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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1093

## Text

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

ARNE RON Rn TREC REECE
me omer ,

aa

STROSS RANI IE TI

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1111%3A1. Public record. Not legal advice.