# Opposition Brief — American Stevedores, Inc. v. Olaf Pedersen's Rederi A/S

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 951

## Text

IN THE

Supreme Court of the United States

Octoser Term, 1975

No. 15 “1249

AMERICAN STEVEDORES, INC.,
Petitioner,

—against—

OLAF PEDERSEN’s Revert A/S,
Respondent.

BRIEF OF RESPONDENT IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

Tuomas F. MoLanpny
One State Street Plaza
New York, New York 10004
Counsel for Respondent

Wim P. Kary, Jr. and
Haicut, GARDNER, Poor & Havens

Of Counsel

TABLE OF CONTENTS

PAGE

Statement of the Case wee 1

Porst I—

The basic issue raised by the petition is one of
limited application at present and, probably, will
I Sa I ge ciccrecieswtaiiiesditeltanccietinlerecseeinarn stinaniminene 2

Porst II—

Petitioner owed to respondent a warranty of work-
manlike performance under the facts of this case
and the contributory negligence of the former’s
employee constituted a breach of that warranty
_as a matter of law .................. RAREST SE pact

(a) The Stevedores Warranty Exists Regardless
Co Sn ee ae 5

(b) Employee’s Contributory Negligence—Breach
of the Employer’s Warranty of Workmanlike
Performance as a Matter of Law _........ 6

Pornt ITI—

This Court’s decision in United States v. Reliable
Transfer Co., Inc., 421 U.S. 397 (1975) does not
require reconsideration of Halcyon Lines v. Haenn
Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952) 8

Point IV—

Petitioner was not denied a jury determination on
the issue of conduct sufficient to preclude indem-
nity where the record discloses no evidence of
SEEN IE YA EE OL LgE Pee eee 9

Rea See id See Sei a RRR ee eee 13

li
TaBLeE oF Cases CITED

PAGE

Albanese v. N.V. Nederl. Amerik Stoomv. Maats,
346 F. 2d 481 (2 Cir, 1965) rev., 382 U.S. 283

SII ssa sdicceashasditss tacinhoousepnseacpceigranasaiaiea ast Susbnnielaes 10, 11, 13
Anzalone v. Moore-McCormack Line, Inc., 43 A.D. 2d

818, affirmed 36 N.Y. 2d 684 (1975) .... 6
Atlantic Coast Line Railroad Co. v. Erie Lackawanna

Railroad Co., 406 U.S. 340 (1972) 2000... eeeeeeeeeeee 9
Arista Cia. de Vapores S.A. v. Howard Terminal, 372

F. 2d 152 (9 Cir., 1967) ...... ‘ 3
Badalamente v. United States, 160 F. 2d 422 (2 Cir.,

gape 11
California v. Taylor, 353 U.S. 553 (1957) _.............-.. 5
Chinese Maritime Trust, Ltd. v. Carolina Shipping

Ca, SOR Fe Be TE 8 Cig BOGE einen 3
Cooper Stevedoring Co. v. Fritz Kopke Inc., 417 U.S.

Se IE itiesrarenn the anchincccnlcnatatcnehtamciemescnanaetaees 3, 8
Crumady v. Joachin Hendrick Fisser, 358 U.S. 423

Lo ener ARES A eet cert ASE 11

D/S Ove Skou v. Hebert, 365 F. 2d 341 (5 Cir., 1966) .. 11
De Gioia v. United States Lines Company, 304 F. 2d
ee Sag: MED seit ecintcrcnntidetnns 6

Ellis v. Dixon, 349 U.S. 458 (1955) . 5

Halcyon Lines v. Haenn Ship Ceiling & Refitting
Corp., 342 U.S. 282 (1952) ...... 8
Hartnett v. Reiss S.S. Co., 421 F. 2d 1011 (2 Cir.,

1970) cert. denied, 400 U.S. 852 (1970) —0. uw... 3
International Terminal Operating Co., Inc. v. N.V.
Nederl. A.S.M., 393 U.S. 74 (1968) ...............0c.c-00-c-000 12

’ BLEED THROUGH

iil
PAGE

Julian v. Mitsui O.S.K. Lines, Ltd., 479 F. 2d 432
(5 Cir., 1973), cert. denied, 414 U.S. 1093 (1973) ..3, 4,6

King v. Deutsche Dampfs-Ges, 523 F. 2d 1042 (2 Cir.,
| Eat aR ‘ 8, 12

Lawn vy. U.S., 355 U.S. 339 (1958) .... 9)

Martinez v. Compagnie Generale Transatlantique, 517
F. 2d 317 (1 Cir., 1975) cert. denied, —— U.S. ——,
46 L.Ed. 2d 636 (1976) .. 3, 4

McLaughlin v. Trelleborgs Angfartygs A/B, 408 F. 2d
1334 (2 Cir., 1969) cert. denied, 395 U.S. 946 ....3, 6, 7,12

Nye v. A/S D/S Svendborg, 501 F. 2d 376 (2 Cir.,

1974) cert. denied, 420 U.S. 964 (1975) _00.. 7
Old Dominion Stevedoring Corp. v. Polskie Linie

Oceaniczne, 386 F. 2d 193 (4 Cir., 1967) -.............. 11
Robin Dry Dock Co. v. Dahl, 266 U.S. 449 (1925) ... 6
Rodriguez v. Olaf Pedersen’s Rederi A/S, 387 F.

Supp. 754 (E.D.N.Y., 1974) affirmed, —— F. 2d ——

(2 Cir., 1975) ... 2
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350

U.S. 124 (1956) .... 3,5
Shaw v. Lauritzen, 428 F. 2d 251 (3 Cir., 1970)- ........ 3

Tebbs v. Baker-Whiteley Towing Co., 407 F. 2d 1055
Cat ee | | (enone eeceens

United States v. Howard, 352 U.S. 212 (1957) ............ 5
United States v. Reliable Transfer Co., Inc., 421 U.S.
A) SRE es Bart

iv
PAGE

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

444 F. 2d 26 (4 Cir., 1971) 3
Victory Carriers, Inc. v. Stockton Stevedoring Co.,

Ee ee Ge ND datncehctiphtsnsenenccistintonapies 11
Weade v. Dichmann Co., 337 U.S. 801 (1949) —......... 5
Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563

(ie)... 5, 9, 10

OrHer AvTHorITIEs CITED

Rule 56, F.R.C.P. .. 11

Longshoremen’s and Harbor Workers’ Compensation
Act, 33 U.S.C. $901 .. 3,6

IIE RAL ROEM ES LEB At) SNL SIONS SE i EY SOM EIERE EY GLE SP SMES So EL AINE ALOE SII:

* RLEEND THROLIGH

ad

IN THE

Supreme Court of the United States

Ocroser Term, 1975

DG asc cicseechtcenioeinais

AMERICAN STEVEDORES, INc.,
Petitioner,
—against—

OuaF PEDERSEN’s Reperr A/S,
Respondent.

BRIEF OF RESPONDENT IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

Statement of the Case

This case began as an action by one Joseph Rodriguez
to recover damages for personal injuries which he sus-
tained on July 3, 1967, while working as a longshoreman
in the employ of American Stevedores, Inc. aboard the
m/s Sunny Prince, a cargo vessel owned by Olaf Pedersen’s
Rederi A/S. American Stevedores, Inc., the petitioner
herein, was one of two parties impleaded into the suit as
a third party defendant.

Following a trial on the merits, the jury returned a
verdict in favor of plaintiff on the grounds of negligence
and unseaworthiness. Because of a further finding that
plaintiff had been contributorily negligent, the award of

2

$80,000 was reduced to $35,000. A further jury finding that
the vessel owner was not entitled to indemnity against
plaintiff’s employer was subsequently set aside by the
Trial Judge and a new trial ordered on that issue. The
judgment in favor of Rodriguez was satisfied by respon-
dent and he has not since been involved.

After reassignment of the case to another District Judge
and, prior to a second trial of the indemnity issue, the
vessel owner moved for summary judgment against the
stevedore. The motion was granted, Rodriguez v. Olaf
Pedersen’s Rederi A/S, 387 F. Supp. 754 (E.D.N.Y., 1974)
and this decision was affirmed on appeal, —— F. 2d ——
(2 Cir., 1975). Both opinions are included in petitioner’s
appendix. Respondent will not here belabor the facts of
the case for, as noted by the Court of Appeals, “... [They]
are set out in detail in Judge Neaher’s thorough opinion,
387 F. Supp. 754 .. .”

Petitioner now seeks review of a number of issues, sev-
eral of which are raised for the first time in this Court.

POINT I

The basic issue raised by the petition is one of limited
application at present and, probably, will soon become
moot.

Respondent submits that the basic issue here, discussed
in Point II B of petitioner’s brief, is whether the contribu-
tory negligence of an injured longshoreman, imputed to
his employer on a shipowner’s claim for indemnity, con-
stitutes a breach of the employer’s warranty of workman-
like performance as a matter of law. While the First,
Second, Fourth and Ninth Circuits have answered in the

3

affirmative,* the Fifth Circuit has held that a finding of
contributory negligence is but a factor to be considered in
determining the employer’s breach of warranty.**

Prior to the 1972 Amendments to the Longshoremen’s
and Harbor Workers’ Compensation Act, 33 U.S.C. § 901,
et seq., this issue was one of continuing vitality, for in
virtually all longshoreman personal injury cases the em-
ployer was inevitably impleaded under the doctrine of
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 US.
124 (1956). However, as recently pointed out by this Court
in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 US.
106 (1974) at p. 113, fn. 6, the intent and effect of the 1972
Amendments are to overrule the Ryan doctrine in all cases
arising after their effective date.

In cases decided before the 1972 Amendments were en-
acted, attempts were made to interest this Court in the
present issue but to no avail, Hartnett v. Reiss S.S. Co., 421
F. 2d 1011 (2 Cir., 1970) cert. denied, sub. nom., Grain
Handling Co. v. Hartnett, 400 U.S. 852 (1970) ; McLaughlin
v. Trelleborgs Angfartygs A/B, 408 F. 2d 1334 (2 Cir.,
1969) cert. denied, sub. nom., Golten Marine Co. v. Trelle-
borgs Angfartygs A/B, 395 U.S. 946 (1969). It came with

*See, Martinez v. Compagnie Generale Transatlantique, 517
F. 2d 371 (1 Cir., 1975), cert. denied U.S. , 46 L.Ed.2d
636 (1976); McLaughlin v. Trelleborgs Angfartygs A/B, 408
F. 2d 1334 (2 Cir., 1969) cert. denied, 395 U.S. 946; United
States Lines, Inc. v. Jarka Corp. of Baltimore, 444 F. 2d 26
(4 Cir., 1971) ; Chinese Maritime Trust, Ltd. v. Carolina Shipping
Co., 456 F. 2d 192 (4 Cir., 1972) and Arista Cia. de Vapores
S.A. v. Howard Terminal, 372 F. 2d 152 (9 Cir., 1967).

** Julian v. Mitsui O.S.K. Lines, Ltd., 479 F. 2d 432 (5 Cir.,
1973), cert. denied 414 U.S. 1093 (1973).

While it has been suggested that the Third Circuit. too, fol-
lows the factor approach, Shaw v. Lauritzen, 428 F. 2d 251 (3
Cir., 1970), a reading of that opinion shows that the court was
not dealing with a specific finding of contributory negligence.

4

little surprise, then, that in cases decided after the enact-
ment of the 1972 Amendments but arising prior to their
effective date, petitions to review the issue met a similar
fate, Julian v, Mitsui O.S.K. Lines, Ltd., 479 F. 2d 432 (5
Cir. 1973) cert. denied, sub nom., Mitsui O.S.K. Lines, Ltd.
v. Strachan Shipping Co., 414 U.S. 1093 (1973); Santiago
Martinez v. Compagnie Generale Transatlantique, 517
F. 2d 371 (1 Cir., 1975) cert. denied, U.S. ——, 46 L.Ed.
2d 636 (1976).

The reluctance to disturb established principles in their
twilight was recognized by the Court of Appeals in the in-
stant case. As Judge Feinberg stated in the concluding
paragraph of the Court’s opinion:

“Since future cases will be governed by the statute,
the reexamination of the settled law of this Circuit
which the Stevedore invites us to make would have only
the most limited practical effect.”

Respondent submits that, the opinion below expressing the
better view of the issue, as discussed in Point Il, infra,
there is even less reason for review by the Court at this
time.

POINT II

Petitioner owed to respondent a warranty of work-
manlike performance under the facts of this case and
the contributory negligence of the former’s employee
constituted a breach of that warranty as a matter of law.

It should be noted at the outset that in neither of the
courts below did petitioner seriously contend that it owed
no warranty of workmanlike performance to respondent
under the facts of this case and, accordingly, no such issue

5

is discussed in either opinion. Respondent respectfully
submits that petitioner should not now be heard to raise
such an issue* for the first time in this Court, Ellis v. Dizon,
349 U.S. 458 (1955); Lawn v. U.S., 355 U.S. 339, 362 (foot-
note); California v. Taylor, 353 U.S. 553, 557 (footnote) ;
United States v. Howard, 352 U.S. 212, 217; Weade v. Dich-
mann Co., 337 U.S. 801, 808.

(a) The Stevedores Warranty Exists Regardless of
Shipowners Fault

Quite apart from the untimeliness of petitioner’s conten-
tion, however, is its lack of merit. To contend that a steve-
dore’s warranty of workmanlike performance is “judicially
invoked” only in favor of a shipowner held liable for un-
seaworthiness and which is, otherwise, without fault, totally
ignores a fundamental precept of Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U.S. 124 (1956) where this
Court held at p. 134:

“Whatever may have been the respective obligations
of the stevedoring contractor and of the shipowner to
the injured longshoreman for proper stowage of the
cargo, it is clear that, as between themselves, the con-
tractor, as the warrantor of its own services, cannot
use the shipowner’s failure to discover and correct the
contractor’s own breach of warranty as a defense.”

So. too, in Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S.
563 (1958), the Court noted at p. 569:

“.,.In the area of contractual indemnity an appli-

cation of the theories of ‘active’ or ‘passive’ a: well as
‘primary’ or ‘secondary’ negligence is inappropriate.
Ryan Stevedoring Co. v. Pan-Atlantie S.S. Co., supra
(350 U.S. at 132, 133).”

*Point II A. of petitioner's brief.

6

Finally, respondent would point to what petitioner at p.
18 of its brief, calls a well-reasoned decision in DeGioia v.
United States Lines Company, 304 IF, 2d 421 (2 Cir., 1962)
where Judge Clark stated at p. 424:

“Whether a hazard is created by the negligence of the
shipowner or otherwise, the stevedoring firm is liable
for indemnity if a workmanlike performance would
have eliminated the risk of injury.”

(b) Employee’s Contributory Negligence—Breach of the
Employer’s Warranty of Workmanlike Performance
as a Matter of Law

Petitioner concedes that the First, Second, Fourth and
Ninth Circuits are in complete agreement that a long-
shoreman’s contributory negligence, which is imputed to
his employer on the issue of indemnity, constitutes a breach
of the employer’s warranty as a matter of law. In urging
that this Court now adopt the Fifth Cireuit “factor” ap-
proach of Julian v. Mitsui O.S.K. Lines, Ltd., 479 F. 2d
432 (5 Cir., 1973), cert. denied, 414 U.S. 1093 (1973), peti-
tioner disregards the well-reasoned dissent which would
have followed the per se rule as well as the expressed re-
luctance of the majority to re-study the issue in view of the
1972 Amendments to the Longshoremen’s and Harbor
Workers’ Compensation Act.

Again, in citing Anzalone v. Moore-McCormack Line,
Inc,, 36 N.Y. 2d 684 (1975) affirming, without opinion, the
Appellate Division’s adoption, by a divided court, of the
“factor” test, 43 A.D. 2d 818, petitioner overlooks this
Court’s admonition that state courts follow the decisions
of the federal courts when determining issues of maritime
law, Robins Dry Dock Co. v. Dahl, 266 U.S. 449 (1925).

In support of the per se approach of the First, Second,
Fourth and Ninth Circuits, respondent returns to Mc-

7

Laughlin v. Trelleborgs Angfartygs A/B, 408 F. 2d 1334
(2 Cir. 1969) cert. denied, 395 U.S. 946, wherein the choice
was carefully considered by the Second Circuit at p. 1336:

“The similarity in name between negligence and con-
tributory negligence masks un essential difference in
concept. Whereas negligence is a breach of a duty to
others and gives rise to a right in the person injured,
contributory negligence is simply a disability prevent-
ing a plaintiff from recovering. See Restatement of
Torts 2nd. §463 (1965); 2 Harper & James, Torts
§ 22.10 (1956); Prosser, Torts § 64 (2d ed. 1964). A
rule whereby the employee’s disability automatically
creates a right in the shipowner to be indemnified by
the employer can thus be sound only if the employer is
deemed to liave undertaken not simply to use reason-
able care to select, train and supervise employees so
that they will protect themselves, but to furnish em-
ployees who in fact will not negligently expose them-
selves to injury. If the warranty were only of the
more limited sort, the contributory negligence of an
employee, although some evidence of breach, would not
alone support a verdict in favor of the indemnitee, let
alone the direction of one.

“We think however that under Italia Societa per
Azioni v. Oregon Stevedoring Co., 376 U.S. 315, 84
S.Ct. 748, 11 L. Ed. 2d 732 (1964), the W.W.P. is not
so limited.”

Petitioner’s attempt to “create” an intra-cireuit conflict
within the Second Circuit is without substance. In citing
Nye v. A/S D/S Svendborg, 501 F. 2d 376 (2 Cir., 1974),
cert. denied, 420 U.S. 964 (1975), petitioner fails to ac-
knowledge the statement of the Court of Appeals, 501 F. 2d
at 380:

8

“The principles set forth in cases dealing with a
stevedore’s implied warranty of workmanlike per-
formance are not applicable in this ease.”

In the instant case, the Court of Appeals made the distine-
tion quite clear (petitioner's appendix, p. 6a) as it had
previously done in King v. Deutsche Dampfs-Ges, 523 F. 2d
1042 (2 Cir., 1975).

POINT Ill

This Court’s decision in United States v. Reliable
Transfer Co., Inc., 421 U.S. 397 (1975) does not re-
quire reconsideration of Halcyon Lines vy. Haenn Ship
Ceiling & Refitting Corp., 342 U.S. 282 (1952).

In Point II of its brief petitioner would have the Court
adopt a theory of contribution between shipowner and
stevedore in lieu of the full indemnity concept of Ryan
Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corpora-
tion, 350 U.S. 124 (1956)—another argument which was not
raised in either court below. In so doing, petitioner relies
on United States v. Reliable Transfer Co., Inc., 421 U.S.
397 (1975) and Cooper Stevedoring Co., Inc. v. Fritz Kopke
Inc., 417 U.S. 106 (1974). While both cases did adopt the-
ories of liability according to proportionate fault, neither
involved a situation where one of the parties sought to be
charged was the employer of an injured plaintiff and there-
fore not liable for contribution, as was the case in Halcyon
Lines v. Haenn Ship Ceiling & Refitting Corp., 342 US.
282 (1952). In fact, this very distinction was noted by the
Court in Cooper, supra, when it stated, 417 U.S. 106 (1974)
at 115:

“In sum, our opinion in Atlantic was not intended
to answer the question posed by the present case, as

? BLEED THROUGH

ROSEN a aa ERLE ETE NGI LLL LEN

9

its failure to diseuss Horton, Watz and Seaboard indi-
cates. Rather, Atlantic proves only that our decision
in Haleyon was, and still is, good law on its facts.”

The Atlantic decision, referred to in the quote, is, of course,
this Court’s per curiam opinion in Atlantic Coast Line
Railroad Company v. Erie Lackawanna Railroad Company,
406 U.S. 340 (1972) which, in one brief paragraph, reaf-
firmed the vitality of Halcyon.

POINT IV

Petitioner was not denied a jury determination on
the issue of conduct sufficient to preclude indemnity
where the record discloses no evidence of such conduct.

On respondent’s motion for summary judgment in the
District Court, it was held that the contributory negligence
of plaintiff, as previously found by the trial jury, was bind-
ing upon petitioner, his employer, and constituted a breach
of its warranty of workmanlike performance as a matter of
law. Petitioner then contended that, notwithstanding such
breach, it was entitled to a jury trial on the issue of whether
there was conduct on the part of respondent sufficient to
preclude recovery in indemnity under Weyerhaeuser S.S.
Company v. Nacirema Operating Company, Inc., 355 U.S.
563 (1958). After noting that such issue was ordinarily a
question of fact, Judge Neaher pointed out that:

“On this motion the parties are in agreement that
there is no additional evidence. The Court must, there-
fore, decide whether on the essentially conceded facts
a jury could reasonably infer that Pedersen’s part in
Rodriguez’ accident constituted ‘conduct on its part
sufficient to preclude recovery’ of indemnity from
American.”

1 OR

10

Under the essentially conceded facts, Judge Neaher con-
cluded that respondent had negligently created a danger-
ous condition aboard the vessel but that this did not pre-
vent or seriously handicap the stevedore in his ability to
do a workmanlike job under Albanese v. N.V. Nederl.
Amerik Stoomv. Maats, 346 F. 2d 481, 484 (2 Cir., 1965)
reversed on other grounds, 382 U.S. 283 (1965) and that it
was actually the contributory negligence of petitioner’s
employee (plaintiff) which brought about his own injuries.

In affirming, the Court of Appeals observed (Petitioner’s
Appendix p. 7a):

“The shipowner’s fault was the creation of a poten-
tially hazardous condition by uncovering the hatch
square on the ’tween deck in hatch #2 and blocking off
the light coming from above. Nothing about this
negligence on the shipowner’s part prevented or hin-
dered Rodriguez from rendering a workmanlike per-
formance, that is, from using the safe route between
hatches that was available, or at least securing ade-
quate illumination before venturing down a dark cor-
ridor into a dark hatch.”

Reported cases generally acknowledge that this Court
has not indicated, specifically, what would constitute con-
duct sufficient to preclude recovery under Weyerhaeuser,
supra. It fell, therefore, to the lower courts to formulate
a test against which a shipowner’s conduct could be judged.
In Albanese, supra, the Second Circuit stated the test as
follows, 346 F. 2d at 484:

“Whatever fault of a shipowner may be said to re-
lieve the stevedore of his duty under the warranty, it
seems plain that it must at least prevent or seriously
handicap the stevedore in his ability to do a workman-
like job.”

a a LOCI LE AOE BP LOS TOR SEI LY 7

? BLEED THROUGH

11

Despite petitioner’s assertions to the contrary, the Second
Circuit in the instant case held that the test today remains
the same. Other Circuits, too, have followed the Albanese
test, Old Dominion Stevedoring Corp. v. Polskie Linie
Oceaniczne, 386 F. 2d 193 (4 Cir., 1967); Tebbs v. Baker-
Whiteley Towing Co., 407 F. 2d 1055 (4 Cir., 1969); D/S
Ove Skou v. Hebert, 365 F. 2d 341 (5 Cir., 1966) ; Victory
Carriers, Inc. v. Stockton Stevedoring Co., 388 F. 2d 955
(9 Cir., 1968). The Albanese test having met with general
acceptance, there would appear to be no reason to discuss
the extensive quotation from Badalamenti v. United States,
160 F. 2d 422 (2 Cir., 1947) on pages 14-16 of petitioner’s
brief as that opinion, obviously, was written prior to the
birth of the Ryan doctrine and was not concerned with the
issues now before the Court.

Measured against the Albanese test, the conclusion is in-
escapable that respondent’s negligence in no way effected
Rodriguez’ decision to proceed as he did and that his con-
tributory negligence, as found by the trial jury, brought
into play the unseaworthiness of the vessel within the
meaning of Crumady v. Joachim Hendrick Fisser, 358 U.S.
423. With the parties in agreement that there was no
further evidence to be adduced at a new trial, the cause was
ready for summary disposition under Rule 56 of the Fed-
eral Rules of Civil Procedure in the District Court.

Petitioner’s contention that it was denied trial by jury
was, of course, considered by the Court of Appeals and
rejected (petitioner’s appendix p. lla, fn. 4):

“Our conclusion that the Shipowner’s conduct did
not preclude indemnity as a matter of law disposes of
the Stevedore’s contention that it was deprived of its
right to have a jury determination of the issue. Al-
though the Stevedore is correct that this is ordinarily

12

an issue of fact, Weyerhaeuser S.S. Co. v. Nacirema
Operating Co., 355 U.S. 563, 567 (1958); Hurdich v.
Eastmount Shipping Corp., 503 F. 2d 397, 401 n. 3
(2d Cir., 1974), the court of course remains free to
direct a verdict where the evidence is insufficient to
raise a jury question, and we have approved the trial
judge’s decision to do so in appropriate cases. See,
e.g., Mortensen v. A/S Glittre, 348 F. 2d 383 (2d Cir.,
1965).”

In like manner did the Court of Appeals dispose of an
identical contention by the stevedore in McLaughlin v.
Trelleborgs Angfartygs A/B, 408 F. 2d 1334 (2 Cir., 1969)
at p. 1338:

“We are reversing no jury determination here; the
jury has found that McLaughlin acted unreasonably.”

See also, King v. Deutsche Dampfs-Ges, 523 F. 2d 1042
(2 Cir., 1975) where the Court concluded its opinion, in a
footnote, as follows:

“We repeatedly have rejected appellants’ further
argument thai the grant of judgment in favor of the
shipowner on its indemnity claim against the employer
of an injured plaintiff deprives the employer of its
right to jury trial under the Seventh Amendment. See,
e.g. McLaughlin, supra, 408 F. 2d at 1337-38; Hartnett,
supra, 421 F. 2d at 1017-18. Liability is imposed as a
matter of law on the employer of a contributorily negli-
gent plaintiff once the jury has made its finding of
contributory negligence. Since the dispositive issue is
that of contributory negligence which is left to the
jury, there is no usurpation of the jury’s function.”

The reference, on p. 10 of petitioner’s brief to Inter-
national Terminal Operating Co., Inc. v. N.V. Nederl

a ERED TELE TCL ID LDV PLD L EA NIE LI RE SILA! AOA PLEO,
, BLEED THROUGH

13

A. S. M., 393 U.S. 74 (1968) may be somewhat misleading
as it is a second consideration by this Court of some of the
issues raised in Albanese, supra. To clarify any such poten-
tial misunderstanding, respondent would point out that, in
reversing on the first occasion, 382 U.S. 283, this Court
left undisturbed the test against which “conduct sufficient
to preclude recovery” was to be measured. When the case
returned to this Court, 393 U.S. 74 (1968) the sole issue
presented was whether the stevedore-petitioner had
breached its warranty of workmanlike service as a matter
of law. Unlike the present case, there was no jury finding
of contributory negligence on the part of the stevedore’s
employee, and, accordingly, this Court held that the initial
question of whether there had been a breach of the steve-
dore’s warranty should have been left to the jury.

CONCLUSION
The petition should be denied.

Respectfully submitted,

THomas F. MoLtanpuy
One State Street Plaza
New York, New York 10004
Counsel for Respondent

Wiumum P. Kary, Jr. and
Haicut, GARDNER, Poor & Havens
Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2084%3A3. Public record. Not legal advice.