lines, Ltd.

Of Counsel:

BakER & BoTTs

’ 3000 One Shell Plaza

a Houston, Texas 77002

(713) 229-1234

tq CERTIFICATE OF SERVICE

I hereby certify that the foregoing Petition for Writ of

: Certiorari has been served upon Mr. Theodore Goller,

attorney for respondent, Strachan Shipping Company, at

the lawfirm of Fulbright, Crooker & Jaworski, Bank of

the Southwest Building, Houston, Texas, 77002, on this

the 5 day of October, 1973, by certified mail, return

receipt requested.

Oe en

oseph D. Cheavens

2 EYEE LESLEY ST ENC OA ENT RENE IEEE ANIKI

13

APPENDIX “A”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Ey ea

No. 72-2259

Se

PRESTON JULIAN,

Plaintiff-Appellee,

versus

MITSUI O.S.K. LINES, LTD., In Personam,

and M/V MEIJYUSAN, In Rem,

Defendant-Third Party

Plaintiff-Appellant,

versus

STRACHAN SHIPPING COMPANY,

Third Party

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

(May 23, 1973)

Before BELL and THORNBERRY, Circuit Judges and

GROOMS, District Judge.

BELL, Circuit Judge: This case arises out of the

familiar Sieracki-Ryan’ longshoreman-shipowner-stevedore

1. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872,

90 L.Ed. 1099; Ryan Stevedoring Co. v. Pan-Atlantic S/S Corp.,

1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.

eee nen

14

admiralty dispute. The injured longshoreman sued the

shipowner alleging both unseaworthiness of the ship and

negligence of its officers, agents and crew. The district

court found the ship unseaworthy, but reduced the long-

shoreman’s damages by 95 per cent as a result of his

contributory negligence. In the shipowner’s third party

complaint against the stevedore to recover any damages

paid to the longshoreman, the district court held that

the shipowner was not entitled to indemnity from the

stevedore. Two reasons were given in support of the

judgment for the stevedore: (1) that the stevedore did

not breach its warranty of workmanlike performance; and

(2) that the shipowner, by furnishing an unseaworthy

vessel, hindered the stevedore’s performance so as to

preclude indemnity.

This appeal involves only the indemnity claim by the

shipowner against the stevedore. The question presented

is whether the longshoreman’s contributory negligence

is merely a factor to be weighed in determining whether

the stevedore has breached its warranty of workmanlike

performance, or whether any contributory negligence con-

stitutes a breach of the stevedore’s warranty as a miat-

ter of law.

The rule in this Circuit is that contributory negligence

. is a factor to be taken into consideration on the

issue of breach of the contractor’s |stevedore’s| implied

warranty.” Lusich v. Bloomfield Steamship Company,

5 Cir., 1966, 355 F.2d 770, 778. See also United States

Lines Co. v. Williams, 5 Cir., 1966, 365 F.2d 332,

336; D/S Ove Skou v. Hebert, 5 Cir., 1966, 365 F.2d

341, 350. Cf. Diaz v. Western Ventures, Inc., 5 Cir.

1972. 467 F.2d 1361, 1362-3.

“

15

We are asked to reconsider our position in light of

the rule prevailing in the Second, Fourth, and Ninth

Circuits, that any contributory negligence on behalf of

the longshoreman is. imputed to the stevedore and con-

stitutes a breach of the stevedore’s warranty as a matter

of law. See e.g., McLaughlin v. Trelleborgs Angfartygs

A/B, 2 Cir., 1969, 408 F.2d 1334; United States Lines

v. Jarka Corp., 4 Cir., 1971, 444 F.2d 26; Arista Cia.

DeVapores, S.A. v. Howard Terminal, 9 Cir., 1967, 372

F.2d 152.” |

Under the 1972 amendments to the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 USCA § 901

et seq., the longshoremen’s right to sue a shipowner is

limited to claims based upon negligence of the shipowner

alone. The doctrine of unseaworthiness is no longer avail-

able to injured longshoremen. The effect of limiting the

shipowner’s liability to his own negligence is to obviate

the need for indemnity from the stevedore. Consequently

the amendments provide that the stevedore employer shall

not be held liable to a shipowner for damages paid by

the shipowner to longshoremen and any warranties to the

contrary shall be void. 33 USCA § 905(b). These amend-

ments did not become effective until November 1972. The

instant case was tried in 1971 and final judgment in the

district court was entered on March 21, 1972.

Without further consideration of the previous decisions

of this Circuit or the conflict with those of the other cir-

cuits, we note that Congress has removed the underlying

basis for the decisions. Moreover, we are not convinced

2. The Third Circuit has taken a position somewhat near the rule

of this Circuit. See Shaw v. Lauritzen, 3 Cir., 1970, 428 F.2d 247,

251, where the court approved a jury instruction which provided:

“If you find [the Stevedore’s negligence] was a substantial factor in

causing the injury, the shipowner . . . is entitled to recover ayairst

the Stevedore. . . .”

}

16

that our prior decisions are unsound. We thus proceed

to the merits on the “factor” approach.

The district court found that the longshoreman’s con-

duct was “so grossly careless that a court might char-

acterize the injury as wholly self-inflicted.” However, the

court did find that the ship possessed a defectively de-

signed step which rendered it unseaworthy. Therefore, the

court actually reduced the longhoreman’s damages by 95

per cent rather than 100 per cent, stating that application

of comparative negligence principles should seldom result

in complete exoneration of unseaworthiness. In view of

these findings, we hold that the longshoreman’s con-

tributory negligence was so substantial as to require the

conclusion that the stevedore breached its warranty of

workmanlike performance. This result follows even though

we apply the rule that contributory negligence is only a

factor to be considered in deciding whether the warranty

is breached.

Finding a breach of the stevedore’s warranty, we pro-

ceed next to the question whether the shipowner’s con-

duct was as the district court held, sufficient to preclude

indemnity. The district court found that the ship was

“defectively designed and unseaworthy because the only

available route by which a longshoreman might proceed

from the No. 5 hold to the main deck involved a 26%

inch drop for which no ladder or step had been provided”.

The longshoreman in the instant case injured himself

while trying to negotiate this 26% inch drop.

The district court was presented with a situation of

negligence imputed to the stevedore on the one hand and

unseaworthiness on the part of the ship on the other.

The court could not prorate damages but they were in

fact prorated by the contributory negligence holding and

17

the subsequent holding on indemnity. The court left a

five percent charge against the shipowner for unseaworthi-

ness by denying indemnity. Under the “factor” rule we

cannot say that this was error.

AFFIRMED.

THORNBERRY, Circuit Judge, dissenting:

Although, as the majority points out, the 1972 amend-

ments to the Longshoremen’s and Harbor Workers’ Act

greatly diminish the importance of this case as precedent,

our duty to decide it correctly is not diminished. With

deference, I must disagree with one important aspect of

the majority's reasoning and with the result it reaches.

First, in considering the question of the stevedore’s

breach of warranty of workmanlike performance, I be-

lieve we should follow the per se rule of the Second,

Fourth, and Ninth Circuits that the longshoreman’s negli-

gence constitutes a breach of warranty of workmanlike

performance as a matter of law. This rule accords better

with the precedents and with logic than the majority’s

factor approach. If the longshoreman’s negligence is

imputed to the stevedore—and it is imputed in this Cir-

cuit as in others, see United States Lines Company y.

Williams, Sth Cir. 1966, 365 F.2d 332, 334 n.4—then

it is difficult to understand how the stevedore, having

negligently contributed to the cause of an accident through

the acts of the longshoreman, might nevertheless avoid

breaching its warranty of workmanlike performance, the

essence of which is to perform its work “properly and

safely.” Ryan Stevedoring Company v. Pan-Atlantic $/§

Corporation, 1955, 350 U.S. 124, 133, 76 S.Ct. 232, 237.

Lusich v. Bloomfield Steamship Company, Sth Cir. 1966,

355 F.2d 770 and United States Lines Company v. Wil-

18

liams, supra, upon which the majority rely, do con-

tain language supporting the factor approach, but I do

not read them to establish that approach in this Circuit.

Those cases reversed because the trier of fact had

failed to consider the longshoreman’s negligence at all

on the question of breach of warranty, but did not limit

the scope of that consideration to that due a “factor” or

otherwise preclude the per se approach. In this case, of

course, the per se approach yields the same results as

the factor approach of the majority: the warranty of

workmanlike performance was breached.

On the question whether the district court clearly erred

in finding the shipowner was guilty of such conduct as

to preclude indemnity I disagree with the majority's re-

sult. The only fault of the shipowner was furnishing a

ship with a twenty-six and one-half inch step—a_ con-

dition found to be unseaworthy. The district court con-

cluded, “Although the step did constitute an unseaworthy

condition, it was not particularly formidable to those

who follow an active trade and its hazards might casily

have been avoided by the use of ordinary care.” The de-

fectiveness of the step contributed only five percent to

the cause of the accident. In these circumstances, when

the shipowner's conduct is weighed against the stevedore’s

breach of warranty of workmanlike performance, Water-

man S/S Corporation v. David, 5th Cir, 1966, 353 F.2d

660, I do not believe the shipowner’s conduct could rea-

sonably be found sufficient to preclude recovery to which

it would otherwise be entitled. Its conduct did not “pre-

vent or seriously handicap the stevedore in his ability to

do a workmanlike job.” Albanese v. N.V. Nederl. Amerik

Stoomy., 2nd Cir. 1965, 346 F.2d 481; see also Corbin

on Contracts § 1264.

Accordingly, I would reverse the judgment below de-

nying indemnity.

19

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-2259

PRESTON JULIAN,

. Plaintiff-Appellee,

versus

MITSUI O.S.K. LINES, LTD., In Personam,

and M/V MEIJYUSAN, In Rem,

Defendant-Third Party

Plaintiff-Appellant,

versus

STRACHAN SHIPPING COMPANY,

Third Party

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion May 23, 1973, 5 Cir., 1973, __F.2d___),

(July 9, 1973)

——__——_____

oe mee

20

Before BELL and THORNBERRY, Circuit Judges and

GROOMS, District Judge.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in regular

active service on the Court having requested that the

Court be polled on rehearing en banc, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule

12) the Petition for Rehearing En Banc is DENIED.

THORNBERRY, Circuit Judge, dissenting: I dissent

as to the denial of the petition for rehearing.

21

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

CIVIL ACTION No. 69-G-168

PRESTON JULIAN, if

. Plaintiff, t

versus

MITSUI O.S.K. LINES, LTD., ET AL,

and M/V MEIJYUSAN, In Rem,

Defendant and Third Party

Plaintiff,

versus

STRACHAN SHIPPING COMPANY,

Third Party

Defendant.

(Filed October 2, 1971)

MEMORANDUM AND ORDER

Plaintiff, a longshoreman, brings this suit to recover

for personal injuries sustained when he slipped and fell

while working aboard the M/V MEIJYUSAN MARU as

she was moored on navigable waters at Galveston, Texas.

The vessel and its owners, Mitsui O.S.K. Lines, Ltd.,

joined as third-party defendant the stevedore contractor,

Strachan Shipping Company. The cause came on for trial

September 27 and 28, 1971, and the Court now enters

its findings of fact and conclusions of law. Rule 52, Fed.

R. Civ. P. ,

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22

Findings of Fact

(1) On the morning of April 13, 1969, plaintiff and

his gang of longshoremen reported for work at the No. 3

hatch of defendant vessel, but were immediately ordered

to proceed aft to the No. 5 hatch to complete the loading

of cotton bales there.

(2) The deck area between the forward coaming of

the No. 5 hatch and the aft coaming of the No. 4 hatch

was occupied by a raised winch deck containing winches,

masts, booms, and other equipment. This winch deck, or

platform, was 23 inches tall and had a 34 inch coaming

around its perimeter. Accordingly, the distance from the

main deck to the top of the winch deck coaming was

26% inches. There was no ladder or steps to assist a

person in stepping onto or down from this winch deck.

(3) The ladder leading down into the No. 5 hold

was attached to the forward hatch coaming on the center-

line of the vessel. The upper end of this ladder led to

the winch deck. Therefore, if a person on the main deck

wished to enter the hold, it was necessary to first step up

onto the winch deck at some point along its perimeter.

Conversely, in climbing the ladder to emerge from the

No. § hold, one found himself on the winch deck con-

fronting a 26'2 inch step down in order to move clse-

where on the ship. There was no practical alternative

route, and the long step could in no way be avoided.

Although the record is somewhat less complete on the

point than might be desired, the Court must conclude that

this means of access to and egress from the winch deck

(and the No. 5 hold) was not reasonably fit for its in-

tended purpose.

(4) In proceeding from the No. 3 to the No. 5 hold,

plaintiff's gang walked aft along the starboard. offshore

Bi a nn

23

side of the main deck; climbed up the 261% inches onto

the starboard, offshore side of the winch deck; walked

across the winch deck to the upper end of the ladder;

and, climbed down into No. 5 hold.

(5) After working in the hold for about two hours,

the gang was ordered to return to No. 3 hatch. Plaintiff,

the first man in line, climbed the ladder out of No. 5

hold, emerged upon the winch deck, and walked across

this deck to its port, inshore side. Plaintiff's route across

the winch deck led him between two hanger winch drums

located about the center of the winch deck’s port side.

These drums had rectangular frames approximately 314

feet high, 314 feet long, and 2% feet wide. They stood

about three feet apart and about eight inches from the

edge of the winch deck. Having walked between these

hanger winch frames, plaintiff reached the edge of the

winch deck and undertook to Step down to the main deck.

In so doing, he lost his balance and fell to the main deck,

Sustaining the injuries here complained of. Additionally,

either during the fall or during a premature attempt to

right himself, plaintiff caught his foot in a plainly visible

stanchion socket on the main deck.

(6) Testimony Suggesting that plaintiff’s fal] may

have been caused by grease on the deck is unconvincing

and must be rejected. There is no direct and credible

evidence supporting plaintiff's theory in this respect, which

is little more than a hypothesis constructed upon the

testimony of plaintiff and two other longshoremen to the

effect that there was grease on one of plaintiff’s shoes

after the accident, as well as grease spots on the winch

deck along plaintiff's path. Some of this testimony is

weakened by prior inconsistent statements, and it is in

any event flatly contradicted by the deposition of the

Cargo watch officer who inspected the area after the ac-

24

cident. Accordingly, it is found that plaintiff's fall was

not caused by grease on the deck.

(7) Plaintiff attempted to negotiate the 26% inch

step down from the winch deck by merely stepping for-

ward as if it were an ordinary step. He did not look

down to the main deck before stepping. He did not turn

sideways and lower himself a leg at the time. Most sig-

nificantly, he did not take the perfectly natural precaution

of supporting himself by grasping the available hanger

winch frames as he stepped down. Plaintiff obviously

knew of the necessity to make a long step from the winch

deck because the step was plainly visible and he had

stepped up onto the same deck two hours before. In view

of this knowledge, plaintiff's choice of method for nego-

tiating the step was careless, imprudent, and revealed an

almost reckless lack of regard for his own safety.

(8) To the extent that any of the foregoing findings

of fact constitutes conclusions of law, they are adopted

as such.

Conclusions of Law

(1) This Court has jurisdiction over the parties and

the subject matter.

(2) Plaintiff's injury was not proximately caused by

grease on the deck. Therefore, consideration of the pos-

sible application of the Bureau of Labor Standards Long-

shoring Regulation relating to slippery conditions, 29

C.F.R. §1504.91(c), is unnecessary.

(3) The SS MEIJYUSAN MARU was defectively

designed and unseaworthy because the only available

route by which a longshoreman might proceed from the

No. 5 hold to the main deck involved a 26'2 inch drop

for which no ladder or step had been provided.

25

(4) Third-party defendant, the stevedore contractor,

did not breach its warranty of workmanlike performance.

Accordingly, the vessel is not entitled to indemnity.

(S) Plaintiff was contributorily negligent. Although

the step did constitute an unseaworthy condition, it was

not particularly formidable to those who follow an active

trade and its hazards might easily have been avoided by

the use of ordinary care. The manner in which plaintiff

descended the step was so grossly careless that a court

might reasonably characterize the injury as wholly self-

inflicted, thus reducing the recovery by 100%. However,

such a disposition would not be in keeping with the spirit

of Manning v. M/V “Sea Road”, 417 F.2d 603 (Sth Cir.

1969), which teaches that the application of comparative

negligence should seldom, if ever, result in the complete

exoneration of unseaworthiness. Accordingly, by reason

of his own negligence, plaintiff's recovery shall be reduced

by 95%. |

(6) To the extent that any of the preceding conclu-

sions of law constitute findings of fact, they are adopted

as such.

(7) The foregoing findings of fact and conclusions

of law supersede in all respects those announced from the

bench at time of trial.

The Clerk shall send copies of this Memorandum and

Order to all counsel. Counsel for defendant shall submit

a proposed form of judgment consistent with the fore-

going, after approval as to form by all counsel, within 15

days.

DONE at Houston, Texas, this 21st day of October,

1971.

JAMES NOEL

James Noel

Judge

26

(Caption Omitted)

(Filed November 15, 1971)

SUPPLEMENTAL

MEMORANDUM AND ORDER

Upon unopposed motion of third-party defendant for

additional findings and conclusions, Rule 52(b), Fed. R.

Civ. P., this Court's Memorandum and Order entered

October 22, 1971, is hereby amended to include two

additional conclusions of law, to wit:

(8) The defendant shipowner by furnishing a de-

fectively designed and unseaworthy vessel hindered

the stevedore’s performance and was guilty of con-

duct sufficient to preclude indemnity.

(9) The third party defendant’s workmen's com-

pensation insurance carrier, Texas Employers’ In-

surance Association, shall recover the compensation

and medical expenses paid to and on behalf of the

plaintiff from any recovery ultimately awarded to

the plaintiff herein.

The Clerk shall send copies of this Memorandum and

Order to all counsel.

DONE at Houston, Texas, this 12th day of November,

1971.

JAMES NOEL

James Noel

Judge

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27

(Caption Omitted)

(Filed December 13, 1971)

SUPPLEMENTAL MEMORANDUM

AND ORDER NO. II

This tripartite longshoreman’s suit having come on

for trial, the Court entered its findings of fact and con-

clusions of law on October 22, 1971. The ship was found

to be unseaworthy, but the. longshoreman’s recovery was

reduced by 95% by reason of his contributory negli-

gence. The stevedore was exonerated on the ground that

it did not breach its warranty of workmanlike perform-

ance.

On November 1, 1971, the stevedore filed a motion

for additional findings of fact and/or conclusions of law.

Such a motion is authorized by Rule 52(b), Fed. R. Civ.

P., and was duly placed on the motion docket and

noticed to all parties for submission on November 8,

1971, the motion day. This procedure was in conformity

with long-standing local practice, with which all parties

were familiar. See Local Rules 24 and 25 (S.D. Tex.).

Motion day having come and gone without expression of

Opposition or response of any kind by defendant vessel,

the Court on November 12, 1971, granted the stevedore’s

motion and added to its findings and conclusions a Con-

clusion of Law (8), to-wit:

(8) The defendant shipowner by furnishing a

defectively designed and unseaworthy vessel hindered

the stevedore’s performance and was guilty of con-

duct sufficient to preclude indemnity.

. |

ea SORTER aE DIRE DRE SARA eS atom RpNZ Case

CT 6 bat a,

28

On November 26, 1971, more than a fortnight after

its opposition should have been made known to the

Court, defendant vessel filed a motion to set aside the

amendment, stating that “(a)lthough we neglected to

file a formal opposition to that motion, that motion as

regards to supplemental finding No. 8 was and is op-

posed.” This motion to set aside has been timely opposed

by the stevedore, and is now ripe for disposition.

Under the circumstances of the instant case, when

the trier of fact weighs the substantiality of the ship’s

fault against the stevedore’s relative innocence, cf. South-

ern Stevedoring & Contracting Co. v. Hellenic Lines,

Ltd., 388 F.2d 267, 271 (Sth Cir. 1968), it is apparent

that indemnity should be precluded. The 26-inch drop

from the winch deck to the main deck was a physical

characteristic of the ship, and, as between the ship and

the stevedore, the former was clearly “the party best

situated to adopt preventive measures and thereby reduce

the likelihood of injury.” /talia Societa v. Oregon Steve-

doring Co., 376 U.S. 315, 425 (1964). Additionally,

a finding of preclusion is entirely consistent with the

Court’s previous finding that the stevedore did not breach

its warranty of workmanlike performance. Waterman

Steamship Corp. v. David, 353 F.2d 660, 663 (Sth Cir.

1965), cert. denied 384 U.S. 972 (1966).

Given the rather unusual factual situation here pre-

sented, where a subtly dangerous structural characteristic

of the ship combines with a longshoreman’s extraordinary

carelessness to produce the injury, assignment of liability

to the stevedore would be a bizarre and patently unjust

result. In a factually analogous case involving defective

ship design, United States District Judge Estes (sitting

ans ee

7 aE TOR Rapes

29

by assignment in the Galveston ‘Division), after finding

contributory negligence on the part of the longshoreman

but no breach of warranty by the stevedore, concluded

that “(t)he shipowner’s furnishing of the negligently

designed and constructed access way and ladder which

was the proximate cause of Maples’ injury was conduct

on the part of the Shipowner sufficient to preclude its

recovery of indemnity from the Stevedoring company.”

Maples’ Case, 1966 A.M.C. 2032, 2035 (S.D. Tex.

1966), aff'd sub nom. D/S Sverre v. Texports Stevedore

Co., Inc., 387 F.2d 648 (Sth Cir. 1968) (per curiam),

cert. denied 391 U.S. 914 (1968).

Being legally sound and Supported by the evidence,

Conclusion of Law (8) must stand. To the extent that

it constitutes a finding of fact, it is, of course, adopted

as such. Accordingly, defendant's motion to set aside

is denied.

The Clerk shall send copies of this Memorandum and

Order to all counsel.

DONE at Houston, Texas, this 10th day of December,

1971.

JAMES NOEL

James Noel

Judge

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