Brief for the Respondent in Opposition — Davis v. American Export Isbrandtsen Lines, Inc.

TTSMAMY | JAN OT 1074

“MICHAEL RODAK, JR..C

Supreme Cot of the United States

October Term, 1973

No. 1020

JOSEPH DAVIS,

Petitioner,

against

AMERICAN EXPORT ISBRANDSTEN LINES, INC., and

S. S. EXPORT COMMERCE, her engine, tackle, cargo, gear

and apparel.

Respondents,

and

TODD SHIPYARDS CORP.,

Third Party Defendants.

ane

ao

BRIEF OF RESPONDENT AMERICAN EXPORT

ISBRANDSTEN LINES, INC., IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI.

Davip P. H. WATSON

1 State Street Plaza,

New York, N. Y. 10004

Counsel for Respondent,

American Export Isbrandsten

Lines, Inc.

SICRIOVE LR RIL EDEL PN SES HOLY

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TABLE OF CONTENTS

Questions Presented ........:+eseeeeeeeeeereeees

Reasons Why The Writ Should Not Be Granted ....

Statement Of The Case ........eeeeceeeeceeeeeees

Point I—Petitioner was not entitled to the warranty

of seaworthiness because he was not engaged in

work traditionally performed by seamen ......-.

Point II—There was no In Rem jurisdiction in this

case, and petitioner cannot recover under the doc-

trine of Res Ipsa Loquitur because there was no

proof that the work on which he was engaged was

under the exclusive control of the respondent ....

CAE gcc cc cccccecnucesenteceeseaseuseoees

Table of Cases

Allen v. Union Barge Line Corp., 239 F. Supp. 1004

(E.D. La. 1965) affirmed 361 F.2d 217 (5 C.A.

1966), cert. den. 385 U.S. 1006 (1967) .......-.-.

Jackson v. Lykes Steamship Co., 386 U.S. 731 (1967)

Johnson v. Oil Transport Company, 440 F.2d 109

(5 C.A. 1971) 2... .cccccccsecvescccccccescccoss

Lawlor v. Socony Vacuum Oil Co., 275 F.2d 599 (2

C.A, 1960) . 0... ccccccccccccccecccccccccccccens

Manhat v. United States, 220 F.2d 143 (2 C.A. 1955),

cert. den. 349 U.S. 966 (1955) ....... ee eee eee es

Rogers v. United States, 452 F.2d 1149 (9 C.A. 1972)

11

17

10, 11

8,9

15,17

10, 11

14

3,9

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PAGE

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) .. 3

United Pilots Association v. Halecki, 358 U.S. 613

LEO APNE SAS 3, 6,9

West v. United States, 361 U.S. 118 (1959) ...... 3, 8, 9,13

Other Authorities

Prosser on Torts, Fourth Edition, 1971, chapter 4,

page 214 21... . cece eee eee e eee eeeeeeeeeeeeees 13

Richardson on Evidence, Third Edition, 1964, § 93,

Page G7 2... cc reecccccccccccccccccccccesesees 13, 14

Statutes

Rule C (3) of the Supplemental Rules for Certain

Admiralty and Maritime Claims ............... 16

Supreme Court of the United States

October Term, 1973

No. 1020

— *'

Vv

JosePy Davis, oe

Petitioner,

; against

American Export Ispranpsten Lives, Inc., and S. 8. Export

Commence, her engine, tackle, cargo, gear and apparel.

Respondents,

and

Topp Suipyarvs Corp.,

Third Party Defendants.

— '

Vw

BRIEF OF RESPONDENT AMERICAN EXPORT

ISBRANDSTEN LINES, INC., IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI.

Questions Presented

We do not agree that the questions presented by peti-

tioner on page 2 of his Petition reflect the facts and legal

issues of this litigation. °

The Trial Court found as a fact that the work on the

ship’s propeller and shaft was under the complete control

of Todd Shipyard’s Corp. and not under the control of

the Master, officers and members of the ship’s crew. Fur-

thermore, petitioner, far from being engaged in routine

ship’s maintenance, was engaged in shipyard work which

NN

was found to be outside the scope of work traditionally

performed by ship’s crews. Accordingly, petitioner’s ques-

tion No. 1 is not pertinent.

Since in rem jurisdiction was not perfected against

this vessel, petitioner's question No. 2 does not apply to

this litigation. This case (despite ambiguous imperfections

in the framing of the complaint) started as a civil action

with a demand for a trial by jury, and evolved into an

admiralty in personam action when it appeared that there ¢

was no diversity of citizenship between the parties such

as to sustain ‘he jurisdiction of the District Court on the

civil side.

We submit that the real questions presented by the

Petition are:

1. Was the Trial Court not correct in holding

that petitioner had failed to sustain his burden of

proving that the respondent was negligent or that

its vessel was unseaworthy?

2. Was the Trial Court not correct in holding

that the respondent did not owe petitioner a war-

ranty of seaworthiness because the nature of the

overall work on which petitioner was engaged was

not work traditionally performed by ship’s crews?

3. Was the Trial Court not correct in holding

that petitioner could not recover from the respond-

ent on a theory of res ipsa loquitur because peti-

tioner’s work on the propeller and tailshaft was not

under the exclusive control of the respondent?

Reasons Why The Writ Should Not Be Granted

1. Despite petitioner’s contention to the contrary there

is no conflict between the holding of this case and holdings

of other Circuit Courts of Appeal. More specifically, there

reemnpncaenggecmenne nian nner

3

is no conflict between the decision in this case and Rogers

y. United States, 452 F.2d 1149 (5 C.A. 1972), as alleged

by petitioner on page 7 of his Petition. The opinions in

this case and in Rogers v. United States, supra, bof apply

the tests and standards set forth by this Court in United

Pilots Association v. Halecki, 358 U.S. 613 (1958), and

West v. United States, 361 U.S. 118 (1959), for determining

whether a worker is entitled to the warranty of seaworthi-

ness. The differences in results are products of different

facts and not because of a difference in the standards and

tests applied by the two Courts.

2. The decision in this ease by the Trial Court and its

affirmance by the United States Court of Appeals for

the Second Circuit without opinion do not constitute any

limitation over or conflict with the principals set forth

by this Court in Seas Shipping Co. v. Sieracki, 328 US.

85 (1946), bearing on the warranty of seaworthiness owed

to workers engaged in work traditionally performed by

ship’s crews.

3. This litigation does not present an opportunity for

this Court to review issues relating to m rem liability as

they may apply to the doctrine of res ipsa loquitur, for

the simple reason that there was no in rem jurisdiction

in this case. No in rem jurisdiction was attempted, let alone

perfected.

Statement Of The Case

This is an action brought by petitioner, Joseph Davis,

to recover money damages for injuries sustained by him on

June 29, 1970, while he was working as a machinist in the

employ of third-party defendant Todd Shipyards Corp.

Plaintiff was engaged in work involving s/s Export Com-

merce, a dry-cargo freighter owned by respondent Amer-

iean Export Isbrandsten Lines, Ine.

From June 29, 1970, until July 1, 1970 s/s Export Com-

merce was in Todd’s drydock in Brooklyn for routine ship-

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4

yard repairs. The 11th of the 17 items of work which

respondent authorized Todd to perform was:

‘‘Remove propeller, pull shaft for A. B. S. 3 yr.

inspection, fit reconditioned propeller and close up

in good order.’’ (Plaintiff’s exhibit 2)

Petitioner was engaged in the drydock assisting in the

removal of the propeller from the tailshaft of the vessel.

During the course of this work the ship’s propeller, which

weighed some 47,000 pounds and had a diameter of 20 feet,

fell off the end of the shaft and struck the scoffolding on

which plaintiff and another Todd employee were standing

causing plaintiff to sustain certain personal injuries.

The ship’s propeller was to be removed for routine re-

placement and to allow the ship’s tailshaft to be pulled for

periodic inspection in accordance with the requirements of

the United States Coast Guard and the American Bureau

of Shipping.

Petitioner, who was the only witness at the trial to

claim to have been an eye-witness to the occurrence, could

not ascribe a reason for the propeller coming off the end

of the shaft.

The only witnesses on the trial were those called on be-

half of petitioner. Respondent rested at the end of peti- °

tioner’s case believing that petitioner had failed to estab-

lish a prima-facie case and had failed to sustain his burdens

of proof. ,

Petitioner’s witness Earl LaGarde, who had been as-

sistant night foreman for Todd on the evening of the ac-

cident, testified that he was in charge of the work being

performed by Todd on the propeller and shaft of the vessel

and testified further that all the equipment being used was

obtained from Todd’s own gear room. LaGarde was unable

to explain the occurrence of the accident. Finally, peti-

tioner called Captain Swensson as his expert witness with

the apparent intention of convincing the Court by his testi-

arrecie speereneneasensus cosine

5

mony that the removal of a ship’s propeller and the pulling

of a tailshaft were functions traditionally performed by

ship’s crews. The Trial Court was not impressed by Swens-

son’s testimony, especially since he responded to the ques-

tion as to whether the removal of a propeller was tradi-

tionally the work of a seaman by stating:

‘‘Well, it’s not the regular kind of work, no, but

it can be done if it is necessary’’. (Tr. 94)*

Petitioner had sought to recover against the respondent

shipowner om theories of its negligence and the unseaworth-

iness of its vessel.

The Trial Court ruled in the Opinion and Order of

November 28, 1972, that no negligence of the respondent

had been established, that no unseaworthiness of the vessel

had been proved and that in any event petitioner was not

engaged in work traditionally performed by seamen and

therefor was not entitled to a warranty of seaworthiness.

Petitioner’s motion for a new trial (which consisted

almost exclusively in an attack on petitioner’s own witness

Earl LeGarde) was denied by the Trial Court.

On appeal to the United States Court of Appeals for the

Second Circuit petitioner urged that he was entitled to a

warranty of seaworthiness, and that the doctrine of res

ipsa loquitur applied to the point where respondent was

under an obligation to come forward and establish its non-

liability. The Court of Appeals rejected petitioner’s argu-

ments and affirmed the dismissal of his complaint from the

Bench at the close of oral argument.

There is no issue presented in this case as to whether

the vessel was or was not ‘‘in navigation’’. Respondent’s

counsel has admitted throughout the litigation that the

vessel was ‘‘in navigation’. The crux of the case was

* Number references preceded by the letters Tr. refer to pages

of the original trial transcript.

whether the warranty of seaworthiness extended to

petitioner because of the contention by respondent that

petitioner was not performing duties traditionally per-

formed by members of a ship’s crew.

POINT I >

Petitioner was not entitled to the warranty of sea-

worthiness because he was not engaged in work tradition- bi

ally performed by seamen.

Since the respondent has admitted that s/s Export

Commerce was ‘‘in navigation’? at the time petitioner

sustained his injuries in the drydock, no general claim has

been made that the respondent did not warrant the sea-

worthiness of the vessel. In order for petitioner to re-

cover on his unseaworthiness claim, however, he had the

burden of establishing not only that an unseaworthy con-

dition existed, but that he was himself entitled to the war-

ranty of seaworthiness.

The ground rules for a determination on this point

were set forth by the Supreme Court of the United States

in United Pilots Association v. Halecki, 358 U. S. 613

(1958). In that case the vessel had been brought into the

shipyard for annual overhaul. One phase of the overhaul

called for dismantling and cleaning the ship’s generators

with carbon tetrachloride. Halecki, an empolyee of a sub- +

contractor involved in the carbon tetrachloride cleaning,

became ill from inhalation of carbon tetrachloride fumes

and died two weeks later. An issue arose as to whether

Halecki was entitled to the warranty of seaworthiness. The

Court wrote as follows at page 617:

‘Seas Shipping Co. v. Sieracki [328 U.S. 85]

and Pope & Talbot v. Hawn [346 U.S. 406] made

clear that the shipowner could not escape liability

for unseawothiness by delegating to others work

traditionally done by members of the crew. Whether

prscaceaeeeny sce rc rasere REAR

7

their calling be labeled ‘stevedore,’ ‘carpenter,’ or

something else, those who did the ‘type of work’

traditionally done by seamen, and were thus related

to the ship in the same way as seamen ‘who had

been or who were about to go on a voyage,’ were

entitled to a seaworthy ship.”’

The Court then continued by stating that Halecki was

not doing work traditionally done by seamen, writing as

follows:

‘‘Neither these decisions nor the policy that

underlies them can justify extension of liability for

unseaworthiness to the decedent in the present case.

The work that he did was in no way ‘the type of

work’ traditionally done by the ship’s crew. It was

work that could not even be performed upon a ship

ready for sea, but only when the ship was ‘dead’

with its generators dismantled. Moreover, it was

the work of a specialist, requiring special skill and

special equipment—portable blowers, air hoses, gas

masks, and tanks of carbon tetrachloride, all brought

aboard the vessel for this special purpose, and none

connected with a ship’s seagoing operations.”’

In commenting upon the misleading aspects of labels,

such as “‘electrician’’, or even, as in our case ‘‘machinist’’,

the Court wrote at page 618:

‘‘It avails nothing to say that the decedent was

an ‘electrician,’ and that many modern ships carry

electricians in their crew. Pope ¢ Talbot v. Hawn

explicitly teaches that such labels in this domain

are meaningless. See 346 U.S. at 413. It is scarcely

more helpful to indulge in the euphemism that the

decedent was ‘cleaning’ part of the ship, and to say

that it is a traditional duty of seamen to keep their

ship clean. The basic fact is, in the apt words of

Judge Lumbard’s dissenting opinion in the Court

of Appeals, that the decedent ‘was not doing what

any crew member had ever done on this ship or

anywhere else in the world so far as we are in-

formed.’ ’’ -

8

The same line of reasoning was followed one year later

by our Supreme Court in West v. United States, et al., 361

U.S. 118 (1959). In commenting upon petitioner’s con-

tention that he was entitled to a warranty of seaworthiness

even though he was a shore-based worker, the Court wrote

at page 122:

‘‘It would appear that the focus should be upon

the status of the ship, the pattern of the repairs,

and the extensive nature of the work contracted to

be done, rather than the specific type of work that

each of the numerous shore-based workmen is doing

on shipboard at the moment of injury. The job

analysis which the latter would call for would lead

to fortuitous results.’’ (Emphasis supplied.)

More recently, these same standards and tests were

endorsed by this Court in Jackson v. Lykes Steamship Co.

386 U.S. 731 (1967), in footnote 4 on page 734. In that

footnote the Court referred to the ‘‘wide range of maritime

employees [who] have been granted the benefits of the

seaworthiness doctrine’’, but restricted those persons to

those ‘‘who performed jobs formerly done by seamen”’.

Petitioner’s trial counsel was well aware of the need to

meet these test standards, for he called his expert witness

Captain Julie Swensson with an eye to establishing that

removing or ‘‘jumping’’ a ship’s propeller or wheel was

work traditionally performed by seamen. The comments

of the Trial Court about Captain Swensson’s testimony

indicate clearly that it too was acutely aware of the de-

cisions of this Court on the question:

‘‘Captain Swensson testified on the question of

whether or not the work of jumping a wheel could

be considered traditional seamen’s work, even if at

the present day it may be done by specialist land-

side teams. The Captain’s testimony demonstrated

the opposite of plaintiff’s contention. (A-9) * * *

No one knew of a case in which a ship’s crew

had jumped a wheel. Captain Swensson went only

—— ?

9

so far as, in effect, to say that he couldn’t see any

particular reason why a crew could not undertake

the job. He said no more than that any crew of

ablebodied handymen could do the job under right

supervision. Indeed there appears to be only one

instance in which a propellor was reportedly changed

by a ship’s crew, and the incident was remarkable

enough to become a little legend.’’ (A-10)

Furthermore, petitioner’s attempt to characterize him-

self as a machinist engaged on ‘‘routine maintenance work’’

did not carry the day, for the Trial Court rejected this

contention writing:

“The conclusion is inevitable that the jumping

of a wheel was not ship’s work or crew work either

in tradition or in current practice. In this situation,

no help is gained by reference to an extended con-

cept of erew work which would define it in terms of

the overall nature of the whole job undertaken at

Todd and de-emphasize the nature of the subordi-

nate activity within that whole. In a generalized

sense drawing a tailshaft is related to ship mainte-

nance and certification, but it is not an operation

that could normally be done at sea, and is sufficiently

specialized to remove it from the class of activities

analogous to crew activities and in that sense en-

titling the workers involved in it to the warranty of

seaworthiness. It is peculiarly a shipyard kind of

work, is work on the vessel rather than work of the

ship, and work done by outsiders to the vessel and

not crew work normal to the ship.’’ (A-10)

Here again, the Trial Court is obviously referring to

the principals set forth by this Court in Halecki, West, and

Jackson.

The only conflict between this case and Rogers v. United

States, 452 F.2d 1149 (5 C.A. 1971), is in result rather than

in principle. The Court of Appeals for the Fifth Cireuit

specifically held at 452 F.2d 1151 that ‘*Rogers was per-

forming work traditionally engaged in by seamen’’, Since

— ©

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10

the vessel in the Rogers case was also found to be ‘‘in

navigation’’, the Court concluded that Rogers was entitled

to the warranty of seaworthiness.

Nor is there any validity to petitioner’s suggestion that

the result to date in this case is in direct conflict with the

case of Allen v. Union Barge Line Corp., 239 F. Supp.

1004 (E.D. La. 1965) affirmed 361 F.2d 217 (5 C.A. 1966),

cert. den. 385 U.S. 1006 (1967). First, we see nothing

in the series of Allen opinions from which it could be con-

cluded that the work being performed on the towboat

involved the removal of her propeller. Second, Allen was

engaged in removing a bearing from a propeller shaft,

inside the engineroom of the towboat, and the Trial Court

found specifically at 239 F. Supp. 1008:

«© * ® © that libellant was performing work tradi-

tionally performed by seamen (removing a bearing

from a propeller shaft); and that he was, at the

time of his injuries, entitled to the warranty of

seaworthiness. Lawler v. Socony Vacuum Oil Com-

pany, supra’. .

The case of Lawlor v. Socony Vacuum Oil Co., 275 F.2d

599 (2 C.A. 1960), to which reference was made in the

quotation above involved an employee of Bethlehem Steel

Company who, while working as a foreman at its shipyard,

was engaged in marking up places in the tank of a vessel

where there were leaks and cracks in the bulkhead. As

Lawlor was descending a ladder it fell backwards causing

him to sustain serious injuries. Judge Medina wrote at

page 602 in the following terms:

‘Recent holdings by the Supreme Court we think

leave us no alternative other than to hold, as we do,

that Lawlor was engaged in the type of work tradi-

tionally done by seaman [Citations]. Chief Officer

Bennett testified that at times when the vessel was

not in a shipyard for repairs the location and the

temporary repair of cracks and leaks in the tank

bulkheads were done by him and by members of the

il

crew under his supervision. Equipment, including

ladders, was on board and it could be and was used

for this purpose.’’

Petitioner criticizes the Trial Court (and inferentially

the United States Court of Appeals for the Second Circuit

tor affirming) for failing to find that petitioner was en-

gaged in work traditionally performed by seamen. We

submit respectfully that if any criticism is in order it

should be directed to petitioner and his counsel who failed

to produce the type of testimony which compelled the

courts in the Lawlor and Allen cases to conclude that these

plaintiffs were engaged in work traditionally done by sea-

men. Petitioner’s witness, Captain Julie Swensson was

unable to cite even one instance in which a ship’s crew

had removed a ship’s propeller or drawn a ship’s tailshaft.

Simply stated, petitioner failed to sustain his burden of

proof on this point.

POINT II

There was no in rem jurisdiction in this case, and

petitioner cannot recover under the doctrine of res ipsa

loquitur because there was no proof that the work on

which he was engaged was under the exclusive control

of the respondent.

On appeal to the United States Court of Appeals for

the Second Cirenit petitioner raised for the first time the

claim that he was entitled to recover under the doctrine of

res ipsa loquitur. Perhaps this was triggered by the Trial

Court’s comment in its opinion:

‘‘Even if res ipsa loquitur be invoked it would

not be directed to the ship or its owners but to Todd,

which was in charge of the work on its drydock and

under its sole supervision’’. (A-11)

Now, for the first time, Petitioner raises another new

point—that where in rem jurisdiction has been perfected

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12

there is some additional obligation on the part of a respond-

ent-shipowner to come forward and explain an otherwise

unexplained accident.

At the time s/s Export Commerce was in Todd’s dry-

dock respondent still had a Master, officers and crew on

the payroll assigned to the vessel, but there was no evi-

dence pointing to the presence of any of these persons,

either aboard the vessel, or even in Todd’s shipyard at

the time of the work being performed by petitioner on the

propeller and shaft of the vessel.

The only witness to testify to the presence or non-

presence of defendant’s employees was Earl LaGarde who,

when asked whether he had seen any of the officers of the

vessel around at the time the work was going on, replied :

‘‘Not off-hand I can’t recall seeing any officers.’’

(B-58)*

Mr. LaGarde’s ‘‘best recollection’? was that he had

seen defendant’s port engineer, but he added twice:

‘“‘T can’t swear to it.’’ (B-58)

This same witness, Todd’s assistant night foreman,

admitted that he was in charge of the job (Tr.-15), and that

the machinist and riggers were working under his super-

vision (Tr.-26). He also testified that all of the equipment

used to remove the ship’s propeller was Todd’s gear (Tr.-

28).

The decision of the Trial Court reflects the non-involve-

ment of the ship’s personnel where it was stated :

‘The work was wholly committed to Todd and

the interests of the vessel owner and those in re-

sponsible charge of the vessel was not in the per-

formance, direction or supervision of the work, but

only in checking the adequacy of Todd’s completed

performance of it.’’ (A-11)

* Number references preceded by the letter B refer to pages of

petitioner’s appendix in the Court of Appeals.

13

In commenting further upon plaintiff’s negligence claim

against the defendant shipowner the Trial Court wrote:

‘‘What might have been the responsibility of

ship’s crew if they had seen something done which

manifestly endangered someone in plaintiff’s posi-

tion is not raised by the ease. There was no evidence

that any ship’s crewmen was on hand at the time,

or either was or should have been in a position to

have observed the existence of the condition in-

volved, or to have understood whether or not a

danger was present.’’ (A-11)

The fact situation is closely akin to what was presented

in West v. United States, supra, where this Court wrote at

page 123:

‘« Although some of respondent’s employees were

on board the ship here, this would not attach liability

since they gave no orders, and did not participate

in the work or supervise its progress, but were

simply inspectors or observers.’’

In Prosser on Torts, Fourth Edition, 1971, chapter 4,

page 214, the elements for the application of the doctrine

of res ipsa loquitur are set forth in the following terms:

“The conditions usually stated in America as

necessary for the application of the principle of res

ipsa loquitur were derived originally from the first

edition of Wigmore on Evidence, which appeared

in 1905. They are as follows: (1) the event must

be of a kind which ordinarily does not occur in the

absence of someone’s negligence; (2) it must be

caused by an agency or instrumentality within the

exclusive contro] of the defendant; (3) it must not

have been due to any voluntary action or contribu-

tion on the part of the plaintiff.’’

In Richardson on Evidence, Third Edition, 1964, § 93,

page 67, the New York Rule is stated to be:

‘‘Where the instrumentality which caused the

accident was in the exclusive control of the defend-

14

ant, and the accident which has occurred is one

which would not ordinarily happen without negli-

gence, the facts are sufficient to justify an inference

of negligence and to cast upon the defendant the

burden of coming forward with an explanation.’’

Since the defendant-shipowner in this case rested at the

end of plaintiff’s evidence, the following statement in

Richardson, § 93, page 68, would also seem to be im point:

‘‘Even if the defendant fails to introduce any

evidence, the trial court may not direct a verdict in

favor of the plaintiff except, possibly, where the

plaintiff’s prima facie proof is so convincing that

the inference of negligence is inescapable.’’

In Manhat v. United States, 220 F.2d 143 (2 C.A. 1955),

cert. den. 349 U.S. 966 (1955), Judge Waterman of the

United States Court of Appeals for the Second Circuit

commented in the following terms at page 145 of 220 F.2d:

“The rule of res ipsa loquitur deals only with

permissible inferences from unexplained events,

Johnson v. United States, 1948, 333 U.S. 46, 68 S. Ct.

391, 92 L.Ed. 468; Jesionowski v. Boston & Maine

R. R., 1947, 329 U. S. 452, 67 S. Ct. 401, 91 L.Ed.

416 and means simply that, in a given case, the

facts of the occurrence warrant the inference of

negligence, Sweeney v. Erving, 1913, 228 U. S. 233,

33 S. Ct. 416, 57 L.Ed. 815. Thus, when the facts

disclose that the injured party was not at fault,

that the instrumentality causing the injury was in

the control of the party against whom the doctrine

is sought to be invoked and the occurrence is other-

wise unexplained, it is permissible to infer that the

party in control was negligent.’’

Since there was no evidence that the job of removing

the propeller was under the control of respondent, let alone

under its exclusive control, and since the Trial Judge found

as a fact that the work ‘‘was wholly committed to Todd’’,

there is no room for application of the doctrine of res tpsa

loquttur.

15

Even more puzzling is petitioner’s reference to in rem

jurisdiction as it might affect the obligation of the re-

spondent to come forward and explain the accident. On

page 15 of the Petition we are referred to the decision of

the United States Court of Appeals for the Fiith Circuit

in Johnson v. Oil Transport Company, 440 F.2d 109 (5

C.A. 1971) and more particularly to footnote no. 6 at the

bottom of page 115. That footnote reads as follows:

**6. Appellant’s. contention that possession and

control of the vessel are immaterial here because

in rem liability has been asserted against the vessel,

is untenable. As appellee points out (and we have

found nothing in the record to the contrary), in rem

jurisdiction was not ‘perfected in this case by ap-

pellant. There, of course, can be no in rem liability

without compliance with the requisites for in rem

jurisdiction. See Federal Rules of Civil Procedure.

Supplemental Admiralty Rule C.’’

Equally ‘‘untenable’’ is the argument made by peti-

tioner here, for there was no in rem jurisdiction and there

could not be any in rem liability.

The captions on the originals and service copies of the

Summons and Complaint as prepared by petitioner’s

counsel appear as follows:

16

UNITED STATES DISTRICT COURT

Eastern District or New York

71 C 1190

LIBEL ead COMPLAINT EY REM ead PERSONAM

Plaintiff Demands A Trial By Jury

—

—

JosepH Davis,

Libelant,

v.

American Export Issranptsen Lives, Inc., and S. S.

Export Commence, her engines, tackle, cargo, gear and

apparel.

Respondents.

>.

—

The words ‘‘libel and in rem and personam’’ had been

lined through leaving us with a civil action with a jury

demand.

No warrant for the arrest of the vessel was issued by

the Clerk or delivered to a U. S. Marshal for service as

required by Rule C (3) of the Supplemental Rules for

Certain Admiralty and Maritime Claims. S/S Export

Commerce was neither libeled nor attached. No claim of

owner was called for or filed.

The action started as a civil action with a trial by

jury demanded. Any doubt along these lines is resolved

by the Order of Judge John F. Dooling of the United

States District Court for the Eeastern of New York, to

whom the action has been assigned for all purposes in-

cluding trial. During the course of an initial pre-trial

conference before Judge Dooling on April 5, 1972, counsel

17

for respondent raised the point that since plaintiff and

defendent were both citizens of the State of New York,

there was no diversity of citizenship so as to entitle plain-

tiff to remain on the civil side of the Court and have a

trial by jury. Judge Dooling’s Conference Memorandum

and Order of April 5, 1972, opened as follows:

‘“‘There is no diversity of citizenship and the

jurisdiction of this Court in this case depends on

its being an admiralty case. It is, accordingly, a

non-jury case and the demand for a jury trial con-

tained on the face of the complaint is of no effect.’’

At most, therefore, this must be considered as an in

personam action ‘‘in admiralty’’. There were no steps

taken to perfect in rem jurisdiction, and the vessel, s/s

Export Commerce, was never before the Court.

Footnote 6 from Johnson v. Oil Transport Company,

supra, cited by petitioner in his support, could not be more

in point to refute petitioner’s entire argument.

CONCLUSION

The petition should be denied.

Davin P. H. Watson

1 State Street Plaza,

New York, N. Y. 10004

Counsel for Respondent,

American Export Isbrandsten

Lines, Inc.