Petition for Writ of Certiorari — Moran Shipping Co. v. Blanco

SUPRE»,; -OURT, U,. B.

In The ies

Supreme Court of the United States

OcrToBEeR TERM, 1973

No. 73-965 ‘

MORAN SHIPPING COMPANY AND SULPHUR

CARRIERS CORPORATION,

Petitioners,

vs.

MAURO EVARISTO BLANCO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Toole, Taylor Moseley Gabel & Milton

Suite 1014 Barnett Bank Building

2

JAMES F. MOSELEY

Jacksonville, Florida 32202 E

Attorneys for Petitioners

INDEX

Page

CITATIONS TO OPINIONS BELOW ....... 1

JURISDICTION 2

QUESTIONS PRESENTED. ........ 2

STATUTE INVOLVED 3

STATEMENT OF THE CASE 4

REASONS FOR GRANTING WRIT ...... 7

CONCLUSION 13

PROOF OF SERVICE .. 14

APPENDIX A . A-l

Opinion of the United States Court of Appeals for

the Fifth Circuit denying Petitioners’ Petition for Re-

hearing and Petition for Rehearing En Banc.

APPENDIX B A-3

Opinion of the United States Court of Appeals for

the Fifth Circuit vacating and remanding the trial

court.

APPENDIX C A-8

Judgment of the United States Court of Appeals for

the Fifth Circuit.

APPENDIX D A-10

Final Judgment of the United States District Court,

Middle District of Florida, granting Petitioners’ Mo-

tion for Summary Judgment.

i

PS RE RT IEEE ET a

a oe

Fe i Se

IN DEX (Continued)

Page

APPENDIX E A-17

Judgment on Decision by the Court, of the United

States District Court, Middle District of Florida.

APPENDIX F A-18

Stay of Mandate to Order of Stay of Mandate to De-

cember 27, 1973 entered by United States District

Court of Appeals for the Fifth Circuit.

TABLE OF AUTHORITIES

Page

Cases

Drake v. General Finance Corporation of Louisiana, 119

F.2d 588 (5th Cir., 1941) ..... 10

Garrett v. Moore, 317 U.S. 239 (1942) 7

Gilbert v. United States of America, 479 F.2d 1267 (2d

Cir., 1973) 7

Harden v. Gordon, 2 Mason 541 (CC, 1823), Fed. Case

No. 6047 ll

New Haven Inclusion Cases, 399 U.S. 392 (1970) .......... 10

Thomson v. Gaskill, 315 U.S. 442 (1942) 10

Sitchon v. American Export Lines, Inc., 113 F.2d 830

(2d Cir., 1940), cert. denied 311 U.S. 705 (1940) ...... 8

Statutes

46 USCA §688 (Jones Act) 3

45 USCA §51-60 (Federal Employers’ Liability Act) ...... 12

Other

Dana, Two Years Before the Mast (1870), (Doubleday

& Co., 1959) 11

TER Sep SP PE IS

1 LANA TE UPR

PTE EA BEL FOWL TEIN GT MLE I AG NTE IS LEONE NE TIO GIO MED

In Che

Supreme Court of the United States

OcroserR TERM, 1973

No.

MORAN SHIPPING COMPANY AND SULPHUR

CARRIERS CORPORATION,

Petitioners,

vs.

MAURO EVARISTO BLANCO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Moran Shipping Company and Sulphur Carriers Corpora-

tion, Petitioners, pray that a Writ of Certiorari issue to review

the Judgment of the United States Court of Appeals for the

Fifth Circuit, entered in the above entitled case on August

20, 1973.

CITATIONS TO OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Fifth Circuit, printed in Appendix “B” is not yet offi-

cially reported.

St hil eal |

ONTO By

porte rien F8

“SNE RRLPRAY

2

The Opinion of the United States Court of Appeals for

the Fifth Circuit, denying the Petition for Rehearing and

Petition for Rehearing En Banc, printed in Appendix “A”

is not yet officially reported. The Opinion of the Judge of

the United States District Court, Middle District of Florida,

was not officially reported.

JURISDICTION

The Judgment and Opinion of the United States Court

of Appeals for the Fifth Circuit was dated August 20, 1973.

The Petition for Rehearing and Petition for Rehearing

En Banc was denied by the United States Court of Appeals

for the Fifth Circuit on November 8, 1973. Pursuant to

timely Motion by Petitioners, the United States Court of

Appeals for the Fifth Circuit has stayed the mandate to and

including December 27, 1973.

The jurisdiction of this Court is invoked pursuant to Title

28, Section 1254(1) USCA.

QUESTION PRESENTED

1. Whether a Venezuelan seaman alleged to be injured

aboard his Liberian flag vessel and represented by two mem-

bers of the Bar can execute a valid and binding Release of

his rights.

2. Whether the Court of Appeals can constitutionally

consider matters outside the record and reverse a District

Judge based upon matters not of record or before either

Court.

3

3. Whether it is justifiable and binding precedent today,

to hold that a modern day seaman is a “Ward of the Court,”

when he has been represented by two members of the Bar

at the time he executed a Release for personal injuries and

the seaman presently attempts to set same aside.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

l. The Fifth Amendment, United States Constitution.

2. The statute under which Respondent filed suit, although

nothing turns on its terms, was 46 USCA §688, (Jones Act),

which provides as follows:

Recovery for injury to or death of seaman

“Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain

an action for damages at law, with the right of trial by

jury, and in such action all statutes of the United States

modifying or extending the common-law right or remedy

in cases of personal injury to railway employees shall

apply; and in case of the death of any seaman as a

result of any such personal injury the personal repre-

sentative of such seamari may maintain an action for

damages at law with right of trial by jury, and in such

action all statutes of the United States conferring or

regulating the right of action for death in the case of

railway employees shall be applicable. Jurisdiction in

such actions shall be under the court of the district in

which the defendant employer resides or in which his

principal office is located. Mar. 4, 1915, c. 153, § 20,

38 Stat. 1185; June 5, 1920, c. 250, § 33, 41 Stat. 1007.”

NSE PETG LPS OT NT REA a esa peaenbera em am

os

STATEMENT OF THE CASE

Plaintiff served as a solderer and welder aboard the SS

“POCHTECA”. Plaintiff was a Venezuelan national and the

vessel was one of Liberian registry. While aboard the vessel

at Tampa, Florida during July, 1967 Plaintiff was injured.

A period of hospitalization at Tampa ensued and after the

hospitalization was concluded Plaintiff rejoined the vessel

at Jacksonville, Florida.

At Jacksonville, Plaintiff retained a member of the Flor-

ida Bar, William C. Bostwick. Mr. Bostwick had been a

member of the Florida Bar since February of 1952. Mr. Bost-

wick obtained a medical report from Tampa General Hospital

physicians, Fernandez and Konnell. Further, Bostwick also

obtained a report from Dr. Hook of Jacksonville reflecting

that Plaintiffs “disability...is no longer present and ...

vision is again normal.”

During September, 1967, Plaintiff left Florida to return

to his country. Mr. Bostwick continued corresponding with

Plaintiff and Plaintiff with his counsel. Further, Mr. Bost-

wick continued negotiations with Defendants’ counsel] and

successfully secured posting of Bond therefrom. Negotiation

resulted in a settlement of $1,000.00 being transmitted to Mr.

Bostwick by the Defendants. Mr. Bostwick took two actions

at that time. He had the file reviewed by another member

of the Florida Bar in his office to confirm his opinion and

it Se Se mee > Sener. Sonne, ‘ieee

Raymos, a member of the Florida Bar.

Victor Raymos, at times material, had been a member of

the Florida Bar for twelve years. He was born in Cuba and

was fluent in Spanish. He wrote to Plaintiff and received

5

letters from Plaintiff in Spanish. Mr. Raymos wrote to Plain-

tiff indicating that Mr. Bostwick had associated him in~

the case and that he, Mr. Raymos, had examined the file

and that, considering all factors, the matter should be settled

for $1,000.00.

Plaintiff corresponded to Mr. Raymos indicating that he

would accept the $1,000.00 on the condition that the com-

pany, i.e., Defendants, would perform plastic surgery on his

face. However, Mr. Raymos in a direct and forthright fashion

wrote to Plaintiff on October 29, 1968 in Spanish and stated

unequivocally that the $1,000.00 would be a complete settle-

ment and that nothing further would be paid and there

would be no operation. So that there would be no misunder-

standing of his advices, Mr. Raymos indicated to Plaintiff

to sign at the bottom of the letter, thereby accepting the

terms of the letter, and instructed Plaintiff to return the

letter to him so that he would be authorized to accept the

settlement offer. Plaintiff returned the letter with the ac-

eeptance executed, mailing same from Caracas, Venezuela.

Thereafter, Mr. Raymos received the check from Defend-

ants with the accompanying Releases. The Releases were

submitted by Plaintiffs counsel to Honorable Morris B. Bern-

baum, the Ambassador of the United States in Caracas, for

execution. Plaintiff appeared at the American Embassy and

the Embassy reported to Mr. Raymos that Plaintiff needed

further assistance in executing the Release. In order to

avoid any misunderstanding it was suggested to Mr. Blanco

that he bring his own translator to the Embassy. Plaintiff

in fact brought his own interpreter, Ramulo Moeller, and the

Release was executed at the American Embassy before three

witnesses, and in the presence of Plaintiffs own translator.

The Release was certified to have been interpreted to Plain-

PACER

DO rere en i

6

tiff by Plaintiffs own translator, the aforementioned Mr.

Moeller.

The monies were thereupon forwarded to Plaintiff's coun-

sel and thence to Plaintiff. The Plaintiff received the money.

From April, 1969 until November, 1971, the matter was

dormant until suit was filed in the United States District

Court.

In November, 1971, Plaintiff filed suit for injuries result-

ing from the July, 1967 accident. Plaintiff was represented

by a member of the Florida Bar with a member of the New

York Bar appearing of counsel. Suit was filed in the United

States District Court in and for the Middle District of Flor-

ida, Jacksonville Division.

Among other defenses, Defendants alleged that Plaintiff

had freely executed the aforementioned Release concerning

the July, 1967 accident. Defendants further deposed the

members of the Florida Bar who had represented Plaintiff

throughout the settlement negotiations. At neither deposi-

tion was Plaintiff's present counsel in attendance.

Defendants moved for Summary Judgment and the Court

granted same pursuant to its Order and Opinion of March

22, 1973. On that date, Judgment was entered in favor of

Moran Shipping Company and Sulphur Carriers Corporation

and the action dismissed on the merits (Appendix D).

The United States Court of Appeals for the Fifth Circuit

reversed (Appendix B).

OLS SEE PAE AT SR LOPLI EL PEA IIE ROE IELTS

7

REASONS FOR GRANTING THE WRIT

A. A RELEASE EXECUTED BY A SEAMAN REPRE-

SENTED BY TWO COMPETENT ATTORNEYS,

WHERE THE SEAMAN AND ATTORNEYS ACT

WITH LEGAL AND MEDICAL ADVICE CONSTI-

TUTES A BINDING RELEASE AS A MATTER OF

LAW.

The Ruling of the United States Court of Appeals for

the Fifth Circuit effectively makes settling a seaman’s case

impossible. If representation by two competent counsel is

not enough, indeed what must it take?

The test of Garrett v. Moore, 317 U.S. 239 (1942) is not

achieving the impossible, but merely securing an assurance

that the seaman has a “full understanding of his rights” and

is not mistreated. The reason for the rule arose from the

days of wood ships and hardships, where overreaching by the

shipowner was most possible. The reason for the rule, set

forth in Garrett was never to be interpreted so as to make

good faith, fair handed negotiations impossible. But such

an impossibility will result under the Opinion of the United

States Court of Appeals for the Fifth Circuit.

The Opinion of the United States Court of Appeals for

the Fifth Circuit is in conflict with fair and reasonable in-

terpretations of seaman’s rights, such as appears in Gilbert

v. United States of America, 479 F.2d 1267 (2nd Cir., 1973).

In that case, Plaintiff seaman, one Gilbert, attempted to set

aside a settlement on the basis that same was not authorized.

The United States Court of Appeals for the Second Circuit

stated that where express authority is given, an attorney

may compromise the matter and same is binding upon his

8

The Respondent seaman herein was adequately and amply

represented by two members of the Florida Bar during his

settlement negotiations. The trial court had depositions of

both counsel before the court in making the initial decision.

The Respondent retained, in Jacksonville, counsel of twenty

years experience and the court found him to be most compe-

tent. Since Respondent spoke Spanish and saw fit to return

home to Venezuela, the Jacksonville counsel obtained ad-

ditional counsel on behalf of Respondent and sought Spanish-

speaking and Cuban-born counsel so as to better communi-

cate and advise on the merits of Respondent’s claim.

The matter for this Court to consider and the reason to

grant this Writ is to determine whether or not a seaman’s

cause of action may be compromised. Must a vessel owner

require to be included the direct communications between the

seaman’s attorneys and the client seaman? Must vessel owners

allow each and every case to go to trial and result in Judg-

ment by a court or jury before a matter is concluded?

Unless this Court rules on this matter the decision of the

Fifth Circuit leads to confusion, misinterpretation, lack of

uniformity and more litigation by seamen.

The decision of the United States Court of Appeals for

the Fifth Circuit is in conflict with the case relied upon by

the District Judge herein. In Sitchon v. American Export

Lines, Inc., 113 F.2d 830 (2d Cir., 1940), cert. denied, 311

U.S. 705 (1940) the United States Court of Appeals for the

Second Circuit recognized that when a seaman executes a

release and acts upon the advice of an attorney, the release

should not be set aside. That Court in affirming a trial

court’s Summary Judgment held that a reasonable policy basis

for this ruling was that “if such a settlement as the one in

9

the case at bar is voided, no release by a seaman could ever

be free from attack, if he subsequently discovers that his

injuries were greater than he had anticipated when exe-

cuting the release”.

A substantial period of time has elapsed since this Court

has directed its attention to the question of seamen’s releases.

The lack of uniformity that will abound by the Fifth Cir-

cuit decision as well as the confusion that will result there-

from commend that the Court grant this Writ and fully

review the decision of the United States Court of Appeals

for the Fifth Circuit concerning this vital issue.

B. THE OPINION OF THE COURT OF APPEALS IS

ERRONEOUS AND AT VARIANCE WITH THIS

COURTS DECISION IN THAT THE COURT UN-

CONSTITUTIONALLY CONSIDERED MATTERS

OUTSIDE THE RECORD AND REVERSED THE

DISTRICT JUDGE ON MATTERS NOT IN THE

RECORD BEFORE EITHER COURT.

In the instant suit, the Plaintiff sued on theories of general

maritime law, Jones Act and Liberian law (alleging in the

Complaint that Liberian law was the same as American gen-

eral maritime law). The United States Court of Appeals and

its Opinion (Appendix “B”) set forth what, to it, was a

critical factor: The fact that Plaintiff had propounded Inter-

rogatories concerning Liberian law and that same had not

been answered. The record reflects that this is untrue. There

were never any Interrogatories filed or served and therefore

none that went unanswered. This basis for the decision made

by the United States Court of Appeals and upon which their

Opinion turns was never part of this case.

SD ELI OPES OTT RES NIE

10

We respectfully suggest that if indeed justice be what is

fair and what is truthful, then the decision of the United

States Court of Appeals must be reversed.

This Court in Thomson v. Gaskill, 315 U.S. 442 (1942)

stated that the review of a District Court’s determination

concerning jurisdictional amount must be confined to the

record before the Court on appeal.

This past rule of law was not followed by the United States

Court of Appeals for the Fifth Circuit.

In New Haven Inclusion Cases, 399 U.S. 392 (1970),

the Supreme Court of the United States refused to consider

matters that were not in the record as evidence.

The United States Court of Appeals refused to follow

this recent rule of law.

In Drake v. General Finance Corporation of Louisiana,

119 F.2d 588 (5th Cir., 1941), the United States Court of

Appeals held that the Court can consider nothing save what

is stated in the record sent up from the trial court.

The United States Court of Appeals did not follow its

own rule of law.

The constitutional protection afforded the Petitioners by

the Fifth Amendment can certainly not be met when one

considers the reliance by the United States Court of Appeals

upon matters outside the record so as to vacate and remand

a case to the District Judge concerning a release entered

into with the advice of two competent attorneys.

2 — — ~ ee ee ae oe Pie cae

a eS EI =

Sy aera

ll

C. THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT IS

IMPROPER SINCE SEAMEN SHOULD BE AF-

FORDED NO FURTHER PROTECTION THAN

ANY OTHER PERSON.

In days of Justice Story sitting on circuit in 1823 deciding

the case of Harden v. Gordon, 2 Mason 541 (CC, 1823)

Fed Case No. 6047, one can conjure up a most accurate

mental picture of persons who were entitled to be “wards

of the admiralty”. In that day of wooden ships, sails, minimal

education and lack of collective bargaining, certainly this

was a category or class of persons who had no one to look

to other than the courts or government as a protector. The

status of a seaman before the world in general, and even

the courts, was not an enviable one. For example, Dana,

Two Years Before the Mast (1840) (Doubleday & Co., 1959),

it was accurately stated at Page 353 in discussing the seaman’s

plight:

“It is to be considered, also, that the sailor comes

into court under very different circumstances from

the master. He is thrown among landlords, and sharks

of all descriptions; is often led to drink freely; and

comes on the stand unaided, and under a certain cloud

of suspicion as to his character and veracity.”

Today, however, with the technical equipment aboard

modern-day vessels has come technical persons possessing

highly sophisticated skills and abilities. Their education un-

like one hundred and fifty years ago, would exceed that of

the “man on;the street” who receives no special recognition

or treatment as a “ward”. In its decision of the instant case,

the United States Court of Appeals for the Fifth Circuit,

12

failed to recognize this fact, thereby allowing the law of sea-

men and seamen’s releases to remain static and antiquated.

Competent attorneys are readily available to seamen, as

indeed they are to an increasing segment of the American

community. Further, seamen are able to have the benefits

of collective bargaining which have increased their well-

being and standing in the community.

The traditional “ward of the admiralty” has mentally, in-

tellectually and socially grown up, and he can no longer be

considered a “ward”. The law of this land should recognize

that fact and the law applied in the instant case as to

Petitioners and Respondent should be no different than any

state law or appropriate federal law such as the Federal

Employers’ Liability Act, 45 USCA §51-60.

For this reason, we respectfully urge the Court to grant

this Writ to review the law of seamen’s releases and to

modernize the law in this vital area of admiralty.

. - <nasaIon ees ~ sa SES TRI eg SS See cae

SELES SIS LET SLES EIU NE LIL LI oo TEI RIE IE NE Ee ND !

13

CONCLUSION

The United States Court of Appeals misinterpreted Garrett,

supra, and entered its decision in conflict therewith and in

conflict with other circuits. Further, the United States Court

of Appeals improperly relied upon matters not in the record.

Further, the matter of releases executed by seamen should

be equally treated with other releases executed by non-

seamen. For these reasons, a Writ of Certiorari should issue.

Respectfully submitted,

JAMES F. MOSELEY

TOOLE, TAYLOR, MOSELEY, GABEL & MILTON

Suite 1014 Barnett Bank Building

Jacksonville, Florida 32202

By

JAMES F. MOSELEY

Attorneys for Petitioners

LS RELIES a ERLE Ge IERIE OL ET RSE RE TE EOR

14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has

been furnished to GERALD SOHN, ESQUIRE, Post Office

Box 104, Jacksonville, Florida; THOMAS M. BREEN, ES-

QUIRE, 160 Broadway, New York, New York 10038; and

upon CHARLES R. MALONEY, ESQUIRE, 822 Richards

Building, New Orleans, Louisiana 70112, by United States

Mail this day of December, 1973.

JAMES F. MOSELEY

Attorney for Petitioners,

Moran Shipping Company and

Sulphur Carriers Corporation

APPENDIX

Steed nant oat Eo oe ge

bane Se >: Na aed oe ee he et dS

A-l

APPENDIX “A”

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-2130

MAURO EVARISTO BLANCO,

Plaintiff-Appellant,

versus

MORAN SHIPPING COMPANY and

SULPHUR CARRIERS CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Aug. 20, 1973, § Cir., 1973, ........ F. 2d ........).

November 8, 1973)

Before WISDOM, AINSWORTH and CLARK,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DENIED and

no member of this panel nor Judge in regular active service

PETE ETD ET POOR as BNE

A-2

on the Court having requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 12) the Petition for Re-

hearing En Banc is DENIED.

MORAN

SULPHUR

SHIPPING COMPANY and

CARRIERS

A-4

Blanco. The motion for summary judgment was based upon

depositions by the attorneys who represented Blanco at the

time he gave the release. Counter-affidavits were submitted

by Blanco and by one of his present attorneys.

The issue is framed in the language of the classic test set

out in Garrett v. Moore-McCormick Company, 317 U.S. 239,

248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 245 (1942):

. . . the burden is upon one who sets up a seaman’s

release to show that it was executed freely, without

deception or coercion, and that it was made by the

seaman with a full understanding of his rights. The

adequacy of the consideration and the nature of the

medical and legal advice available to the seaman at

the time of signing the release are relevant to an ap-

praisal of this understanding.

This circuit has paraphrased the Garrett test in this language:

. . . the burden is on the party setting up the sea-

man’s release to show that it was given by the seaman

with an informed understanding of his rights and a

full appreciation of the consequences of his release.

Cates v. United States, 451 F.2d 411, 414 (1971).

The shipboard accident giving rise to this action occurred

on July 24, 1967 in Tampa, Florida waters and resulted in

Blanco’s hospitalization in Tampa General Hospital. Follow-

ing his discharge from this hospital, Blanco went to Jackson-

ville, Florida where his ship was then in dry dock and came

under the care of a doctor there. He su was re-

leased from the ship and thereupon employed a Jacksonville

attorney who spoke and understood only English. Blanco

Ota

A-5

spoke and understood only Spanish. To make communica-

| tive Venezuela. When a settlement offer eventuated, Blanco’s

English-speaking attorney deposed:

I wrote Mr. Blanco in April of 1968 that I needed

to get a statement from him as to how his injuries

were currently bothering him, what sums he owed for

doctors and medicines, the number of times he has

been treated by a physician since the first of Febru-

ary.

I don’t think I ever got any intelligent reply to that.

Every letter I had was not responsive to it, but I be-

lieve about the time I associated Victor Ramos in the

case and — I'm certain I did by October, 1968.

I see one letter that is translated by Mr. Ramos. It

says, and this is from Blanco — “as of this moment I

have no report.”

Victor Ramos, referred to in this testimony, is another

Jacksonville attorney who was associated by Blanco’s first

counsel because of Ramos’ literacy in both Spanish and

to have been based solely upon the medical reports cover-

ing the Tampa hospitalization or the Jacksonville doctor's

treatment.

bhai abe? eter ee bs oh Sontten

inl ones

In his counter-affidavit, Blanco swears that he had accident-

related plastic surgery at the University Hospital in Caracas,

Venezuela in January, 1969 which was shortly prior to the

consummation of the settlement. He further avers that when

settlement was first advised by his then attorneys, he de-

murred because he needed additional surgery and did not

a Se “ROSS

A-6

want to bear the expense himself. He also inconsistently

declared under oath in the same affidavit that he did not

understand the legal effect of the release and executed it

because he thought it represented no more than a receipt

for his wages aboard ship. The other counter-affidavit, by

one of Blanco’s present counsel, contends that Blanco may

have a right of action under Liberian law because of the

vessel's registry and an additional action under American

law because the vessel might be a “flag of convenience ves-

sel.” The affidavit of counsel further swears that he must

have the answers to previously filed but yet unanswered

interrogatories to know whether Blanco possessed this addi-

tional potential claim at the time he was advised to settle

— information which would go to the adequacy and efficacy

of the legal advice he then received.

The district court utilized the correct legal test from Gar-

rett. The applying it to the facts the court found that there

was no genuine issue as to Blanco’s understanding of the

nature and legal effect of the release that he executed or

as to the fact that Blanco had intimate knowledge of the

various medical procedures which had been performed on

his own face. The court also found Blanco had been afforded

“adequate legal advice.” The problem lies in this latter find-

ing. The depositions of counsel show that their advice to

Blanco was given without knowledge of his Venezuelan sur-

gery. Counsel Ramos described the medical report he ex-

amined as “very mild.” The last report referred to by Blanco’s

English-speaking counsel was dated September 7, 1967. Ob-

viously if counsel were not aware of the subsequent surgi-

cal procedures and their costs and sequelae or any prognosis

for further surgery, they were in no position to advise their

client as to the adequacy of the proposed settlement. There

similarly remains unresolved at this point in this cause the

rest 4 SE eR RAE 9 Be CET EAL ORES,

?-

A-7

legal status of any dual Liberian-American claim Blanco may

be able to assert, it is simply unknown whether either counsel

was aware of such potential claim or took it into account in

arriving at their evaluation.

Giving Blanco the benefit of all reasonable doubts in de-

termining whether a genuine issue of material fact exists [see

C. Wright, Federal Courts 443 (2d ed. 1970)] we must say

on the basis of this summary judgment record that such an

issue remains and must be tried. Without the slightest in-

tent of intimating any decision on the merits, we vacate

the summary judgment entered herein and remand this cause

for further proceedings not inconsistent with this opinion.

VACATED and REMANDED.

D. C. Docket No. CA 71-944-J-S

MAURO EVARISTO BLANCO,

Plaintiff-Appellant,

versus

MORAN SHIPPING COMPANY and

SULPHUR CARRIERS CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Florida

Before WISDOM, AINSWORTH and CLARK,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Middle

District of Florida, and was taken under submission by the

Court upon the record and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here or-

FI OE EET ORE TIE ES Se Pa ees z has SN fla ate et Sead ic ee

Se eel

A-9

dered and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby, va-

cated; and that this cause be, and the same is hereby re-

manded to the said District Court in accordance with the

opinion of this Court;

It is further ordered that defendants-appellees pay to

plaintiiff-appellant the costs on appeal to be taxed by the

Clerk of this Court.

August 20, 1973

a

Issued as Mandate:

— oe Ss -

Te2= cca OF RS

A-10

APPENDIX “D”

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

No. 71-944-Civ-J-S

MAURO EVARISTO BLANCO,

Plaintiff,

v.

MORAN SHIPPING COMPANY and

SULPHUR CARRIERS CORPORATION,

Defendants.

Filed Ocala, Florida March 22, 1973

ORDER AND OPINION

Plaintiff, a merchant seaman, seeks damages pursuant to

the Merchant Marine (Jones) Act, 46 U.S.C. § 688, for per-

sonal injuries suffered in the course of his employment. The

defendants move for a final summary judgment on the basis

of an accord and satisfaction in the nature of a full release

executed by the parties.

Plaintiff was injured on June 24, 1967, while attempting

to unclog certain sulphur pipes aboard the SS POCHTECA

on which he was employed as a solderer and welder. The

sulphur was emitted from the valves and bumed the plain-

A-ll

tiffs face and eyes. The same day he was admitted, at the

Moran Shipping Company’s expense, to Tampa General Hos-

pital where he remained an inpatient for 15 days. The diag-

nosis was second degree burns of the face, eyelids, conjunc-

tiva and cornea. The doctor’s prognosis was that the plaintiff

would “do very well as far as his eyes are concerned.”

The Moran Shipping Company then sent the plaintiff to

another doctor in Jacksonville for further treatment. After

plaintiffs discharge from employment, he returned to Vene-

zuela where plastic surgery was done on his face. Plaintiff

claims that he still suffers from pains in his eyes and head-

aches and that he needs additional plastic surgery.

The plaintiff executed releases for the amount of $1,000.00

when he was in Venezuela. These plenary releases form the

basis for the defendants’ motion for summary judgment. The

plaintiffs response to this motion is that the said releases

were not valid and therefore without legal effect. The plain-

tiff bases his conclusion on his contention the release was not

fair and was not based on competent medical and legal advice

as is required by the leading case of Garrett v. Moore-Mc-

Cormack Co., 317 U. S. 239 (1942). That case held that “the

burden is on the one who sets up a seaman’s release to show

that it was executed freely, without deception or coercion,

and that it was made by the seaman with a full understand-

ing of his rights. The adequacy of the consideration and the

nature of the medical and legal advice available to the sea-

man at the time of signing the release are relevant to an

appraisal of this understanding.” Id. at 248.

That the plaintiff was afforded adequate legal advice is

supported by the depositions of the two attorneys, Mr. Wil-

liam C. Bostwick and Mr. Victor Ramos, who advised the

P

Be see ennerncearp om ssi mere ae ERE RNIN

A-12

plaintiff in his negotiations with the defendants prior to the

execution of the releases. The plaintiff initially solicited the

legal advice of Mr. Bostwick concerning his rights in regard

to his injuries. Mr. Bostwick filed a libel on the plaintiff's

behalf in this Court in 1967, No. 67-626-Civ-J. In order to

avoid any misunderstanding due to the language barrier, Mr.

Bostwick associated Mr. Victor Raymos, a Cuban-born attor-

ney, who wrote and spoke both Spanish and English fluently.

Both of these attorneys, who were adinittedly able and ex-

perienced members of The Florida Bar, advised the plaintiff

to accept $1,000.00 as “a good settlement” considering cer-

tain factors: the cost of having Mr. Blanco come to Florida

to attend trial and his expenses during the trial and on the

legal opinion of these two lawyers that there was no guaran-

tee that a jury would award him more than $1,000.00.

Mr. Raymos deposed that the release was executed in the

presence of the United States Ambassador to Venezuela, wit-

nesses, a notary public, an interpreter and Mr. Blanco’s own

interpreter. This was not controverted by any of the affi-

davits submitted by the plaintiff.

The plaintiff's contention that he did not understand the

legal nature and effect of the release is contradicted by the

plaintiff's own affidavit which states that he initially would

not sign the release because he thought he needed plastic

surgery. After Mr. Raymos advised him that the company

would not pay for the plastic surgery he decided to sign it

anyway. If Mr. Blanco did not understand that he was re-

linquishing all of his rights against the company he would

not have attached such a condition to the execution of the

release in the first place. Therefore, this Court holds that

there is no genuine issue of material fact that Mr. Blanco

understood the legal nature and effect of the releases which

he executed.

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8

A-13

As to the nature of the medical advice available to Mr.

Blanco at the time of the execution of the release, the affi-

davits and exhibits attached to the pleadings clearly indicate

that the paintiff was fully apprised of the nature, status and

effects of the injuries which he sustained as a result of the

accident. Mr. Blanco executed the releases on April 21, 1969,

almost two years after the injuries were sustained. He had

been examined and treated by physicians on two separate

occasions in Tampa and Jacksonville, Florida, in 1967, and

had plastic surgery performed on his face in Caracas, Vene-

zuela, in January 1969, only three months prior to the exe-

cution of the releases. With the benefit of all this medical

treatment, Mr. Blanco cannot honestly assert that he was

lacking in adequate medical advice at the time he executed

the releases. Therefore, this Court holds that there is no

genuine issue of material fact as to the sufficiency or ade-

quacy of the medical advice available to Mr. Blanco at the

time he signed the releases.

As to the adequacy of the consideration, it is uncontro-

verted that Mr. Raymos and Mr. Bostwick fully apprised

the plaintiff of the countervailing economic considerations

which militated against proceeding to trial: the costs of travel

to the United States for the plaintiff, the living expenses in-

cident to his sojourn here during the trial, as well as the

lack of any assurance that a jury would render a verdict for

more than $1,000.00. Under these circumstances, the plain-

tiff cannot seriously contend that he was overreached eco-

nomically. His interests were fully and ably represented by

two experienced members of The Florida Bar. Therefore,

this Court further holds that there is no genuine issue of

material fact as to the adequacy of the consideration amidst

the various countervailing considerations presented to the

plaintiff.

8B RADE HS ES TMS IPL ONS LIS OREN LN CLIT

A-14

As a result of the foregoing analysis, it seems clear that the

release in question was executed freely, without deception

or coercion, and that it was made with a full understanding

of the plaintiff's rights. The mere fact that the plaintiff was

disappointed in the payment received after payment of at-

torneys’ fees cannot alter the legal effect of the instrument

involved.

This case seems to be controlled by the following lan-

guage in Sitchon v. American Export Lines, Inc., 113 F.2d

830, 832 (2d Cir. 1940):

“It is a different thing to uphold a settlement by a sea-

man in which the compensation paid for his injuries

is adequate and the only advice he has received is

that of the physician of the employer where, as here,

he has the advice of his own doctor and lawyer whose

only bias would probably be in his own favor. If such

a settlement as the one in the case at bar is voidable,

no release by a seaman could ever be free from attack,

if he subsequently discovered that his injuries were

greater than he anticipated when executing the release.

“When a seaman has made a settlement after full in-

vestigation and with independent advice, we can see

no ground for holding it invalid. The question in any

case is whether the seaman, if he is acting alone, has

intelligence enough fully to understand the situation

and the risk he takes in giving up the right to prose-

cute his claim or whether, if he is acting under advice,

that advice is disinterested and based on a reasonable

investigation. Here the seaman and his attorney before

making the settlement relied on two examinations by

the Marine Hospital and the defendant made no sepa-

rate examination. Each party entered into a settlement

£4 IS ST IG LILI FL EES E IIR ae

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A-15

based on identical information and conducted in the fairest

manner.”

In the case sub judice, the plaintiff was assisted by two in-

dependent attorneys and several doctors in deciding whether

to sign the release.

It is well settled that unless there are circumstances show-

ing that the seaman lacked a full appreciation of his rights,

that he was under economic duress or was overreached in any

respect, a release may not be set aside. McBrien v. United

States Petroleum Carriers, Inc., 177 F. Supp. 627 (S.D. N.Y.

1959). As the foregoing analysis has disclosed, the plaintiff's

own statements belied his asserting that he did not fully ap-

preciate the rights which he relinquished. In addition, the

plaintiff's affidavits did not disclose the slightest taint of fraud,

duress, coercion or overreaching.

This Court realizes that a “seaman” is a ward of the Court

and defenses to a seaman’s claim based upon a prior release

or settlement must be looked upon with extreme care and

scrutiny. It is also true that the defendant has the burden

of showing that such defenses were fair and equitable to

the seaman. Garrett v. Moore-McCormack Co., 317 U.S.

239 (1942). Because of the independent legal and medical

advice afforded the plaintiff, the defendants have met this

burden. See Sitchon v. American Export Lines, Inc., 113 F. 2d

830 (2d Cir. 1940); McBrien v. United States Petroleum Car-

riers, Inc., 117 F. Supp. 627 (S.D. N.Y. 1959); Corneaux v.

Two-R Drilling Co., 236 F. Supp. 735 (E.D. La. 1964); Flener

v. Waterways Oil Company, 261 F. Supp. 740 (W.D. Tenn.

1966). On the facts presented in the affidavits and exhibits,

this Court concludes that there is no genuine issue of material

fact as to the fairness and equitable nature of the release in

saciltiseeiuacesimaniantaid PEG LEE SEDO OLR COMES ETE

A-16

question and that a final summary judgment is proper. Cor-

neaux v. Two-R Drilling Co., supra; Hassan v. A. M. Landry

& Son, Inc., 321 F. 2d. 570 (Sth Cir. 1963), cert. denied 375

U. S. 967 (1964).

Therefore, it is

ORDERED:

The defendants’ motion for final summary judgment is

GRANTED.

DONE AND ORDERED at Ocala, Florida, this 22nd day

of March, 1973.

/s/ CHARLES R. SCOTT

Judge

CC Gerald Sohn, Esquire

James F. Moseley, Esquire

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APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

No. 71-944-Civ-J-S

MAURO EVARISTO BLANCO,

Plaintiff,

v.

MORAN SHIPPING COMPANY and

SULPHUR CARRIERS CORPORATION,

Defendants.

Filed Ocala, Florida March 22, 1973

JUDGMENT ON DECISION BY THE COURT

It is

ORDERED AND ADJUDGED:

That the plaintiff take nothing, that this action be dismissed

on the merits, and that the defendants Moran Shipping Com-

pany and Sulphur Carriers Corporation recover of the plain- |

tiff Mauro Evaristo Blanco their costs of action. |

DONE AND ORDERED at Ocala, Florida, this 22nd day

of March, 1973. |

/s/ CHARLES R. SCOTT |

Judge

a te at ee eT ID

A-18

APPENDIX “F”

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-2130

MAURO EVARISTO BLANCO,

Plaintiff-Appellant,

versus

MORAN SHIPPING COMPANY and

SULPHUR CARRIERS CORPORATION,

Defendants-Appellees.

Filed November 27, 1973

ON CONSIDERATION OF THE APPLICATION of the

Appellees in the above numbered and entitied cause for a

stay of the mandate of this Court therein, to enable Appellees

to apply for and to obtain a writ of certiorari from the Su-

preme Court of the United States, IT IS ORDERED that

the issuance of the mandate of this Court in said cause be,

and the same is stayed for a period of thirty days; the stay

to continue in force until the final disposition of the case by

the Supreme Court, provided that within thirty days from

the date of this order there shall be filed with the Clerk of

this Court the certificate of the Clerk of the Supreme Court

that certiorari petition has been filed. IT IS FURTHER

ORDERED that the Clerk shall issue the mandate upon the

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| filing of a copy of an order of the Supreme Court denying

: the writ, or upon the expiration of thirty days from the date

of this order, unless the above mentioned certificate shall be

filed with the Clerk of this Court within that time.

/s/ CHARLES CLARK

i UNITED STATES CIRCUIT JUDGE

= — Sew eG RE